STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACK HAMILTON, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5051GM

)

DEPARTMENT OF COMMUNITY ) AFFAIRS and JEFFERSON 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 July 11, 1996, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Vance W. Kidder, Esquire

149 Carr Lane

Tallahassee, Florida 32312-9032

For Respondent: Sherry A. Spiers, Esquire

(DCA) 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100

For Respondent: David La Croix, Esquire (County) 521 West Olympia Avenue

Punta Gorda, Florida 33950-4851 STATEMENT OF THE ISSUE

Whether Ordinance No. 95-07 adopted by the County on July 20, 1995, is supported by adequate data and analysis, contains adequate standards, and is internally consistent with the County comprehensive plan.

PRELIMINARY STATEMENT

This matter began on September 27, 1995, when petitioner, Jack Hamilton, the owner of property and a business in Jefferson County, Florida, filed a petition for administrative hearing with respondent, Department of Community Affairs, alleging that a plan amendment adopted by respondent, Jefferson County, on July 20, 1995, was not in compliance. More specifically, petitioner contended that the amendment was not based on "relevant appropriate data and analysis." Thereafter, the matter was referred by the agency to the Division of Administrative Hearings on October 5, 1995, with a request that a Hearing Officer be assigned to conduct a hearing.

On motion of the parties, this case and Case No. 95-5776GM, which involves an appeal by petitioner of a related land development regulation, were consolidated for hearing purposes. Because Case No. 95-5776GM requires the issuance of a Final Order, separate orders are being rendered in the two matters.

By notice of hearing dated November 22, 1995, a final hearing was scheduled on January 23, 1996, in Tallahassee, Florida. Thereafter, the agency's unopposed motion for continuance was granted and both cases were rescheduled to April 23, 1996. A second unopposed motion for continuance by the agency was granted, and the cases were rescheduled to May 8, 1996, at the same location.

The agency's third unopposed motion for continuance was granted, and the cases were finally heard on July 11, 1996.

On January 5, 1996, petitioner moved to amend his petition in Case No. 95- 5051GM by adding grounds that (a) the Future Land Use Amendment "lacks (sufficient) standards" to "ensure the compatibility of adjoining uses within a given land use category" as called for by Section 163.3177(6)(a), Florida Statutes, and (b) the Agriculture 2 land use in the plan amendment is internally inconsistent with Objective 6 of the Housing Element, Policy 1-3 of the Future Land Use Element, and the data and analysis that supports the original comprehensive plan. Over the objection of respondents, petitioner was granted leave to amend his petition on January 10, 1996.

At final hearing, petitioner testified on his own behalf and presented the testimony of John Durst, County planner; Susan Anderson, an agency planner; and Jackson E. Sullivan, a planner and accepted as an expert in growth management and land use planning. Also, he offered petitioner's exhibits 1, 3, 7-10, and 12-18. All exhibits were received in evidence. Respondent Jefferson County presented the testimony of John Durst, county planning director. Also, it offered County exhibits 1 and 2. Both exhibits were received in evidence.

Respondent Department of Community Affairs presented the testimony of Susan Anderson, a planner and accepted as an expert in comprehensive land use planning. Also, it offered DCA exhibits 1 and 2 which were received in evidence. Finally, the parties offered joint exhibits 1-6 which were received in evidence.

The transcript of hearing (three volumes) was filed on August 6, 1996.

Proposed findings of fact and conclusions of law were originally due on September 6, 1996. At the request of the parties, this time was extended to September 13, 1996, and then again to September 16, 1996. Proposed recommended orders were timely filed by all parties and have been considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

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

1. Background

   1. The parties

      
      

      1. Respondent, Jefferson 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. At issue in this case is a plan amendment adopted by the County.

