STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

C. JOHN CONIGLIO, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2683GM

) SUMTER COUNTY and DEPARTMENT ) OF COMMUNITY AFFAIRS, )

)

Respondents. )

) BILL POWNALL, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2684GM

) SUMTER COUNTY and DEPARTMENT ) OF COMMUNITY AFFAIRS, )

)

Respondents, )

)

and )

)

R. B. DIXON, RUTH DIXON, ) FRANKLIN DIXON, FAYE DIXON, ) CONSOLIDATED MINERALS, INC., ) FLORIDA CRUSHED STONE MINING ) and FLORIDA CRUSHED STONE )

COMPANY, )

)

Intervenors. )

) FRANCES J. CHERRY and )

KENNETH L. JONES, )

)

Petitioners, )

)

vs. ) CASE NO. 92-2830GM

) SUMTER COUNTY and DEPARTMENT ) OF COMMUNITY AFFAIRS, )

)

Respondents, )

)

and )

)

R. B. DIXON, RUTH DIXON, ) FRANKLIN DIXON, FAYE DIXON, ) CONSOLIDATED MINERALS, INC., ) FLORIDA CRUSHED STONE MINING, ) and FLORIDA CRUSHED STONE )

COMPANY, )

)

Intervenors. )

) THEODORE R. and NANCY TURNER, )

)

Petitioners, )

)

vs. ) CASE NO. 92-2989GM

) SUMTER COUNTY and DEPARTMENT ) OF COMMUNITY AFFAIRS, )

)

Respondents, )

)

and )

)

R. B. DIXON, RUTH DIXON, ) FRANKLIN DIXON, FAYE DIXON, ) CONSOLIDATED MINERALS, INC., ) FLORIDA CRUSHED STONE MINING, ) and FLORIDA CRUSHED STONE )

COMPANY, )

)

Intervenors. )

)

RECOMMENDED ORDER

On December 9 and 10, 1992, a formal hearing was held in this case pursuant to Section 120.57(1), Florida Statutes. The hearing location was the Sumter County Courthouse, Courtroom 204, 209 Florida Street, Bushnell, Florida.

Charles C. Adams was the Hearing Officer.

APPEARANCES

Petitioners: C. John Coniglio, Esquire

Post Office Box 1119 Wildwood, Florida 34785

Bill Pownall

202 West Noble Street Bushnell, Florida 33513

Frances J. Cherry 3404 County Road 656

Webster, Florida 33597

Kenneth L. Jones 3404 County Road 656

Webster, Florida 33597

Theodore R. Turner Carousel Farms Route 1 Box 66T

Post Office Box 1745 Bushnell, Florida 33513

Sumter County: Felix M. Adams, Esquire

236 North Main Street Bushnell, Florida 33513

Department of

Community Affairs: Michael P. Donaldson, Esquire

Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Intervenors: Steven J. Richey, Esquire

920 West Main Street Post Office Box 492460

Leesburg, Florida 34749-2460 STATEMENT OF ISSUES

At issue in this case is whether the comprehensive plan (plan) adopted by Sumter County (county) is "in compliance" with Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code.

PRELIMINARY STATEMENT

The Department of Community Affairs (department) issued a notice of intent to find the plan for the county "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. This notice was provided on April 9, 1992.

On April 28, 1992, C. John Coniglio, profit sharing plan, (Coniglio) filed a petition with the department requesting an administrative hearing to challenge the determination finding the plan "in compliance". In particular Coniglio was concerned about property owned by his profit sharing plan in Sumter County that had been classified in the plan as commercial property. Coniglio argues in favor of a change to the plan classifying the subject property as industrial.

Subsequently, the department forwarded the Coniglio petition to the Division of Administrative Hearings for consideration. The hearing to resolve the dispute was held on December 9, 1992.

On April 28, 1992, Bill Pownall (Pownall) filed a letter challenging the department's "in compliance" determination related to the plan. This challenge by Pownall was related to the county's disposition of mining interests in the plan. The department treated the letter by Pownall as a petition and the petition was forwarded to the Division of Administrative Hearings. The dispute about the mining element in the plan was resolved through the hearing on December 10, 1992.

The day before receipt of the Pownall letter the department had received petitions by Theodore R. and Nancy Turner (Turners) challenging the department's "in compliance" determination concerning the plan. These petitioners were also concerned about the mining issue within the plan. The Turners' petition was

forwarded to the Division of Administrative Hearings and considered at the hearing on December 10, 1992.

A petition was received from Frances J. Cherry and Kenneth L. Jones (Cherry and Jones) on April 30, 1992. This petition challenged the mining issue within the plan that the department had found "in compliance". The petition was forwarded to the Division of Administrative Hearings and the issues considered at the hearing on December 10, 1992.

On July 10, 1992, R. B. Dixon, Ruth Dixon, Franklin Dixon, Faye Dixon, Consolidated Minerals, Inc., Florida Crushed Stone Mining and Florida Crushed Stone Company petitioned to intervene. That petition was granted on July 23, 1992. Those intervenors participated in the hearing related to the mining issue that took place on December 10, 1992.

