STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LARRY AND MICHELLE SEAL, )

)

Petitioners, )

)

vs. ) Case No. 06-1070GM

)

SANTA ROSA COUNTY, )

)

Respondent, )

)

and )

) THE BOARDWALK AT NAVARRE, ) LLC, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its assigned Administrative Law Judge, Donald R. Alexander, on May 23, 2006, in Milton, Florida.

APPEARANCES

For Petitioners: Larry Seal, pro se

7654 East Bay Boulevard Navarre, Florida 32566-7923

For Respondent: Thomas V. Dannheisser, Esquire

Santa Rosa County Attorney 6495 Caroline Street, Suite C Milton, Florida 32570-4395

For Intervenor: William J. Shepard, Esquire

Morris, Manning & Martin, LLC 1600 Atlanta Financial Center 3343 Peachtree Road, Northeast Atlanta, Georgia 30326-1044

STATEMENT OF THE ISSUE

The issue is whether the small scale development amendment adopted by Respondent, Santa Rosa County (County), by Ordinance No. 2005-R-70 on February 23, 2006, is in compliance.

PRELIMINARY STATEMENT

On February 23, 2006, the County adopted a small-scale plan amendment (Ordinance No. 2055-R-70), which changed the future land use designation on the County's Future Land Use Map (FLUM) on a 1.15-acre parcel from Single-Family Residential to Commercial. The parcel is owned by Intervenor, The Boardwalk at Navarre, LLC (Boardwalk or Intervenor.)

On March 24, 2006, Petitioners, Larry and Michelle Seal, filed with the Division of Administrative Hearings a Petition for Formal Administrative Hearing (Petition) under Section 163.3187(3)(a), Florida Statutes (2005).1 On May 5, 2006, Boardwalk was authorized to intervene in this proceeding.

Although the Petition contained a general allegation that the map amendment was internally inconsistent with the County's Comprehensive Plan (Plan), it also contained numerous allegations regarding a zoning application which apparently

accompanied the small scale amendment application. (In addition, Intervenor's papers were primarily responsive to the zoning issue.) Because of this, a telephonic status conference was held on May 11, 2006, at which time the parties were advised that zoning issues were not relevant and that only matters pertaining to the consistency of the amendment with the Plan would be considered.

By Notice of Hearing dated April 7, 2006, the final hearing was scheduled on May 23, 2006, in Milton, Florida. At the final hearing, Larry Seal, who is a lay person, testified on his own behalf. Also, he had marked for identification Petitioners' Exhibit 1, a Special Power of Attorney executed by his wife on May 22, 2006, which appoints him as her "Attorney-in-Fact ('Agent')." That exhibit is received in evidence. The County and Boardwalk elected not to offer any evidence.

At the outset of the hearing, the County and Intervenor made an ore tenus motion to dismiss Mr. Seal as a party on the ground he did not own property adjacent to the subject of the map amendment. The undersigned denied the motion but advised the parties that the issue would be reconsidered in the Recommended Order.

The record of the hearing was preserved with electronic recording equipment. See Fla. Admin. Code R. 28-106.214(1)

("[p]roceedings shall be recorded by a certified court reporter or by recording instruments"). Therefore, there is no transcript of the hearing. No party has filed proposed findings of fact and conclusions of law.

FINDINGS OF FACT

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

1. The record in this case is extremely brief, thus accounting for the brevity of this Recommended Order. Petitioners, Larry Seal and Michelle Seal, reside at 7564 East Bay Boulevard, Navarre, Florida, an unincorporated community within the County. Although Boardwalk did not present any evidence at the hearing, for background purposes only, the parties' pleadings show that Boardwalk is a limited liability corporation which owns a 1.15-acre parcel in Navarre, Florida, and is seeking to have the land use designation on that property changed from Single-Family Residential to Commercial. The pleadings also show that the amendment was adopted by the County on February 23, 2006.

2. Mr. Seal resides within the County. Also, he attended the County meeting on February 23, 2006, and offered comments in opposition to the amendment. As such, he is an affected person and has standing to participate in this proceeding. Mrs. Seal

   did not attend the final hearing. However, Mrs. Seal's interests are represented by her husband. See Petitioners' Exhibit 1. Whether she owns property adjacent to Intervenor's parcel, as alleged in the Petition, and whether Mr. Seal made comments on her behalf at the County meeting, was not established through Mr. Seal's testimony.

