STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

and )

)

WILLIAM C. SHELLEY, SHIRLEY )

SHELLEY, JOHN G. CALANDROS, ) PATRICIA CALANDROS, GEORGE J. ) CALANDROS, SHANNA G. CALANDROS, )

TODD PERKINS, JILL PERKINS, ) CASE NO. 92-0011GM VERNON L. REDISH, GERALDINE J. )

REDISH, and MELBA HAMPTON, )

)

Intervenors, )

)

vs. )

)

CITY OF BARTOW, )

)

Respondent. )

)

RECOMMENDED ORDER

On January 21, 1994, a formal administrative hearing was held in this case in Bartow, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael P. Donaldson, Esquire

Assistant General Counsel Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Intervenors: Mark N. Miller, Esquire

Hahn, Breathitt, Watson & Miller, P.A. Post Office Box 38

Lakeland, Florida 33802-0038

For the City: Susan W. Fox, Esquire

MacFarlane Ferguson Post Office Box 1531 Tampa, Florida 33601

STATEMENT OF THE ISSUE

The issue in this case is whether the City's comprehensive plan is "in compliance" under the Local Government Comprehensive Planning and Land Development Regulation Act. Specifically, the Intervenors allege that the City gave legally insufficient notice of the public hearings required for adoption of its comprehensive plan.

PRELIMINARY STATEMENT

On or about December 19, 1991, the Department of Community Affairs (the DCA) determined that the City of Bartow comprehensive plan was not "in compliance," as defined by Section 163.3184(1)(b), Fla. Stat. (1991). On January 6, 1992, the DCA filed a petition under Section 163.3184(10), Fla. Stat. (1991). The DCA petition was given Division of Administrative Hearings (DOAH) Case No. 92-0011GM and was assigned to a hearing officer. On March 2, 1992, the Intervenors filed a Petition to Intervene. Subject to the ruling on any timely filed motions in opposition, leave to intervene was granted on March 4, 1992.

Neither the City nor the DCA filed a motion in opposition.

On or about June 16, 1993, lengthy compliance agreement negotiations between the DCA and the City culminated in the execution of a Stipulated Settlement Agreement. As provided by Section 163.3184(16)(b), Fla. Stat. (1993), this proceeding was placed in abeyance on June 22, 1993, pending implementation of the compliance agreement by adoption of the remedial amendments specified in the Stipulated Settlement Agreement.

On or about August 2, 1993, the City adopted remedial amendments. The DCA determined that the City plan, as amended, was "in compliance" and, on or about September 23, 1993, issued a cumulative notice of intent under Section 163.3184(16)(e), Fla. Stat. (1993).

On October 7, 1993, the DCA filed a Motion to Dismiss Formal Proceedings. Primarily because the City failed to serve the Intervenors with a copy of the remedial amendments within ten working days of their adoption, as required by Section 163.3184(16)(d), Fla. Stat. (1993), an Order Denying Motion to Dismiss was entered on December 15, 1993, and final hearing on the issues raised in the Petition to Intervene was scheduled for January 21, 1994. A Prehearing Stipulation was filed on January 20, 1994.

At final hearing, the Intervenors called three witnesses and had Intervenors' Exhibits 1 through 9 admitted in evidence. (Without objection, Intervenors' Exhibits 6 through 9 were late-filed.) The City called two witnesses and had City Exhibits 1, 2, and 4 through 9 admitted in evidence. (Without objection, the City was to late-file its Exhibit 4, along with its Exhibit 3, but it only submitted Exhibit 3.) The DCA called one witness and had DCA Exhibits 1 through 5 admitted in evidence.

None of the parties ordered the preparation of a transcript of the final hearing. At the hearing, the parties requested and were given 30 days to file proposed recommended orders. However, successive unopposed motions for extensions of time (one by the DCA and the second by the Intervenors) were granted, and ultimately the parties were given until March 28, 1994, in which to file proposed recommended orders.

The DCA and the City filed a joint proposed recommended order. Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the attached Appendix to Recommended Order, Case No. 92-0011GM.

FINDINGS OF FACT

1. The City of Bartow scheduled a public hearing on November 5, 1990, to consider a proposed comprehensive plan for transmittal to the Department of Community Affairs (the DCA).

   
   

2. The City caused an advertisement entitled

   
   

   NOTICE OF PUBLIC HEARING

   CITY OF BARTOW COMPREHENSIVE PLAN NOTICE OF CHANGE OF LAND USE

   
   

   to be published in the Polk County Democrat, on October 25, 1990. The advertisement gave notice that "Future Land Use" would be discussed, and it invited "all property owners and interested citizens" to "attend and provide written and/or verbal comments on the proposed plan." It indicated that copies of the plan were available for public inspection at City Hall during the week prior to the hearing. The advertisement also included a map of the entire City that did not highlight any particular part of the City.

