STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD D. MOSS, et al., )

)

Petitioner, )

)

vs. ) CASE NO. 94-4704GM

)

DEPARTMENT OF COMMUNITY ) AFFAIRS, and SUWANNEE COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

On March 9-10, 1995, a formal administrative hearing was held in this case in Live Oak, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioners: Edwin B. Browning, Jr., Esquire

George T. Reeves, Esquire

Davis, Browning & Schnitker, P.A. Post Office Drawer 652

Madison, Florida 32341

For the DCA: Terrell K. Arline, Esquire

Department of Community 2740 Centerview Drive

Tallahassee, Florida 32399-2100

For the County: C. Dean Lewis, Esquire

Post Office Drawer 8 Live Oak, Florida 32060

STATEMENT OF THE ISSUE

The issue in this case is whether the comprehensive plan amendment adopted by Suwannee County ordinance number 94-02, on June 9, 1994, (the Amendment) is "in compliance" pursuant to Section 163.3184(1)(b), Fla. Stat. (Supp. 1994).

(It must be found to be "in compliance" if the County's determination that it is "in compliance" is at least "fairly debatable.")

PRELIMINARY STATEMENT

On August 19, 1994, Petitioners, Ronald Moss, et. al, filed a petition challenging the Amendment pursuant to Section 163.3184(9), Fla. Stat. (Supp. 1994).

A formal administrative hearing was held on March 9, 1995, and on March 10, 1995. At the hearing, the Petitioners called Neil G. Sipe, who was qualified as

an expert in urban and regional planning. Petitioners introduced 4 exhibits. Respondent, Department, called David Dahlstrom, Scott R. Koons, and Robert Pennock, who were qualified as experts in comprehensive planning. The Department introduced 9 exhibits. The County called: George R. Register, who was qualified as an expert in siting and construction of prisons; Michael L. Rathman, who was qualified as an expert in prison security; and Ron Kronenberger, who was qualified as an expert in the field of siting and operation of prisons. The County introduced 2 exhibits.

Petitioners called Marian Wright, Emma Owens, June Moss, Fran Ingram, Lonnie Hutchinson, and Fay Combass, as lay witnesses who testified that they either lived on Hutchinson Road, which borders the Parcel, or that they had family that lived there. They were all opposed to the construction of a prison on the parcel which is the subject of the Amendment.

A transcript of the final hearing was prepared and subsequently filed with DOAH on April 26, 1995. Proposed recommended orders were submitted on or before May 16, 1995.

Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the Appendix to Recommended Order, Case No. 94-4704GM.

FINDINGS OF FACT

1. The Parties

   
   

   1. The Department is the state land planning agency charged with the responsibility of reviewing comprehensive plans pursuant to Chapter 163, Part II, Fla. Stat. (1993).

      
      

   2. Petitioners reside in Suwannee County, Florida. Many own property adjacent to the parcel, which is the subject of the Amendment. Although, Petitioners put on no evidence that any of the Petitioners attended either the transmittal or the adoption hearing and made either written or oral objection to the Amendment, counsel for the Department and the County have stipulated that the Petitioners did attend these hearings and objected to the Amendment. Therefore each of the Petitioners is an "affected person" as defined by Section 163.3184(1)(a), Fla. Stat. (Supp. 1994).

      
      

   3. Suwannee County is a local government required to adopt a comprehensive plan pursuant to Chapter 163, Part II, Fla. Stat. (1993).

      
      

2. General Description of the County

   
   

   1. Suwannee County is a rural county located in the north central Florida. Live Oak is the County seat.

      
      

   2. The Suwannee County Comprehensive Plan (Plan) was originally adopted and found to be in compliance in 1992. The Future Land Use Map (FLUM) of the Plan at that time designated the parcel which is the subject of the Amendment in the Agricultural-1 land use category, (less than or equal to 1 dwelling unit per

      5 acres).

3. The Proposed Amendment

   
   

   1. This case involves a parcel of land approximately 320 acres in size, which is located on SR 90, approximately 6.5 miles east of Live Oak (the Parcel).

      
      

   2. On February 1, 1994, Suwannee County (County) held a public hearing for the purpose of amending the FLUM to change the designation of the Parcel on the FLUM from Agriculture-1 to Public use.

      
      

   3. The purpose of the amendment was to authorize the construction of a prison by the State Department of Corrections on the Parcel.

      
      

   4. Pursuant to Section 163.3184, Fla. Stat. (Supp. 1994), the proposed amendment was transmitted to the Department for review.