         
         

      2. Petitioner, Jack Hamilton, is a resident of Jefferson County. He owns and operates a nursery, orchard and cattle operation on his property on the east side of Highway 19, approximately two miles north of Monticello, Florida. The land, which is approximately 135 acres in size, is presently designated in a land use category known as Agriculture 2. For the last twenty years or so, the Jefferson Nursing Center (JNC), a nursing home, has been situated on a seven acre parcel of land surrounded on three sides by petitioner's property. Here, petitioner challenges a plan amendment which allows nursing homes, including JNC, in the Agriculture 2 category. The parties have stipulated that petitioner is an affected person within the meaning of the law and thus he has standing to bring this action.

         
         

   2. The nature of the dispute

      
      

      1. The County adopted its comprehensive plan (plan) on July 19, 1990. Through inadvertence, in the original plan, institutional uses such as churches, schools, nursing homes, parks and recreation areas were not specifically allowed as permitted uses in any residential or agriculture district even though such uses were commonly found in both types of districts. Even so, on an undisclosed date, the plan was determined by the DCA to be in compliance.

         
         

      2. On April 1, 1994, the County submitted to the DCA various amendments relating to a proposed petroleum pipeline project. During the course of preparing those amendments, the County became concerned for the status of all of the existing churches, nursing homes, schools, and other institutional uses in the County, because of their not being specifically mentioned in the plan.

         
         

      3. To avoid any question about the status of these uses and their treatment in the Land Development Code, which implements the plan, the County included an amendment to Future Land Use Element (FLUE) Policy 5-9 to provide for the adoption of land development regulations to permit all public land uses.

         
         

      4. On June 8, 1994, the DCA issued its Objections, Recommendations, and Comments (ORC) Report concerning the proposed public land uses amendment. Among other things, the DCA determined that the language in the amendment was too broad.

         
         

      5. In response to the ORC, on August 3, 1994, the County adopted revised Ordinance 94-10, which amended the comprehensive plan to add a Public Facilities Land Use District, adopt a Public Facilities Land Use Map, and adopt a List of Public Facilities. Under this amendment, only existing public uses were included within the district, and these were specifically identified on a series of maps and a List of Public Facilities, both of which were included as part of the plan amendment.

         
         

      6. On September 26, 1994, the DCA issued its Notice of Intent to find Ordinance No. 94-10 not in compliance with Chapter 163, Florida Statutes. This determination was based in part on the fact that the amendment did not sufficiently detail what land use regulations and restrictions would apply in the district.

         
         

      7. On March 28, 1995, the County submitted to the DCA for its review a proposed ordinance repealing Ordinance 94-10 and amending the County's comprehensive plan to add a Public Facilities Land Use Overlay District, adopt a

         Public Land Use Map, and adopt a List of Public Facilities. This proposed amendment provided that the current land use district designation, and all applicable regulations for that district, would continue to apply to lands included within the overlay district. It also provided standards for any future additions to the overlay district. On June 2, 1995, the DCA issued its ORC Report concerning the proposed Public Facilities Land Use Overlay District amendment in which it continued to object to the proposed district.

         
         

      8. In response to the ORC, and after consulting with the DCA, on July 20, 1995, the County adopted Ordinance No. 95-07. That ordinance repealed Ordinance No. 94-10 and amended the comprehensive plan to allow (a) churches in all land use categories except Conservation District and (b) adult care facilities, day care facilities, and nursing homes in any land use district that allows residential use. Ordinance No. 95-07 was not adopted pursuant to a compliance agreement. On September 7, 1995, the DCA issued its Notice of Intent to find Ordinance No. 95-07 in compliance.

         
         

      9. Petitioner timely filed his appeal of the DCA's determination that Ordinance No. 95-07 was in compliance. As amended, the petition contends that the plan amendment is not supported by adequate data and analysis, lacks standards pertaining to density and intensity of development for nursing homes, and is internally inconsistent with the plan. As such, he contends the amendment is arbitrary and capricious, and not fairly debatable. Although the issues in the case have been framed by petitioner in this manner, in simple terms his primary concern is that nursing homes, and specifically JNC, are incompatible with agricultural uses and do not belong in the Agricultural 2 land use category.

