STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DICK AND MARY MCGINLEY, )

)

Petitioners, )

)

vs. ) CASE NO. 94-4378GM *

) (*see correction letter DEPARTMENT OF COMMUNITY ) as to case number attached) AFFAIRS and MARION COUNTY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its assigned Hearing Officer, Donald R. Alexander, on April 9, 1996, in Ocala, Florida.

APPEARANCES

For Petitioners: Mary McGinley, pro se

5295 Southwest 135th Street Ocala, Florida 34473

For Respondent: Sherry A. Spiers, Esquire (DCA) 2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Respondent: Thomas D. MacNamara, Esquire (County) 601 Southeast 25th Avenue

Ocala, Florida 34471-2690 STATEMENT OF THE ISSUE

Whether the plan amendment adopted by the County by Ordinance No. 94-12 on April 7, 1994, is supported by adequate data and analysis and furthers the goal of discouraging urban sprawl.

PRELIMINARY STATEMENT

This matter began on July 27, 1994, when petitioners, Dick and Mary McGinley, who own 1,280 acres of land in Marion County, Florida, filed an amended petition for administrative hearing with respondent, Department of Community Affairs, alleging that a plan amendment adopted by respondent, Marion County, on April 7, 1994, was not in compliance. More specifically, petitioners contended that the reclassification of 961.38 acres of their land from the urban expansion to urban reserve category, with a rural land use designation allowing only one residential unit per ten acres, was "not based on accurate data regarding the area as required by Florida law." Thereafter, the matter was referred by the agency to the Division of Administrative Hearings on August 10, 1994, with a request that a Hearing Officer be assigned to conduct a hearing.

By notice of hearing dated September 12, 1994, a final hearing was scheduled on December 14, 1994, in Ocala, Florida. At the parties' request, the matter was temporarily abated pending efforts to reach a settlement. When efforts to reach a settlement were unsuccessful, the case was rescheduled to June 1, 1995. Thereafter, the parties' motion for continuance was granted and the case was placed in abeyance a second time while the parties sought to reach a settlement. Having been advised that the case could not settle, the undersigned rescheduled the matter to April 9, 1996, at the same location.

At final hearing, petitioners were represented by Mary McGinley.

Petitioners testified on their own behalf and presented the testimony of Robert

L. Rogers, an engineer. Also, they offered petitioners' exhibits 1-4. All exhibits were received in evidence. Respondent Department of Community Affairs offered DCA exhibit 1 which was received in evidence. Respondent Marion County presented the testimony of Terese M. Manning, county planning director and accepted as an expert in comprehensive planning; Gus Gianikas, assistant planning director and accepted as an expert in comprehensive planning; and Mike May, zoning director and accepted as an expert in zoning matters in Marion County. Also, it offered County exhibits 1-3. All exhibits were received in evidence.

The parties did not have a transcript of hearing prepared. Proposed findings of fact and conclusions of law were due on April 24, 1996, and were filed by petitioners and respondents on April 19 and 24, 1996, respectively. A ruling on each proposed finding has been made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, including the stipulation by the parties, the following findings of fact are determined:

1. Background

   
   

   1. The parties

      
      

      1. Respondent, Marion County (County), is a local governmental unit subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive growth management plans and amendments thereto. In this case, the County has adopted an amendment to its comprehensive plan which is the subject of the dispute.

         
         

      2. Petitioners, Dick and Mary McGinley, are residents of Marion County. Since 1956 they have owned a rectangle-shaped parcel of property consisting of approximately 1,280 acres. The parcel is situated on State Road 484 two and one-half miles west of Interstate 75 between Belleview and Dunnellon and ten miles south-southwest of the City of Ocala. Approximately 318.57 acres lie north of State Road 484 while the remaining 961.38 acres lie south of that

         roadway. The County's plan amendment affects that part of petitioners' property which lies south of State Road 484. During the adoptive phase of the amendment, petitioners submitted written comments in opposition to the reclassification of their property. As such, they are affected persons within the meaning of the law and have standing to bring this action.

   2. The nature of the dispute

      
      

      1. The County adopted its comprehensive plan in January 1992. After the plan was determined by the DCA to be not in compliance, the County and DCA entered into a stipulated settlement agreement in March 1993, which required the County to adopt various remedial amendments. The first set of remedial amendments adopted by the County were determined to be not in compliance. After a second stipulated settlement agreement and addendum were entered into by the same parties, the County adopted further remedial amendments on April 7, 1994, one of which changed the land use designation on a portion of petitioners' property. A cumulative notice of intent to find the plan and remedial amendments in compliance was then issued by the DCA on May 30, 1994.

