STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
RESTIGOUCHE, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 91-3827GM
) DEPARTMENT OF COMMUNITY AFFAIRS ) and TOWN OF JUPITER, )
)
Respondents. )
)
FINAL ORDER
Pursuant to notice, a formal hearing was conducted in this case on January 27-31, 1992, in Jupiter, Florida, and on February 17, 1992, by telephone conference call, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: John D.C. Newton, Esquire
John R. Beranek, Esquire Aurell, Radey, Hinkle, Thomas
& Beranek
Post Office Drawer 11307 Tallahassee, Florida 32302
Paul B. Erickson, Esquire Alley, Maass, Rogers & Lindsay
321 Royal Poinciana Plaza
Palm Beach, Florida 33480-0431
For Respondents: Stephanie M. Callahan, Esquire
Department of Community Affairs 2740 Centerview Road
Tallahassee, Florida 32399-2100
Thomas J. Baird, Esquire Town of Jupiter
Town Attorney
11380 Prosperity Farms Road Suite 112, Prosperity Gardens
Palm Beach Gardens, Florida 33410 STATEMENT OF THE ISSUES
Whether Petitioner is a "substantially affected person," within the meaning of Section 163.3123, Florida Statutes?
Whether there were any procedural prerequisites to instituting the instant administrative proceeding that Petitioner was required to, but did not, meet?
Whether the action taken by the Town of Jupiter which is the subject of the instant administrative proceeding constitutes a "land development regulation," within the meaning of Section 163.3123, Florida Statutes?
Whether the action taken by the Town of Jupiter which is the subject of the instant administrative proceeding is "consistent," within the meaning of Section 163.3123, Florida Statutes, with the Town of Jupiter Comprehensive Plan?
Whether Respondents are entitled to an award of attorney's fees and costs pursuant to Section 163.3213(8), Florida Statutes?
PRELIMINARY STATEMENT
On May 31, 1991, Petitioner filed a petition with the Division of Administrative Hearings requesting that a hearing be held on its claim that "a land development regulation called the Indiantown Road Overlay Zoning District Ordinance (IOZ)" is inconsistent with the Town of Jupiter Comprehensive Plan. The Town subsequently filed a motion requesting that the Hearing Officer, without the benefit of an evidentiary record, dismiss the petition and order Petitioner to pay, pursuant to Section 163.3213(8), Florida Statutes, the Towns's attorney's fees and costs. In an order issued August 6, 1991, the Hearing Officer denied the Town's motion, but added the following:
The parties will be permitted at the final hearing held in this matter to present evidence relating to the issues raised in the aforesaid motion and, following the presentation of such evidence, to offer additional argument in support of their respective positions on these issues, provided that the issues sought to be litigated are set forth in the prehearing stipulation the parties must file in accordance with the previously assigned Hearing Officer's June 25, 1991, order in this case.
Twelve witnesses testified at the final hearing held in the instant cause: Mary Hinton, a former Mayor of the Town of Jupiter; Norman Purves, the President of Petitioner; Dr. Earl Starnes, a Professor of Urban and Regional Planning at the University of Florida; Robert Pennock, the Chief of the Department of Community Affairs' Bureau of Local Planning; Charles Siemon, a principal in a firm that provides planning and planning law consulting services; Dr. James Nicholas, another Professor of Urban and Regional Planning at the University of Florida; Russell Grace, a Planner IV with the Department of Community Affairs; 1/ Henry Skokowski, the planning consultant who prepared the Indiantown Road Corridor Study; Lincoln Walther, the planning consultant who prepared the 1990 version of the Town of Jupiter Comprehensive Plan; Martin Hodgkins, the Town of Jupiter's Director of Community Development; Karen Golonka, the current Mayor of the Town of Jupiter; and Dr. John DeGrove, the Director of the Florida Atlantic University and Florida International University Joint Center for Environmental and Urban Problems. In addition to the testimony
of these witnesses, various exhibits were offered into evidence by the parties and received the Hearing Officer.
On May 11, 1992, Respondents filed a joint proposed final order.
Petitioner filed its proposed final order on May 12, 1992. The following day it filed an amended proposed final order. The proposed final orders submitted by the parties have been carefully considered by the Hearing Officer. His specific rulings on the findings of fact proposed in these post-hearing submittals are set forth in the Appendix to this Final Order.
FINDINGS OF FACT
Based upon the record evidence, the following Findings of Fact are made: The Town of Jupiter and Its Neighbors
The Town of Jupiter (Town, Jupiter) is an incorporated municipality located in northeastern Palm Beach County between Interstate 95 (I-95) and the Atlantic Ocean.
The Village of Tequesta, the Town of Juno Beach and Jupiter Inlet Colony are adjoining municipalities.
Jupiter is also bordered by unincorporated areas of Palm Beach County.
The focal point of urban activity in Palm Beach County (County) is the City of West Palm Beach.
The dominant community in the County north of West Palm Beach is the City of Palm Beach Gardens, which is south of Jupiter. There is a regional mall, as well as a satellite County Courthouse, in Palm Beach Gardens, both of which are situated on PGA Boulevard.
Jupiter is the major center of urban activity north of Palm Beach Gardens. Its market area is sub-regional in scope.
Growth in Jupiter: A Brief History
The Jupiter of today is much different than the Jupiter of only a few decades ago.
In 1960, the Town's population was just 1,058. By 1970, it had increased to 3,136.
During the 1970's, the Town more than tripled its population to slightly less than 10,000, but it still was a bedroom community without any significant employment opportunities.
This began to change during the next decade. Small businesses, in increasing numbers, started to locate in the Town. They were followed by larger employers.
The 1980's saw not only a substantial increase in employment opportunities, but a substantial increase in population as well. The Town now has a population of approximately 28,000 and is becoming a fairly self- sufficient community offering a wide variety services to its residents.
There is one existing new car dealership (Dodge) in Jupiter. Two additional new car dealerships (Ford and Cadillac) have been approved and permitted. 2/ Additionally, there are a number of new car dealerships clustered together on Northlake Boulevard in the City of Palm Beach Gardens 3/ less than ten miles from Jupiter to which the Town's residents have access. 4/
There remain only a few tracts of vacant, uncommitted land within the jurisdictional boundaries of the Town. The unincorporated areas surrounding the Town, however, are largely undeveloped.
A considerable amount of the growth in Jupiter since the late 1980's can be attributed to the completion of the "missing link" of I-95, a north-south roadway that is the main intra-urban route in South Florida.
Until late 1987, I-95 went as far north in Palm Beach County as PGA Boulevard. In late 1987, a new stretch of I-95, from PGA Boulevard to Fort Pierce, including an interchange at Indiantown Road in Jupiter, was opened to the travelling public. The opening of the I-95 interchange at Indiantown Road has enhanced the Town's market potential and contributed significantly to the Town's integration into the broader metropolitan area of greater Palm Beach County.
Jupiter does not have a traditional downtown area.
Growth has generally occurred along the Town's major roadways, including Indiantown Road, a state roadway which offers the only direct access from I-95 to the Town and therefore serves as the primary gateway to the Town. In recent years, nearly 60 percent of office and other commercial projects in the Town have been located on that segment of Indiantown Road from I-95 to the roadway's eastern terminus at A1A near the coast, a distance of approximately five and a half miles.
The initial impact of the fast-paced development on Indiantown Road was to increase traffic congestion and generate complaints that the roadway was becoming a visual eyesore with its "strip commercial" development.
At the time, although it was the Town's primary commercial corridor, Indiantown Road had only two lanes, one going east and the other going west. It is now in the process of being widened and transformed into a six-lane, median divided, controlled access roadway.
The Planning Process and the Indiantown Road Corridor Study
In the fall of 1986, the Town began the laborious process that culminated in the adoption of its Comprehensive Plan more than three years later.
During the planning process, the members of the Town Council, Jupiter's governing body, having heard the complaints of residents regarding the negative impact of development on Indiantown Road and the inadequacy of the Town's existing land development regulations to deal with the situation, determined that a study should be undertaken to develop a comprehensive strategy to address these problems. Of particular concern to the Council members were issues relating to traffic and aesthetics.
In November, 1988, the Council retained Henry Skokowski, a planning consultant, to conduct such a study. Skokowski was specifically directed by the
Council to, among other things, examine the various types of commercial land uses and determine those that should be permitted and those that should be prohibited in the Indiantown Road corridor.
Skokowski's initial draft of the results of his study was submitted to the Council in February, 1989.
The Town's proposed Comprehensive Plan was transmitted to the Department of Community Affairs for its review and comments in April, 1989.
The Council accepted Skokowski's final draft of the results of his study in the latter part of 1989.
The final draft was virtually identical in substance to Skokowski's initial offering. In both, he recommended, among other things, that certain commercial land uses, including "auto . . . sales," that he reasonably felt did not mesh with the desired overall character of the corridor, be absolutely prohibited, without exception, throughout the length of the corridor. 5/ This recommendation, from the outset, was the subject of considerable public debate and discussion before the Town Council.
Skokowski endorsed a nodular pattern of development for the corridor. Under his plan, the corridor would contain six urban subdistricts, each having as their focal point a major intersection, with the remaining portions of the corridor consisting of parkway subdistricts with suburban characteristics reflecting a less intensive commercial development pattern than found in the urban subdistricts. From west to east, the six urban subdistricts, which constituted nodes of development, were the Central Boulevard District, the Center Street Landmark District, the Maplewood Drive District, the Civic District, 6/ the Alternate A1A District and the US 1 District. Through the creation of a special overlay zone for the corridor and the adoption of regulations restricting the permitted uses of land 7/ and establishing design, landscaping, and signage requirements on a subdistrict by subdistrict basis, Skokowski envisioned that each subdistrict would develop an identity that was not only distinctive and unique, but compatible with, and reflective of, community values unlike the strip commercial development that then existed in the corridor.
Throughout the course of his study, Skokowski met regularly with those who were responsible for drafting the Town's Comprehensive Plan.
He also met with the Executive Director of the Palm Beach County Department of Planning, Building and Zoning in an effort to obtain input from the County regarding anticipated development on or around Indiantown Road. In response to Skokowski's request, the Department's Executive Director promised to provide the Town with notification of any proposed zoning actions in the unincorporated areas of the County.
Skokowski did not meet with any representative of either the Palm Beach County Metropolitan Planning Organization or the Treasure Coast Regional Planning Council prior to the completion of his study.
On January 16, 1990, the Town Council adopted the Town of Jupiter Comprehensive Plan. The Department of Community Affairs has determined that the Plan is "in compliance."
Contents of the Comprehensive Plan: A General Overview
The Town's adopted Comprehensive Plan contains nine different elements: future land use; traffic circulation; housing; infrastructure; conservation; coastal management; recreation; intergovernmental coordination; and capital improvements.
Each element has at least one goal 8/ and objective 9/ and has policies as well. 10/
Some elements also contain maps. One such element is the future land use element, which contains a future land use map. The map employs six land use classifications: residential; commercial; industrial; recreation; conservation; and public/institutional.
Most of the land area in the Indiantown Road corridor is designated for commercial use on the future land use map.
Approximately two-thirds of the total land area in the Town that is designated for commercial use on the future land use map is located in the Indiantown Road corridor.
Each of the elements of the Town's adopted Comprehensive Plan was based upon "data inventory and analysis."
The Town Council adopted this "data inventory and analysis" as part of the Plan.
Contents of the Comprehensive Plan: Goals, Objectives and Policies
The following is the lone goal set forth in the Plan's future land use element:
Ensure that the future land use pattern maintains the existing low intensity, residential character, recognizes and protects the environmental quality of the Town, and allows the Town to become a full- service community 11/ serving Northern Palm Beach County.
Objective 1.1 of the future land use element addresses the subject of "managed growth." It provides as follows:
Direct future growth into areas served by urban services that have adequate capacity, as defined by the adopted level of service standards, which shall be incorporated into the Town's development regulations by May 1990.
The following are among the policies in the future land use element that further address the subject of "managed growth:"
Policy 1.1.1- All development shall be approved only if the level of service standards as set forth in Policy 1.2.1 of the
Capital Improvement Element are met concurrent with the impact of the proposed development. These standards shall be integrated into the land development regulations.
Policy 1.1.4- Commercial shopping centers in excess of 80,000 square feet should be located only at intersections of major arterials.
Policy 1.1.5- Strip or highway commercial development shall be discouraged.
Policy 1.1.6- A commercial corridor study of Indiantown Road is to be undertake[n] in 1989. This will result in a coherent, comprehensive strategy for this major roadway 12/
containing streetscape guidelines and site development standards 13/ that will be integrated into the Town's land development regulations. 14/
Policy 1.1.7- Concentrations of commercial offices, and tourist related activities shall be near locations having high accessibility.
Policy 1.1.8- Non-residential outdoor storage areas shall be screened and buffered from adjacent residential uses.
Policy 1.1.13- The town through its Coastal Construction Code and its future land use map shall minimize the intensity and density of future development within coastal areas vulnerable to hurricane damage.
Policy 1.1.14- The impact of land use on water quality and quantity shall be considered in land use planning and regulation. This shall be assured by inclusion of provisions in the Land [D]evelopment Regulations for consideration of the impacts of proposed development on water quality and quantity. These considerations shall include the provisions of Conservation Element Policies 1.4.1-13 for surface water quality, 1.3.1-13 for groundwater quality, Infrastructure Element Policies 1.1.2 for wellfield protection,
1.5.1 for protection of potable water supply and 1.6.1-5 for protection of groundwater quality and quantity.
