DR. MICHAEL ROHAN,
vs.
Case No. 19-4486GM
Respondent.
A duly-noticed final hearing was held in this matter in Panama City, Florida, on December 3, 2019, before Suzanne
Van Wyk, an Administrative Law Judge assigned by the Division of Administrative Hearings.
For Petitioner: Michael X. Rohan, pro se
For Respondent: David A. Theriaque, Esquire
Benjamin R. Kelly, Esquire Theriaque and Spain
Michael S. Burke, Esquire Burke Blue
Whether a small-scale amendment to the Panama City Comprehensive Plan, adopted by Ordinance 2690.1 (the “Plan Amendment”) on July 23, 2019, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2019).1/
On July 23, 2019, the City of Panama City (“the City” or “Respondent”) adopted the Plan Amendment, which changes the Future Land Use Map (“FLUM”) designation of the subject property from “Recreation” to “Residential.”
On August 21, 2019, Petitioner filed a Petition with the Division of Administrative Hearings (“Division”) challenging the Plan Amendment as: (1) internally inconsistent with the City’s adopted comprehensive plan, contrary to section 163.3177(2); (2) unsupported by relevant and appropriate data and analysis, as required by section 163.3177(1)(f); and (3) lacking meaningful and predictable standards for the use and development of land, contrary to section 163.3177(1).
The case was set for hearing on December 3 and 4, 2019, and commenced and concluded on December 3, 2019.
At the final hearing, the parties’ Joint Exhibits J1 through J7 were admitted in evidence. Petitioner testified on his own behalf and, according to the undersigned’s ruling at the final hearing, offered late-filed exhibits on December 13, 2019.
Pursuant to the undersigned’s Order on Admissibility of Petitioner’s Late-Filed Exhibits, issued January 8, 2020, Petitioner’s Exhibits 2 through 6, 12(a) through 12(e), and 13 were admitted in evidence.
Respondent presented the testimony of Robbie Hughes; Mike Lane, the City’s planning director; and Allara Mills-Gutcher, a professional planning consultant. Respondent established the factual background for, but did not expressly tender, Mr. Lane or Ms. Mills-Gutcher as expert witnesses. The undersigned finds that both witnesses have the education, training, and experience to provide expert testimony in the field of comprehensive planning.
Respondent’s Exhibits 1(a) through 1(j), 2a., 2b., and 3 through 5 were admitted in evidence.
A one-volume Transcript of the proceedings was filed on January 3, 2020. The undersigned granted Petitioner’s Motion for Extension of Time to Submit Proposed Recommended Orders until January 27, 2020.
Both parties timely filed Proposed Recommended Orders, which have been considered in preparing this Recommended Order.
Petitioner, Michael Rohan, resides and owns property within the City. Mr. Rohan submitted written comments
concerning the Plan Amendment to the City during the period of time beginning with the transmittal hearing for the Plan Amendment and ending with the adoption of same.
Respondent is a Florida municipal corporation with the duty and authority to adopt and amend a comprehensive plan, pursuant to section 163.3167.
The Subject Property
The subject property is a platted residential lot in the Cove Terrace subdivision (“The Cove”), which was platted in approximately 1950. The parcel fronts on Tyndall Drive and backs up to Watson Bayou. The lot is surrounded by single family development, with the exception of Watson Bayou to the north. The parcel is the only lot in The Cove not developed for residential purposes.
The lot is flat, undeveloped, and roughly 222 feet in depth. The northern 24 feet of the lot, most of which is located below the water line of Watson Bayou, is within the Coastal High Hazard Area (“CHHA”).
There are no wetlands, protected or endangered species, protected habitat, or other sensitive natural resources located on the lot.
At the rear of the lot is an approximate five-foot drop down to Watson Bayou. Petitioner has described this as a “precipitous slope.” There are no stairs or other improvements
to facilitate access to the water from the lot. There is no platform, boardwalk, or other improvement on, or adjoining, the lot to provide public use or enjoyment of the waterfront.
Access to the water from the lot, in its current condition, is not easy or safe. In order to access the water from the lot, one would need to hold on to trees or shrubs to prevent falling down the embankment.
There is no evidence that anyone has regularly accessed the water from the lot. Petitioner accessed it one time and testified that he and his grandchildren “sort of shimmied and scooted down to the water.”
The lot is bordered by a two-rail wooden fence along Tyndall Drive, and a steel wire prevents automobile access where there is an opening in the fence. A sign posted just outside the fence reads “Sudduth Park Overflow Parking.” Petitioner agrees that public access to the lot is discouraged.