Upon the agreement of the other petitioners who sought relief concerning the mining issue and with his willingness to serve in the capacity as qualified representative Pownall made presentations in behalf of those similarly situated petitioners.

Coniglio as a practicing Florida attorney represented his interest at hearing.

The names of witnesses who were called to testify and exhibits introduced into the record may be referenced by using the index to the transcript.

The transcript was prepared and subsequently filed with the Division of Administrative Hearings on December 21, 1992. An extension for filing proposed recommended orders was requested for dates beyond the normal 10-day opportunity for submitting proposed recommended orders. The department, the county and intervenors made the request. The extension was granted and the last proposed recommended orders in a series of submissions was filed on January 5, 1993. In view of that extension for filing, the requirement for preparing the recommended order within 30 days from the date upon which the transcript was filed is waived. See Rules 28-5.402 and 60Q-2.031, Florida Administrative Code. All parties submitted proposed recommended orders. Pownall submitted a proposed recommended order for his benefit and that of all Petitioners who had issues framed concerning the mining issue in the plan. The fact finding suggested by the proposed recommended orders is addressed in an appendix within the recommended order.

FINDINGS OF FACT

The Parties

1. Coniglio through a profit sharing plan owns property in Sumter County which is affected by the plan adoption at issue here. He submitted written and oral comments, objections and recommendations during the plan review and adoption proceedings. He is a person affected by the plan adoption. Similarly Pownall, Cherry, Jones, the Turners and the Dixons as property owners and individuals who submitted written and oral comments, objections and recommendations during the plan review and adoption proceedings are affected persons. Moreover, Pownall, Cherry, Jones and Turner reside in Sumter County. The Dixons own and operate mining sites within Sumter County. Their residence and business interests in Sumter County create additional bases for determining that those individuals are affected persons.

2. The department is the state land planning agency which has the responsibility of reviewing comprehensive plans in accordance with Chapter 163, Part II, Florida Statutes. That function was performed on this occasion associated with the comprehensive plan submitted by the county.

   
   

3. The county is a local government required to adopt a comprehensive plan in accordance with Chapter 163, Part II, Florida Statutes. This county is a non-coastal county located in central Florida which is bordered by Citrus, Hernando, and Pasco counties to its west, Polk county to the south, Marion county to the north and Lake county to the east. It has within its boundaries five incorporated municipalities, Bushnell, Center Hill, Coleman, Webster and Wildwood. The unincorporated area of the county include approximately 350,000 acres. The 1991 unincorporated population of the county was 25,030 and was projected to increase to 30,773 within the ten-year planning horizon contemplated by the plan, in the year 2001.

   
   

   Plan Preparation, Adoption and Approval

   
   

4. On March 27, 1991, the county submitted its proposed plan to the department for review as contemplated by Section 163.3184(3)(a), Florida Statutes. By such submission the county did not commit itself to the terms found within the proposed plan. Chapter 163, Part II, contemplates that the text within the proposed plan may change through the review, adoption and approval process that follows that submission.

   
   

5. As anticipated by Section 163.3184(4), Florida Statutes, the department forwarded copies of the proposed plan to other agencies for review.

   
   

6. The department in accordance with Section 163.3184(6), Florida Statutes, took into account the comments received from the other governmental agencies and prepared and transmitted its report of written objections, recommendations and comments (the ORC). The transmittal date for the ORC was July 2, 1991. The purpose of the ORC was to acquaint the county in detail concerning the department's objections, recommendations and comments. It was left over to the county to decide whether the suggested modifications recommended by the department would be adopted in an effort at establishing a plan which would be found "in compliance".

   
   

7. The county considered the ORC report, to include the recommendations and made revisions to the text in the proposed plan when it adopted its plan on February 3, 1992. The adopted plan was transmitted to the department on February 28, 1992, for final review.

   
   

8. In preparing and adopting the plan the county gave appropriate notice and provided the opportunity for public participation envisioned by law.

   
   

9. On March 31, 1992, the department's secretary determined that the adopted plan met the requirements set forth in Chapter 163, Part II, Florida Statutes, and Rule 9J-5, Florida Administrative Code. Thus, the plan was found "in compliance". The determination finding the plan "in compliance" was memorialized through a memorandum dated March 24, 1992.

   
   

10. On April 9, 1992, the department gave notice of its intent to find the plan "in compliance".

    The Coniglio Petition

    
    

11. The Coniglio profit sharing plan owns 19.44 acres in Sumter County which Coniglio claims should be classified on the future land use map to the plan as industrial property not commercial property as the plan now describes.

    
    

12. In particular, Coniglio asserts that the 19.44 acres that were designated as commercial was not by a decision based upon a survey, studies or data concerning that parcel and that the designation as commercial is inconsistent with the character of other parcels found within the immediate area. Coniglio argues that the analysis that was performed in classifying the property for designation in the future land use map has resulted in a land use which does not allow the best use or highest economic use of the subject property.