Objective 1.2 of the future land use element addresses the subject of "land use compatibility." It provides as follows:
By May 1990 the land development regulations shall contain provisions and standards which ensure that future growth patterns take into consideration topography, soil and other natural and historic resources, the intensities, densities and type of land use activities and relationship to surrounding properties, as well as providing for streetscaping, proper transition of land uses, buffering, and coordination of coastal population densities with the Palm Beach County Hurricane Evacuation Plan.
The following are among the policies in the future land use element that further address the subject of "land use compatibility:"
Policy 1.2.1- Where there are differences between residential uses in terms of intensity and type of units, adequate transitioning shall be accomplished through provisions such as setbacks, buffers and height limitations.
The land development regulations adopted to implement the Comprehensive Plan shall contain such provisions to assure adequate transitioning.
Policy 1.2.3- Where existing land use conflicts exist, the Town shall incorporate into its land development regulations provisions that address noise, dust, lighting and aesthetics. The Town shall support increasing the depth of property(s) in areas where existing lots are shallow (less than 150 feet in depth), are situated adjacent to an arterial roadway, have a commercial or industrial land use designation, and abut residentially designated land; however, the land development regulations shall contain adequate buffering and performance criteria for concerns noted above.
Policy 1.2.4- Existing land uses which are not compatible with adjacent land uses, the character, natural resources or the future land use plan shall be eliminated upon redevelopment, and until that time may not be expanded. This requirement shall be included in the revision to the local development regulations to be adopted by May 1990.
Objective 1.3 of the future land use element addresses the subject of "land development regulations." It provides as follows:
The Town shall prepare land development regulations that effectively implement all provisions of the adopted Comprehensive Plan, contain innovative techniques for the production of affordable housing, provide a means to protect environmentally sensitive areas and maintain flexibility in site design. In addition the Town shall encourage the use of innovating land development regulations such as the Town's existing provisions for PUD and other land development techniques.
The following are among the policies in the future land use element that further address the subject of "land development regulations:"
Policy 1.3.3- Adopt land development regulations that shall contain specific and detailed provisions required to implement the adopted Comprehensive Plan, and which at a minimum address:
subdivision of land
signage
wellfield and aquifer protection
drainage and stormwater management
periodic flooding
open space needs
off-street parking
environmentally sensitive areas/habitats
In addition, these regulations shall ensure that development orders and permits not be issued which result in a reduction of the levels of service for the affected public facility below the adopted level of service of standards as set forth in the Comprehensive Plan.
Policy 1.3.4- The concept of an environmental[ly] sensitive area overlay zone will be incorporated into the current Zoning Ordinance. This concept will be folded into the new development code at the time the current Zoning Ordinance and other local development regulations are consolidated into one regulatory document.
Policy 1.3.5- The [L]and [D]evelopment Regulation shall include the following non- residential land use categories, and shall incorporate the following location and intensity criteria:
Commercial
Neighborhood Commercial- Stores offering frequently needed goods and services to nearby residential areas. Typical activities include pharmacy, dry-cleaning, florist, hardware and garden supplies, professional offices, and personal services.
Location Criteria:
In areas accessible to immediate surrounding neighborhoods;
Can be located in conjunction with groups of retail or highway commercial uses to achieve greater consumer volume and multi- purpose trips;
When a part of a planned unit development must be situated in the interior of the project and not along an external roadway;
In areas where water supply and sewerage facilities services are available.
Intensity measures:
Site area- minimum 20,000 sq. ft.
maximum 2 acres
Site coverage maximum- 35%
Height limitation- 35 feet/2 stories
General Commercial- Consists of a wide range of commercial goods and services serving a community-wide market. A representative sample of activities includes personal services, banking and finance offices, retail stores, nurseries, printing and publishing, auto repair, marine facilities, and medical and dental clinics.
Location Criteria:
At major intersections, or existing commercial core areas;
Central to and/or readily accessible from all residential areas of the community;
Preferably grouped with other stores in this category to achieve a combined market draw on multi-purpose trips;
Not adjacent to low density, single family neighborhoods;
Adjacent to Medium Density Residential areas when proper buffering is provided;
Situated preferably on an arterial roadway, but never on a local street;
In areas where water supply and sewerage facilities services are available.
Intensity Measures:
Lot coverage maximum- 35%
Building height maximum- 50 feet unless parking provided under building then 60 feet.
Office Commercial- Activities that generally do not entail sale or display of goods and do not require high visibility from major roadways. Typical uses include legal, financial, realty, technical and some medical service establishments. May also contain retail uses that directly serve the needs of the office businesses.
Location Criteria:
Location needs are often determined by type of service (attorney near courthouse, physician near hospital, etc.);
Attractive or prestigious setting often desired; suitable for location near multi- family housing to serve as a transitional use between more intensive commercial and industrial uses;
In some instances may locate adjacent to low density residential neighborhood only when height is limited to one story, less than 35% of project site utilized for structure(s) and adequate buffering provided;
May locate in industrial park however should be located in designated tract of land in park;
In areas where water supply and sewerage facilities services are available.
Intensity Measures:
Lot coverage maximum- 35%
Building height maximum- 50 feet unless parking provided under building then 60 feet.
Heavy Products Commercial- Activities that sell large or bulk products or maintains large inventories of products. These usually serve a sizeable market area and are often similar to or part of industrial activities. Building materials, heavy machinery and wholesale establishments are typical heavy commercial uses.
Location Criteria:
Parcels should be accessible from outlying service areas and near primary routes for shipping and receiving goods (highways, rail);
Should be spatially separated from residential areas;
Should not be located in proximity to other commercial activities, e.g., retail stores, offices;
Suitable siting is near or in industrial areas due to similar location and transportation needs;
In areas where water supply and sewerage facilities services are available.
Intensity Measures:
Site coverage maximum- 35%
Building height maximum- 35 feet Industrial
* * * Conservation
* * * Public/Institutional
* * *
Objective 1.4 of the future land use element addresses the subject of "economic development." It provides as follows:
To expand and diversify the economic base through the provision of adequate sites and timely provision of public utilities and services to stimulate such growth.
Policy 1.4.1 is among the policies in the future land use element that further address the subject of "economic development." It provides as follows:
Higher densities and intensities of development shall be located in areas having high accessibility and a full complement of public facilities (e.g., water, sewer), that have adequate capacity to maintain the adopted levels of service.
Policies 1.1.7, 1.1.8 and 1.1.9 of the Plan's intergovernmental coordination element each reference the Indiantown Road corridor study. They provide as follows:
Policy 1.1.7- Jupiter shall seek the active involvement by the Florida Department of Transportation (FDOT) in this study to provide input about the State's plans for the roadway, and FDOT shall formally review the resulting development strategy for compatibility with FDOT plans.
Policy 1.1.8- Jupiter shall seek the active involvement of the Palm Beach County Department of Planning, Building, and Zoning and/or the Palm Beach County Metropolitan Planning Organization (MPO) in the study to provide input about anticipated development along and around the roadway and its impact on traffic circulation and development within Jupiter. The County and MPO shall have formal review of the resulting development strategy to ensure compatibility with County and MPO plans.
Policy 1.1.9- Jupiter shall seek the active involvement of the Treasure Coast regional Planning Council in the study to provide technical assistance and informal mediation among the Town, County, MPO and FDOT, if necessary.
Immediately preceding these three policies is the statement that "[a] commercial corridor study of Indiantown Road is to be undertaken by 1989 that will result in a coherent, comprehensive development strategy for this major roadway." 15/
Contents of the Comprehensive Plan: Data Inventory and Analysis
The goals, objectives and policies of the Town's Comprehensive Plan can be better understood if they are read in conjunction with the "data inventory and analysis" portion of the Plan.
For instance, an examination of the following excerpts from the "data inventory and analysis" portion of the Plan provides considerable assistance in understanding what the Town Council meant when it announced in the goal of the future land use element that it desired that the Town "become a full-service community serving Northern Palm Beach County:"
Growth Management Philosophy
Until the advent of the '80s, Jupiter was one those hidden treasures [i]n the Treasure Coast region. . . . In 1980, Jupiter was basically a "bedroom" community; however, with recent annexations, the Town now contains over 400 acres planned for industrial park usage. Therefore, Jupiter is
now evolving into a "total service" community.
To maintain a community that maximizes quality of life, the following growth principles and strategies will be the basis for future growth decisions:
Land use decisions . . . will be made within the context of the Greater Jupiter Area 16/ since certain uses within the existing Town limits serve a "market area" that extends considerably beyond the present jurisdictional limits.
It is anticipated that the Town's employment base will expand significantly in the coming years as the planned industrial parks, and office/ business centers come on line.
The residential character of the Town will remain one of low intensity, a more human scale of residential living. Future residential areas will be developed only in areas with adequate human service. 17/
* * *
Being the major urban hub of north county, retail and office businesses located in Jupiter depend on a population base that is considerabl[y] larger than just the existing population residing within the present Town limits. Residential areas to the north, especially along Loxahatchee River Road and to the west, primarily from the Jupiter Farms area shop and do business in Jupiter. 18/
* * *
Community shopping centers require a wider market area [than neighborhood shopping centers]. 19/ The Jupiter Mall would be an example of such a retail center. Based on the Town's projected 1995 population (46,900), only one such shopping center is justified. However, because Jupiter is a commercial hub serving much of the County, north of Donald Ross Road, another such center might be justified. Prior to any approval, a market study should be required in order to avoid the problem of overcommercialization. The analysis should include all commercial development in north county, not just limited to Jupiter's corporate Town limits. Leading tenants include variety store and small department store. 20/
* * *
Historically the Town has had only a minor amount of land utilized for industrial purposes. Until recent years, it has
considered itself a residential, bedroom community; however, that philosophy has changed. It now sees itself as a "total" community. This means the creation of a major employment base. 21/
* * * IMPORTANT POLICY ISSUES
1. Town image, e.g., bedroom community, full service town. 22/
The following references to the Indiantown Road corridor are made in the "data inventory and analysis" portion of the Plan:
Development in the Indiantown Road corridor can generally be described as uncontrolled strip commercial, often experiencing traffic congestion and presenting a poor visual image to visitors.
As Jupiter has grown no definitive urban center has emerged. Growth has occurred generally along the Town's major roadways. Consider as a long-range strategy the creation of a traditional downtown. 23/
* * *
Nearly 60% of the commercial/office projects have been located within the Indiantown Road corridor. . . .
Over the past decade Indiantown Road (SR 706) has experienced increased periods of traffic congestion. This has occurred as commercial development along this main artery has mushroomed. Lack of lot depth as well as overall size have created a "hodgepodge" commercial development pattern along SR 706 which has lead to a traffic headache, as well as a visual eyesore. The problems of Indiantown Road are compounded since it will serve as Jupiter's major entryway once Interstate 95 is completed and the entrance
on SR 706 is opened. 24/ Consideration should be given to a special overlay zone for Indiantown Road. In developing the overlay zone determining what constitutes the Indiantown Road corridor (depth of property along the roadway), establishing the desired character of the corridor, 25/ and preparing a special set of standards e.g., signage,
off-street parking, buffering, to control development would be necessary.
Although Indiantown Road is the most obvious example of strip commercial development other local roads are afflicted with the same problem, however maybe not to the same degree. Yet, there are several areas in and around Jupiter that are developing more in a node fashion than in a linear commercial strip.
Not only is the Town beset by this commercial problem, but has been faced with possible intrusion of commercial into residential neighborhoods. Precautions need to be taken to make sure that neighborhood integrity remains intact. 26/
* * *
[S]imilar to the Town's proposed land use designation within the Indiantown Road corridor, the County too, has proposed that commercial development be allowed along this roadway. A concern the Town has is the manner in which it is developed. This is especially important, because the Indiantown Road corridor is the gateway into Jupiter.
To date, the development has reflected a rather non-descript, strip commercial pattern. The Town has been sufficiently concerned that it has contracted to have an urban design corridor study completed for this key roadway. 27/ Design recommendations will become a part of the Town's land development regulations. Coordination between the two governing bodies will be needed at the time the local development regulations are prepared. 28/
* * *
The majority of land use conflicts occur in those areas where commercial and industrial uses abut residential neighborhoods. This has been a problem along Indiantown Road. The proposed siting of a cement batch plant in the Pennock Industrial Park created considerable controversy over the potential adverse impacts, e.g., noise, dust, light, visual image, and aesthetics. Similar concerns have been voiced over the potential negative impacts generated by strip shopping centers and car dealerships, as well. Much of the development in this major traffic corridor occurred at a time when Jupiter was a much smaller, rural community. Some of the development predates landscape and signage requirements. Because the land along Indiantown Road was subdivided over twenty years ago, many of the lots along the road
are very shallow. This causes problems in providing for adequate transition and buffering from adjacent residential uses. The Town has been encouraging combining of lots to create additional depth that can allow for better site design and buffering. Also, the Town has adopted the Indiantown Road Urban Corridor Study, and will be integrating many of its recommendations into
updated development regulation[s]. The study has recommended the creation of an "Indiantown Road Overlay Zone." 29 / This district will contain additional provisions related to design guidelines and streetscape standards so that development within the Town's major corridor achieves some logical, overall design. 30/
* * * IMPORTANT POLICY ISSUES . . .
2. Gateway into Town; . . .
Depth of commercial along Indiantown Road;
Strip commercial development vs. a node policy; . . .