Sudduth Park is a nearby little league baseball field that is additionally used for kickball and soccer practices.
For at least the past 44 years, the lot has been utilized solely as overflow parking for sporting events at Sudduth Park.
The lot was donated to the City in 1958, and the City still owns it.
The City is under contract to sell the lot to a private buyer.
The City has never designated the lot as a public waterfront access point.
On April 23, 2019, the City Commission adopted Resolution No. 20190423, in which the City determined the lot is not a “waterfront access point,” as that phrase is used in the comprehensive plan.
Further, the Resolution finds that even if the lot were deemed a waterfront access point, the City has determined there is an overriding public interest to sell the lot, as follows:
The Property has not been used as an active park, is located in an area that is not easily accessible for public use as a park and the proceeds from the sale of the property are to be used to improve Sudduth Park for the benefit of the community.
The Plan Amendment
The Plan Amendment changes the FLUM designation of the lot from Recreation to Residential.
Pursuant to the comprehensive plan, the lot could be developed for residential use at a density no greater than
10 units per acre, for a private or public school, utilities, or for public or non-commercial private recreation.
Challenges to the Plan Amendment
Internal Inconsistency
Petitioner alleges the Plan Amendment is internally inconsistent with several provisions of the City’s existing comprehensive plan.
Petitioner alleges the Plan Amendment is inconsistent with Goal 1A, which reads as follows:
Goal 1A: Establish a defined pattern of land use intended to guide the provision of public facilities and provide predictability in managing development.
Respondent introduced the expert witness testimony of Allara Mills-Gutcher, who testified that the defined pattern of land use in the subdivision is residential, and the Plan Amendment does not conflict with this goal. Respondent’s expert witness testimony was uncontradicted.
Petitioner testified that the City has justified the Plan Amendment by arguing that the Residential designation is consistent with the surrounding residential uses. Petitioner testified, summarily, that recreation is not incompatible with residential uses.
Petitioner’s argument does not support a finding that the Plan Amendment is inconsistent with Goal 1A.
Petitioner alleges the Plan Amendment is inconsistent with the following provisions related to waterfront access
points: Objective 1.11, and Policies 1.11.1 and 1.11.2;
Goal 5C, Objective 5.7, and Policies 5.7.1, 5.7.3, and 5.7.5; and Policies 7.1.5 and 7.1.6, which read, as follows:
Objective 1.11: Provide additional areas for public recreation with particular emphasis on public access to the waterfront.
Policy 1.11.1: The City shall pursue local, State, and federal funds as necessary to upgrade and acquire sites for public recreation and public access to the waterfront.
Policy 1.11.2: The City shall retain ownership of all public access points to the waterfront. Vacation of public access points shall be based solely on public safety or overriding public interest considerations.
* * *
Goal 5C: Provide, or have available, adequate areas for public waterfront access.
Objective 5.7: Maintain or increase public access to waters of the state.
Policy 5.7.1: The City shall improve selected street-ends for use as dedicated public waterfront access points and shall clearly mark such points as public waterfront access.
* * *
Policy 5.7.3: The City shall not vacate, sell, or otherwise dispose of waterfront access points, except in cases of overriding public interest.
* * *
Policy 5.7.5: The City shall maintain existing public access points to the waterfront, and work with private property owners to increase public waterfront access within any waterfront area.
The lot is not a “waterfront access point” as that term is used in Policy 5.7.3. Nor does the lot provide public access to the waterfront.
The Plan Amendment is not internally inconsistent with Objective 5.7 and Policies 1.11.2, 5.7.3, and 5.7.5.
Petitioner introduced no evidence to support a finding that the City has inadequate areas for public access to waters of the state. The Plan Amendment is not inconsistent with
Goal 5C.
The Plan Amendment will have no impact on the City’s ability to acquire, upgrade, or otherwise provide additional areas for public recreation and public access to the waterfront.
The Plan Amendment is not internally inconsistent with Objective 1.11 and Policies 1.11.1.
The lot is not a street end, and the Plan Amendment is not inconsistent with Policy 5.7.1.
Petitioner next contends the Plan Amendment is inconsistent with Goal 5A, Objective 5.3, and Policy 5.3.1, which read as follows:
Goal 5A: Maintain the quality of coastal resources by restricting development
activities which damage or destroy coastal resources.
* * *
Objective 5.3: Prioritize shoreline uses.
