STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KINGSWOOD MANOR ASSOCIATION, INC., SHARON LEICHERING; LORI ERLACHER; DALE DUNN; DOREEN MORATH; GEORGE PERANTONI; VALERIE PERANTONI; AND FRIENDS OF LAKE WESTON AND ADJACENT CANALS, INC.,

Petitioners,

vs.

TOWN OF EATONVILLE,

Respondent,

and

LAKE WESTON, LLC,

Intervenor.

/

Case No. 15-0308GM

RECOMMENDED ORDER

The final hearing in this case was held on March 26, 2015, in Orlando, Florida, before Bram D.E. Canter, Administrative Law Judge of the Division of Administrative Hearings (“DOAH”).

APPEARANCES

For Petitioners: Sharon R. Leichering, pro se

Kingswood Manor Association, Inc. 5623 Stull Avenue

Orlando, Florida 32810

Lori A. Erlacher, pro se 1620 Mosher Drive

Orlando, Florida 32810

George Anthony Perantoni, pro se Friends of Lake Weston and Adjacent

Canals, Inc.

5800 Shasta Drive

Orlando, Florida 32810

Valerie Lolita Perantoni, pro se 5800 Shasta Drive

Orlando, Florida 32810 For Respondent Town of Eatonville:

Joseph Morrell, Esquire Town of Eatonville

1310 West Colonial Drive, Suite 28

Orlando, Florida 32804 For Intervenor Lake Weston, LLC:

William Clay Henderson, Esquire Holland & Knight, LLC

200 South Orange Avenue, Suite 2600 Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue to be determined in this case is whether the amendment of the Town of Eatonville Comprehensive Plan adopted through Ordinance 2014-2 (“Plan Amendment”) is “in compliance” as that term is defined in section 163.3184(1)(b), Florida Statutes

(2014).

PRELIMINARY STATEMENT

On December 16, 2014, the Town of Eatonville adopted Ordinance No. 2014-2, which amended the Eatonville Comprehensive Plan to establish a new Policy 1.6.10 within the Future Land Use Element, entitled “Lake Weston Subarea Policy,” and amended the

Future Land Use Map to designate certain lands surrounding Lake Weston as subject to the subarea policy.

On January 15, 2015, Sharon Leichering, Lori Erlacher, Carla McMullen, Kingswood Manor Association, Inc., George Perantoni, Valerie Perantoni, Robert Perantoni, John Walker, Dale Dunn, Doreen Maroth, Linda Lukanic, Anthony D’Ambrosi, Isabel D’Ambrosi, and Friends of Lake Weston and Adjacent Canals, Inc., filed a petition challenging the Plan Amendment. Before the final hearing, Petitioners Carla McMullen, Robert Perantoni, John Walker, Linda Lukanic, Anthony D’Ambrosi, and Isabel D’Ambrosi made written requests to be dismissed and orders were entered dismissing them from the proceeding. On February 11, 2015, Lake Weston, LLC, moved to intervene in these proceedings and intervention was granted.

Lake Weston, LLC, filed a motion to dismiss or to strike the petition for hearing, alleging lack of standing and failure to state a cause of action. The motion to dismiss was denied, but all claims directed to related land development regulations were stricken as being beyond the scope of the proceeding.

At the final hearing, Petitioners Sharon Leichering,

Lori Erlacher, George Perantoni, and Valerie Perantoni each presented testimony. Petitioners also presented the testimony of the town’s planning consultant Valerie Hubbard and Ken Clayton, an owner of the property. The Town of Eatonville and Lake

Weston, LLC, presented testimony of Town Clerk Debra Franklin; Linda Dodge, representative of Lake Weston, LLC; and Valerie Hubbard.

Petitioners’ Exhibits 1 and 7 were admitted into evidence.

Respondent’s Exhibits R-1 and R-3 through R-14 were admitted into evidence. Intervenor’s Exhibits I-1, I-2, and I-4 through I-7 were admitted into evidence.

The two-volume transcript of the final hearing was filed with DOAH. Respondent and Intervenor filed a joint proposed recommended order. Petitioners did not file a proposed order.