         
         

2. The Plan Amendment

   
   

   1. Identification and adequacy of data and analysis

      
      

      1. When it forwarded Ordinance No. 95-07 to the DCA for review, the County did not specify in its transmittal letter what data and analyses it was relying on to support the amendment. In an earlier telephone conversation between the County planner and the DCA, however, the County indicated that it was relying on the existing data and analysis originally submitted with its comprehensive plan. The DCA established that this is not unusual and is an acceptable practice for smaller counties. Indeed, there is nothing in Chapter 9J-5, Florida Administrative Code, which requires that the identification of the supporting data and analysis be conveyed to the DCA in writing.

         
         

      2. Jefferson County is a small, rural county with only one person in its planning department. For counties with limited technical staff, the DCA normally provides technical support, and it customarily reviews the plan and existing data and analysis to identify those portions of the documents which are relevant to, and support, a plan amendment. Thus, in accordance with its practice for smaller counties, the DCA did not require the County to make a complete assessment of the plan and point out various page and reference numbers, but instead it performed that task. There was no showing that petitioner, or any other member of the public, was prejudiced in any respect by the DCA doing this.

         
         

      3. Besides the existing plan data and analysis, the DCA also had in its files the map and list specifically identifying each public use existing in the County and its location, including all churches, day care facilities, and nursing homes. The map and list were available at the public hearings which

         culminated in the adoption of Ordinance 95-07, and identified JNC within the Agriculture 2 district. Petitioner, who was a long-time member of the County Planning Commission, attended those hearings. There is no evidence that he, or any other member of the public, was unable to participate in the amendment process in a meaningful way.

         
         

      4. In determining the text amendments to be in compliance, the DCA relied upon certain data in the plan, including the existing population survey, soil survey and soil suitability data; a table comparing population composition showing the population existing and the need for elderly housing; the silviculture map as a factor in determining site suitability; the land use map showing the general overview of all land use types in the County; an analysis of the uses in the different land use categories; and a map plat showing petitioner's property, the location of the JNC, the proximity of two mixed-use business/residential areas to the north and south, and the residential densities in the area.

         
         

      5. The DCA also considered policies in the traffic circulation and transportation elements of the plan, a table of existing traffic conditions, existing housing data, an inventory of group homes, and special housing needs within the County, including housing for the elderly.

         
         

      6. Finally, the DCA considered Housing Element Policy 5-3 and Objective

      1. The policy provides that the County shall establish nondiscriminatory standards and criteria addressing the location of group homes and foster care facilities as well as other special needs housing. The objective calls for adequate sites for group homes and facilities in residential areas or other appropriate areas of residential character.

         
         

         1. Petitioner's expert concedes that nothing prohibits the County from adopting an amendment which allows nursing homes in an agricultural district so long as adequate data and analysis are present, and appropriate nonresidential intensity standards are found in the plan. Given the foregoing data and analysis, it is found that petitioner has failed to prove to the exclusion of fair debate that the plan amendment lacks adequate data and analysis.

            
            

   2. Compatibility of uses

      
      

      1. Petitioner has also contended that the plan amendment allows uses (nursing homes) which are incompatible with agricultural uses. In this regard, petitioner offered his lay opinion that nursing homes are incompatible with agriculture uses because in the event of a problem during normal agricultural operations, such as a shift in the wind direction during burning or crop spraying, bedridden nursing home patients cannot be easily transported out of harm's way.

         
         

      2. With appropriate site planning features, petitioner's expert agreed that nursing homes are not inherently incompatible with agricultural land uses. The Code contains such site design criteria which are designed to eliminate or minimize incompatibilities. For example, it contains provisions regarding setbacks, a site planning process, and screening and buffering requirements.

         
         

      3. The fact that petitioner's agricultural operation and JNC have coexisted for more than twenty years is some evidence that the uses are or can be compatible.

      4. The County's proposed amendment to allow adult care facilities, day care facilities and nursing homes in the Agriculture 2 land use category is not inconsistent with any other objective or policy, is found to be fairly debatable, and is therefore in compliance.