   
   

3. The plan available for public inspection at the November 5, 1990, public hearing, and during the week preceding it, included a Future Land Use Map (FLUM). The map was based on information that was in part obsolete. In the case of approximately six parcels of land, it portrayed future land use that was inconsistent with existing land use. For example, it showed a parcel on the southwest corner of U.S. Highway 17 and Georgia Street as part low density residential when, in fact, the entire parcel was being used for commercial purposes. A Food Lion shopping center occupied the entire site, the Food Lion was planning a grand opening for the end of the month.

   
   

4. At least one of the Intervenors, who are owners of residential property in the vicinity of the new Food Lion shopping center who opposed commercial development in the area, including the Food Lion shopping center, viewed the FLUM during the public hearing on November 5, 1990, and was satisfied with what it portrayed.

   
   

5. Notwithstanding the inconsistency between parts of the FLUM and some of the existing uses in the City, the City Commission voted to transmit the proposed plan to the DCA. On or about February 22, 1991, the DCA sent its Objections, Recommendations and Comments (ORC) to the City. The FLUM in the City's proposed plan was not among the issues contained in the ORC.

   
   

6. At some point in time, not clear in the record, during the process of addressing the issues contained in the ORC, the City also began the process of correcting the inconsistencies between the FLUM and existing land uses. The six corrections included changing the entire Food Lion parcel at the corner of U.S. Highway 17 and Georgia Street from low density residential to highway commercial.

   
   

7. On July 10, 1991, the City of Bartow Zoning Commission (Zoning) met for final consideration of changes to the proposed comprehensive plan designed to address both the issues contained in the ORC and the inconsistencies between the

   FLUM and existing land uses. At the time of the Zoning meeting, the new FLUM was not yet available. However, among other things, Zoning generally discussed the need to conform the FLUM to existing uses, and it approved the proposed plan, as amended, with the understanding that the corrected FLUM would be included in the amended proposed plan to be considered for adoption by the City, through its Board of Commissioners (the Commission).

   
   

8. The City scheduled a public hearing on August 5, 1991, for consideration and adoption of the proposed comprehensive plan, as amended.

9. The City caused an advertisement entitled NOTICE OF INTENT TO CHANGE OF LAND USE AND

   A PUBLIC HEARING ON THE ADOPTION OF THE

   CITY OF BARTOW COMPREHENSIVE PLAN

   
   

   to be published in the Polk County Democrat, on July 18, and again on July 22, 1991. The advertisement gave notice that the City proposed to "change, by adopting a new City of Bartow Comprehensive Plan, the use of land within the incorporated area of the City of Bartow as shown on the map in this advertisement." It included a map of the entire City that did not highlight any particular part of the City. The advertisement also gave notice that the proposed plan included a "Future Land Use" element. "Interested persons" were invited to appear at the hearing and be heard regarding the adoption of the [plan]."

   
   

10. The advertisement also stated that both the proposed plan and the DCA's ORC were available for public inspection at the City Hall. In fact, the City's planning consultant, the Central Florida Regional Planning Council, did not send the corrected FLUM to the City until the end of July, 1991, and it did not arrive and was not available for inspection until approximately August 1, 1991. However, no one asked to see the proposed plan, as amended, between July

    18 and August 5, 1991.

    
    

11. The City Commission met as scheduled, held the public hearing, and voted to adopt the proposed comprehensive plan, as amended. None of the Intervenors appeared at the public hearing. On August 8, 1991, the City officially adopted its comprehensive plan.

    
    

12. The public participation procedures contained in the City's adopted comprehensive plan require the local planning agency (i.e., in Bartow, the Zoning Commission) to hold "public workshops or meetings to solicit the views, opinions, ideas, and concerns of the public . . .." In addition, they provide that the "local planning agency will hold a minimum of one (1) public hearing for the purpose of receiving public comments prior to recommending the adoption of the comprehensive plan" and that the City Commission "will hold a minimum of two (2) public hearings prior to the adoption of the comprehensive plan "

    The adopted procedures require the publication of notice of the public workshops and hearings by advertisement in a local newspaper of general circulation and by posting at the City Hall. Provision is made for the receipt and recording of written and verbal public comment. Finally, the procedures provide: "At such a time as it become[s] available, the Comprehensive Plan will be available for public inspection at City Hall, during normal business hours." (Emphasis added.)

    
    

13. On or about December 19, 1991, the DCA determined, for reasons unrelated to the FLUM or to the notices of the public hearings or to the extent

    of public participation in the plan adoption process, that the City of Bartow comprehensive plan was not "in compliance," as defined by Section 163.3184(1)(b), Fla. Stat. (1991).

    
    

14. On or about June 16, 1993, lengthy compliance agreement negotiations between the DCA and the City culminated in the execution of a Stipulated Settlement Agreement.