9. Maintaining areas in residential use by eliminating pressures of commercial development;
* * *
Besides the commercial demands of the local population, [with] the opening of Interstate
95 Exit on Indiantown Road in conjunction with the existing Florida Turnpike exit on Indiantown Road, it can be expected that there will be significant increased demands for interchange commercial uses to serve the traveling public. 31/ Already a number of inquiries have been made to staff regarding the Town's position relative to development around these interchange areas. This will become the gateway to Jupiter. The commercial development pattern that ultimately emerges within the corridor can visually replicate what already exists, or can become a "memorable["] entryway leading into Jupiter. The concept of an overlay zone for the Indiantown Road corridor should be considered. 32/
* * *
Most neighborhood and community shopping centers are located on major roadways,
primarily at the intersections of designated arterials such as Indiantown Road and Central Boulevard, Indiantown Road and U.S. 1 and Indiantown Road and Alternate A1A. Future siting of shopping centers, especially those with 100,000 leasable floor area and up should be situated at locations having good access and sufficient roadway capacity to maintain the Town's adopted level of service. Further, they should be located so that the only access is from one road. 33/
* * *
The existing major roadways identified in the functional classification are shown on Exhibit 1 . . . and are summarized below. . .
Principal local arterials 34/ . . .
f. Indiantown Road from U.S. 1 to west town limit
Collector streets 35/
Indiantown Road from County Road A1A to
U.S. 1 36/
* * *
The level of service analysis shown on Exhibit 1 indicates severe capacity deficiencies for east/west travel on Indiantown Road. From Center Street to U.S.
1 and west of the Turnpike, this facility operates at Level of Service "E" which is characterized by very long vehicle delay and long traffic queues such that forced vehicular flow conditions exist much of the day. . . .
The five-year programs of the Florida Department of Transportation and Palm Beach County will provide relief for some of the congestion presently experienced in Jupiter. As shown on Exhibit 2 . . . , construction is planned to be undertaken within five years to improve Indiantown Road. Indiantown Road is scheduled to be widened to a six-lane cross section from east of Center Street to east of Alternate A-1-A in fiscal year 1989/1990.
Indiantown Road from Florida's Turnpike west to Jupiter Farms Road is planned to be widened to four lanes in the fiscal year 1991/1992. . . .
The only existing deficiencies not currently "planned" to be improved is the six-laning of Alternate A-1-A south of the Loxahatchee
River Bridge to Center Street and Indiantown Road from Alternate A-1-A to U.S. 1 to six lanes. . . . Designing and obtaining right- of-way for the Indiantown Road Intracoastal crossing (Alternate A-1-A to U.S. 1) is also programmed for FY 89/90, 90/91, respectively. The responsibility for improvement of these facilities is primarily that of the Florida Department of Transportation. 37/
* * *
Improvements to Indiantown Road will greatly improve the east/west access within the Town. 38/
* * * The future major streets are shown by
functional classification on Exhibit 3 . . .
and are summarized as follows. . . .
Principal local arterials . . .
g. Indiantown Road from Alternate A-1-A to I-95. . .
Collector streets
Indiantown Road from County Road A-1-A to U.S. 1 39/
* * *
At buildout the proposed coastal population densities in the surge vulnerable areas in
the Town of Jupiter will be 31,5000 residents. This represents a 230 percent increase. The evacuation routes to accommodate evacuation vehicles will have capacities as follows:
-Indiantown Road at six lanes 40/
* * *
The proper strategy to follow would be to conserve and maintain or in fact upgrade some of the older residential areas in the Indiantown Road/Center Street area. The Town has been implementing such a policy. The Town has had an ongoing series of drainage and road improvement projects. This effort is continuing with the present focus on the area immediately south of Indiantown Road bounded on the east by Old Dixie. . . .
The Town has taken steps since the adoption of its present land use plan to eliminate those uses inconsistent with the community's
character and proposed future land uses. Some methods that have been employed are the deepening of commercial frontage along Indiantown Road, adding increased depths to
buffers between conflicting land uses and not allowing the re-establishment of non- conforming land uses. 41/
* * *
Intergovernmental coordination is necessary in order to implement the following policies:
POLICY: A commercial corridor study is to be undertaken by 1989 that will result in a coherent, comprehensive development strategy for this major roadway.
Issues for coordination/cooperation: Indiantown Road (SR 706) is owned and operated by the State. It is a major arterial for the unincorporated County area west of Jupiter, and development approved along it and in its vicinity can impact traffic conditions within Jupiter to a significant degree.
Agencies involved:
Florida Department of Transportation Palm Beach County Metropolitan Planning
Organization (MPO) Palm Beach County
Department of Planning, Building, and Zoning Treasure Coast Regional Planning Council
Recommended methods for coordination/ cooperation:
FDOT representatives should be involved closely in the study to provide guidance about the State's plans for the roadway, and FDOT should formally review the resultant development strategy for compatibility with FDOT plans.
The Palm Beach County Department of Planning, Building, and Zoning and/or the Palm Beach County MPO should be involved closely in the study to provide guidance about anticipated development along and around the roadway and its impacts o[n] traffic circulation and development within Jupiter. The County should have formal review of the resultant development strategy to ensure compatibility with County plans.
The Treasure Coast Regional Planning Council should be involved in the study to provide technical assistance and informal mediation among the Town, County, and FDOT, if necessary. 42/
The "data inventory and analysis" portion of the Plan indicates that the future land use plan includes "commercial uses" among its land use categories. It then goes on to give the following definition of such "commercial uses:"
Commercial uses- means activities within land areas which are predominantly connected with the sale, rental, consumption, and distribution of products or performances of professional and non-professional services. The Town Council may approve the use of such land areas for residential purposes provided a rezoning to a residential zoning district is approved and the rezoning is implemented by a planned unit development.
The following discussion appears under the subheading of "Land Use Performance Standards" in the "data inventory and analysis" portion of the Plan:
The land use classification system described allows for flexibility. Specific protection should be developed and included at the time the local development code is revised to bring it into compliance with the Comprehensive Plan. It is recommended that the following criteria serve as the basis for permitting any land use change. These along with other provisions and policies of all Comprehensive Plan elements will have to be met in order to receive a development order. The recommended performance standards are as follows:
Compatibility with surrounding land uses
Intensity of use
Adequacy of facilities
-water services
-sewer services
-roadway access
-fire and police service
Environmental impact
Following the recitation of the foregoing "recommended performance standards," the statement is made that "[i]n evaluating any proposed land use change as well as any other development approval requirement the Town shall take into consideration . . . whether or not the proposed change complies with the [same] location criteria" that are set forth in Policy 1.3.5 of the future land use element.
The "data inventory and analysis" portion of the plan gives the following description of the three major categories of land use problems that
the Town should strive to avoid or at least minimize through the planning process:
Misuse of Land
Widely scattered land development results in a pattern which is more costly to provide with essential services;
Construction of buildings in flood prone areas results in damage to property, danger to life and added financial burdens on the
[Town] for providing flood abatement measures;
Land and water resources are destroyed by scattered substandard development; and
Less than adequate room for expansion of businesses and industry result in congestion and inharmonious growth.
Conflicting Uses of Land
Encroachment of business and industrial uses into existing or emerging residential areas results in instability of these residential neighborhoods; and
Unplanned mixing of various land uses results in incompatible relationships among various activities which cause deterioration of the overall environment.
Overuse of Land
Inadequate provision of off-street parking causes encroachment of residential neighborhoods by traffic seeking parking;
Strip development along major highways results in reduced traffic capacity and increased traffic congestion;
Excessive land coverage by buildings and parking areas results in inadequate open space; and
Poorly conceived site and building design standards can result in overuse of land.
Ordinances Creating the Indiantown Road Overlay Zoning District
In March, 1990, the Town Council adopted a series of ordinances that incorporated, in all respects material to the instant case, the above-described "comprehensive strategy" that Skokowski had devised for the Indiantown Road corridor.
These ordinances amended the Town's zoning code by creating the Indiantown Road Overlay Zoning District (I.O.Z.).
The I.O.Z. is codified in Section 517 of the code, which describes the I.O.Z.'s purpose and intent as follows:
The purpose and intent of this specialized overlay zoning district is to encourage and provide for enhanced property development within the Indiantown Road corridor.
Objectives to be attained through the establishment of this district include protection of adjacent residential land uses; enhancement of the commercial status of the corridor; reduction of visual distraction through uniform sign criteria; enhancement of physical appearance through increased landscaping of public and private property; clustering of compl[e]mentary uses throughout various locations along the corridor; provisions of architectural design guidelines within specific locations along the corridor; encourage the construction of pedestrian oriented facilities in both public and private structures; installation of special landscape and architectural features at major intersections; and establish development incentives to accomplish these objectives.
Before the Town Council took final action on the matter, the Town's Director of Community Development provided the Florida Department of Transportation (DOT) with a copy of what was to become Section 517 and asked DOT to favor the Town with its comments. DOT, however, declined to do so.
The ordinances adopted by the Town to effectuate the creation of the I.O.Z. were Ordinances 14-90, 15-90, 20-90, 21-90, 22-90, 23-90, 24-90 and 25- 90.
61. Ordinances 20-90, 21-90, 22-90, 23-90, 24-90 and 25-90 divided the Indiantown Road Overlay Zoning District into parkway subdistricts and five urban subdistricts: the Central Boulevard District; the Center Street/Maplewood Drive District; 43/ the Civic Center District; the Alternate A1A District;
and the U.S. Highway One District.
Ordinance 14-90 imposed design, landscaping, and signage requirements applicable to these subdistricts.
Ordinance 15-90 further restricted the land use activities permitted in these subdistricts.
The underlying zoning district of most of the land area in the Indiantown Road corridor is "C-2" (Commercial, General), in which 41 commercial land use activities are permitted, 11 by right and 30, including automobile sales, by special exception.
Ordinance 15-90 absolutely prohibits, without exception, anywhere from
11 to 18 of these 41 commercial land activities, depending upon the subdistrict. Automobile sales are absolutely prohibited throughout the corridor.
Attachments 1-11 appended to this Final Order show each of the land use activities that were permitted, by right or special exception, in each subdistrict prior to the adoption of Ordinance 15-90 and the changes, if any, made by Ordinance 15-90 to their status as permitted activities.
Relationship of the I.O.Z. to the Comprehensive Plan
Section 517.3 of the Town's zoning code states that "[t]he establishment of the IOZ [as codified in Section 517] is hereby declared consistent with the Town of Jupiter Comprehensive Plan."
It has not been shown that it is beyond reasonable debate that, in making this declaration, the Town Council, which only a couple of months earlier had adopted the Town of Jupiter Comprehensive Plan, was in error.
A reasonable argument may be made that the I.O.Z (Section 517 of the Town's zoning code) and its component parts, including the use restrictions imposed by Ordinance 15-90, are compatible with the Plan and take action in the direction of realizing the Town's aspirations, as announced in the Plan, with respect to the Indiantown Road corridor.
The I.O.Z. is a "coherent, comprehensive strategy" for the Indiantown Road corridor that employs "the concept of an overlay zone" and a "node policy" of development (as opposed to linear, "[s]trip commercial") and is reasonably designed to allow this roadway to "become a 'memorable' entryway leading into Jupiter."
The use restrictions imposed by Ordinance 15-90 are an integral part of this "coherent, comprehensive strategy." They play a role in "establishing the desired character of the corridor."
Ordinance 15-90 is not at variance with any of the land use designations made on the Plan's future land use map, including those designating land in the Indiantown Road corridor for commercial use. While the ordinance absolutely prohibits certain land use activities, those that it allows are in keeping with the map's land use designations. For instance, the activities it permits on land designated on the map for commercial use, which is most of the land in the corridor, are indeed "commercial uses," as that term is defined on page I-30 of the "data inventory and analysis" portion of the Plan. Because the ordinance permits these "commercial uses" throughout much of the corridor, it furthers the Plan's vision of the Indiantown Road corridor as an area where commercial development predominates.
There is no inconsistency or conflict between Ordinance 15-90 and the goal of the future land use element of the Plan.
It has not been demonstrated beyond reasonable debate that the ordinance will prevent the Town from fulfilling its desire, as expressed in the goal of the future land use element, of completing its transformation from a bedroom community to one that offers, in addition to housing, job opportunities and goods and services accommodating the needs of the residents of the Greater Jupiter area that cannot be adequately met by surrounding communities.
To become a "total" or "full-service" community Jupiter need not offer every conceivable good and service in the marketplace. Accordingly, it may absolutely prohibit within its jurisdictional boundaries certain commercial land use activities that involve specialized goods and services that are available elsewhere in the region and still reach its goal of becoming a "total" or "full- service" community.
Moreover, Ordinance 15-90 applies only to the land area within the Indiantown Road corridor, which, as noted above, contains approximately two- thirds of the Town's commercially designated land. The remaining land area in the Town designated for commercial use is unaffected by the ordinance and unencumbered by its land use restrictions. Therefore, even if, in order to become a "total" or "full-service" community, the Town was required to offer within its jurisdictional boundaries those goods and services that are unavailable in the Indiantown Road corridor as a result of Ordinance 15-90, the Town would still be able to meet this requirement because the ordinance does not preclude the Town from offering these goods and services in commercially designated areas in the Town that are outside of the Indiantown Road corridor.
There is no inconsistency or conflict between Ordinance 15-90 and Policy 1.1.5 of the future land use element of the Plan.