3. Without citing specific portions of the Plan, in their Petition, Petitioners alleged only that the small scale development amendment adopted by the County is internally inconsistent with the Plan.2 Despite this lack of specificity, no discovery was taken by the parties prior to the hearing. At the hearing, Mr. Seal, who is a lay person, asserted that the amendment was inconsistent with Housing Element Policies 51B4 and 51B5 and with undisclosed portions of the Future Land Use Element. (Copies of the Plan itself were not introduced into evidence.) However, it became evident that the two cited policies in the Housing Element relate to land development regulations and are therefore irrelevant.3 See, e.g., Brevard

   County v. Dept. of Community Affairs et al., DOAH Case Nos. 00- 1956GM and 02-0391GM (DOAH Dec. 16, 2002; DCA Feb. 25, 2003)

   2003 Fla. ENV LEXIS 20 at *7 (consistency with land development regulations is not a compliance criterion); Robbins et al. v.

   Dept. of Community Affairs et al., DOAH Case No. 97-0754GM (DOAH

   Oct. 30, 1997; DCA Dec. 9, 1997) 1997 Fla. ENV LEXIS 231 at *18

   
   

   (land development regulations are not relevant to a plan or plan amendment compliance determination). Mr. Seal also asserted that the amendment contravened a resource extraction policy in the Conservation Element but later withdrew that assertion.

   That policy also appears to have no application to the map amendment.

4. After the County's objection to testimony regarding land development regulations was sustained, Mr. Seal indicated that he did not intend to present any other evidence since the remainder of his prepared testimony related to that subject. Although he was given an opportunity to present further relevant evidence, he rested his case. The County and Boardwalk elected not to offer any evidence in response to Mr. Seal's testimony. Except for a Special Power of Attorney executed by Mr. Seal's wife, no documentary evidence, such as copies of relevant portions of the Plan, the existing and proposed FLUM, drawings or aerial photographs of the property and adjacent area, the application, or the Ordinance which adopted the amendment, was offered into evidence by any party.4

5. Because Boardwalk did not present any evidence, there is no basis upon which to determine whether it presented written or oral comments, recommendations, or objections to the County

   during the adoption of the amendment. (In its Motion to Intervene, Boardwalk did allege that such comments were made.) Therefore, there is no evidence to establish that Intervenor is an affected person and has standing to participate in this proceeding.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 163.3187(3), Florida Statutes.

7. The parties have not stipulated to standing or any other issue. Through an ore tenus motion made at the outset of the hearing, the County and Intervenor contend that Mr. Seal does not have standing to participate because he does not own property which abuts the land on which the use is being changed. In making this argument they rely on Section 163.3184(1)(a), Florida Statutes, which reads in relevant part as follows:

   1. "Affected person" includes the affected local government; persons owning property, residing, or owning or operating a business within the boundaries of the local government whose plan is the subject of the review; owners of real property abutting real property that is the subject of a proposed change to a future land use map; and adjoining local governments that can demonstrate that the plan or plan amendment will produce substantial impacts on the increased need for publicly funded infrastructure or substantial impacts on areas designated for special protection or

      special treatment within their jurisdiction. (Emphasis added)

      
      

8. The essence of the County's and Intervenor's argument is that by amending the law in 2002, the Legislature intended that the underscored language now constitutes the exclusive (and only) way in which to qualify as an affected person in a map amendment challenge.

9. In 2002, the definition of an affected person was expanded to include owners of real property abutting other property that is the subject of a proposed change in the FLUM. See Ch. 2002-296, § 7, at 2278, Laws of Fla. This corrected a problem that had occurred when property owners in neighboring jurisdictions were foreclosed from contesting a map amendment even though they owned property adjacent to the property that was subject to a change.5 See Roth and Feagin, 2002 Reforms to

   Growth Management, FLA. B. J., July/Aug 2002, at 59. Therefore, it is concluded that a person or entity may qualify as an affected person in a map amendment challenge in one of four ways: by residing, owning property, or owning or operating a business within the boundaries of the local government, or by owning property which is contiguous to the property which is the subject of a map amendment. (In addition, they must have submitted oral or written comments, recommendations, or objections to the local government during the adoption process.)