    
    

13. This 19.44 acres is depicted on map VII-19 and is located to the north and east of the City of Wildwood. There is commercial acreage in the plan immediately adjacent to the property in question, all of which is part of a triangular shaped piece of land. There are present commercial uses adjacent to the property. Generally, the triangular shaped property, to include the 19.44 acres, is surrounded by other properties whose classification is municipal, industrial and rural residential. The property is further detailed in a sketch which is Respondent's Exhibit No. 1 and a Joint Exhibit No. 2.

    
    

14. The property is south of County Road 462, west of the Seaboard Coastline Railroad line and east of U.S. 301. The southern boundary of the property is adjacent to an overpass which is 40 to 45 feet high.

    
    

15. Coniglio's property has its longest axis fronting the railroad, contact with County Road 462 but no immediate contact with U.S. 301.

    
    

16. The railroad line which is adjacent to the parcel is a principal track for the Seaboard Coastline Railroad carrying north/south traffic between Jacksonville and Tampa and Jacksonville and Orlando. The track splits in the City of Wildwood with some traffic going to Tampa and some traffic going to Orlando.

    
    

17. A manufacturing plant is located east of the railroad in the vicinity where the subject property is found. This plant is Florida Corrugated which makes corrugated boxes.

    
    

18. West of U.S. 301 in the vicinity of the property in question is found a company known as AST that manufactures steel pipes.

    
    

19. In the vicinity of the property in question at the junction of County Road 462 and U.S. 301 a business is located known as McCormick Electric.

    
    

20. In the immediate vicinity of the property is also found a convenience store and what previously was a motel that has been turned into rental units.

    
    

21. Northeast of the intersection of County Road 462 and the railroad is property owned by Florida Power Corporation which is classified as industrial.

    
    

22. The corrugated box plant is also on property classified as industrial, again referring to classifications in the future land use map.

23. The AST property where stainless steel pipes are manufactured is on a parcel which is classified as industrial on the future land use map.

    
    

24. As stated, the parcel in question is part of a larger triangular shaped parcel, that had been the topic for establishing an industrial park.

    
    

25. In the proposed plan the subject parcel, a part of the larger parcel, had been classified as industrial. That designation of the parcel in the proposed plan was through the future land use map.

    
    

26. Arrangements were made to provide water service to the industrial park. At present that service is available at the property in question. Arrangements, though not consummated, have also been made to extend sewer service from the City of Wildwood to the subject parcel.

    
    

27. In anticipation of the use of the subject property under an industrial classification, Coniglio expended large sums of money. That included $85,000 for a railroad spur and in addition; $12,000 for track extensions, $8,500 for a water line and contribution of right-of-way for water service, sewer service and a road. All this effort was made by Coniglio's in the anticipation of the opening of the industrial park.

    
    

28. Sumter County had been involved in the industrial park project through the process of an application to the Florida Department of Commerce seeking appropriation of $96,000 to construct a road associated with the industrial park. The county administered construction of the road and it is that road which Coniglio had donated right-of-way for.

    
    

29. The railroad spur, water and sewer services would serve parcels other than the subject parcel owned by Coniglio.

    
    

30. The county in preparing its proposed plan had worked with the Sumter County Development Council and other persons in the community in establishing the location for commercial and industrial classifications. One reason for designating the parcel in question as industrial was based upon its proximity to the railroad and as part of the overall industrial park which was being projected in the planning efforts by the county, the development council and others.

    
    

31. Chemical Development Corporation appeared before the Sumter County Board of Adjustments to seek approval to operate its business of storage and treatment of hazardous waste on the subject property. The need to appear before the Sumter County Board of Adjustments, which operates independent of Sumter County and its governing board, the Sumter County Commissioners, was to gain a special exception to operate that type business in the county. A special exception needed to be granted by the Sumter County Board of Adjustments because the business to be engaged in involved hazardous waste. The decision by the Sumter County Board of Adjustments was upon a vote of 8 to 2 to grant the special exception following visitation to a plant similar to those activities the applicant for special exception hoped to be engaged in. That approval was granted in May, 1991 by the Sumter County Board of Adjustments.

    
    

32. Following that approval the plan was adopted on February 3, 1992, and it changed the classification from industrial in the proposed plan to commercial in the adopted plan.

33. Chemical Development Corporation the prospective tenant for the parcel in question was not granted an occupational license by the county and could not proceed with its operations.

    
    

34. One of the enterprises that located in the proposed industrial park was Dairyman's Supply. It had completed construction and was ready for business before the plan was adopted. It began its operations in July, 1991.

    
    

35. The decision to change the designation in the parcel in question from industrial to commercial was upon the recommendation of Glen Nelson, Director of Public Services for Sumter County. Among other reasons for the change, according to Nelson, was to thwart the purposes of Chemical Development Corporation in recognition that the change in classification from industrial to commercial would prohibit activities by that company. Notwithstanding the decision by the Sumter County Board of Adjustments to grant the special exception, that prohibition existed because industrial zoning was necessary for the would be tenant to proceed with its business at the site in question.