While the land use activities absolutely prohibited by Ordinance 15-90 tend to require larger lot sizes, have generally lower traffic generation rates and are less likely to be found in "[s]trip commercial" developments than certain land use activities permitted by the ordinance, it has not been shown that it is beyond reasonable debate that these prohibitions will likely result in the "[s]trip or highway commercial development" that Policy 1.1.5 seeks to discourage. Ordinance 15-90 renders ineffective neither the requirements of the Plan 44/ nor those of the remaining portions of the I.O.Z. designed to combat and prevent "[s]trip or highway commercial development." The ordinance works, not at cross-purposes with these requirements, but in tandem with them, imposing additional, rather than conflicting, restrictions on development in the Indiantown Road corridor. Under the regulatory framework established by the Town through the adoption of the Plan and the I.O.Z., a proposed development that meets the requirements of Ordinance 15-90, but is inconsistent with the anti-strip commercial provisions of the Plan and the remaining portions of the I.O.Z., will not be approved. Accordingly, Ordinance 15-90 will not have the effect of enhancing the potential for the occurrence of "[s]trip or highway commercial development" in the Indiantown Road corridor.
There is no inconsistency or conflict between Ordinance 15-90 and Policy 1.1.6 of the future land use element of the Plan.
As noted above, Policy 1.1.6 references the Indiantown Road corridor study and indicates that this study "will result in a coherent, comprehensive strategy for this major roadway containing streetscape guidelines and site development standards that will be integrated into the Town's land development regulations." While the use restrictions imposed by Ordinance 15-90 are neither "streetscape guidelines" nor "site development standards," Policy 1.1.6 does not mandate that the "coherent, comprehensive strategy" resulting from the Indiantown Road corridor study include only "streetscape guidelines" and "site development standards." Given that use restrictions are typically included in a "comprehensive strategy" for a roadway corridor and that there was considerable public debate preceding the adoption of the Plan concerning Skokowski's recommendation (which was ultimately incorporated in Ordinance 15-90) that certain use restrictions be included in a "comprehensive strategy" for the Indiantown Road corridor, it is reasonable to assume that, had the Town Council intended that such use restrictions not be a part of the "comprehensive strategy" envisioned in Policy 1.1.6, it would have so specified in that policy or elsewhere in the Plan. Its failure to have done so reflects that the Town Council had no such intention at the time it adopted the Plan.
There is no inconsistency or conflict between Ordinance 15-90 and Policy 1.3.5 of the future land use element of the Plan.
As mentioned above, Policy 1.3.5 directs, among other things, that the Town's land development regulations include, within a commercial land use category, the subcategories of "Neighborhood Commercial," "General Commercial," "Office Commercial," and "Heavy Products Commercial" and it gives a representative sample of activities that would fall into each of these subcategories. In addition, the policy prescribes location and intensity criteria for each of these subcategories.
Policy 1.3.5 does not require the Town, in its land development regulations, to permit in areas that meet the location criteria of a particular subcategory all of the commercial land use activities that may fall within that subcategory. Accordingly, as it has done in Ordinance 15-90, the Town may prohibit some of these activities without running afoul of the mandate of Policy 1.3.5.
Policy 1.3.5 does impose upon the Town the obligation to permit a "Neighborhood Commercial," "General Commercial," "Office Commercial," or "Heavy Products Commercial" land use activity only in those areas that, according to the policy's location criteria, are suitable for that particular activity.
There has been no showing that the various commercial land use activities permitted by Ordinance 15-90 are allowed to take place in areas that do not meet the location criteria prescribed in Policy 1.3.5. If anything, the evidence establishes the contrary.
There is no inconsistency or conflict between Ordinance 15-90 and Policies 1.1.7 and 1.1.8 of the intergovernmental coordination element of the Plan.
As indicated above, Policies 1.1.7 and 1.1.8 provide that, in the development of the Indiantown Road corridor study, the Town "shall seek the active involvement" [of] the Florida Department of Transportation" (DOT), as well as the "Palm Beach County Department of Planning, Building and Zoning and/or the Palm Beach County Metropolitan Planning Organization (MPO)," to provide appropriate input. In conducting his study of the Indiantown Road corridor, Skokowski sought the "active involvement" of the Palm Beach County Department of Planning, Building and Zoning. He did not seek DOT's input, 45/ but the Town's Director of Community Development, prior to the Town Council's adoption of the I.O.Z., did. Accordingly, in adopting Ordinance 15-90 and the other ordinances that were based upon Skokowski's Indiantown Road corridor study, the Town Council did not act in derogation of the requirements of either Policy 1.1.7 or Policy 1.1.8 of the intergovernmental coordination element of the Plan.
Petitioner's Challenge to the I.O.Z.'s Use Restrictions
Petitioner owns approximately 680 acres of land in Jupiter, including land situated in the Indiantown Road corridor that is subject to the use restrictions imposed by Ordinance 15-90. It acquired 640 of these 680 acres in 1981 and the remaining acreage in 1987.
Petitioner has been developing this property since its acquisition. A golf course and residential community have already been completed. Work has begun on a 40-acre commercial project located in the Maplewood Drive/Indiantown Road area.
Petitioner desires to build an auto campus as part of this project, but is unable to do so because Ordinance 15-90 absolutely prohibits automobile sales from occurring on the land.
On or around December 10, 1990, Petitioner sent a petition to the Mayor of Jupiter, the body of which read as follows:
This petition is submitted on behalf of Restigouche, Inc. [Petitioner] pursuant to Fla. Stat. #163.3213(3) and Rule 9J-24.007
of the Florida Administrative Code. The purpose of this Petition is to challenge the consistency of such portions of [the] Indiantown Road Overlay Zoning District Ordinance, as adopted by the Town of Jupiter under Ordinance 15-90. These portions define permitted uses, uses permitted by special exception and prohibited uses within the IOZ. Section 517 of the Zoning Code was adopted by several ordinances[.] Ordinances 14-90 and
15-90 were adopted March 6, 1990. Ordinances
20-90, 21-90, 22-90, 23-90, 24-90 and 25-90
were adopted March 20, 1990.
Ordinance 15-90 reduces the allowable uses of the property owners within the IOZ. The underlying zoning category for Restigouche's property in the Maplewood/Center Street District is C-2. Table 1 of the IOZ contains a list of 41 uses available to property within Zoning District C-2 by right or by special exception. The table shows that the uses for property within the IOZ have been reduced to the extent that those uses designated as "X" have moved from permitted by right or special exception to prohibited uses.
Ordinance 15-90, which incorporates this down zoning, is inconsistent with the Comprehensive Plan of the Town of Jupiter as adopted by the Town Council January 16, 1990. The Comprehensive Plan does not allow for the creation of a district along the Indiantown Road Corridor that would limit uses from those as stated in the appropriate underlying zoning district. The Comprehensive Plan recognizes that a study of the development along Indiantown Road was being undertaken at the time of Comprehensive Plan adoption and acknowledges that signage, streetscape and site development criteria to enhance the visual aspects of Indiantown Road would be adopted. The Comprehensive Plan does not
state that a new zoning district would be created limiting uses from those already available for the underlying zoning.
Policy 1.3.5 states that land development regulation[s] shall include four designated types of commercial zoning as specified in this policy. These are Neighborhood Commercial, General Commercial, Office Commercial and Heavy Products Commercial.
Specific description of policies and goals for each of these is stated. There is no policy for the recognition of a land use or zoning category specifically applicable to Indiantown Road.
The Petitioner is a substantially affected person by virtue of its ownership since 1981 of property within the Maplewood/Center Street District which is part of the IOZ and is the successor developer of a previously approved Development of Regional Impact.
Petitioner has expended millions of dollars in improvements to the property within the Maplewood/Center Street District in the IOZ and has contributed substantial acreage for the construction of a public school, park and fire station.
The Petitioner is Restigouche, Inc., its address is 102 Nocossa Circle, Jupiter
Florida 33458, telephone number (407)744-4778.
The Petitioner's representative at that office is Eileen F. Letsch, Vice-President. Petitioner is represented in this matter by its counsel, Paul B. Erickson of Alley, Maass, Rogers & Lindsay, P.A., 321 Royal Poinciana Plaza, Palm Beach, Florida 33480 (407)659-1770.
The relief sought by Restigouche, Inc. is recognition by the Town of Jupiter that such portions of Section 517 which diminish permissible zoning uses from those allowed in the underlying C-2 Zoning District are void and unenforceable allowing the Application for Special Exception to be considered by the Town of Jupiter.
The Town did not grant the relief sought by Petitioner. Accordingly, on or about March 5, 1991, Petitioner submitted a petition to the Department of Community Affairs (Department). The body of the petition read as follows:
Restigouche, Inc. ("Restigouche") files this challenge to the consistency of a land development regulation of the Town of Jupiter, Florida. Restigouche is not aware
of any Agency file number for this proceeding. Restigouche, Inc. is a Florida corporation.
This petition is filed by Eileen F. Letsch, Executive Vice-President, 102 Nocossa Circle, Jupiter, Florida 33458, (407)744-4778.
Restigouche is represented in this Petition by Paul B. Erickson, Esq. of Alley, Maass, Rogers & Lindsay, 321 Royal Poinciana Plaza, Palm Beach, Florida 33480 (407)659-1770.
Restigouche is the owner of property in the Town of Jupiter, Florida which is within the Indiantown Road Overlay Zoning District ("IOZ") created by the Town under Ordinances 14-90 and 15-90 on March 6, 1990 and applied to Restigouche's property by Ordinance 21-90 on March 20, 1990. These ordinances as enacted create Section 517 of Ordinance 10-88 which is the current zoning ordinance of the Town of Jupiter. Restigouche challenged the consistency of the IOZ with the Comprehensive Plan of the Town of Jupiter by letter to the chief elected official of the Town dated December 12, 1990. A copy of the petition
is attached.
The Town of Jupiter adopted its Comprehensive Plan January 20, 1990. The IOZ as it was enacted in part by Ordinances 15-90 and 21-90 is a down zoning regulation which reduces the number of permissible uses for Restigouche's property by right or special exception from
41 to 27. The IOZ as enacted in Ordinance 14-90 established landscaping and site
development standards for property within the IOZ.
The portions of the IOZ as adopted in Ordinances 15-90 and 21-90 are not consistent with the Comprehensive Plan of the Town of Jupiter. The Comprehensive Plan refers to the IOZ as an area of landscaping and site development standards. It does not refer to the IOZ as an area where permissible uses will be down-zoned.
The Comprehensive Plan establishes mandatory criteria for the development of commercial uses within the Town in Policy 1.3.5. This does not recognize or allow a separate, restrictive commercial zoning district along Indiantown Road.
The IOZ as enacted in Ordinance 15-90 should be declared invalid because it is inconsistent with the Comprehensive Plan.
The Department determined that the petition substantially complied with the requirements of Rule 9J-24.007(5) and (6), Florida Administrative Code, and so notified the parties.
By letter dated March 22, 1991, the Department requested the Mayor of the Town to furnish it with the following materials:
those portions of the Town's land development regulations which discuss or implement the IOZ; the standards for all zoning districts which underlie the IOZ; any supportive studies regarding the IOZ; and those portions of the comprehensive plan which discuss the IOZ or densities and allowable uses in the area in question.
The requested materials were furnished on or about March 28, 1991.
An informal hearing on Petitioner's challenge to the I.O.Z.'s use restrictions was held in Jupiter on April 12, 1991. Representatives of both Petitioner and the Town participated in the hearing. They presented information and argument for the Department's consideration.
Following the informal hearing, the Department gave the parties the opportunity to supplement what they had presented at hearing. Both parties took advantage of the opportunity.
In its supplemental submission, Petitioner presented additional written argument, in which it identified with specificity those provisions of the Town of Jupiter Comprehensive Plan with which it claimed the I.O.Z.'s use restrictions were inconsistent. These specifically identified Plan provisions were Goal 1, Objectives 1.2, 1.3 and 1.4, and Policies 1.1.4, 1.1.5, 1.1.6, 1.1.7, 1.1.8, 1.1.13, 1.1.14, 1.2.3, 1.2.4, and 1.3.5 of the future land use element and Policies 1.1.7, 1.1.8 and 1.1.9 of the intergovernmental coordination element.
Petitioner also submitted 1) an engineer's report supporting its position that its proposed auto campus "would have significantly less impact upon public facilities" than would a 230,500 square foot retail center constructed on its property, 2) photographs of a model of the proposed auto campus, and 3) site plans of the proposed auto campus.
By letter dated April 30, 1991, the Town objected to Petitioner's submission of the engineer's report and asked that it not be considered by the Department because it was generated after the informal hearing and therefore was "not available for discussion . . . at the hearing."
On May 10, 1991, following its review and consideration of not only the information, argument and materials with which it had been presented, but of the entire Town of Jupiter Comprehensive Plan as well, which it had on file, the Department issued its written decision finding that "the provisions of the Town of Jupiter Land Development Regulations contained in the IOZ which have been challenged by Petitioners 46/ in this proceeding are consistent with the Town's Comprehensive Plan."
The Department explained its determination as follows in Conclusions of Law 2 and 3 of its written decision:
The Town of Jupiter's IOZ is not in conflict with the Comprehensive [P]lan because the IOZ is specifically authorized by the Plan, and there are no provisions in the Plan which prohibit the Town from adjusting allowable uses within underlying zoning districts. The uses permitted in the IOZ are certainly within the permissible range of uses for the designation in the plan. The plan does not guarantee a minimal zoning category for properties within the general commercial designation. It only provides that the zoning will effectively include general commercial uses. Further, the IOZ cannot accurately be referred to as a separate zoning category as argued by the Petitioners. The IOZ modifies underlying general commercial zoning districts (which the Petitioners agree are authorized by the Plan). In fact, land development regulations such as the IOZ are considered to be innovative and are encouraged in s.