         
         

      2. On July 27, 1994, petitioners timely filed an amended petition for administrative hearing in which they contended the plan amendment which affected their property was not in compliance. In their complaint, petitioners alleged that the "future land use (of their property) was not based on accurate data regarding the area as required by Florida law." As further clarified by petitioners in the prehearing stipulation, they allege that the amendment is not based on adequate data and analysis, and it is not consistent with, or does not further the goals of, applicable statutes and rules. As to the latter allegation, petitioners have clarified this to mean that, as to their property, they do not agree that the plan amendment meets its stated goal of discouraging urban sprawl.

         
         

2. The Plan Amendment

   
   

   1. As noted earlier, the County adopted its comprehensive plan in January 1992. Prior to the adoption of the plan, petitioners' property had been zoned A-1, agricultural district, since at least 1973. Under the January 1992 plan, petitioners' property was placed in an urban expansion area with a low density residential land use which allowed one dwelling unit per acre. Because of an objection by the DCA that the plan allocated too much land to the urban expansion area, the County agreed to adopt remedial amendments to cure that deficiency.

      
      

   2. In August 1993, the County adopted a remedial amendment to the plan which, among other things, continued an urban expansion designation for petitioners' property. Again, however, the DCA found the amendment not to be in compliance on the ground the plan still allocated too much land to urban uses.

      
      

   3. To satisfy this continuing concern, and in accordance with a settlement agreement with the DCA, the County agreed to reduce the amount of land allocated to urban uses by reclassifying various tracts of land in the County from urban expansion to urban reserve. In its remedial amendments adopted on April 7, 1994, among other things, the County proposed to change the land use designation on that part of petitioners' property (961.38 acres) lying south of State 484 from urban expansion area to urban reserve category with a rural land use designation, which allows one residential unit per ten acres, or less than 100 units. In contrast, that portion of petitioners' property lying north of State Road 484 (318.57 acres) will continue to remain in the urban expansion area with a medium density residential land use designation, which allows for four dwelling units per acre, or almost 1,400 units.

3. Petitioners' Concerns

1. Petitioners allege that the plan amendment is not based on adequate data and analysis and it fails to achieve its stated objective of preventing urban sprawl. In addition, at hearing petitioners suggested that the reclassification, if ultimately approved, constituted an unlawful taking of their property in violation of the United States Constitution. As to this claim, jurisdiction to adjudicate the same lies within that of a circuit court rather than with the undersigned, and in any event, it cannot be raised until after all administrative remedies, including this one, have been pursued.

   
   

2. Petitioners' property is located in the middle of the northern half of a large, vested Development of Regional Impact (DRI) known as Marion Oaks, a project begun in the early 1970's. Their land is surrounded on all sides by mainly residential lots, many of which are vacant, and almost two dozen streets originating within the project end at their property line. Marion Oaks now has two golf courses, a school, library, fire station, bank and utilities. Thus, it contains a mixture of residential, commercial, recreational and other uses. As of the time of hearing, Marion Oaks had around 7,800 residents.

   
   

3. Even though 78 percent of Marion Oaks' 24,564 residential lots have been sold, less than 10 percent of the lots have been developed. Therefore, most of the land in the project is vacant, and at its present rate of construction of around 130 residential units per year, Marion Oaks will not be built out for around 190 years. When the amendment was adopted, there was virtually no development in the western part of the DRI, the northern part was "sparsely" developed, a "little more" development was present in the southern part, and the bulk of the development was in the eastern part of the project. Indeed, the only commercial development, albeit very limited in nature, found in the project is approximately one and one-half miles east of petitioners' property. Therefore, it is fair to chararacterize Marion Oaks in its totality as being non-urban in character.

   
   

4. Although petitioners have never applied for a development permit, they desire to develop their property by constructing a small shopping center consisting of a bank and supermarket which will serve as an anchor for other "neighborhood" type businesses. In addition, they plan to construct a golf course, perhaps an airport fly-in center, and more than a thousand "affordable- type" housing units to blend in with the other housing in Marion Oaks. With the dual land use designation on their property, however, petitioners point out that this type of development is not feasible. This was confirmed at hearing by their engineer.

   
   

5. Petitioners first claim that the plan amendment is not consistent with the County's goal of discouraging scattered development and sprawl. They reason that, since the large Marion Oaks DRI surrounds their parcel of property, urban development is already present. It is true, as petitioners claim, that their property has road accessibility (State Road 484), the availability of centralized utilities and fire protection, and soil suited for development, all of which are necessary for urban development. Even so, Marion Oaks is largely undeveloped at this time, it can be characterized as non-urban, and at present growth rates it will not be built out for 190 years. Given these considerations, it cannot be said to the exclusion of fair debate that the plan is not consistent with, or does not further, the plan's goal of discouraging urban sprawl.