      
      

4. The Department's Initial Review

   
   

   1. On April 14, 1994, the Department issued an Objections, Recommendations and Comments report (ORC report).

      
      

   2. The Department set out three objections to the Amendment in the ORC. The first, related to Policy I.2.2 of the Plan, which set forth the types of public uses that were permitted under the Plan's existing public use category in rural lands. The text of the Plan would allow a community college and other "urban type uses" on the site. Department staff felt this might encourage the conversion of adjacent lands, and at the hearing, characterized the proposed Amendment as promoting "urban sprawl."

      
      

   3. The second issue raised in the ORC dealt with wetlands. The Department was concerned that under Policy V.2.4 of the Plan, public uses were not included among those uses which had to "set back" 35 feet from wetlands. The Department was concerned that the proposal to amend the FLUM to allow public use on the site would adversely affect wetlands, because under the existing Plan, the setback restriction from wetlands would not apply to public uses.

      
      

   4. The third concern raised in the ORC report involved the "public facilities analysis." The Department staff testified that the County had not taken into account the most intense use authorized by the Amendment in doing the analysis of impacts on public facilities and services.

      
      

5. The County's Response to the ORC and Adoption of the Amendment

   
   

   1. The County held a public hearing to consider the ORC objections, and on June 9, 1994, it adopted the Amendment with changes to address the Department's ORC report.

      
      

   2. To respond to the concerns about urban sprawl, the County amended Policy I.1.6 dealing with Public Land Use Classification (in urban development areas). This portion of the Amendment reads as follows:

      
      

      Lands classified as public consist of public buildings and grounds and other public facil- ities, (including sewer facilities, solid waste facilities, drainage facilities and potable water facilities), public health facilities

      (to include hospitals, which shall be allowed in urban development areas), and educational uses (to include universities and community colleges, which shall be allowed in urban development areas); and Public uses shall be limited to an intensity of less than or equal to 1.0 floor area ratio. (Underlined portions were added.)

      
      

   3. That portion of Policy I.2.2 dealing with the Public Land Use Classification (in rural areas) was amended as follows:

      
      

      Lands classified as public consist of public buildings and grounds and other public facil- ities, (including sewer facilities, solid waste facilities, drainage facilities and potable water facilities), public health facilities

      (do not include hospitals, which shall be allowed in urban development areas only), and educational uses (not to include univer- sities and community colleges, which shall be allowed in urban development areas only); (Underlined portions were added.)

      
      

      This amendment mitigates against urban sprawl.

      
      

   4. Policy I.2.2 dealing with the Public Land Use Classification (in rural areas) was also amended to state as follows:

      
      

      Public uses shall be limited to an intensity as follows: less than 5 acres- 1.00 floor area ratio

      greater than or equal to 5 acres, but less

      than 10 acres- .75 floor area ratio

      
      

      greater than or equal to 10 acres, but less

      than 20 acres- .50 floor area ratio

      
      

      greater than or equal to 20 acres, but less

      than 40 acres- .25 floor area ratio

      
      

      greater than or equal to 40 acres, but less

      than 80 acres- .10 floor area ratio

      
      

      greater than or equal to 80 acres, but less

      than 160 acres- .075 floor area ratio

      
      

      greater than or equal to 160 acres, but less

      than 320 acres- .050 floor area ratio

      greater than or equal

      to 320 acres- .025 floor area ratio

      
      

   5. The above mentioned floor area ratios for public uses in rural areas addressed the Department's concerns about the inadequate public facilities analysis. Under this amendment, the effect of the reduced floor area ratios on a 320 acre site would be to limit the maximum lot coverage of a one floor building to 348,500 square feet. This also mitigates against urban sprawl.

      
      

   6. To respond to the Department's concerns about wetlands, the County amended Policy V.2.4, to make the 35 foot natural buffer apply to all public uses.

      
      

   7. After the adoption hearing, the County forwarded the amendment to the Department for a compliance review pursuant to Section 163.3184, Fla. Stat. (Supp. 1994).

      
      

6. Final Department Review

   
   

   1. The Department decided that the Amendment, as adopted with the above mentioned text changes, satisfied the objections set forth in the ORC. On July 30, 1994, the Department issued a notice of intent finding the amendment in compliance.