163.3202(3), F.S.
There are no provisions in Chapter 163, F.S., that require comprehensive plans to identify and authorize all implementing land development regulations. Although Policy
1.3.5 lists certain uses which are eliminated or limited within the IOZ, these uses are allowed in commercial zoning districts outside the IOZ. The Petitioners may have cited portions of certain policy statements that, when taken in isolation, seem to suggest potential conflicts with the IOZ. However, the IOZ serves as the implementing solution to a problem area identified in the Plan as being of significant concern. Therefore, the IOZ, on balance, takes action in [the] direction of implementing and furthering substantive portions of the Plan. Further, the lack of recognition in the comprehensive plan of implementing land development regulations does not, by itself, constitute an inconsistency.
On May 31, 1991, Petitioner filed a petition with the Division of Administrative Hearings requesting a hearing on its consistency challenge.
Petitioner did so in good faith as part of its effort to convince the Town Council that the I.O.Z. should be modified in a manner that would allow Petitioner to construct its proposed auto campus in the Maplewood Drive/Indiantown Road. Petitioner hoped that the Hearing Officer would agree with its position that the I.O.Z.'s use restrictions are inconsistent with the Town of Jupiter Comprehensive Plan and that, after the Hearing Officer found these use restrictions to be inconsistent with the Plan, the Town Council would
take action to eliminate them to avoid the sanctions it would face if it did not take such action.
CONCLUSIONS OF LAW
General Legal Principles
Pursuant to Chapter 163, Part II, Florida Statutes, otherwise known as the Local Government Comprehensive Planning and Land Development Regulation Act (Act), counties and incorporated municipalities in the State of Florida are required to prepare and adopt comprehensive plans of the type and in the manner prescribed by the Act.
The Act mandates that an adopted comprehensive plan be implemented, in part, by the adoption and enforcement of land development regulations that are based upon, related to and consistent with the plan. Sections 163.3194(1)(b), 163.3201, 163.3202(1) and (2), and 163.3213, Fla. Stat. The "use of innovative land development regulations which include provisions such as transfer of development rights, incentive and inclusionary zoning, planned-unit development, impact fees, and performance zoning," are specifically encouraged by the Act. Section 163.3202(3), Fla. Stat.
"The adoption of a land development regulation by a local government is legislative in nature." Section 163.3213(5), Fla. Stat.
"[S]ubstantially affected persons have the right to maintain administrative actions which assure that land development regulations implement and are consistent with the local comprehensive plan." Section 163.3213(1), Fla. Stat.
A "[s]ubstantially affected person," as that term is used in Section 163.3213, Florida Statutes, "means a substantially affected person as provided pursuant to chapter 120." Section 163.3213(2)(a), Fla. Stat.
"Land development regulation," as that term is used in Section 163.3213, Florida Statutes, is defined therein as follows:
"Land development regulation" means an ordinance enacted by a local governing body for the regulation of any aspect of development, including a subdivision, building construction, landscaping, tree protection, or sign regulation or any other regulation concerning the development of land. The term shall include a general zoning code, but shall not include a zoning map, an action which results in zoning or rezoning of land, or any building construction standard adopted pursuant to and in compliance with the provisions of chapter 553.
An administrative challenge to such a "land development regulation" on the ground that it is inconsistent with the local comprehensive plan must be instituted within 12 months of the final adoption of the regulation. To institute such a challenge, a petition must first be filed "with the local government whose land development regulation is the subject of the petition
outlining the facts on which the petition is based and the reasons that the substantially affected person considers the land development regulation to be inconsistent with the local comprehensive plan." The local government has 30 days following the receipt of the petition to respond. Thereafter, if the matter remains unresolved, the "substantially affected person" may file a petition with the Department of Community Affairs "contain[ing] the facts and reasons outlined in the prior petition to the local government." Section 163.3213(3), Fla. Stat.
The Department must notify the local government of its receipt of the petition and give both the local government and the petitioning party an opportunity to present written or oral testimony on the issue before issuing its decision. Section 163.3213(4), Fla. Stat.
If the Department determines that the challenged "land development regulation" is consistent with the local comprehensive plan, the "substantially affected person" may further pursue his challenge by requesting, within 21 days of the Department's determination, a formal hearing on the matter before a hearing officer assigned by the Division of Administrative Hearings. Section 163.3213(5)(a), Fla. Stat.
The "substantially affected person" must convince the hearing officer that it is not even "fairly debatable" that [the "land development regulation" in question] is consistent with the [local comprehensive] plan." Section 163.3213(5)(a), Fla. Stat. This burden is a "heavy" one. See Allapattah Community Association, Inc. of Florida v. City of Miami, 379 So.2d 387, 392 (Fla. 3d DCA 1980). For this burden to be met, it must be shown that it is beyond reasonable debate or legitimate controversy that the challenged "land development regulation" and the local comprehensive plan, taken as a whole, are inconsistent. 47/ See City of Miami Beach v. Lachman, 71 So.2d 148, 152 (Fla. 1953); Norwood-Norland Homeowner Association, Inc. v. Dade County, 511 So.2d 1009, 1012 (Fla. 3d DCA 1987); Sarasota County v. Purser, 476 So.2d 1359, 1362 (Fla. 2d DCA 1985); Marrell v. Hardy, 450 So.2d 1207, 1209 (Fla. 4th DCA 1984).
The Legislature has directed that the hearing officer adhere to the following guidelines in determining a challenged "land development regulation's" consistency with the local comprehensive plan:
A . . . land development regulation shall be consistent with the comprehensive plan if the land uses, densities, or intensities, and other aspects of development permitted by such . . . regulation are compatible with and further the objectives, policies, land uses, and densities or intensities in the comprehensive plan and if it meets all other criteria enumerated by the local government.
Section 163.3194(3)(a), Fla. Stat.
Furthermore, the Department has adopted a rule, Rule 9J-24.008, Florida Administrative Code, which sets forth "[c]riteria for [d]etermining [the c]onsistency of [l]and [d]evelopment [r]egulations with the [local c]omprehensive [p]lan." It provides as follows:
A determination of consistency of a land development regulation with the comprehensive plan will be based upon the following:
Characteristics of land use and development allowed by the regulation in comparison to the land use and development proposed in the comprehensive plan. Factors which will be considered include:
type of land use;
intensity and density of land use;
location of land use;
extent of land use: and
other aspects of development, including impact on natural resources;
Whether the land development regulations are compatible with the comprehensive plan, further the comprehensive plan, and implement the comprehensive plan. The term "compatible" means that the land development regulations are not in conflict with the comprehensive plan. The term "further" means that the land development regulations take action in the direction of realizing goals
or policies of the comprehensive plan. 48/
Whether the land development regulations include provisions that implement objectives and policies of the comprehensive plan that require implementing regulations in order to be realized, including provisions implementing the requirement that public facilities and services needed to support development shall be available concurrent with the impacts of such development.
If, after weighing the evidence adduced at hearing against these standards and criteria, the hearing officer determines that the challenged "land development regulation" is inconsistent with the local comprehensive plan, the hearing officer must issue a final order in accordance with Chapter 120, Florida Statutes, so holding and submit the order to the Administration Commission.
"The sole issue before the Administration Commission [is] the extent to which any of the sanctions described in Section 163.3184 . . . shall be applicable to the local government whose land development regulation has been found to be inconsistent with its comprehensive plan." Section 163.3213(5) and (6), Fla.
Stat. 49/
These sanctions are described in Section 163.3184, Florida Statutes, as follows:
. . . The commission may direct state agencies not to provide funds to increase the capacity of roads, bridges, or water or sewer systems within the boundaries of those local governmental entities which have
comprehensive plans or plan elements that are determined not to be in compliance. The commission order may also specify that the local government shall not be eligible for grants administered under the following programs:
The Florida Small Cities Community Development Block Grant Program, as authorized by ss. 290.041-290.049.
The Florida Recreation Development Assistance Program, as authorized by chapter 375.
Revenue sharing pursuant to ss. 206.60, 210.20, and 218.61 and part I of chapter 212, to the extent not pledged to pay back bonds.
If the local government is one which is required to include a coastal management element in its comprehensive plan pursuant to
s. 163.3177(6)(g), the commission order may also specify that the local government is not eligible for funding pursuant to s. 161.091. The commission order may also specify that the fact that the coastal management element has been determined to be not in compliance shall be a consideration when the Department of Natural Resources considers permits under
s. 161.053 and when the Board of Trustees of the Internal Improvement Trust Fund considers whether to sell, convey any interest in, or lease any sovereignty lands or submerged lands until the element is brought into compliance.
Section 163.3184(11), Fla. Stat.
Because the Act authorizes the imposition of these "substantial" 50/ penalties against a local government whose "land development regulation" is found to be inconsistent with its comprehensive plan, these provisions of the Act must be strictly and narrowly construed. See D'Alemberte v. Anderson, 349 So.2d 164 (Fla. 1977); Lollie v. General American Tank Storage Terminals, 34 So.2d 306 (Fla. 1948); Gardinier, Inc. v. Florida Department of Pollution Control, 300 So.2d 75 (Fla. 3d DCA 1974).
Is Petitioner a "Substantially Affected Person?"
Petitioner is the owner of property that is subject to the use restrictions imposed by Ordinance 15-90. Because of these restrictions, Petitioner is unable to use its property as it desires.
Accordingly, Petitioner is "substantially affected" by the ordinance. Cf. Bhoola v. City of St. Augustine Beach, 588 So.2d 666 (Fla. 5th DCA 1991)(landowner who purchased property subsequent to "purported enactment" of zoning ordinance that restricted his use of property was affected by ordinance
and therefore had standing to challenge ordinance on ground that it was not enacted in accordance with statutory requirements); Board of Trustees of the Internal Improvement Trust Fund of the State of Florida v. Board of Professional Land Surveyors 566 So.2d 1358 (Fla. 1st DCA 1990)(Board of Trustees, as body responsible for protecting and conserving state lands, had substantial interest in proceeding involving rules proposed by Board of Professional Land Surveyors relating to "Ordinary High Water Line" surveys).
Prerequisites Met?
The Town and Department argue that Petitioner does not have standing to pursue the instant challenge because Petitioner "did not submit objections to the Town during the proceedings that culminated in the adoption of the Town's comprehensive plan" and "at no time during the hearings conducted regarding the preparation and adoption of the IOZ did [Petitioner] object to the adoption of .
. . the IOZ as being inconsistent with the Town's comprehensive plan." The argument is not persuasive.
Submitting such a pre-adoption objection to a local comprehensive plan is a condition precedent to instituting an administrative challenge under Section 163.3184, Florida Statutes, to the comprehensive plan, but it is not a condition precedent to instituting an administrative challenge under Section 163.3213, Florida Statutes, to a "land development regulation" that is allegedly inconsistent with the plan. Neither is objecting to the challenged "land development regulation" prior to its adoption a condition precedent to instituting such an administrative challenge to the regulation. The only procedural steps that Section 163.3213, Florida Statutes, requires a "substantially affected person" to take before filing a petition with the Division of Administrative Hearings challenging a "land development regulation" as being inconsistent with the local comprehensive plan is timely petitioning the local government for relief and, if the local government does not provide such relief, then petitioning the Department of Community Affairs. Petitioner followed these steps in the instant case.
Is Ordinance 15-90 a "Land Development Regulation" Subject to Challenge under Section 163.3213, Florida Statutes?
In this administrative proceeding, Petitioner is challenging the use restrictions imposed by Ordinance 15-90.
Ordinance 15-90 is an ordinance that regulates the development of land in the Indiantown Road corridor and in no other part of the Town. Given the limited scope of its operation, it cannot be deemed a "general zoning code," as that term is used in Section 163.3213, Florida Statutes.
Ordinance 15-90 prohibits land uses in the Indiantown Road corridor that are otherwise permitted by the underlying zoning. Its adoption by the Town was therefore "an action which result[ed] . . . in the rezoning of land," within the meaning of Section 163.3213, Florida Statutes. Cf. Fountain v. City of Jacksonville, 447 So.2d 353 (Fla. 1st DCA 1984)(ordinance creating "overlay zones" in vicinity of airports and "impos[ing] restrictions upon the land overlaid . . . not contemplated by the underlying zoning, which remain[ed] unchanged," constituted a "rezoning of land;" City's failure to meet procedural requirements applicable to such "rezoning" rendered ordinance null and void).
As such, it is not a "land development regulation" subject to administrative challenge pursuant to Section 163.3213, Florida Statutes. Accordingly, Petitioner's administrative challenge to this ordinance must be dismissed.
Are the Land Use Restrictions Imposed by Ordinance 15-90 Consistent with the Town of Jupiter Comprehensive Plan?
It is at least "fairly debatable" that, when viewed in light of the standards and criteria prescribed in Section 163.3194(3)(a), Florida Statutes, and Rule 9J-24.008, Florida Administrative Code, the land use restrictions imposed by Ordinance 15-90 are consistent with Town of Jupiter Comprehensive Plan. As explained in greater detail in the Findings of Fact which are a part of this Final Order, these land use restrictions do not conflict with, nor do they fail to further, the Plan. Accordingly, Petitioner would not prevail in this proceeding even if its consistency challenge was cognizable under Section 163.3213, Florida Statutes.