6. Petitioners further contend that they were unfairly treated in this process. They point to another tract of land consisting of around 400 acres that was reclassified urban expansion even though it lies south of Lake Weir in southeastern Marion County in a predominately undeveloped area. Even if this is true, however, the classification of one isolated tract of land in this manner would not mean that petitioners' property would also qualify for the urban expansion category.

   
   

7. In addition, petitioners contend that to allow them to develop their property at a medium residential density would be nothing more than infilling the center of an already developed tract of land, namely, the Marion Oaks DRI. Urban infill is defined by statute [s. 163.3164(27)] as follows:

   
   

   the development of vacant parcels of otherwise built-up areas where public facilities such

   as sewer systems, roads, schools, and recrea- tion areas are already in place and the aver- age residential density is at least five dwelling units per acre, the average non- residential intensity is at least a floor area ratio of 1.0 and vacant, developable land

   does not constitute more than 10 percent of the area.

   Since petitioners' property is not in an otherwise "built-up" area having a density of five units per acre as required by law, a designation or development of petitioners' property at urban densities would not be consistent with the concept of infilling.

   
   

8. Finally, petitioners contend that the County's plan amendment is not supported by adequate data and analysis with respect to the County's imposition of a dual land use designation on their property. As to this contention, the County established that, prior to adopting the amendment, it performed a detailed field survey of all urban areas of the County, including petitioners' parcel. In addition, a property owner's matrix was prepared, and approximately

   400 parcels of property, including petitioners, that were proposed for reclassification to another land use category were reevaluated.

   
   

9. The only remaining question is why the amendment allows urban development at a density of four residential units per acre on the northern part of petitioners' property but only allows one residential unit per ten acres on the southern part when the entire parcel is surrounded on all sides by the same land use, namely, an existing DRI and subdivision. In other words, absent some data and analysis to the contrary, logic would dictate, and it can be reasonably inferred, that the same land use classification should apply to the entire parcel. However, the County's representation that a property survey and matrix support this change was not credibly contested. Further, on page 53 of the data and analysis supporting the amendment is found the following summary regarding the change on the northern 318.57 acres of petitioners' property from urban reserve residential to urban expansion medium density residential:

   
   

   The County recognizes that development of the complete enclave area will require DRI/ Comprehensive Plan Amendment review, and establishing the small Urban Expansion Area will accommodate some preliminary development prior to the need to commence the DRI/Amend- ment process while maintaining the continuity

   of the remaining non-urban enclave area lying south of CR 484, a Major Collector roadway.

   Given these considerations, it cannot be said to the exclusion of fair debate that the plan amendment, as it affects petitioners' property, is not supported by adequate data and analysis.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.57(1) and 163.3184(9), Florida Statutes.

    
    

11. The broad issue in this case is whether the plan amendment is "in compliance" with Part II, Chapter 163, Florida Statutes, and Chapter 9J-5, Florida Administrative Code. "In compliance," as defined in Section 163.3184(1)(b), Florida Statutes, means the plan is consistent with the applicable provisions of Part II of Chapter 163, Florida Statutes, the state comprehensive plan, the regional policy plan, and Chapter 9J-5, Florida Administrative Code.

    
    

12. This case arose under Section 163.3184(9)(a), Florida Statutes, following DCA's notice of intent to find the plan amendment in compliance. Under that statute, the plan amendment must be determined to be "in compliance" if the local government's determination of compliance is fairly debatable. Therefore, the action of the County must be approved "if reasonable persons could differ as to its propriety." B & H Travel Corporation v. Dept. of Community Affairs, 602 So.2d 1362, 1365 (Fla. 1st DCA 1992). In other words, petitioners have a most difficult task in proving the legitimacy of their claims.

    
    

13. Based upon all of the evidence, it is concluded that petitioners have failed to prove to the exclusion of fair debate that the County's remedial amendments adopted by Ordinance 94-12 are inconsistent with, or do not further, the goals of the plan, namely, to discourage urban sprawl and scattered development. It is further concluded that petitioners have failed to prove to the exclusion of fair debate that the plan amendment, to the extent it reclassifies a part of their property from urban expansion to urban reserve, is not supported by adequate data and analysis. Therefore, the amendment should be found to be in compliance.

