STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIKE and SHARI JUDKINS, )

)

Petitioners, )

)

vs. ) Case No. 98-2602GM

) WALTON COUNTY and DEPARTMENT ) OF COMMUNITY AFFAIRS, )

)

Respondents. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was held in this case on March 23, 1999, in Freeport, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Diane Cleavinger.

APPEARANCES

For Petitioner: Mike Judkins, pro se

Shari Judkins, pro se

139 North Holiday Road Destin, Florida 32541

For Respondent Walton County:

George Ralph Miller, Esquire Post Office Box 687

DeFuniak Springs, Florida 32435-0687 For Respondent Department of Community Affairs:

Kathleen R. Fowler, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

STATEMENT OF THE ISSUE

The issue in this proceeding is whether Section 2.01.03M. as amended, of the Walton County Land Development Code is consistent with Policy L-1.1.1(B)(5), of the Walton County Comprehensive Plan.

PRELIMINARY STATEMENT

On February 16, 1998, the Petitioners filed a Petition with Respondent Walton County (County) challenging the consistency of certain provisions of the County's Land Development Code with the Walton County Comprehensive Plan. The County responded to the Petitioners on March 31, 1998, stating that the Land Development Code was consistent with the County's Comprehensive Plan, with one exception. In the County's Response to Petition I, the County acknowledged that the addition of the word "industrial" to Section 2.01.03M.3, of the Land Development Code was inconsistent with Policy L-1.1.1(B)(5) of the Comprehensive Plan.

Petitioners then requested the Department of Community Affairs (Department) to review the land development regulations pursuant to Section 163.3213, Florida Statutes. The Department held an informal hearing regarding the Judkins' petitions and subsequently issued a Determination of Inconsistency, finding two provisions in the Walton County Land Development Code to be inconsistent with the Walton County Comprehensive Plan. The Department forwarded its Determination of Inconsistency to the

Division of Administrative Hearings on June 5, 1998, and requested assignment of an Administrative Law Judge.

On November 16, 1998, the County amended its Land Development Code deleting the inconsistent provisions of Section 2.01.03M.3. The Department filed a Motion for Realignment alleging that these changes adequately addressed the issues raised in the Department's Determination of Inconsistency. The Department's Motion was granted on March 1, 1999.

At the final hearing, the Petitioners presented the testimony of Shirl Williams, Assistant Administrative Supervisor, Walton County; Latilda Verhine, Planning Director, Walton County; Ken Little, Code Enforcement Officer, Walton County; Art McCallin, Chairman of the Code Enforcement Board, Walton County; and Walker Banning, Community Program Administrator, Department of Community Affairs.

Respondents Walton County and the Department of Community Affairs presented no testimony at the hearing.

The parties submitted the following exhibits, all of which were accepted into evidence:

Joint Exhibits:

1. Walton County Comprehensive Plan.

   
   

2. Walton County Land Development Code. Petitioners' Exhibits:

1. County's Response to Petitions dated March 31, 1998.

2. County letter to Department of Community Affairs dated October 16, 1998.

   
   

3. Portion of Future Land Use Map (Coastal Center Area-Holiday Road)

   
   

4. County Code Enforcement letter re: industrial site.

Respondents' Exhibits:

1. County letter to Department dated November 17, 1998.

FINDINGS OF FACT

1. The Walton County Comprehensive Plan was adopted on November 7, 1996. The Future Land Use Element (FLUE) of the Plan provides in pertinent part:

   Policy L-1.1.1: Development within the various land use categories depicted on the Future Land Use Map shall be governed by the following permitted uses and densities and intensities of use. These land use categories are grouped and identified below as (A) Land Use Categories Exclusive to North Walton County; (B) Land Use Categories Exclusive to South Walton County; and (c) Land Use Categories Common to Both North and South Walton County.

   * * *

   
   

   1. COASTAL CENTER (CC): This land use category is primarily residential, allowing medium densities and support uses . . .

(a) Uses in the Coastal Center include:

1. Public uses are squares, parks and playgrounds.

2. Civic uses include libraries, post offices, churches, and similar facilities.

   
   

3. Workplaces shall be limited to offices and artisanal uses.

4. Commercial shall be for retail, entertainment, restaurant, services and lodging.

   
   

5. Residential uses have a maximum density of eight (8) units per acre.

1. The entire Land Development Code of Walton County was readopted on July 24, 1997, by Ordinance 97-28. At the time Petitioners initiated their challenge, Section 2.01.03M of the Land Development Code provided n pertinent part:

   Section 2.01.03M COASTAL CENTER (CC): The

   areas within this mixed use land use district are primarily residential, allowing medium density residential densities and supporting uses. . .