Are the Town and Department Entitled to an Award of Attorney's Fees and Costs pursuant to Section 163.3213(8), Florida Statutes?
Section 163.3213(8), Florida Statutes, provides as follows:
The certificate of an attorney or party constitutes a certificate that he has read the petition, motion, or other paper and that, to the best of his knowledge, information and belief formed after reasonable inquiry, it is not interposed for any improper purposes, such as to harass or to cause unnecessary delay or for economic advantage, competitive reasons, or frivolous purposes or needless increase in the cost of litigation. If a petition, motion or other paper is signed in violation of these requirements, the administrative hearing officer, upon motion or his own initiative, shall impose upon the person who signed it or upon a represented party or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the petition, motion or other paper, including a reasonable attorney's fee.
In their joint proposed final order, the Town and the Department contend that, in pursuing the instant administrative challenge to the land use restrictions imposed by Ordinance 15-90, Petitioner has acted in contravention of the requirements of this statutory provision and that it should therefore be ordered to pay the Town's and the Department's attorney's fees and costs. The record evidence, however, does not support this contention. It does not reveal any bad faith or "improper purpose" on Petitioner's part. Absent such evidence, the Hearing Officer is without authority, under Section 163.3213(8), Florida Statutes, to impose sanctions against Petitioner as requested by the Town and the Department.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby ORDERED:
Petitioner's petition challenging the land use restrictions imposed by Ordinance 15-90 is DISMISSED on the ground that Ordinance 15-90 is not a "land development regulation" subject to administrative challenge pursuant to Section 163.3213, Florida Statutes; and
The Town's and the Department's request that the Hearing Officer impose sanctions against Petitioner pursuant to Section 163.3213(8), Florida Statutes, for pursuing such an administrative challenge is DENIED.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10 day of August, 1992.
STUART M. LERNER
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 10 day of August, 1992.
ENDNOTES
1/ The transcript of the final hearing held in this cause omits a portion of Grace's testimony that the court reporter was unable to transcribe. On February 20, 1992, upon learning of the court reporter's dilemma, the Hearing Officer issued an order directing the parties to attempt to prepare a joint statement of what transpired on the record during that portion of Graces's testimony. The order required the parties to file a joint written report "specify[ing] those matters about which there [was] agreement and those matters that remain[ed] in dispute." On March 23, 1992, the parties filed a timely joint written report, but it lacked the specificity required by the Hearing Officer's February 20, 1992, order. Accordingly, on March 25, 1992, the Hearing Officer ordered the parties "to file, on or before April 8, 1992, another joint report, which 1) contain[ed] a verbatim recital of that which the parties agree[d] should be included in a statement of what transpired on the record during those portions of Grace's testimony that the court reporter [wa]s unable to transcribe, 2) identifie[d] with specificity those matters about which there [wa]s disagreement, and 3) state[d] in detail each party's position on each of these issues in dispute." The parties filed their second joint report on May 11, 1992. To the extent that the report recites those matters upon which the parties' agree, it is hereby approved as an accurate recital of the testimony given by Grace in this cause. As to those matters about which the parties disagree, it is unnecessary to resolve the parties' dispute inasmuch as the Hearing Officer's Findings of Fact and Conclusions of Law would be the same regardless of which party's version of Grace's testimony he credited.
2/ When these two additional new car dealerships become operational, the Town will have, approximately, one new car dealership for every 9,300 residents. On a statewide basis, as well as in Palm Beach County, there is approximately one new car dealership for every 11,400 residents.
3/ New car dealerships are commonly clustered together on major roadways.
4/ New car dealerships not only sell vehicles, they service them as well. 5/ These uses included those that would tend have a market area that was
regional in scope and extend beyond the boundaries of the Greater Jupiter area. Skokowski thought it important to prevent the proliferation of such uses to ensure that the commercial needs of those in the Greater Jupiter area would be adequately served.
6/ The Civic District, according to Skokowski's plan, would be centered around the intersection of Military Trail and Indiantown Road.
7/ Skokowski examined each of the individual commercial uses allowed in each subdistrict under the existing zoning to determine which were in keeping with the desired character and image of the subdistrict and complementary to one another. Those that were not, he recommended be prohibited or permitted only by special exception. While he considered the general intensity of these individual uses, he did not specifically take into account traffic or trip generation rates. Based upon information contained in the Institute of Traffic Engineers Trip Generation Manual, the uses Skokowski recommended be absolutely prohibited average a daily trip generation rate of 495 trips per 1,000 square feet, those he recommended be permitted only by special exception average a daily trip generation rate of 1,091 trips per 1,000 square feet and those he recommended be permitted as of right average a daily trip generation rate of 538 trips per 1,000 square feet.
8/ A "goal" is defined in Rule 9J-5.003(36), Florida Administrative Code, as "the long-term end toward which programs or activities are ultimately directed."
9/ An "objective" is defined in Rule 9J-5.003(61), Florida Administrative Code, as "a specific, measurable, intermediate end that is achievable and marks progress toward a goal."
10/ A "policy" is defined in Rule 9J-5.003(68), Florida Administrative Code, as "the way in which programs and activities are conducted to achieve an identified goal."
11/ "Full service community" is not a term of art with special meaning to either professional planners or economists.
12/ When professional planners speak of a "comprehensive strategy" for a corridor they typically are referring to a strategy that, among other things, addresses permitted and prohibited land uses in the corridor.
13/ "[S]treetscape guidelines and site development standards," as those terms are commonly employed by professional planners, do not typically include use restrictions. They are essentially performance standards that regulate how things may be built, not what may be built.
14/ While the Plan was adopted after the completion of the "commercial corridor study," it is apparent that the language of this particular policy was drafted before the study was even begun and that it was not altered at any time during the review and adoption process to reflect that the study had been completed.
15/ Like Policy 1.1.6 of the future land use element, this statement and the three policies that follow it obviously were drafted prior to the time the study
was undertaken and survived the review and adoption process, notwithstanding that the study had already been completed when the Plan was adopted.
16/ The "Greater Jupiter Area" is defined on page I-20 of the "data inventory and analysis" portion of the Plan as the area "bounded on the west by the Florida Turnpike, on the south by Donald Ross Road, on the east by the Atlantic Ocean and on the north by Martin County." It includes, in addition to the land within the jurisdictional limits of the Town, unincorporated areas of Palm Beach County.
17/ The foregoing excerpt is taken from pages I-21 and 22 of the "data inventory and analysis" portion of the Plan.
18/ This excerpt is taken from page I-25 of the "data inventory and analysis" portion of the Plan.
19/ Significantly, while this portion of the Plan addresses the Town's anticipated need for neighborhood and community shopping centers, it does not contain any discussion relating to regional shopping centers.
20/ This excerpt is taken from page I-27 of the "data inventory and analysis" portion of the Plan.
21/ This excerpt is taken from page I-27 of the "data inventory and analysis" portion of the Plan.
22/ This excerpt is taken from page I-19 of the "data inventory and analysis" portion of the Plan.
23/ This excerpt is taken from pages I-3 and 4 of the "data inventory and analysis" portion of the Plan.
24/ This evidently was drafted more than two years prior to the Plan's adoption inasmuch the Indiantown Road interchange on I-95 was opened in late 1987.
25/ It is an accepted principle of planning that the land use activities that take place in a corridor help to shape the corridor's character.
26/ This excerpt is taken from pages I-5 and 6 of the "data inventory and analysis" portion of the Plan.
27/ Apparently, this provision of the Plan, like those mentioned previously, was drafted prior to the completion of the study.
28/ This excerpt is taken from page I-18 of the "data inventory and analysis" portion of the Plan.
29/ Unlike other provisions of the Plan that specifically reference Skokowski's study of the Indiantown Road corridor, this provision, it appears, was drafted after Skokowski had completed the study and his report of the results of the study had been "adopted" by the Town Council.
30/ This excerpt is taken from pages I-18 and 19 of the "data inventory and analysis" portion of the Plan.
31/ As noted above, the interchange was opened in late 1987, more than two years prior to the adoption of the Plan.
32/ This excerpt is taken from pages I-25 and 26 of the "data inventory and analysis" portion of the Plan.
33/ This excerpt is taken from page I-27 of the "data inventory and analysis" portion of the Plan.
34/ "Principal local arterials" are described as follows on pages II-1 and 2 of the "data inventory and analysis" portion of the Plan:
This class of facility connects major attraction areas within the Town and carries high volumes with minor land service functions. These facilities are locally continuous with access to principal regional arterials.
35/ "Collector streets" are described on page II-2 of the "data inventory and analysis" portion of the Plan as follows:
This class of facility may carry high traffic volumes with emphasis on access between land service streets and arterials. Collector streets may provide some direct land service.
36/ This excerpt is taken from page II-2 of the "data inventory and analysis" portion of the Plan.
37/ This excerpt is taken from pages II-3 and 4 of the "data inventory and analysis" portion of the Plan.
38/ This excerpt is taken from pages II-6 and 9 of the "data inventory and analysis" portion of the Plan.
39/ This excerpt is taken from pages II-9 and 10 of the "data inventory and analysis" portion of the Plan.
40/ This excerpt is taken from page II-11 of the "data inventory and analysis" portion of the Plan.
41/ This excerpt is taken from page VI-6 of the "data inventory and analysis" portion of the Plan.
42/ This excerpt is taken from pages VIII-20 and 21 of the "data inventory and analysis" portion of the Plan. It is this "data inventory and analysis" upon which Policies 1.1.7, 1.1.8 and 1.1.9 of the Plan's intergovernmental coordination was based. Like these policies, this excerpt from the "data inventory and analysis" portion of the Plan was apparently drafted before Skokowski had begun his study and was not revised to reflect that the study had been completed prior to the final adoption of the Plan.
43/ Skokowski had recommended that the Center Street and Maplewood Drive areas be divided into two separate urban subdistricts.
44/ Among these requirements are those relating to concurrency.
45/ In Skokowski's defense, it should be noted that he had completed his study before the adoption of the Plan and the effective date of its requirements,
including those of Policies 1.1.7 and 1.1.8 of the intergovernmental coordination element of the Plan.
46/ The I.O.Z.'s use restrictions had also been challenged by J. Michael Burman, a trustee for property located adjacent to Petitioner's property. Because of their similarities, the Department had "combined" Burman's and Petitioner's petitions for its consideration.
47/ Where an administrative proceeding involves a challenge to action of a legislative or quasi-legislative nature, such as in the instant case, unless the statute in question provides otherwise, it is the challenger that bears the ultimate burden of persuasion, notwithstanding that the challenger may not be asserting the affirmative on the issue before the administrative tribunal. See Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778,
787-88 (Fla. 1st DCA 1981)(while, as a general rule, the burden of persuasion is on the party asserting the affirmative of an issue in an administrative proceeding, because rule-making is a "quasi-legislative action" deserving of deference, the burden of persuasion is upon those attacking rule-making action to show that it is an invalid exercise of authority).
48/ An individual "land development regulation" need not further each and every provision of the local comprehensive plan to be consistent with the plan.
49/ An appeal of the hearing officer's final order may not be taken until the Administration Commission resolves this issue.
50/ See Florida League of Cities v. Administration Commission, 586 So.2d 397,
409 (Fla. 1st DCA 1991)(policy followed by Administration Commission in imposing sanctions pursuant to Section 163.3184(11), Florida Statutes, was a "substantial disincentive to noncompliance . . . analogous to a situation involving a criminal defendant").
APPENDIX ENDNOTES
51/ While the Town does not have a "traditional downtown" at present, its Comprehensive Plan suggests that "the creation of a traditional downtown" should be "consider[ed] as a long range strategy."
52/ The "requirements of the Plan" were not only considered by the Town Council, they were specifically referenced in the I.O.Z.
53/ The Town of Jupiter Comprehensive Plan was not finally adopted until January 16, 1990. April, 1989, was when the Town's proposed Comprehensive Plan was transmitted to the Department of Community Affairs for its review and comments.
54/ Skokowski's initial draft of the results of his study was submitted to the Town Council two months before the Town's proposed Comprehensive Plan was transmitted to the Department of Community Affairs and almost a year before the Plan was finally adopted.
55/ Although he has rejected these proposed findings as findings of fact, the Hearing Officer does not quarrel with the position advanced by Petitioner in these proposed findings that the law requires that a local government's "land development regulations" be consistent with the local comprehensive plan as a whole and that the enforcement of this requirement is a key component of the Act.
56/ C-2 (Commercial, General) is the underlying zoning district of most, but not all, of the land in the Indiantown Road corridor. The Civic Center District, for example, includes land zoned R-1 (Residential, Single Family), where single family dwellings are permitted. Single family dwellings are not "within the wide range of uses included by Policy 1.3.5 in the general commercial category."
57/ As noted above, to be consistent with the local comprehensive plan, an individual "land development regulation" need not further each and every provision of the plan.
58/ Regardless of the impact, if any, these use restrictions will have on the attractiveness of the Indiantown Road corridor, they will contribute to the corridor's character and thus further the end of making the corridor a "'memorable' entryway leading into Jupiter."
59/ "Downzoning" is a term that Petitioner has used in its challenge to Ordinance 15-90; however, it is found in neither the Act nor the Department's rules.
60/ The issue in a proceeding under Section 163.3213, Florida Statutes, is not whether the "land development regulation" being challenged represents sound planning, but whether it is "consistent" with the local comprehensive plan.