    
    

36. By way of history, following the decision by the Sumter County Board of Adjustments to grant the special exception there was some opposition to the activities envisioned by the Chemical Development Corporation. That is to say, the establishment of a hazardous waste treatment facility. This community opposition predated the recommendation by Mr. Nelson, the decision by the Sumter County Commissioners to reject the application for an occupational license issued from the county, and the determination to present the subject parcel on the future land use map in the adopted plan as a commercial classification.

    
    

37. The principal planner whom the county relied upon in preparing its plan was Jack Sullivan. He did not participate in the decision to change the subject parcel from industrial to commercial as reflected on the future land use map in the adopted plan.

    
    

38. As explained by Mr. Nelson, other reasons for changing the plan related to the overall attempt by the county to meet perceived needs for balancing the amount of commercial and industrial acres within its adopted plan. To that end the March, 1991, proposed plan had contained approximately 200 acres on State Road 44 east of Wildwood designated as commercial that had been put there at the request of the Sumter County Development Council based upon the Council's discussions with a company that was considering the establishment of a distribution center. Between the time the proposed plan had been transmitted and the plan adoption took place the potential project located in Pasco County or some county south of Sumter County. Therefore, as stated by Mr. Nelson, the commercial designation was no longer needed. The commercial designation at that site changed to rural residential in the plan as adopted. To compensate for the loss of commercial on that 200 acres Mr. Nelson requested that an approximately

    40 acre tract of land adjacent to Wildwood on the east side of State Road 44 be placed in the adopted plan as commercial together with 30 to 35 acres including the subject parcel.

    
    

39. In making his recommendation to place the subject parcel as commercial Mr. Nelson was aware of those industrial activities in the general area surrounding the parcel in question that have been described.

    
    

40. Mr. Nelson made his recommendation for change in the classification one or two months before the February 3, 1992 plan adoption.

41. At the plan adoption hearing on February 3, 1992, Mr. Nelson indicated that the reason for changing the classification for the subject parcel was that the existing uses there were commercial and that the future land use map should reflect that reality. At the hearing no mention was made, by the provision of details, that the reason for changing was to compensate for the loss of the aforementioned 200 acres of commercial acres between the time of the proposed plan and the adoption of the plan on February 3, 1992.

    
    

42. As Mr. Nelson explains, the action by the Sumter County Board of Adjustments in granting a special use exception to Chemical Development Corporation did not preclude the necessity to acquire the proper zoning on the parcel before proceeding with the business. That zoning had to be industrial and not commercial. In the more ordinary course the industrial zoning would have been sought first before the Sumter County Commissioners and the Sumter County Board of Adjustments would then have considered the special use. In this instance the Board of Adjustments acted first and the county made its determination second.

    
    

43. Bill Keedy who sells industrial real estate expressed the opinion that the 19.44 acres would not be saleable as commercial real estate at least in the foreseeable future.

    
    

44. Jim Morton who sells commercial, residential and agricultural properties expressed the opinion that the parcel in question has limited commercial value.

    
    

45. Willard Peeples who owns a number of commercial rental properties did not believe that the subject property had commercial value due to limited access to road frontage.

    
    

46. None of these individuals are certified in real estate appraisal.

    
    

47. Mr. Keedy pointed out that the majority of commercial activity in the Wildwood area is in the middle of the town. Mr. Peeples observed that the commercial activity in Wildwood was located south of the city hall and on U.S.

    301 and east and west on State Road 44.

    
    

48. Mr. Morton expressed the belief that the highest and best use of the subject property was industrial.

    
    

49. Mr. Keedy expressed the belief that an industrial use was promoted by the fact that the property on its east side was bordered by the railroad track.

    
    

50. Mr. Nelson in making his recommendation to classify the property in question as commercial made that choice outside any experience in selling, owning or dealing in commercial property.

    
    

51. There had been no commercial development north of the City Hall in Wildwood in the preceding ten years prior to hearing.

    
    

52. Tony Arrant is an expert in land use planning employed by the department. He had significant involvement in the plan review performed by the department. He pointed out that the department's concerns about the plan and its land use classifications were based upon distribution of land uses throughout the entire county. The ORC did not offer objections to classification of any particular parcel. In the ORC there had been objection as to the extent and distribution of land uses based upon the belief that

    inadequate data and analysis had been provided to support the extent and distribution of land use. Moreover, the ORC found the plan in its proposed form deferred the establishment of densities and intensities for some land use categories within the plan. The ORC expressed concern about data and analysis supporting the future land use map. Therefore, objection was directed to the future land use map. However, the impression of the proposed plan was not based upon a policy to avoid commenting on specific parcels when occasion arose for such criticism.

    
    

53. Mr. Arrant did not perceive that a change in classification of land use between the time that the proposed plan was reviewed by the department and the adoption of a plan was an irregular outcome. In fact, that possibility is a normal expectation.