Policy 5.3.1: The City recognizes the need to establish the public interest in achieving a balance between competing waterfront land uses and the limited amount of shoreline available for such uses. When making decisions concerning designation of land use categories, approval of plan amendments, or issuance of development approvals involving competing shoreline land uses, the City shall choose the following land uses in priority order, using number 1 as the highest priority:
Water-dependent land uses that preserve the waterfront, including water-dependent conservation or recreation uses;
Water-dependent industrial uses;
Water-related land uses;
Land for which a definitive public purpose has been established; and
Other land uses which are not water- dependent or water-related including residential, commercial, institutional, or industrial.
Petitioner introduced no evidence to support a finding that the Plan Amendment would allow development activities which would destroy coastal resources. The Plan Amendment is not inconsistent with Goal 5A.
Read together, Objective 5.3 and Policy 5.3.1 require the City to prioritize shoreline uses and sets forth a hierarchy
for approving land use changes when competing shoreline land uses are at issue.
Due to its location in a residential neighborhood, the lot is not suitable for either a water-dependent industrial or commercial use.
No public water-related use has ever been established on the property.
No definitive public purpose has been established for this property, other than overflow parking for sporting events at the nearby little league field. Even that use has been suspended since, if not prior to, Hurricane Michael.
In its current configuration, with a precipitous slope to the water, the lot is not suitable for a water-related recreational land use. Any such use would require improvements to the property.
Petitioner believes the City should improve the lot for water-dependent recreation, or passive recreation that would allow the public to view the water without access thereto, rather than changing the use to residential, which will eliminate the possibility of public access.
The City is under no obligation to improve the property. The City’s stated intent in selling this lot is to fund the improvement of a nearby recreational facility which has a high utility rate.
The Plan Amendment is not inconsistent with either Objective 5.3 or Policy 5.3.1.
Petitioner next contends the Plan Amendment is inconsistent with Goal 5B, Objectives 5.5 and 5.6, and Policies 5.5.3 and 5.5.4, which read, in pertinent part, as follows:2/
Goal 5B: Reduce the risk of hurricane- related damage to life and property.
Objective 5.5: Maintain or reduce hurricane evacuation times as established in the Northwest Florida Hurricane Evacuation Study.
* * *
Policy 5.5.3: The City shall direct population concentrations away from known Coastal High Hazard Areas (“CHHA”)(as defined in the element) through the [FLUM] by not increasing densities within the CHHA . . . .
Policy 5.5.4: New structures, other than recreational amenities or water-dependent structures, are prohibited within the portion of the CHHA lying within the
FEMA V Zone.
* * *
Objective 5.6: Maintain procedures that will reduce the exposure of human life, and public and private property, to hurricane- related hazards.
Petitioner introduced no evidence regarding the hurricane evacuation times established for the City, or how the Plan Amendment may impact hurricane evacuation times in the
City. Respondent introduced the uncontroverted testimony of Ms. Gutcher that one single-family home would have a de minimus impact on hurricane evacuation times.
The Plan Amendment is not inconsistent with Objective 5.5.
The buildable area of the lot is located completely outside of the CHHA. The Plan Amendment does not increase densities within the CHHA or allow prohibited structures within the CHHA.
The Plan Amendment is not inconsistent with Policies 5.5.3 and 5.5.4.
Objective 5.6 is implemented by 11 policies which describe specific programs by which the City will reduce exposure to hurricane-related hazards. Petitioner did not challenge the Plan Amendment as inconsistent with any of these implementing policies. The Plan Amendment does not interfere with or prevent the City’s procedures to reduce the exposure of human life, and public and private property, to hurricane- related hazards.
The Plan Amendment is not inconsistent with Objective 5.6.
Next, Petitioner alleges the Plan Amendment is inconsistent with the following goal and policy relating to natural resources:
Goal 6A: Provide the circumstances necessary for the conservation and protection of natural and public health related resources.
* * *
Policy 6.6.2: The City shall protect and conserve natural functions of existing soils, wetlands, marine resources, wildlife habitat, flood zones, and estuaries by enforcing the requirements established in its Land Development Regulations.
* * *
Objective 7.6: Conserve locally and regionally significant natural resources through the use of sustainable development practices when improving park and open space.
* * *
Policy 7.6.3: The following activities shall be considered when developing environmentally sensitive sites acquired by the City: nature trails or boardwalks, waterway trails, interpretive displays, educational programs, and wildlife observation areas.
These provisions are wholly irrelevant to the Plan Amendment. Goal 6A applies to conservation of natural resources, none of which have been identified on the subject lot. Policy 6.6.2 requires enforcement of the City’s land development regulations, and the Plan Amendment does not affect enforcement of those regulations.
The lot contains neither locally or regionally significant natural resources, nor environmentally sensitive areas, so Objective 7.6 and Policy 7.6.3 do not apply.3/
The Plan Amendment is not inconsistent with Goal 6A, Policy 6.6.2, Objective 7.6, and Policy 7.6.3.