         
         

   3. Density and intensity standards

1. The law (s.163.3177(6)(a), F.S.) requires that comprehensive plans contain density and intensity standards for each land use. Petitioner contends that, notwithstanding this statutory requirement, there are no standards in the amendment or the comprehensive plan for density or intensity of development of nursing homes in the Agriculture 2 land use category. It is noted that the Agriculture 2 land use district description in Policy 1-3 of the FLUE provides a residential density but does not contain an intensity standard.

   
   

2. FLUE Objective 1 provides, however, that "(f)uture growth and development shall continue to be managed using the County Development Code," which was adopted in April 1981. That Code spells out densities and intensities for each area. The objective further directs that the regulations be revised to address issues identified in Section 163.3203, Florida Statutes, compatibility of uses, and incentives to upgrade infrastructure.

   
   

3. In addition, FLUE Policy 6-2 provides that the development review and approval process in the Code be the vehicle for limiting densities and intensities of development consistent with the availability of infrastructure. This policy has already been determined to be "in compliance" with Chapter 163, Florida Statutes.

   
   

4. Rule 9J-5.005(8)(j), Florida Administrative Code, authorizes a local government to include in its comprehensive plan documents adopted by reference but not incorporated verbatim into the plan. In this case, the County adopted in its Code specific land development regulations governing growth and development, including density and intensity standards. There was no evidence that the Code fails to meet the statutory requirement that densities and intensities be included in the plan. Indeed, as a general rule, comprehensive plans in Florida either specifically describe all of the particular uses allowed in each district, or they generally describe such uses and let the particular uses to be allowed be determined in land development regulations. Here, the County has opted for the second type. This being so, it is found that petitioner has failed to establish to the exclusion of fair debate that the plan and plan amendment lack appropriate standards governing densities and intensities.

   
   

   CONCLUSIONS OF LAW

   
   

5. 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.

   
   

6. 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.

7. 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).

   
   

8. The more persuasive evidence supports a conclusion that petitioner has failed to prove to the exclusion of fair debate that the challenged amendment is not supported by adequate data and analysis, is internally inconsistent, or lacks adequate standards. This being so, the plan amendment adopted by Ordinance No. 95-07 is determined to be in compliance.

   
   

9. Finally, two other matters merit a brief discussion. First, a contention that the County's inclusion of density and intensity standards in its land development code, rather than the plan, violates Section 163.3177(6), Florida Statutes, has been rejected. This is because Rule 9J-5.005(8)(j), Florida Admini-strative Code, allows a local government to include in its plan documents adopted by reference, such as land development regulations. It is also consistent with the accepted practice in the state of adopting plans which generally describe the uses allowed in each district, but defer the determination of specific uses to the land development regulations.

   
   

10. Second, while Rule 9J-11.007(2), Florida Administrative Code, requires that, at the time of the amendment submittal, a local government furnish to the DCA a reference to the specific portions of the previously submitted data and analysis on which it relies, this rule must be read in pari materia with Rule

9J-5.002(2), Florida Adminstrative Code. The latter rule provides for a more flexible compliance review of small, rural counties. When the two rules are read together, clearly the DCA may provide technical assistance, as it did here, so long as the data and analysis are identified, and no prejudice to the public occurs. In this case, both criteria were met.

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

determining the County plan amendment adopted by Ordinance No. 95-07 to be in

compliance.

DONE AND ENTERED this 17th day of October, 1996, in Tallahassee, Florida.

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 1996.

COPIES FURNISHED:

James F. Murley, Secretary Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399-2100

Vance W. Kidder, Esquire

149 Carr Lane

Tallahassee, Florida 32312-9032

Sherry A. Spiers, Esquire Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 315

Tallahassee, Florida 32399-2100

Stephanie M. Gehres, Esquire Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325-A Tallahassee, Florida 32399-2100

David La Croix, Esquire

521 West Olympia Avenue

Punta Gorda, Florida 33950-4851

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written 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: 95-005051GM

Orders for Case No: 95-005051GM