    
    

54. Mr. Arrant recalls the explanation by Mr. Nelson on February 3, 1992, when the plan was adopted concerning the change from the proposed plan to the adopted plan affecting the parcel in question, to have been based upon existing circumstances, existing land uses at that place and a movement in the distribution of parcels in the overall county associated with commercial and industrial classifications.

    
    

55. Mr. Arrant pointed out, in the final perception he held about the adopted plan, that if the suitability analysis provided would support a commercial classification, that is to say, that it was equally suitable for commercial development or industrial development and there was data and analysis providing the need and extent of distribution for the classification, then it is the local government's choice to determine which site will be designated commercial and which site will be designated industrial. With that in mind, Mr. Arrant found no reason to take issue with the county in its commercial classification for the subject parcel. Mr. Arrant in his knowledge of the parcel in question found no wildlife habitat, wetlands, topographical, geographical or geophysical constraints which would limit the use of this property as commercial or industrial. Consequently, the choice in classification was left to the local government.

    
    

56. Having in mind the facts previously found, it is recognized that the reasons for changing the land use classification on the subject parcel from industrial to commercial had a political component, stopping Chemical Development Corporation from doing business in Sumter County, unrelated to appropriate land use planning. Nonetheless other reasons the county gave for changing the classification from industrial to commercial when compared to the criticisms directed to the classification do not convince, to the exclusion of fair debate, that the county should be required to change the plan to reflect an industrial classification for the parcel in question. This finding is supported by review directed to the overall plan for land use classification within the county which is supported by appropriate data and analysis. Finally, Coniglio's expenditures associated with this parcel are not an appropriate topic for disposition in this case.

    
    

    Mining

    
    

57. Policy 1.9.1 at pages VII-48 and 49 states the following in its preamble:

    
    

    Mining uses shall be provided for in areas designated as agricultural on the Future Land Use Map and shall be permitted upon approval

    of a conditional use permit and approval of an operating permit pursuant to a mining site plan as provided for in the Land Development Regulations.

    
    

    It was not proven to the exclusion of fair debate, in fact, no proof was offered to suggest that the approval of a conditional use permit as opposed to a zoning permit should be the proper approach in describing this policy. Consequently, that allegation concerning the county's policy choice in the mining element is without merit.

    
    

58. Policy 1.9.1 at page VII-49 goes on to describe the guidelines for controlling land allocation for mining purposes where it states:

    
    

    The following guidelines shall be used to control land allocation for mining:

    1. Allocation of mining land use shall be based on a projected average need of 100 acres per year or a total of 1,000 acres during the ten year time period of the Plan and may be permitted pursuant to the goals, objectives and policies of the Plan as needed up to 1,000 acres. Allocation of mining land use above this projected need shall require a Plan amendment.

    2. For purposes of determining the amount of mining land permitted, the Board of County Commissioners shall issue a finding with each operating permit that clearly delineates the amount of land dedicated to the actual mined area plus ancillary uses such as processing plants, overburden piles, roads, administrative offices and other buildings necessary for the actual mining of land. Areas allocated for wetlands, buffers and other lands required in the application to insure compatibility with adjacent land uses or protection of resources shall not be

       counted toward the ten-year allocation of land for mining purposes.

    3. To ensure that an equitable balance among applicants is maintained in allocation of mining land, the following criteria shall apply:

       1. Within each calendar year, no individual mining operation shall receive more than 10% of the ten year allocation;

       2. No individual mining operation shall receive more than 25% of the ten year allocation within any five year period;

       3. Any land allocation requirement for mining purposes larger than those indicated in 1-2 above shall require a plan amendment.

          
          

59. The calculation concerning the number of acres per year and total acreage allocated during the ten year review is based upon data collected from the Withlacoochee Regional Planning Council field survey of 1975 incorporated

    into the county's 1976 comprehensive plan which showed 2190 acres in mining effective 1975. That constitutes the base point for calculation and is related to a further data point in 1986 taken from the county tax assessor's data which established that 3082 mining acres existed in the county upon that date.

    
    

60. The use of the data points is described in the data and analysis at page VII-104 where it states:

    
    

    The 1991 acreage was assumed to be the same as the 1986 analysis. The following methodology was used to calculate mining growth to the year 2001:

    1. Assume an additional 100 acres per year from 1986-2001 including buffer area. This estimate is based on 2,190 acres in mining in 1976 (1976 Comprehensive Plan) and 3,082 acres in 1986 (See Appendix A). This yields an average of 89 acres per year for the ten

       year period. This has been rounded upward to

       100 acres per year to allow for market fluctuations. Mining shall be a permitted activity in agriculture districts. Applicants shall secure a conditional use permit to mine in agriculture areas; then a mining operating permit will be secured to delineate the exact location of the mined area.

    2. 100 acres/year X 15 years = 1,500 acres. 3. 3,082 + 1,500 = 4,582 acres mining in 2001.