   
   

   1. Uses Allowed: The uses allowed in this district include:

      
      

      Public uses Civic uses

      Workplace, limited to offices and artisanal uses

      General Commercial Residential

      Multifamily Residential

      
      

   2. Residential Density Allowed: The maximum allowable density for residential development in this district is eight (8) units per acre (8 units/1 acre).

      
      

   3. Commercial Intensity Allowed: Commercial and industrial development within this district shall have a maximum floor area ration of 1.5 and an impervious surface ratio of .75.

      
      

2. Section 2.01.04A of the Land Development Code provides in pertinent part:

   General Commercial - A wide variety of general commercial, commercial recreational, entertainment, and related activities is

   included in this group of uses: department stores; hospitals; hotels or motels; LP gas storage and distribution facilities below 1,000 gallons; marinas; miniature golf, driving ranges; outdoor arenas, rodeo grounds, livestock auction facilities, racetracks (auto, dog, go-cart, horse, motorcycle), shooting and firing ranges, and similar activities; miniwarehouses; plant nurseries; recreation vehicle and travel trailer parks; shopping centers; taverns, bars, lounges, nightclubs, and dance halls; theaters and auditoriums; vehicle sales, rental, service, and repair, including carwash facilities, and the sales, rental, repair and service of new or used automobiles, boats, buses, farm equipment, motorcycles, trucks, recreational vehicles, and mobile homes; veterinary offices and animal hospitals; mobile home parks; indoor recreational uses; all neighborhoods serving commercial/retail uses; mini storage; and inventory storage as part of a business.

3. Petitioners reside at 139 North Holiday Road, Destin, Florida 32541 in Walton County, Florida, which is designated in the Coastal Center category on the Future Land Use Map of Walton County's Comprehensive Plan.

4. In the County's Response to Petition I dated March 31, 1998, the County acknowledged that "industrial" land uses are not allowed within the Coastal Center category under the Comprehensive Plan, and that, therefore, this provision of the Land Development Code is inconsistent with the Comprehensive Plan. The County also responded that, "Retail, entertainment, restaurants, services, and lodging are general commercial uses." The Comprehensive Plan limits the commercial uses in the Coastal Center category to those uses. The County intended that any use

   listed in the Land Development Code under general commercial which is not retail, entertainment, restaurant, services, or lodging is not allowed in Coastal Center.

5. On May 18, 1998, an informal hearing was conducted by the Department at the Walton County Courthouse Board Room. Each Petitioner and the County were provided opportunities to present written or oral evidence to the Department to aid it in reaching a determination about consistency. After the informal hearing the Department determined that Section 2.01.03M of the Code was inconsistent with the Walton County Comprehensive Plan.

6. In its Determination of Inconsistency, the Department found that, because Section 2.01.03M.3. of the Code allows industrial uses in the Coastal Center, when such land uses are not permitted in the Coastal Center under the Comprehensive Plan, Section 2.01.03M.3 of the Land Development Code is inconsistent with Policy L-1.1.1(B)(5) of the Plan. The Department also found that because Section 2.01.03M, when read together with Section 2.01.04A of the Land Development Code, expands on the type of commercial uses permitted within the Coastal Center land use district under Policy L-1.1.1(B)(5) of the Comprehensive Plan, Section 2.01.03M of the Code is inconsistent with the Plan.

7. On November 16, 1998, the County adopted the following amendments to its Land Development Code by Ordinance No. 98-21:

   Section 2.01.03M. COASTAL CENTER(CC): The

   areas within this mixed use land use district are primarily residential densities and supporting uses . . .

   1. Uses Allowed: The uses allowed in this district include:

      
      

      Public uses Civic uses

      Workplace, limited to offices and artisanal uses

      Commercial shall be for retail, entertainment, restaurant, services and lodging

      Residential

      Multifamily Residential

      
      

   2. Residential Density Allowed: The maximum allowable density for residential development in this district is eight units per acre (8 units/1 acre).

      
      

   3. Commercial Intensity Allowed: Commercial development within this district shall have a maximum floor area ration of 1.5 and an impervious surface ratio of .75.

      
      

8. The amendment to Section 2.01.03M of Walton County's Land Development Code is virtually identical in language to the language of Policy L-1.1.(B)(5) of Walton County's Comprehensive Plan. Section 2.01.03M of the Land Development Code as amended clearly is consistent with the Walton County Comprehensive Plan.