FINDINGS OF FACT

The Parties

1. Respondent Town of Eatonville is a municipality in Orange County with a comprehensive plan which it amends from time to time pursuant to chapter 163, Florida Statutes.

2. Intervenor Lake Weston, LLC, is a Florida limited liability company whose sole member is Clayton Investments, Ltd. It owns approximately 49 acres of land along Lake Weston on West Kennedy Boulevard in Eatonville (“the Property”), which is the subject of the Plan Amendment.

3. Petitioners Sharon Leichering, Lori Erlacher, George Perantoni, Valerie Perantoni, and Doreen Maroth own or reside in unincorporated Orange County near Lake Weston. The record does

   
   

   not establish whether Dale Dunn lives or owns property in the area.

4. Petitioner Kingswood Manor Association, Inc., is a non- profit corporation whose members are residents of Kingswood Manor, a residential subdivision near the Property.

5. Petitioner Friends of Lake Weston and Adjacent Canals, Inc., is a non-profit corporation whose objective is to protect these waters.

   Standing

   
   

6. Petitioners Sharon Leichering and George Perantoni submitted comments to the Eatonville Town Council on their own behalves and on behalf of the Kingswood Manor Association and Friends of Lake Weston, respectively, regarding the Plan Amendment.

7. Petitioner Valerie Perantoni is the wife of Petitioner George Perantoni. She did not submit comments regarding the Plan Amendment to the Town Council.

8. Petitioner Dale Dunn did not appear at the final hearing. There is no evidence Mr. Dunn submitted oral or written comments to the Town Council regarding the Plan Amendment.

9. Petitioner Doreen Maroth did not appear at the final hearing for medical reasons. Ms. Maroth submitted oral comments to the Town Council regarding the Plan Amendment.

   
   

10. Respondent and Intervenor contend there is no evidence that Lori Erlacher appeared and gave comments to the Town Council, but the Town Clerk testified that Petitioner Leichering was granted an extension of time “to speak for others” and Petitioner Leichering testified that the “others” were Lori Erlacher and Carla McMullen.

    The Plan Amendment

    
    

11. The Property is zoned “Industrial” in the Town’s Land Development Code, but is designated “Commercial” on the Future Land Use Map in the Comprehensive Plan. The Town adopted the Plan Amendment to make the zoning and future land use designations consistent with each other.

12. The Plan Amendment attempts to resolve the inconsistency by designating the Property as the “Lake Weston Subarea” within the Commercial land use category. The designation would appear on the Future Land Use Map and a new policy is made applicable to the Subarea, allowing both industrial and commercial uses:

    1.6.10. Lake Weston Subarea Policy.

    
    

    Notwithstanding the provisions of Policy 1.6.9, within the Lake Weston Subarea Policy boundaries as shown on the Future Land Use Map, light industrial uses may be allowed in addition to commercial uses. The specific permitted uses and development standards shall be established by the Lake Weston Overlay District, which shall be adopted as a zoning overlay district in the Land

    
    

    Development Code; however, the wetlands adjacent to Lake Weston within the Lake Weston Subarea Policy boundaries are hereby designated as a Class I Conservation Area pursuant to Section 13-5.3 of the Town of Eatonville Land Development Code and shall be subject to the applicable provisions of Section 13-5 of the Land Development Code.

    The intent of this subarea policy and related Lake Weston Overlay District is to allow a range of commercial and industrial uses on the subject property with appropriate development standards, protect environmental resources, mitigate negative impacts and promote compatibility with surrounding properties. Subject to requirements of this subarea policy and of the Lake Weston Overlay district, the current industrial zoning of the property is hereby deemed consistent with the Commercial Future Land Use designation of the area within the boundaries of this subarea policy.

    
    

    Data and Analysis

    
    

13. Petitioners contend the Plan Amendment is not supported by relevant and appropriate data and analysis. Relatively little data and analysis were needed to address the inconsistency between the Land Development Code and the Comprehensive Plan or to address the protection of Lake Weston and adjacent land uses.

14. The need to protect environmental resources, to mitigate negative impacts of development, and to promote compatibility with surrounding land uses was based on general principles of land planning, the report of a planning consultant, as well as public comment from Petitioners and others.