Finally, Petitioner alleges the Plan Amendment is inconsistent with the following provisions relating to recreation:4/
The purpose of [the recreation and open space] element is to plan for a comprehensive system of public and private recreation opportunities, and to provide areas of open space.
Goal 7A: Provide equitable, adequate, and appropriate recreation opportunities through provision of a combination of public and private facilities.
Objective 7.1: Provide public access to identified recreation sites, including public access to beaches.
Policy 7.1.1: The City shall provide recreation sites and facilities consistent with the level of service standards established in policy 7.3.10.
Policy 7.1.2: The City shall provide signs designating recreation sites and shall allow beach access to such sites during reasonable hours of operation.
Policy 7.1.3: The City shall provide adequate parking for all City-owned recreation sites.
Policy 7.1.4: The City shall guarantee reasonable public access to City-owned natural areas.
* * *
Policy 7.2.1: The City shall accept donations, contributions, volunteer assistance, or other forms of fiscal or physical private assistance in meeting recreational needs.
* * *
Objective 7.3: Provide, or require the provision of, adequate recreation sites and facilities consistent with level of service standards and population demand.
* * *
Policy 7.3.14: The City shall retain all public park land and waterfront rights-of- way in perpetuity, unless a land swap of equal or greater value and acreage to the City’s park inventory is agreed upon by the City Commission. The vacation of a waterfront right-of-way may occur as specified in policy 5.7.3 of the Coastal Management Element.
* * *
Objective 7.5: Provide appropriate recreation facilities for the full range of citizenry needs.
* * *
Policy 7.5.2: The City shall locate and utilize recreation sites in areas that will stimulate ancillary economic activity and promote redevelopment of rehabilitation efforts.
Petitioner introduced no evidence to demonstrate that the Plan Amendment will render the City’s recreation facilities inadequate for the population or inconsistent with the level of service standards. The Plan Amendment is not inconsistent with Goal 7A, Policy 7.1.1, and Objectives 7.3 and 7.5.
Petitioner’s contention that the Plan Amendment is inconsistent with Objective 7.1 and Policies 7.1.2, 7.1.4, and 7.2.1, is misdirected. These policies require public access to, and public parking for, City-owned recreation areas, with an emphasis on public access to beaches. The lot does not provide public beach access, so the Plan Amendment is not contrary to those directives. The Plan Amendment has no impact on the City’s duty to provide public access to recreation sites and the beach. Nor does the Plan Amendment interfere with the City’s ability to accept contributions or other assistance with meeting recreational needs.
The Plan Amendment is not inconsistent with Objective 7.1 and Policies 7.1.2, 7.1.4, and 7.2.1.
With respect to Policy 7.5.2, Petitioner did not introduce any evidence that retaining the lot in the Recreation land use category would accomplish the goals of stimulating economic activity or promoting redevelopment. The Plan Amendment is not inconsistent with Policy 7.5.2.
Petitioner’s position is that the lot is public park land, which the City must retain according to the terms of Policy 7.3.14.
The facts do not support Petitioner’s position.
Although Mr. Lane agreed that the City’s website identifies the property at the lot’s address as a park, the website shows no recreational amenities or activities available thereon.
Further, Mr. Lane testified that the only reference in the City’s records to this lot as a park is that single webpage.
The comprehensive plan defines two types of parks: neighborhood and community. A neighborhood park must be a minimum of a half-acre, and a community park must be a minimum of 2.5 acres. The lot does not meet the minimum acreage requirement for either a neighborhood or community park.
The lot has not been utilized as either a neighborhood or community park, and has been limited to an overflow parking area for at least the last 44 years. Further, public access to the property is discouraged.
The Plan Amendment is not inconsistent with Policy 7.3.14.
Data and Analysis
The lot is previously disturbed, contains no endangered or threatened species, and no environmentally sensitive habitat. All supporting infrastructure is available
to serve residential development of the lot, including sewer and water service. The lot is located in a developed single family subdivision and is appropriate for residential use.
The Plan Amendment is supported by relevant and appropriate data.
Meaningful and Predictable Standards
Petitioner offered no evidence that the Plan Amendment fails to provide meaningful and predictable standards for the use and development of land. Petitioner seems to contest the City’s change in land use of the lot as contrary to establishing predictable use of land. That position is misguided. Adoption of a local government comprehensive plan does not permanently fix the land use designations. Amendments are allowed if they meet the criteria of the Community Planning Act.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and parties hereto pursuant to sections 120.569, 120.57(1), and 163.3187, Florida Statutes.