      
      

7. Prisons and Urban Sprawl

1. It is at least fairly debatable whether the use of land for a prison (correctional institution) should be characterized as being either an urban use or a rural use. Prisons are qualitatively different from other typical urban or rural uses. Depending on the circumstances, prisons can be compatible in either rural or urban settings.

   
   

2. It obviously can be expected that, if there is a prison on the Amendment Parcel, there will be a prison population and a prison staff. But it is at least fairly debatable whether prisons typically create much pressure for residential or commercial or any other kind of development outside the prison itself. Prisons generally do not attract a residential development. Most people had rather live elsewhere (as evidenced by the opposition of the Petitioners in this case.) Some of the prison staff will reside in residential facilities at the prison. Since the Amendment Parcel is only two and a half miles from Wellborn and only about six miles east of the city limits of Live Oak, it is at least fairly debatable whether any prison staff who do not reside in the prison's residential facilities would create pressure for additional residential housing adjacent to the prison rather than choosing to live in Wellborn or Live Oak. If any would prefer to live closer to the prison, there is no evidence from which it could be concluded that they would create pressure for new housing construction rather than buy existing homes as they become available. If any did choose to seek to build new residences nearer the prison than Wellborn or Live Oak, there is no evidence from which it could be concluded that they would choose to build homes different in character from the rural homes now existing in the area. It is at least fairly debatable whether the prison would result in any significant pressure for new development.

   
   

3. It is at least fairly debatable whether a prison in a rural setting such as the Amendment Parcel should be expected to attract anything in the way of ancillary development more than perhaps a convenience store with gasoline pump and maybe a small food service facility.

4. At least in rural settings, it is not unusual for prisons to be self- contained, i.e., to have their own water supply and on-site waste water treatment system and disposal. The prison planned for the Amendment Parcel is planned to be self-contained. As such, it is at least fairly debatable whether, in terms of "urban sprawl" considerations, the existence of a functional relationship between a prison in a rural setting and any rural uses in the vicinity should even be an issue.

   
   

5. It is at least fairly debatable whether, requiring a prison in a rural county like Suwannee County to be located so as to be able to take maximum advantage of existing public facilities (such as water, sewer and fire), in order to minimize "urban sprawl," in effect would require all prisons to be located within or contiguous to urban population centers.

   
   

6. In addition to the development controls in the Amendment itself which mitigate against urban sprawl (excluding hospitals, universities, and community colleges from, and limiting permissible floor area ratios in, Public Land in rural areas), the Suwannee County Comprehensive Plan discourages urban sprawl by establishing just four urban centers (the City of Live Oak, Wellborn, Branford, and Dowling Park) for urban development and urban land uses, while designating the rest of the County for rural uses.

   
   

   CONCLUSIONS OF LAW

   
   

7. Section 163.3184(9)(a), Fla. Stat. (Supp. 1994), provides that a comprehensive plan amendment shall be determined to be "in compliance" if the local government's determination of compliance is fairly debatable. The Petitioners' burden is to prove to the exclusion of fair debate that the plan amendment is not in compliance.

   
   

8. The Local Government Comprehensive Planning and Land Development Regulation Act (the Growth Management Act) does not define what is meant by "fairly debatable." In zoning cases, the "'[t]he fairly debatable' test asks whether reasonable minds could differ as to the outcome of a hearing." (Citations omitted). Norwood-Norland Homeowners' Association, Inc. v. Dade County, 511 So.2d 1009, 1012 (Fla. 3d DCA 1987). "Reasonable minds," for purposes of this test, are informed by relevant facts and law and analyze this information in a reasonable manner in order to reach a logical conclusion based exclusively on the applicable facts and law. See Final Order entered July 11, 1991, and Recommended Order entered March 4, 1991, Pope v. City of Cocoa Beach and Dept. of Community Affairs, DOAH Case No. 90

   could conclude that the County's determination that its plan amendment is "in compliance" is correct, the plan amendment must be found to be "in compliance." See Palm Beach County v. Tinnerman, 517 So.2d 699 (Fla. 4th DCA 1987), rev. denied, 528 So.2d 1183 (Fla. 1988).

   
   

9. In this case, the Petitioners have alleged that the plan amendment in question is not "in compliance" because it is not consistent with the urban sprawl rule in F.A.C. Rule Chapter 9J-5.