    
    

15. A wetland map, survey, and delineation were submitted to the Town. The effect of the Class I Conservation Area designation is described in the Land Development Code. The availability of public infrastructure and services was not questioned by Petitioners.

16. The preponderance of the evidence shows the Plan Amendment is based on relevant and appropriate data and analysis.

    Meaningful Standards

    
    

17. Petitioners contend the Plan Amendment does not establish meaningful and predictable standards for the future use of the Property.

18. It is common for comprehensive plans to assign a general land use category to a parcel, such as Residential, Commercial, or Industrial, and then to list the types of uses allowed in that category. The Plan amendment does not alter the Comprehensive Plan’s current listing of Commercial and Industrial uses.

19. The Plan Amendment designates the wetlands adjacent to Lake Weston as a Class I Conservation Area subject to the provisions of the Eatonville Wetlands Ordinance in the Land Development Code. This designation means the littoral zone of the lake and associated wetlands would be placed under a conservation easement. This is meaningful guidance related to the future use of the Property.

    
    

20. The Plan Amendment directs the Land Development Code to be amended to create a Lake Weston Overlay District with the expressed intent to “protect environmental resources, mitigate negative impacts and promote compatibility with surrounding properties.” This direction in the Plan Amendment is guidance for the content of more detailed land development and use regulations.

21. Contemporaneous with the adoption of the Plan Amendment, the Eatonville Land Development Code was amended to establish the Lake Weston Overlay District, which has the same boundaries as the Property. The Land Development Code describes in greater detail the allowed uses and development standards applicable to the Property.

22. The preponderance of the evidence shows the Plan Amendment establishes meaningful and predictable standards.

    Internal Consistency

    
    

23. Petitioners contend the Plan Amendment is inconsistent with the relatively recent Wekiva Amendments to the Comprehensive Plan, but Petitioners failed to show how the Plan Amendment is inconsistent with any provision of the Wekiva Amendments.

24. Petitioners contend the Plan Amendment is inconsistent with objectives and policies of the Comprehensive Plan that require development to be compatible with adjacent residential uses. Compatibility is largely a matter of the distribution of

    
    

    land uses within a parcel and measures used to create natural and artificial buffers. These are matters usually addressed when a landowner applies for site development approval.

25. Protection is provided in the Plan Amendment for Lake Weston and its wetlands. Petitioners did not show there are other factors that make it impossible to make light industrial uses on the Property compatible with adjacent residential uses.

26. The preponderance of the evidence shows the Plan Amendment is consistent with other provisions of the Comprehensive Plan.

    Urban Sprawl

    
    

27. Petitioners contend the Plan Amendment promotes urban sprawl based on the potential for more impervious surfaces and less open space. However, this potential does not automatically mean the Plan Amendment promotes urban sprawl.

28. Section 163.3177(6)(a)9. sets forth thirteen factors to be considered in determining whether a plan amendment discourages the proliferation of urban sprawl, such as failing to maximize the use of existing public facilities. The Plan Amendment does not “trigger” any of the listed factors.

29. The preponderance of the evidence shows the Plan does not promote the proliferation of urban sprawl.

    
    

    CONCLUSIONS OF LAW

    
    

    Standing

    
    

30. To have standing to challenge a comprehensive plan amendment, a person must be an “affected person,” which is defined in section 163.3184(1)(a) as a person owning property, residing, or owning or operating a business within the boundaries of the local government, and who made timely comments to the local government regarding the amendment.

31. Sharon Leichering, George Perantoni, Lori Erlacher, Doreen Maroth, Kingswood Manor Association, Inc., and Friends of Lake Weston and Adjacent Canals, Inc., are affected persons with standing to initiate this proceeding.

32. Because there is no evidence that Dale Dunn submitted comments to the Town Council regarding the Plan Amendment, his standing was not established.

33. Valerie Perantoni did not make oral comments on the Plan Amendment to the Town Council. Because of the privity and identity of interests of a husband and wife recognized by the law, and the broad standing intended by chapter 163, it is arguable that the comments offered by her husband, George Perantoni, should confer standing on Ms. Perantoni as if she had addressed the Town Council to repeat what her husband said. However, it is unnecessary to reach a conclusion on whether

    
    

    Valerie Perantoni qualifies as an affected person because there are other Petitioners with standing to present the same claims.