   As a resident of the County who offered oral objections to the amendment, Mr. Seal qualifies as an affected person.6

10. Under Section 163.3187(3)(a), Florida Statutes, the local government's determination that the small scale amendment is in compliance is presumed to be correct. Further, this determination will be sustained unless "it is shown by a preponderance of the evidence that the amendment is not in compliance with the requirements of this act." Therefore, the test is whether the evidence supports or contradicts the determination of the City. Denig v. Town of Pomona Park, DOAH Case No. 01-4845GM, 2002 Fla. ENV LEXIS 220 at *8-9 (DOAH June 18, 2002; Admin. Comm. Oct. 23, 2002). This statutory burden of proof has been applied in this proceeding.

11. In their Petition, Petitioners have contended, without reference to any specific provision, that the map change is inconsistent with the Plan. At hearing, Mr. Seal (who offered lay testimony) relied upon two provisions in the Plan which relate to land development regulations. He also cited an unrelated provision in the Conservation Element. Because the cited provisions are not relevant to this matter, Petitioners have failed to meet their burden of showing by a preponderance of the evidence that the County's determination should not be

sustained. This being so, it is concluded that the challenged small scale amendment is in compliance.

RECOMMENDATION

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

RECOMMENDED that the Department of Community Affairs enter a final order determining that the small scale plan amendment adopted by Ordinance No. 2005-R-070 is in compliance.

DONE AND ENTERED this 6th day of June, 2006, in Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 2006.

ENDNOTES

1/ All statutory references are to Florida Statutes (2005).

2/ Mr. Seal's principal objection to the map change is that the owner allegedly intends to place a water retention pond on the property after the change becomes effective.

3/ As noted in Finding of Fact 3, the Plan itself was not offered into evidence. At hearing, however, Mr. Seal testified that Policy 51B4 requires that the County strictly enforce its Building and Housing Codes, as well as its Planning and Zoning Codes, while Policy 51B5 requires that the County continue to enforce its land development regulations to ensure compatibility of land uses within established, planned residential areas.

4/ Although the County and Mr. Seal exchanged exhibits before the hearing, and they briefly referred to them before evidence was taken, except for Petitioners' Exhibit 1, none were marked for identification or moved into evidence.

5/ Stated another way, the amendment allows persons who own property within the boundaries of one local government to challenge a map amendment for property located within another local government so long as the two properties are contiguous. Cf. Bradshaw v. City of Midway et al., DOAH Case No. 93-0715GM, Final Order No. DCA93-140-FOF-CP, Order Denying Motion to Dismiss and Remanding Proceeding to the Division of Administrative Hearings for Further Proceedings (May 18, 1993)(allegation that Petitioner was a landowner whose property was "near to the property that is the subject of the plan amendment," but outside the boundaries of the local government, was sufficient to confer standing to participate); Pope v. City of Cocoa Beach et al., DOAH Case No. 90-3581GM (DOAH Oct. 16, 1990; DCA Nov. 15, 1990)

1990 Fla. ENV LEXIS 183 at *8-9 (allegation by Petitioner that she "owns property that is directly adjacent to the property that is the subject of the City's plan amendment," but outside the boundaries of the City, sufficient to confer standing).

6/ Because Mr. Seal is an affected person, the issue of whether his wife has standing becomes moot.

COPIES FURNISHED:

Thaddeus Cohen, Secretary Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399-2100

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

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399-2100

Larry and Michelle Seal 7564 East Bay Boulevard

Navarre, Florida 32566-7923

Thomas V. Dannheisser, Esquire Santa Rosa County Attorney 6495 Caroline Street, Suite C Milton, Florida 32570-4592

William J. Sheppard, Esquire Morris, Manning & Martin, LLP 1600 Atlanta Financial Center 3343 Peachtree Road, Northeast Atlanta, Georgia 30326-1044

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days of the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will render a final order in this matter.

Docket for Case No: 06-001070GM

Orders for Case No: 06-001070GM