    
    

14. Finally, petitioners can take some small comfort from the fact that, at an appropriate time in the future, the plan itself, and the commentary on page 53 of the data and analysis, envision a conversion of the remaining part of their property from urban reserve to urban service area.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered determining the challenged plan

amendment to be in compliance.

DONE AND ENTERED this 7th day of May, 1996, in Tallahassee, Florida.

DONALD R. ALEXANDER, 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 7th day of May, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4387GM

Petitioners:

Petitioners' Proposed Recommended Order did not contain a section entitled "Findings of Fact." Where proposed findings are found in other portions of the order, they have been partially accepted in findings of fact 8-16.

Respondents:

1-3. Partially accepted in findings of fact 1 and 2. 4-7. Partially accepted in finding of fact 3.

8. Partially accepted in findings of fact 4 and 5. 9-11. Partially accepted in findings of fact 5 and 6.

1. Partially accepted in finding of fact 12.

2. Partially accepted in findings of fact 2 and 9.

3. Partially accepted in findings of fact 9 and 10.

4. Partially accepted in finding of fact 2. 15-16. Partially accepted in finding of fact 10. 17-18. Rejected as being unnecessary.

19-20. Partially accepted in finding of fact 14.

Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary for a resolution of the issues, not supported by the evidence, cumulative or a conclusion of law.

COPIES FURNISHED:

James F. Murley, Secretary Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Dick and Mary McGinley

5295 Southwest 135th Street Ocala, Florida 34473

Sherry A. Spiers, Esquire Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Stephanie M. Gehres, Esquire Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Thomas D. MacNamara, Esquire 601 Southeast 25th Avenue Ocala, Florida 34471-2690

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency 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 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.

May 13, 1996

Dick and Mary McGinley Sherry A. Spiers, Esquire

5295 Southwest 135th Street Department of Community Affairs Ocala, Florida 34473 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Thomas D. MacNamara, Esquire 601 Southeast 25th Avenue Ocala, Florida 34471-2690

Re: Case No. 94-004387GM

Dick and Mary McGinley vs. Deparment of Community Affairs and Marion County

Dear Parties:

Enclosed is a new first page of my Recommended Order previously issued on May 7, 1996. The only change is to reflect the correct case number on page 1.

Very Truly Yours,

DONALD R. ALEXANDER

Hearing Officer

DRA/gg Enclosure

cc: James F. Murley, Secretary Stephanie M. Gehres, Esquire

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DICK AND MARY MCGINLEY, )

)

Petitioners, )

)

vs. ) CASE NO. 94-4387GM

)

DEPARTMENT OF COMMUNITY ) AFFAIRS and MARION COUNTY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its assigned Hearing Officer, Donald R. Alexander, on April 9, 1996, in Ocala, Florida.

APPEARANCES

For Petitioners: Mary McGinley, pro se

5295 Southwest 135th Street Ocala, Florida 34473

For Respondent: Sherry A. Spiers, Esquire (DCA) 2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Respondent: Thomas D. MacNamara, Esquire (County) 601 Southeast 25th Avenue

Ocala, Florida 34471-2690 STATEMENT OF THE ISSUE

Whether the plan amendment adopted by the County by Ordinance No. 94-12 on April 7, 1994, is supported by adequate data and analysis and furthers the goal of discouraging urban sprawl.

PRELIMINARY STATEMENT

This matter began on July 27, 1994, when petitioners, Dick and Mary McGinley, who own 1,280 acres of land in Marion County, Florida, filed an amended petition for administrative hearing with respondent, Department of

Community Affairs, alleging that a plan amendment adopted by respondent, Marion County, on April 7, 1994, was not in compliance. More specifically, petitioners contended that the reclassification of 961.38 acres of their land from the urban expansion to urban reserve category, with a rural land use designation allowing only one residential unit per ten acres, was "not based on accurate data regarding the area as required by Florida law." Thereafter, the matter was referred by the agency to the Division of Administrative Hearings on August 10, 1994, with a request that a Hearing Officer be assigned to conduct a hearing.

By notice of hearing dated September 12, 1994, a final hearing was scheduled on December 14, 1994, in Ocala, Florida. At the parties' request, the matter was temporarily abated pending efforts to reach a settlement. When efforts to reach a settlement were unsuccessful, the case was rescheduled to June 1, 1995. Thereafter, the parties' motion for continuance was granted and the case was placed in abeyance a second time while the parties sought to reach a settlement. Having been advised that the case could not settle, the undersigned rescheduled the matter to April 9, 1996, at the same location.

At final hearing, petitioners were represented by Mary McGinley.

Petitioners testified on their own behalf and

Docket for Case No: 94-004387GM

Orders for Case No: 94-004387GM