    
    

61. The goals and policies concerning allocation of mining acreage is clearly based upon appropriate data. The methodology utilized for data collection was appropriately applied and the use of the methodology to derive the allocation was a professionally acceptable methodology.

    
    

62. The Petitioners challenge to the county's treatment of the future land use element related to mining would substitute a methodology which examines the amount of land devoted specifically to the mining activity as contrasted with the methodology here which takes into account the mined areas plus ancillary uses such as processing plants, overburden piles, roads, administrative offices and other buildings. In addition, the methodology that the challengers would employ does not take into account that the 100 acre per year allocation excludes wetlands, buffers, and other land required to ensure compatibility with adjacent land uses and protection of resources. This attempt at comparison of methodologies is not allowed in the compliance review.

    
    

63. In criticizing the data supporting the allocation process, the challengers question whether that data is the best available existing data. They have failed to prove beyond fair debate that the data used in the plan element is not the best available existing data.

    
    

64. The decision to exclude areas allocated for wetlands, buffers and other lands required to ensure compatibility with adjacent land uses and to protect resources from the mining acreage count is not part of the allocation methodology. It is an appropriate planning decision in protecting wetlands and other resources and ensuring compatibility with adjacent land uses.

65. In further describing the manner in which the county will ensure compatibility of the mining uses with adjacent land uses and the preservation of natural resources, Policy 1.9.2 at page VII-49 states:

    
    

    Sumter County shall insure compatibility of mining uses with adjacent land uses and preservation of natural resources through the following requirements:

    1. Sumter County shall regulate mining to control buffer areas, maintenance of the mining area, groundwater withdrawals, unpermitted deposition of materials, soil stabilization, disturbance of wetlands, noise, vibration, air quality, security and reclamation of mined lands pursuant to Sumter County Ordinance 90-12(1990).

    2. Blasting shall be regulated pursuant to Sumter County Ordinance 81-11(1981).

    3. All mining lands permitted pursuant to these policies must be adjacent to existing legally permitted mine sites with no intervening non-compatible uses. Lands proposed for mining that are not adjacent to an existing permitted mine site shall require a plan amendment prior to approval of zoning and the mining plan.

    4. Enforcement of mining regulations shall

       be funded through operating permit fees levied against mining operators.

       
       

66. The Petitioners challenging the mining element take issue with the term "adjacent" found at Policy 1.9.2c. They note that Sumter County Ordinance No. 90-12(1990), the mining ordinance, uses the term "contiguous". They argue that this difference in terminology between the ordinance and the plan describes an inconsistency between that ordinance and the plan. Moreover, the challengers claim that there is an internal inconsistency between Policy 1.9.2 and Policy

    1. within the conservation element. Policy 1.7.1 in the conservation element at pages III-13 and 14 states:

       
       

       Sumter County shall insure compatibility of mining uses with adjacent land uses and preservation of natural resources through the following requirements:

       1. Sumter County shall regulate mining activities to control buffer areas, maintenance of the mining area, groundwater withdrawals, unpermitted deposition of materials, soil stabilization, disturbance of wetlands, noise, vibration, air quality, security and reclamation of mined lands pursuant to Sumter County Ordinance 90-12 (1990).

       2. Blasting shall be regulated pursuant to Sumter County Ordinance 81-11 (1981).

       3. All mining lands permitted pursuant to these policies must be adjacent to existing

          legally permitted mine sites with no intervening non-compatible uses. Lands proposed for mining that are not contiguous to an existing permitted mine site shall require a plan amendment prior to approval of zoning and the mining plan.

       4. Enforcement of mining regulations shall be funded through operating permit fees levied against mining operators.

    
    

67. The challengers claim that Policy 1.9.2 is inconsistent with the Land Development Code for Sumter County, Chapter 13 as it discusses mining activities.

    
    

68. Finally, the challengers take issue with the decision to change policy

    1.9.2 in its use of the word "contiguous" in a plan draft and the final decision to use the word "adjacent".

    
    

69. In Webster's New World Dictionary the word "adjacent" is defined as: near or close to something; adjoining, joining. "Contiguous" is defined as: 1. in physical contact; touching. 2. near; adjoining.

    
    

70. To the extent that the county chose to change the previous terminology in policy 1.9.2 found within the earlier draft from the word "contiguous" to the word "adjacent" in the adopted plan, there is no impropriety in that choice. Such changes are anticipated as being involved in the process.

    
    

71. The plan as adopted in its use of the terminology "contiguous" or "adjacent" in the conservation and future land use elements as they discuss mining activities is not an internal inconsistency. The terms adjacent and contiguous taken in context are the same. The use of those terms affords no greater nor lesser protection for the benefit of adjacent land owners or in the protection of resources.

    
    

72. Treatment of the mining issue within Sumter County Ordinance 90-12 and the Land Development Code for Sumter County, Chapter 13, when compared to the plan does not point to some inconsistency in using the terms "contiguous" and "adjacent".

    
    

73. On balance the treatment afforded the mining element within the plan has adequately responded to the need for proper allocation for future land use compatible with adjacent land uses and the protection of resources.