61/ Skokowski's initial draft of the results of his study was submitted to the Town Council in February, 1989, not "the latter part of 1989."
62/ While it is true that Skokowski's final draft of the results of his study was submitted to the Town Council after the Town's proposed Comprehensive Plan had been transmitted to the Department, at the time of Skokowski's submittal the Town Council had not yet finally adopted the Plan.
APPENDIX TO FINAL ORDER IN CASE NO. 91-3827GM
The following are the Hearing Officer's specific rulings on the findings of fact proposed by the parties:
Petitioner's Proposed Findings of Fact
1-6. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Final Order.
7. To the extent that this proposed finding asserts that the Town will never develop a "traditional downtown," it has been rejected because it is speculation unsupported by persuasive competent substantial evidence. 51/ Otherwise, it has been accepted and incorporated in substance.
8-9. Accepted and incorporated in substance.
10. To the extent that this proposed finding references the development activities of the previous owners of the property in question, it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Otherwise, it has been accepted and incorporated in substance.
11-12. Accepted and incorporated in substance.
13-14. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
15. First sentence: Accepted and incorporated in substance; Remaining sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
16-17. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
18. Accepted and incorporated in substance.
19-20. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
Rejected as a finding of fact because it is more in the nature of a statement of law.
Accepted and incorporated in substance.
To the extent that this finding states that Petitioner "challenged the consistency of the use restrictions of Ordinance 15-90, as incorporated in Section 517," it has been accepted and incorporated in substance. To the extent that it asserts that such challenge was "timely and proper," it has been rejected as a finding of fact because it is more in the nature of a conclusion of law.
25-26. Accepted and incorporated in substance.
27. To the extent that this proposed finding states that "[o]n March 5, 1991, Restigouche . . . filed a petition with the Department of Community Affairs (DCA) challenging the consistency of the ordinance with the Plan," it has been accepted and incorporated in substance. To the extent that it asserts that the petition was "timely" filed, it has been rejected as a finding of fact because it is more in the nature of a conclusion of law.
28-32. Accepted and incorporated in substance.
To the extent that this proposed finding asserts that Petitioner's "submission stated that the use prohibitions were inconsistent with . . . Policy 1.4.6, Policy 1.4.7, Policy 1.4.8 and Policy 1.4.9 of the Plan," it has been rejected because it is not supported by competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.
Accepted and incorporated in substance.
To the extent that this proposed finding asserts that Ordinance 15-90 constitutes a "land development regulation," within the meaning of Section 163.3213, Florida Statutes, it has been rejected as a finding of fact because it is more in the nature of a conclusion of law. Otherwise, it has been accepted and incorporated in substance.
To the extent that this proposed finding states that "Restigouche . .
. filed a petition with the Division of Administrative Hearings for a de novo determination of the consistency of the [Ordinance 15-90] with the Plan," it has been accepted and incorporated in substance. To the extent that it asserts that the petition was "timely" filed and that Ordinance 15-90 constitutes a "land development regulation," within the meaning of Section 163.3213, Florida Statutes, it has been rejected as a finding of fact because it is more in the nature of a conclusion of law.
To the extent that this proposed finding asserts that Ordinance 15-90 constitutes a "land development regulation," within the meaning of Section 163.3213, Florida Statutes, it has been rejected as a finding of fact because it is more in the nature of a conclusion of law. Otherwise, it has been accepted and incorporated in substance.
38-41. Accepted and incorporated in substance.
42. To the extent that this proposed finding asserts that Ordinance 15-90 "prohibits anywhere from eleven to seventeen (as opposed to eleven to eighteen) permitted uses, it has been rejected because it is not supported by competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.
43-44. Accepted and incorporated in substance.
To the extent that this proposed finding suggests that Ordinance 15-90 prohibits certain uses in the Indiantown Road corridor that would otherwise be permitted, as of right or through special exception, by the underlying zoning and that it is therefore an amendatory zoning ordinance that establishes a new and different array of permissible uses for the corridor, it has been accepted and incorporated in substance. To the extent that it asserts that Ordinance 15-
90 establishes a new, general zoning category contrary to the provisions of Policy 1.3.5 of the Plan's future land use element, it has been rejected because it is not supported by persuasive competent substantial evidence.
Accepted and incorporated in substance.
First sentence: To the extent that this proposed finding asserts that it was only "[i]in the later stages [as opposed to the outset] of the Indiantown Road Corridor Study" that the Town Council raised the issue of "limiting uses," it has been rejected because it is contrary to the greater weight of the evidence; Second sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
Rejected because it is contrary to the greater weight of the evidence.
52/
50-52. Rejected because, even if true, they would have no bearing on the
outcome of the instant case.
To the extent that this proposed finding asserts that Skokowski did not take into consideration any of the "characteristics of the uses permitted or prohibited," it has been rejected because it is not supported by persuasive competent substantial evidence. To the extent that it states that he did not
consider certain of these characteristics, it has been accepted and incorporated in substance.
Rejected because, even if true, it would have no bearing on the outcome of the instant case.
Accepted and incorporated in substance.
Rejected because it not supported by competent substantial evidence.
53/
57-71. Accepted and incorporated in substance.
To the extent that this proposed finding states that "traffic
congestion and attractiveness of the community" were major "concerns" expressed "[d]uring the Plan's development," this finding has been accepted and incorporated in substance. To the extent that it asserts that these were the only concerns expressed, it has been rejected because it is not supported by persuasive competent substantial evidence.
Rejected because it is not supported by persuasive competent substantial evidence. 54/
74-89. Rejected as findings of fact because they are more in the nature of statements of law and legal argument regarding "Florida's growth management legislation" and its requirements. 55/
90-92. Rejected because it is not beyond reasonable debate or legitimate controversy that these propositions are true.
To the extent that this proposed finding asserts that the Town of Jupiter Comprehensive Plan indicates that the Town aspires to have a market area that is regional (as opposed to sub-regional) in scope and extends beyond the boundaries of the Greater Jupiter area, it has been rejected because it is contrary to the greater weight of the evidence. Otherwise, it has been accepted and incorporated in substance.
To the extent that this proposed finding suggests that to be a "full- service community" of the type described in the Town of Jupiter Comprehensive Plan a community must necessarily offer regional services such as automobile sales, it has been rejected because it is contrary to the greater weight of the evidence. Otherwise, it has been accepted and incorporated in substance.
95-97. Accepted and incorporated in substance.
Rejected because it is not beyond reasonable debate or legitimate controversy that this proposition is true.
Rejected because it is not supported by persuasive competent substantial evidence. 56/
See ruling on Petitioner's Proposed Finding of Fact 45.
Accepted and incorporated in substance.
Rejected because it is not supported by persuasive competent substantial evidence.
Accepted and incorporated in substance.
104-106. To the extent that these proposed findings state that most of the land in the Indiantown Road corridor meets the location criteria for general commercial uses set forth in Policy 1.3.5 of the Plan's future land use element, it has been accepted and incorporated in substance. To the extent that it asserts that each and every parcel of land in the corridor meets these criteria, it has been rejected because it is not supported by persuasive competent substantial evidence.
107-108. Accepted and incorporated in substance.
109. Rejected because it is not beyond reasonable debate or legitimate controversy that this proposition is true.
110-112. Accepted and incorporated in substance.
Rejected because it is contrary to the greater weight of the evidence.
Rejected because, even if true, it would have no bearing on the outcome of the instant case. 57/
115-116. Accepted and incorporated in substance.
117-118. Rejected because, even if true, they would have no bearing on the outcome of the instant case.
119-120. Accepted and incorporated in substance.
Rejected because it is not beyond reasonable debate or legitimate controversy that this proposition is true.
Rejected because it is contrary to the greater weight of the evidence.
First sentence: Rejected because it is not beyond reasonable debate or legitimate controversy that this proposition is true; Second and third sentences: Accepted and incorporated in substance.
First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is an assertion that is not beyond reasonable debate or legitimate controversy; Third sentence: Rejected because it is not supported by persuasive competent substantial evidence.
To the extent that this proposed finding states that the Plan "contemplated controlling the undesirable effects of uses by regulations such as site design, streetscape guidelines, and other regulations commonly referred to as performance standards," it has been accepted and incorporated in substance. To the extent that it asserts that the Plan did not contemplate the imposition of "use prohibitions," it has been rejected because it is an assertion that not beyond reasonable debate or legitimate controversy.
Accepted and incorporated in substance.
128-132. Rejected because, even if true, they would have no bearing on the outcome of the instant case.
133. First sentence: Rejected because it is not beyond reasonable debate or legitimate controversy that this proposition is true; Second and third sentences: Accepted and incorporated in substance.
134-136. Accepted and incorporated in substance.
Rejected because, even if true, they would have no bearing on the outcome of the instant case. 58/
Rejected because it is not beyond reasonable debate or legitimate controversy that this proposition is true.
Accepted and incorporated in substance.
Rejected because it is not beyond reasonable debate or legitimate controversy that this proposition is true.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Rejected because it is not beyond reasonable debate or legitimate controversy that this proposition is true.
To the extent that this proposed finding states that Petitioner seeks "to complete its proposed auto campus," it has been accepted and incorporated in substance. To the extent that it asserts that it has chosen "legal," "proper" and "lawful" means to accomplish this end, it has been rejected as a finding of fact because it is more in the nature of legal argument.
144-145. Rejected as findings of fact because they are more in the nature of legal argument.
To the extent that this proposed finding suggests that it is "likely" that the Town will amend Ordinance 15-90 if it is determined in this proceeding that the ordinance is inconsistent with the Town of Jupiter Comprehensive Plan and that sanctions should be imposed, it has been rejected because it is speculation not supported by persuasive competent substantial evidence. To the extent that this proposed finding asserts that Ordinance 15-90 constitutes a "land development regulation," within the meaning of Section 163.3213, Florida Statutes, it has been rejected as a finding of fact because it is more in the nature of a conclusion of law.
To the extent that this proposed finding asserts that Petitioner's "business goal" is "legitimate," it has been rejected as a finding of fact because it is more in the nature of legal argument. Otherwise, it has been accepted and incorporated in substance.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Respondents' Proposed Findings of Fact
1-3. Accepted and incorporated in substance.
First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First sentence: Accepted and incorporated in substance; Remaining sentences: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Accepted and incorporated in substance.
7-9. Rejected as findings of fact because they are more in the nature of statements of law and legal argument regarding the requirements of the Act and the Department's rules.
First sentence: Accepted and incorporated in substance; Remaining sentences: Rejected as findings of fact because they are more in the nature of statements of law and legal argument regarding the requirements of the Act and the Department's rules.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. 59/
Rejected as a finding of fact because it is more in the nature of a statement of law and legal argument regarding the requirements of the Act and the Department's rules.
Second sentence: Accepted and incorporated in substance; Remaining sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because, even if true, it would have no bearing on the outcome of the instant case.
15-16. Rejected as findings of fact because they are more in the nature of statements of law and legal argument regarding the requirements of the Act and the Department's rules.
17-19. Accepted and incorporated in substance.
Third sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Remaining sentences: Accepted and incorporated in substance.
To the extent that this proposed finding refers to the "rezoning petitions for development," it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Otherwise, it has been accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected as a finding of fact because it is more in the nature of a conclusion of law.
Second sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Remaining sentences: Accepted and incorporated in substance.
24-25. Accepted and incorporated in substance.
Rejected because, even if true, it would have no bearing on the outcome of the instant case. 60/
First sentence: Accepted and incorporated in substance; Remaining sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Second sentence: Accepted and incorporated in substance; Remaining sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First and last sentences: Accepted and incorporated in substance; Remaining sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
34-35. Accepted and incorporated in substance.
36. Third sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Remaining sentences: Accepted and incorporated in substance.
37-39. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
First sentence: Rejected because it is not supported by persuasive competent substantial evidence; 61/ Second and third sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer. 62/
42-48. Accepted and incorporated in substance.
First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First, second and third sentences: Accepted and incorporated in substance; Remaining sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
53-58. Accepted and incorporated in substance.
To the extent that this proposed finding asserts that "the IOZ is organized into six [as opposed to five] distinct urban districts," it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.
To the extent that this proposed finding states that the Central Boulevard District is the western most subdistrict, it has been accepted and incorporated in substance. Otherwise, it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
To the extent that this proposed finding describes the location of the Center Street/Maplewood Drive District and indicates that "[t]his is the [sub]district in which Petitioner's property is located," it has been accepted and incorporated in substance. Otherwise, it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Last sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Remaining sentences: Accepted and incorporated in substance.
63-65. Accepted and incorporated in substance.
66-68. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Remaining sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
First sentence: Accepted and incorporated in substance; Remaining sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
First sentence: Accepted and incorporated in substance; Remaining sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
To the extent that this proposed finding asserts that the Petitioner's petition alleged that portions of the I.O.Z. other than the use restrictions
imposed by Ordinance 15-90 were inconsistent with the Town of Jupiter Comprehensive Plan, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.
Accepted and incorporated in substance.