   CONCLUSIONS OF LAW

   
   

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

10. Ordinance No. 97-28 and 98-21 is a "land development regulation" as defined in Section 163.3213(2)(b), Florida Statutes, and Rule 9J-24, Florida Administrative Code.

11. Section 163.3213(3), Florida Statutes, and Rule 9J- 24.007(2), Florida Administrative Code, provide that "a substantially affected person, within 12 months after final adoption of a land development regulation, may challenge a land development regulation on the basis that it is inconsistent with the local government comprehensive plan." Ordinance No. 97-28 was adopted on July 24, 1997, and the Petition was filed on February 16, 1998. Therefore, Petitioners' challenges are timely.

12. Section 163.3213, Florida Statutes, allows a substantially affected person to challenge a land development regulation on the basis that it is inconsistent with the local comprehensive plan. Under Section 163.3213(2)(a), Florida Statutes, a "substantially affected person" means a substantially affected person as provided under Chapter 120, Florida Statutes.

13. As used in Chapter 120, Florida Statutes, a "substantially affected person" is one who demonstrates an injury or immediate threat of injury from the operation of the challenged action that is the type of injury which the proceeding is designed to protect. Florida Home Builders Association v. Department of Labor and Employment Security, 412 So. 2d 351 (Fla. 1982); Agrico Chemical Co. v. Department of Environmental Regulation, 406 So. 2d 478, 482 (Fla. 2d DCA 1981). To demonstrate standing, the Petitioners must show some injury to an

    interest that relates to the consistency or inconsistency of a land development regulation with the County's Comprehensive Plan.

14. Petitioners' property is designated as Coastal Center on Walton County's Future Land Use Map. Since Petitioner's land is affected by the land use regulation in question here, Petitioners have demonstrated that they are substantially affected persons within the meaning of Section 163.3213(2), Florida Statutes. Therefore, Petitioners have legal standing to challenge the alleged inconsistencies between the Land Development Code and the Comprehensive Plan with respect to the Coastal Center land use district.

15. Sections 163.3213(5)(a), Florida Statutes, provides "The adoption of a land development regulation by a local government is legislative in nature and shall not be found to be inconsistent with the local plan if it is fairly debatable that it is consistent with the plan."

16. The "fairly debatable test" requires that the County's adoption of Ordinance No. 97-28 as amended by Ordinance 98-21 be upheld if there is any reasonable argument that the Ordinance is consistent with the County's comprehensive plan. Segal v. City of Miami, 63 So. 2d 496 (Fla. 1953); Norwood-Norland Homeowners Ass'n v. Dade County, 511 So. 2d 1009, 1012 (Fla. 3d DCA 1987).

17. On November 16, 1998, the County amended Section 2.01.03M of the Land Development Code by Ordinance 98-21 to delete the term "General" from the description of Commercial, and

to describe the Commercial uses permitted in the Coastal Center district as retail, entertainment, restaurant, services, and lodging. This description of the Commercial uses permitted in the Coastal Center district is identical to the permitted uses described in Policy L-1.1.1(B)(5) of the Walton County Comprehensive Plan. Additionally, the County deleted the term "industrial" from the description of commercial intensity allowed in the Coastal Center category in the Land Development Code, eliminating any industrial use from the Coastal Center land use district which is consistent with the Comprehensive Plan.

Clearly Section 2.01.03M of the Land Development Code, as amended, is consistent with the County's Comprehensive Plan. Therefore, the Petitioners failed to establish that Section 2.01.03M of the Land Development Code is inconsistent with Policy L-1.1.1(B)(5) of the Comprehensive Plan.

ORDER

Based upon the Findings of Fact and Conclusions of Law, it

is,

That the Walton County Land Development Code, adopted by

Walton County Ordinance 97-98 and amended by Walton County Ordinance 98-21, is consistent with the County's Comprehensive Plan.

DONE AND ORDERED this 30th day of April, 1999, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1999.

COPIES FURNISHED:

Mike Judkins Shari Judkins

139 North Holiday Road Destin, Florida 32541

George Ralph Miller, Esquire Post Office Box 687

DeFuniak Springs, Florida 32435-0687

Kathleen R. Fowler, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

Steven M. Siebert, Secretary Department of Community Affairs Suite 100

2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

Jim Robinson, General Counsel Department of Community Affairs Suite 315

2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

NOTICE OF RIGHT TO APPEAL

A 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 one copy of the 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 Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 98-002602GM

Orders for Case No: 98-002602GM