   
   

10. "Urban Sprawl" is defined in Fla. Admin. Code R. 9J-5.003(140) as follows:

    
    

    . . . urban development or uses which are located in predominantly rural areas, or rural areas interspersed with generally low-

    intensity urban uses, and which are charac- terized by one or more of the following conditions: (a) The premature or poorly planned conversion of rural land to other uses; (b) the creation of areas of urban development or uses which are not functionally

    related to adjacent land uses which predominate the adjacent area; or (c) the creation of

    urban development or uses which fail to maximize the use of existing public facilities or the use of areas within which public services are currently provided. Urban

    sprawl is typically manifested in one or

    more of the following land use or development patterns: Leapfrog or scattered development; ribbon or strip commercial or other develop- ment; or large expanses of predominantly low-

    intensity, low-density, or single-use development.

    
    

11. This definition of urban sprawl includes the term "rural areas", which is defined at Fla. Admin. Code R. 9J-5.003(117), as follows:

    
    

    . . . low density areas characterized by social, economic and institutional activities which may be largely based on agricultural uses or the extraction or natural resources in unprocessed form, or areas containing large proportions of undeveloped, unimproved, or low density property.

    
    

    The vicinity of the Amendment Parcel clearly is a "rural area."

    
    

12. Although the rule does not define "urban use", the term "urban area" is defined at Fla. Admin. Code R. 9J-5.003(139) as follows:

    
    

    . . . an area of or for development character- ized by social, economic and institutional activities which are predominately based on the manufacture, production, distribution, or provision of goods and services in a setting which typically includes residential and non- residential development uses other than those which are characteristic of rural areas.

    
    

13. The term "functional relationship", which is relevant to this issue, is defined at Fla. Admin. Code R. 9J-5.003(53) as follows:

    
    

    . . . a complementary and interactive relation- ship among land uses or development, including at a minimum a substantial and positive exchange or human interaction, goods, resources, institu- tions, services, jobs or workers between land uses or developments.

    
    

14. Fla. Admin. Code R. 9J-5.006(5)(g) sets forth a general methodology for the Department's review of plans and plan amendments to determine whether they discourage the proliferation of urban sprawl. The rule includes a list of

    thirteen primary indicators, which are to be evaluated in determining whether a plan or amendment discourages the proliferation of urban sprawl. These are as follows:

    
    

    1. Promotes, allows or designates for development substantial areas of the juris- diction to develop as low intensity, low density, or single-use development or uses in excess of demonstrated need.

    2. Promotes, allows or designates signi- ficant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over un- developed lands which are available and suit- able for development.

    3. Promotes, allows or designates urban development in radial, strip, isolated or ribbon patterns generally emanating from existing urban developments.

    4. As a result of premature or poorly planned conversion of rural lands to other uses, fails adequately to protect and conserve

       natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, natural groundwater aquifer recharge areas, lakes, rivers, shorelines, beaches,

       bays, estuarine systems, and other significant natural systems.

    5. Fails to protect adjacent agricultural areas and activities, including silviculture, and including active agricultural and silvi- cultural activities as well as passive agricul- tural activities and dormant, unique and prime farmlands and soils.

    6. Fails to maximize the use of existing public facilities and services.

    7. Fails to maximize use of future public facilities and services.

    8. Allows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and main- taining facilities and services, including roads, potable water, sanitary sewer, storm- water management, law enforcement, education, health care, fire and emergency response, and general government.

    9. Fails to provide a clear separation between rural and urban uses.

    10. Discourages or inhibits infill develop- ment or the redevelopment of existing neighbor- hoods and communities.

    11. Fails to encourage an attractive and functional mix of uses.

    12. Results in poor accessibility among linked or related land uses.

    13. Results in the loss of significant amounts of functional open space.

15. As found, there is no "functional relationship" between a prison in a rural area and any rural uses in the vicinity. However, as also found, it is at least fairly debatable whether, in terms of "urban sprawl" considerations, the existence of a functional relationship between a prison in a rural setting and any rural uses in the vicinity should even be an issue. As found, it is at least fairly debatable whether prisons--at least self-contained prisons--are the kind of "development" that leads to serious concern about urban sprawl. It is doubtful that the urban sprawl rules were written with prisons--at least self- contained prisons--in mind.

    
    

16. As found, the Amendment mitigates against urban sprawl by excluding hospitals, universities, and community colleges from, and limiting permissible floor area ratios in, Public Land in rural areas.

    
    

17. In interpreting how to apply these indicators, Fla. Admin. Code R. 9J- 5.006(5)(h), states in pertinent part:

    
    

    [T]he comprehensive plan must be reviewed in its entirety to make the determinations in (5)(g) above. Plan amendments must be reviewed individually and for their impact on the plan."