    
    

15. On or about August 2, 1993, the City adopted remedial amendments in accordance with the compliance agreement. The DCA determined that the City plan, as amended, was "in compliance" and, on or about September 23, 1993, issued a cumulative notice of intent under Section 163.3184(16)(e), Fla. Stat. (1993).

    
    

16. On October 7, 1993, the DCA filed a Motion to Dismiss Formal Proceedings. Primarily because the City failed to serve the Intervenors with a copy of the remedial amendments within ten working days of their adoption, as required by Section 163.3184(16)(d), Fla. Stat. (1993), an Order Denying Motion to Dismiss was entered on December 15, 1993, and the final hearing in this case was held on the issues raised in the Petition to Intervene.

    
    

    CONCLUSIONS OF LAW

    
    

17. Notwithstanding the compliance agreement entered into in this case by the City and the DCA, the remedial amendments, and the DCA's cumulative notice of intent to find the City's plan, as amended by the remedial amendments, to be in compliance, an Order Denying Motion to Dismiss was entered in this case on December 15, 1993, primarily because the City failed to serve the Intervenors with a copy of the remedial amendments within ten working days of their adoption, as required by Section 163.3184(16)(d), Fla. Stat. (1993). As a result, this continues to be a proceeding under Section 163.3184(10), Fla. Stat. (1991).

    
    

18. Under Section 163.3184(10)(a), Fla. Stat. (1991), the City's determination that its plan is in compliance "shall be sustained unless it is shown by a preponderance of the evidence that [it] is not in compliance." Also, under paragraph (b) of the statute, the Administration Commission is the agency having the authority to take final action.

    
    

19. The Intervenors' case rests upon on the contentions: (1) that a plan is not in compliance if the notices of the required public hearings do not comply with Section 163.3184(15)(c), Fla. Stat. (1991); and (2) that the City's notices in this case did not comply.

Requirement of Compliance with Section 163.3184(15)(c) 20. Section 163.3184(1)(b), Fla. Stat. (1991), states:

"In compliance" means consistent with the requirements of ss. 163.3177, 163.3178, and 163.3191, with the state comprehensive plan, with the appropriate regional policy plan, and with rule 9J-5, F.A.C., where such rule

is not inconsistent with chapter 163, part II.

The current version of the statute adds the word "strategic" to modify "regional policy plan" but is otherwise unchanged.

1. In implementing Section 163.3181, Fla. Stat. (1991), F.A.C. Rule 9J-

   1. requires local governments to adopt procedures to provide for and encourage public participation in the planning process. Paragraph (2) of the rule requires the procedures to include:

      
      

      1. Provisions to assure that real property owners are put on notice, through advertisement in a newspaper of general circulation in the area or other method adopted by the local government, of official

         actions that will affect the use of their property;

      2. Provisions for notice to keep the general public informed;

      3. Provisions to assure that there are opportunities for the public to provide written comments;

      4. Provisions to assure that the required public hearings are held; and

      5. Provisions to assure the consideration of and response to public comments.

   
   

   (Emphasis added.)

   
   

2. Under Section 163.3184(3) and (7), Fla. Stat. (1991), the proposed plan transmittal and plan adoption require public hearings as described in Section 163.3184(15), Fla. Stat. (1991). Public hearings under Section 163.3184(15), Fla. Stat. (1991), require publication of notice. Paragraph (15)(c) sets out specific requirements for publication of the notice.

   
   

3. It is concluded that a plan is not in compliance if the notices of the required public hearings do not comply with Section 163.3184(15)(c), Fla. Stat. (1991).

   
   

   Compliance with Section 163.3184(15)(c)

   
   

4. Among other things, Section 163.3184(15)(c), Fla. Stat. (1991), requires an advertisement that states, "in substantially the following form," in pertinent part:

   
   

   NOTICE OF CHANGE OF LAND USE

   
   

   The [local government] proposes to change the use of land within the area shown in the map in this advertisement.

   
   

   It also specifies:

   
   

   The advertisement shall also contain a geographic location map which clearly indicates the area covered by the proposal. The map shall include major street names as a means of identification of the area. (Emphasis added.)

   
   

5. The facts in this case show that the notices published by the City all contain the required "geographic location map which clearly indicates the area

   covered by the proposal." (Emphasis added.) "The proposal" was the adoption of a comprehensive plan that covered the entire incorporated City of Bartow, not just the FLUM corrections. It is concluded that Section 163.3184(15)(c) does not require the "geographic location map" to highlight the parcels where the FLUM corrections were being made.