    Burden and Standard of Proof

    
    

34. As the challengers of the Plan Amendment, Petitioners have the ultimate burden of persuasion.

35. A person challenging a plan amendment must show that it is not “in compliance” as that term is defined in section 163.3184(1)(b):

    “In compliance” means consistent with the requirements of ss. 163.3177, 163.3178,

    163.3180, 163.3191, 163.3245, and 163.3248,

    with the appropriate strategic regional policy plan, and with the principles for guiding development in designated areas of critical state concern and with part III of Chapter 369, where applicable.

    
    

36. The Town of Eatonville’s determination that the Plan Amendment is “in compliance” is presumed correct and must be sustained if the Town’s determination of compliance is fairly debatable. See § 163.3184(5)(c), Fla. Stat.

37. The term “fairly debatable” is not defined in chapter 163, but the Florida Supreme Court held in Martin County v. Yusem, 690 So. 2d 1288 (Fla. 1997) that “[t]he fairly debatable

    standard is highly deferential standard requiring approval of a planning action if reasonable persons could differ as to its propriety.” Id. at 1295.

    
    

38. The standard of proof to establish a finding of fact is preponderance of the evidence. See § 120.57(1)(j), Fla. Stat.

    Data and Analysis

    
    

39. Section 163.3177(1)(f) requires that all plan amendments be based on relevant and appropriate data and an analysis by the local government.

40. Petitioners failed to prove that the Plan Amendment is not based on relevant and appropriate data and analysis.

    Meaningful Standards

    
    

41. Section 163.3177(1) requires a comprehensive plan to include meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development and use regulations.

42. Petitioners failed to prove the Plan Amendment does not establish meaningful and predictable standards.

    Internal Consistency

    
    

43. The elements of a comprehensive plan must be consistent. § 163.3177(2), Fla. Stat.

44. Petitioners failed to prove the Plan Amendment would be inconsistent with other provisions of the Town of Eatonville Comprehensive Plan.

    Urban Sprawl

    
    

45. Plan amendments must discourage the proliferation of urban sprawl. § 163.3177(6)(a)9., Fla. Stat.

    
    

46. Petitioners did not prove the Plan Amendment fails to discourage the proliferation of urban sprawl.

    Summary

    
    

47. The Town of Eatonville’s determination that the Plan Amendment is in compliance is fairly debatable.

RECOMMENDATION

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

RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the Plan Amendment adopted by Eatonville Ordinance No. 2014-02 is in compliance.

DONE AND ENTERED this 3rd day of June, 2015, in Tallahassee,

Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2015.

COPIES FURNISHED:

George Anthony Perantoni Friends of Lake Weston

and Adjacent Canals, Inc.

5800 Shasta Drive

Sharon R. Leichering

Kingswood Manor Association, Inc. 5623 Stull Avenue

Orlando, Florida 32810 (eServed)

Doreen Lynne Maroth 5736 Satel Drive

Orlando, Florida 32810 (eServed)

Valerie Lolita Perantoni 5800 Shasta Drive

Orlando, Florida 32810 (eServed)

Debbie Franklin, City Clerk Town of Eatonville, Florida

307 East Kennedy Boulevard Eatonville, Florida 32751

Joseph Morrell, Esquire Town of Eatonville

1310 West Colonial Drive, Suite 28

Orlando, Florida 32804 (eServed)

William Clay Henderson, Esquire Holland and Knight, LLP

200 South Orange Avenue, Suite 2600 Orlando, Florida 32801

(eServed)

Robert N. Sechen, General Counsel Department of Economic Opportunity Mail Stop Code 110, Caldwell Building

107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)

Jesse Panuccio, Executive Director Department of Economic Opportunity Mail Stop Code 110, Caldwell Building

107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)

Katie Zimmer, Agency Clerk Department of Economic Opportunity

Mail Stop Code 110, Caldwell Building

107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)

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.

Docket for Case No: 15-000308GM

Orders for Case No: 15-000308GM