To have standing to challenge a plan amendment, a person must be an “affected person,” as defined in section 163.3184(1)(a). Petitioner is an affected person within the meaning of the statute.
“In compliance” means, in pertinent part, “consistent with the requirements of §§ 163.3177, 163.3178, 163.3180,
163.3191, 163.3245, and 163.3248[.]” § 163.3184(1)(b), Fla.
Stat.
The standard of proof to establish a finding of fact is preponderance of the evidence. See § 120.57(1)(j), Fla. Stat.
The Plan Amendment shall be determined to be in compliance if the local government’s determination that the amendment is in compliance is “fairly debatable.” See
§ 163.3187(5)(a), Fla. Stat.
The “fairly debatable” standard, which provides deference to the local government’s disputed decision, applies to any challenge filed by an affected person. Therefore, Petitioner bears the burden of proving beyond fair debate that the challenged FLUM Amendment is not in compliance. This means that “if reasonable persons could differ as to its propriety,” a plan amendment must be upheld. Martin Cty. v. Yusem, 690 So. 2d
1288, 1295 (Fla. 1997).
The mere existence of contravening evidence is not sufficient to establish that a land planning decision is “fairly debatable.” It is firmly established that:
[E]ven though there was expert testimony adduced in support of the City’s case, that in and of itself does not mean the issue is fairly debatable. If it did, every zoning case would be fairly debatable and the City would prevail simply by submitting an expert who testified favorably to the City’s
position. Of course that is not the case. The trial judge still must determine the weight and credibility factors to be attributed to the experts. Here the final judgment shows that the judge did not assign much weight or credibility to the City’s witnesses.
Boca Raton v. Boca Villas Corp., 371 So. 2d 154, 159 (Fla. 4th
DCA 1979).
Internal Inconsistency
Based on the foregoing Findings of Fact, Petitioner did not prove beyond fair debate that the FLUM Amendment is inconsistent with the identified goals, objectives, or policies of the comprehensive plan. With regard to Policy 7.3.14, it is at least fairly debatable that the Plan Amendment does not violate the requirement that the City retain all public park land in perpetuity.
Data and Analysis
Section 163.3177(1)(f) requires plan amendments to be “based upon relevant and appropriate data and analysis” by the local government, which includes “surveys, studies, community goals and vision, and other data available at the time of adoption.”
Based upon the foregoing Findings of Fact, Petitioner did not prove beyond fair debate that the Plan Amendment is not based on relevant and appropriate data and analysis as required by section 163.3177(1)(f).
Meaningful and Predictable Standards
Section 163.3177(1) provides that the comprehensive plan “shall establish meaningful and predictable standards for the use and development of land[.]”
Based on the foregoing Findings of Fact, Petitioner did not prove beyond fair debate that the Plan Amendment is inconsistent with section 163.3177(1).
For the reasons stated above, Petitioner has not proven beyond fair debate that the FLUM Amendment is not “in compliance” with the specified provisions of chapter 163.
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 City of Panama City Comprehensive Plan Amendment adopted by Ordinance 2690.1 on July 23, 2019, is “in compliance,” as that term is defined in section 163.3184(1)(b).
DONE AND ENTERED this 4th day of February, 2020, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2020.
1/ Except as otherwise provided herein, all references to the Florida Statutes are to the 2019 version, which was in effect when the Plan Amendment was adopted.
2/ Although the parties included consistency of the Plan Amendment with Policies 5.5.3 and 5.5.4 in the Pre-hearing Stipulation as issues of fact to be litigated, Petitioner offered no testimony regarding these policies. It is unclear whether Petitioner intended to abandoned these allegations, so the undersigned is including findings on these policies in an abundance of caution.
3/ Objective 7.6 and Policy 7.6.3 would be relevant if, as Petitioner prefers, the City was obligated to retain ownership of the lot and improve it for recreational use.
4/ Although the parties included consistency of the Plan Amendment with Objective 7.1 and Policy 7.1.3 in the Pre-hearing Stipulation as issues of fact to be litigated, Petitioner offered no testimony regarding these policies. It is unclear whether Petitioner intended to abandoned these allegations, so the undersigned is including findings on these policies in an abundance of caution.
Michael X. Rohan
David A. Theriaque, Esquire Theriaque and Spain
Michael S. Burke, Esquire Burke Blue
S. Brent Spain, Esquire Theriaque and Spain
Benjamin R. Kelley, Esquire Theriaque and Spain
William Chorba, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110
Ken Lawson, Executive Director Department of Economic Opportunity Caldwell Building
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.