   
   

6. The corrected FLUM was not available for inspection until approximately August 1, 1991, not as of July 18, 1991, as stated in the first notice of the August 5, 1991, adoption hearing or as of July 22, 1991, as stated in the second notice. But there is no statute requiring that the FLUM be available for public inspection before the public hearing. It is concluded that the City's comprehensive plan still was "in compliance," as defined by Section 163.3184(1)(b), Fla. Stat. (1991), notwithstanding that the FLUM was not available for public inspection before the public hearing. At worst, the July

   18 and 22 notices of the August 5, 1991, public hearing were in error in implying that the FLUM was available for public inspection as of July 18 and 22, 1991. Moreover, the error was harmless, as no one asked to see the FLUM.

   
   

   The Plan's Public Participation Procedures

   
   

7. There is some suggestion in the pleadings and arguments that the Intervenors are asserting that the City plan is not in compliance because it does not meet the requirements of its own public participation procedures. It is concluded that, those procedures not yet having been adopted, and not yet being in force and effect, they cannot serve as the benchmark for examining the adequacy of the procedures followed in the initial adoption process. In any event, it is concluded from the facts found that the procedures followed in the plan adoption process would meet the public participation requirements contained in the plan itself.

   
   

8. There also is some suggestion in the pleadings that the Intervenors were challenging the adequacy of public participation procedures contained in the City plan. Section 163.3181, Fla. Stat. (1991), required such procedures, and consistency with that requirement is within the definition of "compliance" under Section 163.3184(1)(b), Fla. Stat. (1991). But the Intervenors did not press the argument suggested in the pleadings, and the record as a whole reflects that the Intervenors were not challenging the adequacy of the public participation procedures contained in the City's adopted plan as much as they were arguing that the procedures followed in adopting the plan did not comply with the Local Government Comprehensive Planning and Land Development Regulation Act. In any event, it is concluded that the public participation procedures contained in the City's adopted plan are consistent with Section 163.3181, Fla. Stat. (1991).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administration Commission enter a final order denying the Petition to Intervene in this case and determining that the City of Bartow comprehensive plan is "in compliance."

RECOMMENDED this 19th day of April, 1994, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 19th day of April, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0011GM

To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact:

Intervenors' Proposed Findings of Fact.

1. Argument; subordinate and unnecessary.

2. Accepted but subordinate and unnecessary. 3.-5. Accepted and incorporated.

1. Rejected as contrary to facts found. As the notices indicated, the City proposed to adopt its initial comprehensive plan under the Local Government Comprehensive Planning and Land Development Regulation Act. Accordingly, the entire City was subject to the proposal. The changes in the FLUM were to correct errors in the proposed plan, as transmitted to the DCA.

2. Accepted and incorporated.

DCA and City Proposed Findings of Fact.

1.-2. Accepted but largely subordinate and unnecessary.

3. Accepted and incorporated.

4.-5. Accepted and incorporated to the extent not subordinate or unnecessary.

1. Accepted but subordinate and unnecessary.

2. Accepted and incorporated to the extent not subordinate or unnecessary.

3. First sentence, rejected as being conclusion of law. Except that it was the Polk County Democrat, the rest is accepted and incorporated to the extent not subordinate or unnecessary.

9.-10. Accepted and incorporated to the extent not subordinate or unnecessary.

1. First sentence, rejected as being conclusion of law. Except that it was the Polk County Democrat, the rest is accepted and incorporated.

2. Accepted and incorporated.

13.-16. Accepted and incorporated to the extent not subordinate or unnecessary.

1. First sentence, rejected as being argument and as being subordinate and unnecessary. The rest is accepted and incorporated.

2. Rejected as contrary to facts found. (The videotape of the Zoning Commission meeting on July 10, 1991, indicates that the corrected FLUM had not yet been received. See City Exhibit 6. The corrected FLUM was mailed the end of July but was not received until August 1, 1991.)

3. Accepted and incorporated to the extent not subordinate or unnecessary.

4. First sentence, rejected as being conclusion of law. Last sentence, accepted but subordinate and unnecessary. The rest is accepted and incorporated.

21.-22. Accepted and incorporated to the extent not subordinate or unnecessary.

COPIES FURNISHED:

Michael P. Donaldson, Esquire Assistant General Counsel Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Mark N. Miller, Esquire Hahn, Breathitt, Watson

& Miller, P.A.

Post Office Box 38

Lakeland, Florida 33802-0038

George Dunlap, Esquire City Attorney

Post Office Box 1069 Bartow, Florida 33830

Susan W. Fox, Esquire MacFarlane Ferguson Post Office Box 1531 Tampa, Florida 33601

David K. Coburn, Secretary Florida Land and Water

Adjudicatory Commission Executive Office of the Governor Attn: Kelly Tucker

Room 426

311 Carlton Building Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Administration Commission written exceptions to this Recommended Order. All agencies allow each party at least

ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the Administration Commission concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 92-000011GM

Orders for Case No: 92-000011GM