    
    

    Contrary to the argument made by the Petitioners, it is concluded that review of plan amendments "individually and for their impact on the plan" does not mean that, to determine if plan amendments are inconsistent for failing to "discourages the proliferation of urban sprawl," the amendment should be reviewed independent of, and without reference to, the rest of the plan. To the contrary, it means that amendments must be reviewed not only "individually" but also "for their impact on the plan."

    
    

18. As found, in addition to the development controls in the Amendment itself which mitigate against urban sprawl, the Suwannee County Comprehensive Plan discourages urban sprawl by establishing just four urban centers (the City of Live Oak, Wellborn, Branford, and Dowling Park) for urban development and urban land uses, while designating the rest of the County for rural uses.

    
    

19. The County's determination that the Amendment is "in compliance" is at least "fairly debatable."

    
    

20. Section 163.3184(9)(b), Fla. Stat. (Supp. 1994), provides that the recommended order in this case is submitted to the Department of Community Affairs, which either enters a final order or forwards the recommended order to the Administration Commission, depending on whether the Department determines that the Amendment is "in compliance."

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Community Affairs enter a final order dismissing the petition challenging the Amendment and determining that the Amendment is "in compliance."

RECOMMENDED this 7th day of June, 1995, 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 7th day of June, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4704GM

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:

Proposed Findings of Fact 5-30.

Proposed findings of fact 5-30 in the proposed recommended orders filed by both the Petitioners and by the Respondents are identical. (Paragraphs 1-4 of the proposed recommended orders are devoted to preliminary statement.) Proposed findings of fact 26-30 are rejected as being conclusions of law. The rest are accepted and incorporated to the extent not subordinate or unnecessary.

Petitioners' Proposed Findings of Fact 31-44.

1. Rejected as being conclusions of law.

2. Accepted. First sentence, subordinate to facts not proven or facts contrary to those found. Second sentence, subordinate to facts found.

3. Accepted. Subordinate to facts not proven or facts contrary to those found.

4. Rejected as not proven and as contrary to the greater weight of the evidence that only Dahlstrom testified that the Amendment discouraged urban sprawl.

5. Last sentence, rejected as not proven and as contrary to facts found, or as conclusion of law. Otherwise, to the extent not conclusions of law, accepted and subordinate to facts found.

6. Accepted and subordinate to facts found.

7. Accepted. (But he also testified that the only public sewer and water facilities he knew of were in the City of Live Oak.) Subordinate to facts found.

8. Rejected as contrary to the greater weight of the evidence.

9. Rejected as contrary to the greater weight of the evidence that he "refused" or "would only"; also, he was being questioned about the proposed amendment, not the Amendment. Otherwise, accepted and subordinate to facts found.

10. Rejected as contrary to the greater weight of the evidence that he "refused" or "would only." He testified about many other things as well, some of which are subordinate to facts found.

11. Accepted but subordinate to facts not proven or facts contrary to those found.

12. Cumulative and argument.

13. Rejected that Kronenburger refuted other testimony that the proposed prison "would not create economic pressure for growth and thus would not promote urban sprawl." It was not proven that "tremendous economic impact" from a prison necessarily equates with or will lead to urban sprawl.

14. Rejected as not proven and as contrary to facts found.

Respondents' Proposed Findings of Fact 31-46.

31.-32. Rejected as being conclusions of law.

1. Accepted. First sentence, subordinate to facts not proven or facts contrary to those found. Second sentence, subordinate to facts found.

2. Accepted. Subordinate to facts not proven or facts contrary to those found.

35.-43. To the extent not conclusions of law, accepted. Subordinate to facts found.

1. Accepted but subordinate and unnecessary.

2. Accepted. Subordinate to facts found.

3. Accepted and incorporated.

COPIES FURNISHED:

Edwin B. Browning, Jr., Esquire George T. Reeves, Esquire

Davis, Browning & Schnitker, P.A. Post Office Drawer 652

Madison, Florida 32341

Terrell K. Arline, Esquire Department of Community 2740 Centerview Drive

Tallahassee, Florida 32399-2100

C. Dean Lewis, Esquire Post Office Drawer 8 Live Oak, Florida 32060

Linda Loomis Shelley Secretary

Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Dan Stengle, Esquire General Counsel

Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Department of Community Affairs 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 Department of Community Affairs concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 94-004704GM

Orders for Case No: 94-004704GM