COPIES FURNISHED:
John D.C. Newton, Esquire John R. Beranek, Esquire Aurell, Radey, Hinkle, Thomas
& Beranek
Post Office Drawer 11307 Tallahassee, Florida 32302
Paul B. Erickson, Esquire Alley, Maass, Rogers & Lindsay
321 Royal Poinciana Plaza
Palm Beach, Florida 33480-0431
Stephanie M. Callahan, Esquire Department of Community Affairs 2740 Centerview Road
Tallahassee, Florida 32399-2100
Thomas J. Baird, Esquire 11380 Prosperity Farms Road Suite 112, Prosperity Gardens
Palm Beach Gardens, Florida 33410
NOTICE OF RIGHT TO JUDICIAL REVIEW
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
| Issue Date | Proceedings |
|---|---|
| Aug. 10, 1992 | CASE CLOSED. Final Order sent out. Hearing held January 27-31, 1992 and February 17, 1992. |
| May 13, 1992 | Pages 34 -45 of Restigouche`s Proposed Final Order filed. (From John D. C. Newton, II |
| May 12, 1992 | (unsigned) Proposed Final Order of Restigouche, Inc. w/Notice of Filing filed. |
| May 12, 1992 | Proposed Final Order of Restigouche, Inc. filed. |
| May 11, 1992 | CC Letter to Stephanie M. Callahan from John D.C. Newton (re: Joint statement of Russell Grace); Joint Statement of Russell Grace Testimony w/cover ltr filed. |
| May 11, 1992 | Joint Proposed Final Order filed. (tagged due to volume) |
| May 08, 1992 | (Respondent) Amended Motion to Exceed the 40 Page Limitation for Proposed Orders; Joint Motion to Extend Time for Serving Proposed Orders filed. |
| May 05, 1992 | Order sent out. (Motion granted, Respondents, as well as Petitioner,may file a proposed final Order in excess of 40 pages, provided it does not exceed 60 pages in length) |
| May 05, 1992 | Order sent out. (Motion granted) |
| May 04, 1992 | cc: Joint Motion to Extend Time for Serving Proposed Orders filed. |
| May 04, 1992 | (Town of Jupiter) cc: Amended Motion to Exceed the 40-Page Limitation for Proposed Orders filed. |
| Apr. 28, 1992 | (Respondent) Motion to Exceed The 40 Page Limitation for Proposed Orders filed. |
| Apr. 20, 1992 | Order sent out. (Motion granted) |
| Apr. 17, 1992 | (Petitioner) Notice of Filing; Deposition Testimony of Charles R. Siemon filed. |
| Apr. 17, 1992 | Agreed Motion to Extend Time for Preparing Proposed Recommended Order filed. |
| Apr. 15, 1992 | Order sent out. (Motion granted, post-hearing submittals shall be filed no later than 4-24-92) |
| Apr. 14, 1992 | Joint Motion to Extend Deadline for Filing Proposed Final Orders filed. |
| Mar. 30, 1992 | Order sent out. (per Petitioner filed a Motion requesting the deadline for the submission of post hearing submittals be extended to 4-17-92; Motion granted, submittals shall be filed no later than 4-17-92) |
| Mar. 27, 1992 | Petitioner`s Motion to Extend Filing Date for Proposed Recommended Orders filed. |
| Mar. 25, 1992 | Order sent out. (parties are directed to file, by 4-8-92 another Joint report) |
| Mar. 24, 1992 | (Petitioner) Notice of Filing w/Statement of Russell Grace Testimony filed. |
| Mar. 24, 1992 | Response of Restigouche to Evidence Summaries of Department of Community Affairs and Jupiter filed. |
| Mar. 23, 1992 | (DCA) Report of Settlement Efforts Regarding Statement of Evidence filed. (From Stephanie M. Callahan) |
| Mar. 20, 1992 | Transcript (Volumes 6 & 7) filed. |
| Mar. 17, 1992 | Transcript of Proceedings (Volumes 1-5) filed. |
| Mar. 16, 1992 | Respondent, Town of Jupiter`s, Response to Petitioner`s Statement of Russell Grace Testimony filed. |
| Mar. 13, 1992 | Respondent Department of Community Affairs Response to Petitioner`s Statement of Russell Grace Testimony filed. |
| Mar. 05, 1992 | (Respondent) Statement of Evidence filed. |
| Mar. 04, 1992 | (Respondent) Notice of Filing Summary of Evidence of Witness Russell Grace; Summary of Evidence of Witness Russell Grace filed. |
| Feb. 20, 1992 | Order sent out. |
| Feb. 19, 1992 | CASE STATUS DOCKETED: Hearing Partially Held, continued to date not certain. |
| Feb. 19, 1992 | CASE STATUS DOCKETED: Hearing Partially Held, continued to date not certain. |
| Feb. 18, 1992 | Department of Community Affairs` Response in Opposition to Petitioner`s Motion Prepare Statement of Evidence filed. |
| Feb. 18, 1992 | (Petitioner) Request of Restigouche for Oral Argument; Motion to Prepare Statement of Evidence; Ltr to SML from John D. C. Newton, II (re: Petitioner`s objects to the proposed repetition of the testimony of Mr. Russell Grace) filed. |
| Feb. 14, 1992 | (Respondent) Notice of Taking Rebuttal Testimony filed. |
| Feb. 10, 1992 | Order sent out. (RE: Final hearing via telephone set for Feb. 17, 1992; 8:15). |
| Feb. 07, 1992 | Letter to SML from Stephanie M. Callahan (re: Mr. Sussell Grace's Testimony) filed. |
| Jan. 30, 1992 | (Petitioner) Notice of Serving Responses to Expert Interrogatories filed. (filed with Hearing Officer). |
| Jan. 30, 1992 | Response of Restigouche, Inc. to Expert Interrogatories of Jupiter filed. (filed with Hearing Officer) |
| Jan. 30, 1992 | (Petitioner) Notice of Constitutional Issue filed. (filed with Hearing Officer) |
| Jan. 27, 1992 | (Respondent) Notice of Filing Original Deposition of Hal Chase, Paul Erickson and Charles Siemon w/the (3) Deposition filed. |
| Jan. 27, 1992 | Subpoena Ad Testificandum w/Notice of Deposition filed. (From John D.C. Newton) |
| Jan. 27, 1992 | Subpoena Ad Testificandum w/Pro Serv Affidavit filed. (From Thomas A. Baird) |
| Jan. 27, 1992 | (Respondent) Re-Notice of Taking Deposition filed. |
| Jan. 24, 1992 | Order on Pending Motions sent out. |
| Jan. 24, 1992 | Proposed Prehearing Stipulation of Restigouche, Inc. & cover ltr filed. (From John D. C. Newton, II) |
| Jan. 23, 1992 | Response of Restigouche to Motion to Strike; Motion of Restigouche for Hearing Officer to View Property; Restigouche`s First Motion in Limine; Request of Restigouche for Oral Argument filed. (From John R. Beranek) |
| Jan. 23, 1992 | Restigouche`s Response to Jupiter`s Motion in Limine filed. |
| Jan. 23, 1992 | (Petitioner) Notice of Deposition filed. |
| Jan. 23, 1992 | (Respondent) Motion in Limine filed. |
| Jan. 23, 1992 | (Petitioner) Notice of Deposition filed. |
| Jan. 22, 1992 | (FAX) cc: (Town of Jupiter) Motion in Limine filed. |
| Jan. 21, 1992 | Motion to Compel Discovery; Motion to Strike; Motion to Compel (2); Request for Hearing (telephonic conference); Notice of Taking Deposition filed. |
| Jan. 08, 1992 | (Respondent) Re-Notice of Taking Deposition filed. |
| Jan. 06, 1992 | (Town of Jupiter) Notice of Filing Original Depositions of Eileen Letsch and George Gentile; (2) Depositions of Eileen Letsch ; Deposition of George Gentile filed. |
| Dec. 30, 1991 | (Petitioner) Amended Notice of Taking Deposition Duces Tecum filed. |
| Dec. 26, 1991 | Subpoena Ad Testificandum w/Pro Serv Affidavit filed. |
| Dec. 24, 1991 | Affidavit of Service w/Subpoena Ad Testificandum filed. (From Thomas A. Baird) |
| Dec. 24, 1991 | Amended Notice of Taking Deposition filed. (Thomas J. Baird) |
| Dec. 20, 1991 | Order sent out. (Motion to accept oversized exhibits granted) |
| Dec. 19, 1991 | Notice of Taking Deposition filed. (From Thomas J. Baird) |
| Dec. 16, 1991 | Respondent`s Motion for Oversize Exhibits filed. |
| Dec. 16, 1991 | (Town of Jupiter) Notice of Taking Deposition filed. |
| Dec. 02, 1991 | Notice of Production of Documents of Non-Party filed. (From Thomas J. Baird) |
| Nov. 21, 1991 | Petitioner`s Response to Jupiter`s Request to Produce filed. |
| Nov. 14, 1991 | Second Notice of Hearing sent out. (hearing set for Jan. 27-31, 1992; 11:30am; Jupiter). |
| Nov. 13, 1991 | Order sent out. (Re: Petitioner`s Motion, denied). |
| Nov. 13, 1991 | Order sent out. (hearing rescheduled for Jan. 27-31, 1992; 11:30am; Jupiter). |
| Nov. 13, 1991 | Order sent out. (RE: Exhibits). |
| Nov. 12, 1991 | (Respondent) Response to Petitioner`s Motion for Protective Order Prohibiting Deposition of Paul B. Erickson; Notice of Taking Deposition filed. |
| Nov. 12, 1991 | Agreed to Motion to Reschedule Final Hearing filed. (From John Newton,II) |
| Nov. 12, 1991 | (Respondent) Motion for Continuance filed. |
| Nov. 08, 1991 | Restigouche`s Objection to Request to Produce at Trial; Restigouche`s Motion to Extend Discovery Deadline filed. |
| Nov. 07, 1991 | Amended Notice of Deposition Duces Tecum filed. (From John Newton, II) |
| Nov. 07, 1991 | (Petitioner) Response of Restigouche to Jupiter`s Motion for Continuance filed. |
| Nov. 07, 1991 | Subpoena Duces Tecum filed. (From John D. C. Newton) |
| Nov. 07, 1991 | Petitioner`s Motion for Oversize Exhibits filed. |
| Nov. 06, 1991 | Notice of Deposition Duces Tecum; Subpoena Duces Tecum filed. (From John D. C. Newton) |
| Nov. 05, 1991 | (Petitioner) Notice of Deposition Duces Tecum filed. (From John Baranek) |
| Nov. 04, 1991 | Subpoena Duces Tecum w/Affidavit of Service filed. (From Pamela Murphy) |
| Nov. 04, 1991 | (Respondent) Motion to Convene Telephonic Case Management Conference filed. |
| Nov. 01, 1991 | Order sent out. (RE: Petitioner`s Motion in Limine, denied). |
| Nov. 01, 1991 | Restigouche`s Motion for Protective Order Prohibiting Deposition of Paul B. Erickson filed. |
| Oct. 31, 1991 | Notice of Taking Deposition DUCES TECUM (3) filed. |
| Oct. 28, 1991 | (Respondent) Response to Petitioner, Restigouche, Inc.`s, Request to Produce of the Town of Jupiter w/Composite Exhibit-A filed. |
| Oct. 25, 1991 | Respondent, Town of Jupiter`s, Response to Petitioner`s Motion in Limine filed. |
| Oct. 23, 1991 | (DCA) Response to Request to Produce filed. |
| Oct. 23, 1991 | (Respondent) Notice of Compliance filed. |
| Oct. 22, 1991 | Notice of Service of Answers to First Interrogatories of Restigouche to the Department of Community Affairs w/First Interrogatories of Restigouche to the Department of Community Affairs filed. |
| Oct. 17, 1991 | Restigouche`s Motion in Limine for Determination of Preliminary Legal Issue; Petitioner`s Request for Hearing on Motion in Limine filed. |
| Oct. 15, 1991 | Amended Notice of Deposition Duces Tecum filed. (From John Newton, II) |
| Oct. 14, 1991 | Notice of Deposition (2); Notice of Deposition Duces Tecum filed. (From John Newton,II) |
| Sep. 25, 1991 | Request to Produce of The Department of Community Affairs; Request to Produce of The Town of Jupiter filed. |
| Sep. 18, 1991 | (Petitioner) Notice of Service of Interrogatories filed. (From John D. C. Newton, II) |
| Aug. 13, 1991 | Notice of Hearing sent out. (hearing set for Nov 18-19, 1991; 11:00am; Jupiter) |
| Aug. 06, 1991 | Order sent out. (Re: Town`s Motion to Dismiss and to award expenses, denied). |
| Jul. 15, 1991 | Response to Hearing Officer`s Order filed. |
| Jul. 15, 1991 | Notice of Appearance; Motion to Dismiss filed. |
| Jul. 11, 1991 | (Petitioner) Notice of Deposition filed. (From John Newton, II) |
| Jul. 09, 1991 | (Petitioner) Response to Restigouche to Hearing Officer`s Order filed.(From John Newton, II) |
| Jul. 08, 1991 | 2nd Re-Notice of Taking Deposition filed. (From Paul B. Erickson) |
| Jul. 05, 1991 | (Respondent) Motion to Dismiss w/Exhibit-A; Notice of Appearance filed. (From Stephanie M. Callahan) |
| Jul. 02, 1991 | Reply of Restigouche to Jupiter`s Motion to Dismiss filed. |
| Jun. 25, 1991 | Order (Re: Governing Rules) sent out. |
| Jun. 24, 1991 | Notification card sent out. |
| May 30, 1991 | Request for Petitioner, Restigouche, Inc. for Hearing; Determination of Consistency; Letter to DCA from E. Letsch (challenging consistency of land development regulation); Petition (letter form) filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 10, 1992 | DOAH Final Order | Ordinance prohibiting in overlay zone certain uses otherwise permitted by underlying zoning is not Land Development Regulations subject to administrative challenge. |