    
    

    CONCLUSIONS OF LAW

    
    

74. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding in accordance with Section 120.57(1), Florida Statutes.

    
    

75. As defined in Section 163.3184(1)(b), Florida Statutes., the department found the plan "in compliance". A timely challenge was made to that determination by the named Petitioners. See Section 163.3184(9)(a), Florida Statutes. Concerning the resolution of this dispute, those Petitioners and the county are affected persons as defined in Section 163.3184(1)(a), Florida Statutes.

76. The hearing that was conducted and the recommended order to be entered in considering the various petitions challenging the determination that the plan was "in compliance" is an arrangement in which the plan will be found "in compliance" if the county's determination of compliance is fairly debatable. This standard of proof is as contemplated by Section 163.3184(9)(a), Florida Statutes.

    
    

77. The rights and opportunities afforded the public to participate in the planning process, to include this proceeding to challenge the determination finding the plan "in compliance", corresponds to the requirements set forth in Section 163.3181, Florida Statutes. Rule 9J-5.004, Florida Administrative Code, further defines the opportunities for public participation contemplated by Section 163.3181, Florida Statutes.

    
    

78. The determination of "in compliance" takes into account the requirements of Subsection 163.3177, 163.3178 and 163.3191 together with the state comprehensive plan set out in Chapter 187, Florida Statutes, the appropriate regional policy plan and Rule 9J-5, Florida Administrative Code, to the extent that the rule is not inconsistent with Chapter 163, Part II, Florida Statutes.

    
    

79. The transmittal of the proposed plan, inter-governmental review, regional and county review, state land planning agency review, local government review, comments by the state land planning agency, adoption of the plan and notice of intent by the state land planning agency, that is to say the department, in response to the plan adoption are as described in Sections 163.3184(3)(4)(5)(6)(7) and (8), Florida Statutes.

    
    

80. Section 163.3177(6)(a), Florida Statutes, calls for future land use designation in the plan in that that designation be shown on a land use map or map series which should be supplemented by goals, policies and measurable objectives. Those land use categories are defined in terms of the types of uses that are included in the designation and the need for specific standards related to density and intensity associated with those uses. The future land use plan must be based upon surveys, studies and data related to the area. Among the classifications for land uses are commercial and industrial.

    
    

81. A further discussion of support data for decisions within the plan related to classification of land uses is found at Section 163.3177(10)(e), Florida Statutes, which states:

    
    

    It is the Legislature's intent that support data or summaries thereof shall not be subject to the compliance review process, but the Legislature intends that goals and policies be clearly based on appropriate data. The department may utilize support data or summaries thereof to aid in its determination of compliance and consistency. The Legislature intends that the department may evaluate the application of a methodology utilized in data collection or whether a particular methodology is professionally accepted. However, the department shall not evaluate whether one accepted methodology is better than another. Chapter 9J-5, F.A.C., shall not be construed to require original

    data collection by local governments; however, local governments are not to be discouraged from utilizing original data so long as methodologies are professionally accepted.

    
    

82. The provisions set forth in Section 163.3177(10)(e), Florida Statutes, are augmented by Rule 9J-5.005(2)(a)-(d), Florida Administrative Code, which states:

    
    

    1. All goals, objectives, policies, standards, findings and conclusions within the comprehensive plan and its support documents shall be based upon relevant and appropriate data. Data or summaries thereof shall not be subject to the compliance review process. However, the Department will review each comprehensive plan for the purpose of determining whether the plan is based on the data described in this Chapter and whether the data were collected and applied in a

       professionally acceptable manner. All tables, charts, graphs, maps, figures and data sources, and their limitations shall be clearly described where such data occur in the above documents.

    2. This Chapter shall not be construed to require original data collection by local government; however, local governments are encouraged to utilize any original data necessary to update or refine the local government comprehensive plan data base so long as methodologies are professionally accepted.

    3. Data are to be taken from professionally accepted existing sources, such as the United States Census, State Data Center, State University System of Florida, regional planning councils, water management districts, or existing technical studies. The data used shall be the best available existing data, unless the local government desires original data or special studies. Where data augmentation, updates, or special studies or surveys are deemed necessary by local government, appropriate methodologies shall

       be clearly described or referenced and shall meet professionally accepted standards for such methodologies.

    4. Primary data sources such as United States Census reports, other government data documents, local computerized data, and original map sheets used to compile required maps need not be printed in their entirety within either the support documents or the comprehensive plan. Summaries of support documents shall be submitted to the Department along with the comprehensive plan

    at the time of compliance review to aid in the Department's determination of compliance and consistency. As a local alternative to providing data and analyses summaries, complete data and analyses sufficient to support the comprehensive plan may be submitted to the Department at the time of compliance review. The Department may require submission of the complete or more detailed data or analyses during its compliance review if, in the opinion of the Department, the summaries are insufficient to determine compliance or consistency of the plan.

