STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACK HAMILTON, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5776GM

)

DEPARTMENT OF COMMUNITY ) AFFAIRS and JEFFERSON COUNTY, )

)

Respondents. )

)

FINAL 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 a land development regulation adopted by the County by Ordinance No. 94-15 on September 1, 1994, is consistent with the County's comprehensive plan.

PRELIMINARY STATEMENT

This matter began on August 14, 1995, when petitioner, Jack Hamilton, the owner of property and a business in Jefferson County, Florida, filed a petition with respondent, Department of Community Affairs, alleging that a land development regulation adopted by respondent, Jefferson County, on September 1, 1994, was not in compliance. That regulation amends the Land Development Code to allow nursing homes and other residential care facilities in the agricultural land use designations. An amended petition was filed on September 12, 1995. In general terms, petitioner contends that the regulation is "facially inconsistent with the County's comprehensive plan." On November 13, 1995, the Department of Community Affairs rendered its Determination of Consistency of Jefferson County

Ordinance 94-15. The matter was then referred by the agency to the Division of Administrative Hearings on November 28, 1995, with a request that a Hearing Officer be assigned to conduct a hearing.

On motion of the parties, this case and Case No. 95-5051GM, which involves a challenge by petitioner to a related plan amendment, were consolidated for hearing purposes. Because Case No. 95-5051GM requires the issuance of a Recommended 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.

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 orders were timely filed by all parties and have been considered by the undersigned in the preparation of this Final Order.

FINDINGS OF FACT

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

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 land development regulation 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 almost thirty years, 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 land development regulation which allows nursing homes,

   including JNC, in the Agriculture 2 category. The parties have stipulated that petitioner is a substantially affected person within the meaning of the law and thus he has standing to bring this action.

   
   

3. The County adopted its comprehensive plan (plan) on July 19, 1990. The plan was later determined by the DCA to be in compliance. The County has also adopted a Land Development Code (Code) containing various land development regulations which implement the plan.

   
   

4. Prior to the adoption of the challenged ordinance, Section 2.02.03(B)3. of the Code included a provision allowing, among other things, the following uses in the Agriculture 2 land use district:

   
   

   Institutional, excluding residential care facilities and nursing homes.

   
   

5. On September 1, 1994, the County adopted Ordinance No. 94-15, which amended Section 2.02.03(B)3. by removing the exclusion, thereby allowing nursing homes and residential care facilities in the Agriculture 2 land use district. Thus, the ordinance made nursing homes a permitted use in the Agriculture 2 district, like all other institutional uses which were allowed in agriculture districts. This was also consistent with other Code provisions which allowed nursing homes in almost every other district.

   
   

6. On August 15, 1995, petitioner filed a petition with the DCA contending that the land development regulation was not consistent with the plan. An amended petition was later filed on September 12, 1995, alleging generally that nursing homes did not conform to, and were incompatible with, agriculture uses.

   
   

7. On November 13, 1995, the DCA entered its Determination of Consistency of Jefferson County Ordinance 94-15. Among other things, the DCA based its finding of consistency on the following provisions in the Housing Element of the plan:

   
   

   GOAL: Assure the availability of housing to meet the existing and future needs of all residents of Jefferson County for all income levels.

   Objective 5: The useful life of the existing housing stock will be conserved and extended, and neighborhood quality will be improved.

   Policy 5-3: The County shall establish non-discriminatory standards and criteria addressing the location of group homes and foster care facilities as well as other types of special need housing.

   
   

8. The specific uses to be allowed in the agricultural land use categories were largely deferred to the land development regulations contained in the Code. Those regulations define residential care facilities and nursing homes (group homes) as institutional uses. Policy 5-3 requires that the County establish "non-discriminatory standards and criteria" in addressing the location of group homes. Before the adoption of Ordinance 94-15, all institutional uses, except nursing homes and residential care facilities, were allowed in agricultural districts. The new land development regulation removes this discriminatory feature.