    
    

83. There is the need for internal consistency in the plan. This requirement is defined at Section 163.3177(2), Florida Statutes, which states:

    
    

    Coordination of the several elements of the local comprehensive plan shall be a major objective of the planning process. The several elements of the comprehensive plan shall be consistent, and the comprehensive plan shall be economically feasible.

    
    

84. In addition the legislature required the department to enact rules in establishing criteria for determining whether the plan's various elements were consistent with each other. That requirement for rule adoption is found at Section 163.3177(9)(b), Florida Statutes.

    
    

85. In carrying out the mandate for internal consistency the department enacted Rule 9J-5.005(5)(a), Florida Administrative Code, which states:

    
    

    (5) Internal Consistency.

    (a) The required elements and any optional elements shall be consistent with each other. All elements of a particular comprehensive plan shall follow the same general format (see "Format Requirements"). Where data are relevant to several elements, the same data shall be used, including population estimates and projections.

    
    

86. This requirement for consistency contemplates a correlation between the elements and the coordination in that process. The various elements within the plan must further each other and not be in conflict with other elements or provisions within the plan.

    
    

87. Taking into account these legal requirements, the petitioners were afforded their rights to participate in the planning process. Requisite procedures for the plan adoption, review and comment by appropriate agencies and the determination to find the plan "in compliance" made by the department were properly conducted. The decisions which the county made in adopting the plan as challenged by petitioners and discussed in the fact finding were not decisions that can be shown to the exclusion of fair debate, that render the plan not "in compliance". The plan, in the parts challenged by the petitioners, was based upon appropriate data, collected through an appropriate methodology, and

    utilized through a professionally accepted methodology. The plan elements in question are consistent with each other.

    
    

88. The plan was not shown by the petitioners to be inconsistent with the state and regional comprehensive plans.

RECOMMENDATION

Upon consideration of the facts found and the conclusions of law reached, it is,

RECOMMENDED:

That a final order be entered which finds the plan for Sumter County to be "in compliance" and dismisses the petitions.

DONE and ENTERED this 26th day of February, 1993, in Tallahassee, Florida.

CHARLES C. ADAMS

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 26th day of February, 1993.

APPENDIX CASE NO. 92-2683GM

The following discussion is given concerning the proposed fact finding of the parties:

Coniglio:

The proposed facts are accepted with the exception that Paragraph 4 is contrary to facts found.

and

Paragraph (w) is not necessary to the resolution of the dispute.

Department:

Paragraphs 1-12 are subordinate to facts found.

Paragraph 13 is contrary to the facts in its suggestion that there is a lack of significant industrial activity in the area of the subject parcel.

Otherwise, that paragraph is subordinate to facts found.

Paragraphs 14 through 18 are subordinate to facts found with the exception that the latter sentence in Paragraph 18 is not accepted in its suggestion that the allegation of political considerations has not been proven.

Paragraphs 19 and 20 constitute legal argument.

Paragraphs 21 through 23 are subordinate to facts found. Paragraphs 24 through 27 are subordinate to facts found. Paragraphs 28 and 29 constitute conclusions of law.

Paragraphs 30 and 31 are subordinate to facts found. Paragraphs 32 and 33 constitute conclusions of law. Paragraph 34 is subordinate to facts found.

Paragraph 35 constitutes conclusions of law.

Paragraphs 36 through 40 are subordinate to facts found. Paragraph 41 is not necessary to the resolution of the dispute. Paragraph 42 is subordinate to facts found.

Pownall, Cherry, Jones and Turner:

Paragraph 1 is contrary to facts found in its suggestion that appropriate notice and opportunity for public participation was not afforded.

Paragraph 2 through 4 are contrary to facts found.

The County and Intervenors:

Paragraphs 1 through 7 are subordinate to facts found. Paragraph 8 constitutes conclusions of law.

Paragraphs 9 through 13 are subordinate to facts found. Paragraphs 14 and 15 constitute conclusions of law.

Paragraphs 17 through 22 are subordinate to facts found. Paragraph 23 constitutes conclusions of law.

Paragraphs 24 and 25 are subordinate to facts found. Paragraph 26 constitutes conclusions of law.

Paragraphs 27 through 31 are subordinate to facts found. Paragraphs 32 and 33 constitute conclusions of law.

Paragraphs 34 through 39 are subordinate to facts found.

COPIES FURNISHED:

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

Tallahassee, Florida 32399-2100

C. John Coniglio, Esquire

P. O. Box 1119

Wildwood, Florida 34785

Bill Pownall

202 W. Noble Street Bushnell, Florida 33513

Randall N. Thornton, Esquire

P. O. Box 58

Lake Panasoffkee, Florida 33538

Theodore R. Turner Nancy Turner Carousel Farms Route 1 Box 66T

Post Office Box 1745 Bushnell, Florida 33513

Felix M. Adams, Esquire

236 North Main Street Bushnell, Florida 33513

Randal M. Thornton, Esquire Post Office Box 58

Lake Pnasoffkee, Florida 33538

Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-002683GM

Orders for Case No: 92-002683GM