9. The plan recogizes that the character of development in the rural areas of the County is of mixed uses which are of a scale to intermix without creating incompatibilities. The area in which petitioner's property and JNC are located contains a mix of uses. Ordinance No. 94-15 is consistent with the character of rural development in the County.

   
   

10. The Future Land Use Element of the plan provides in relevant part as follows:

    
    

    GOAL: Efficiently manage and regulate land use types, locations, and densities in compatibility with natural and man-made resources so as to provide the residents of Jefferson County with an aesthetically pleasing, economically beneficial, and socially adequate environment.

    * * *

    Policy 1-3: The categories on the Future Land Use Map are defined as follows:

    * * * Agriculture 2: This includes areas

    appropriate for a variety of agricultural uses, including but not limited to crop land, pasture land, orchards and groves, or forestry. Dwellings and associated accessory farm buildings are allowable.

    Density for residential use shall not exceed

    1 unit per 5 acres, except that transfer of property to members of the principal owner's immediate family is allowable, provided that all other applicable requirements are met. However, as provided in other policies of the Future Land Use Element, density is calculated on a gross basis (area-based allocation); actual units should be clustered, subject to the requirements set forth in the objectives and policies of the comprehensive plan so long as the gross density is not exceeded.

    
    

11. Under the plan, dwellings are allowed uses in the agriculture 2 land use district. A disputed issue is whether the uses allowed by Ordinance No. 94-

    15 are residential uses. Petitioner's expert conceded that it is within the discretion of a local government to define nursing homes as a residential use, and that the County's plan tends to do so. The evidence establishes that residential care facilities, such as adult congregate living facilities, are a residential land use. Since dwellings (residences) are an allowed use in the agriculture 2 land use district, it is at least fairly debatable that residential care facilities are also allowed in that district.

    
    

12. In addition, in the Housing Element of the plan, nursing homes are included in the discussion and inventory of group homes in the County. They are considered to be special needs housing for the elderly. The plan recognizes that housing needs for the elderly often form a distinct sub-market of the total housing market, and projects that the elderly population (65 and older) will be the second fastest growing age group in the County by the year 2000. When

    reading the Housing Element provision in pari materia with the Future Land Use Element, it is at least fairly debatable that nursing homes are residential or dwelling uses in the plan and are therefore allowed in the agriculture 2 district.

    
    

13. Given the foregoing, it is found that the challenged land development regulation is consistent with the plan.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.57(1) and 163.3213, Florida Statutes.

    
    

15. This proceeding is governed by Section 163.3213, Florida Statutes. Under the terms of Section 163.3213(3), Florida Statues, a substantially affected person must initiate a consistency challenge within twelve months after final adoption of the land development regulation. Petitioner's challenge was begun within that time period.

    
    

16. The issue in this case is whether the land development regulation is consistent with the local comprehensive plan. As an aid in making this determination, Section 163.3213(5)(a), Florida Statutes, provides that "(t)he adoption of a land development regulation by a local government is legislative in nature and it shall not be found to be inconsistent with the local plan if it is fairly debatable that it is consistent with the plan."

    
    

17. The more persuasive evidence supports a conclusion that petitioner has failed to prove to the exclusion of fair debate that the challenged land development regulation is inconsistent with the comprehensive plan. This being so, the land development amendment adopted by Ordinance No. 94-15 is determined to be consistent with the plan.

Based on the foregoing findings of fact and conclusions of law, it is ORDERED that the land development regulation adopted by Ordinance No. 94-15

is determined to be consistent with the County's comprehensive plan.

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 JUDICIAL REVIEW

Any party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing a copy of a notice of appeal with the agency clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the district court of appeal in the district where the party resides. The notice of appeal must be filed within thirty days of rendition of the order to be reviewed.

Docket for Case No: 95-005776GM

Orders for Case No: 95-005776GM