STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHADY HISTORIC AND SCENIC )

TRAILS ASSOCIATION, INC., )

)

Petitioner, )

)

vs. ) Case No. 98-5019GM

)

CITY OF OCALA, )

)

Respondent, )

)

and )

) NORBERT M. DORSEY, AS BISHOP ) OF THE DIOCESE OF ORLANDO, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on May 10, 2000, in Ocala, Florida, before Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Darlene Weesner, Registered Agent

Shady Historic and Scenic Trails Association, Inc.

655 Southwest 80th Street Ocala, Florida 34476

For Respondent: W. James Gooding, III, Esquire

Gilligan, King & Gooding, P.A.

7 East Silver Springs Boulevard Suite 500

Ocala, Florida 34470-6659

For Intervenor: Bryce W. Ackerman, Esquire

Hart & Gray

Post Office Box 3310 Ocala, Florida 34478-3310

STATEMENT OF THE ISSUE

The issue is whether Plan Amendment 98-51C adopted by the City of Ocala by Ordinance No. 2869 on August 4, 1998, is in compliance.

PRELIMINARY STATEMENT

This matter began on August 4, 1998, when Respondent, City of Ocala, adopted Plan Amendment 98-51C, which changed the land use designation on 40 acres of property owned by Intervenor, Norbert M. Dorsey, as Bishop of the Diocese of Orlando, from low- density residential to public buildings and facilities. Because Respondent is a sustainable community under Section 163.3244, Florida Statutes (1999), the amendment was not reviewed by the Department of Community Affairs.

On September 4, 1998, Petitioner, Shady Historic and Scenic Trails Association, Inc., through its registered agent, filed a petition with the Division of Administrative Hearings challenging not only Plan Amendment 98-51C, but also Plan Amendment 97-39C, which related to property adjacent to the property in issue here. That petition was assigned Case No. 98-4144GM. Thereafter, Intervenor's Motion to Sever was granted by Order dated October 19, 1998, and Petitioner was granted leave to file an amended petition for both plan amendments. The amended petition pertaining to 98-51C was filed on November 2, 1998, and was

assigned Case No. 98-5019GM. The matter was then abated pending efforts by the parties to reach a settlement in another land use case (Case No. 98-4145GM), which might be dispositive of all or some of the issues here. When a settlement in that case failed to resolve the issues here, the case was scheduled for final hearing on May 10 and 11, 2000, in Ocala, Florida.

At the final hearing, Petitioner was represented by its registered agent, Darlene Weesner, who also testified on its behalf. In addition, Petitioner presented the testimony of Steve Boetger, district conservationist for the Natural Resources Conservation Service; William L. Lichtler, a senior hydrologist with a consulting firm; William T. Meredith, a professional engineer; James MacDonald, a construction engineer; Hal Watts, a professional scuba diving instructor; William C. Thomas, a supervisor with the Marion County Soils and Water District; Jeri Baldwin, a resident of Marion County; and Jane Proctor, a resident of Glen Hill Farm, which is adjacent to Intervenor's property. Also, it offered Petitioner's Exhibits 8, 9, 25, 29, 30, 47, 148A, 163A, 163C, 164A, and 164B, which were received in evidence.

Respondent presented the testimony of Peter Lee, a planner; Jimmy Massey, the principal planner for Marion County, who was accepted as an expert in the Marion County Comprehensive Plan and land uses therein; Tye L. Chighizola, a planner and accepted as an expert in land use planning, the comprehensive plan process,

and the application and interpretation of the City Comprehensive Plan; and Douglas L. Harris, acting city engineer and accepted as an expert in the location of the City's water and sewer facilities, interpretation of flood maps, hydrogeology, potential contamination of groundwater, and stormwater retention. Also, it offered Respondent's Exhibits 1-5, 8, 9, 12, and 15-19, which were received in evidence.

Intervenor presented the testimony of Sarah M. Whittaker, a professional geologist and accepted as an expert in hydrogeology, including the identification and evaluation of groundwater contamination; and Miles C. Anderson, a consulting engineer.

Finally, Intervenor offered its Exhibit 1, which was received in evidence.

The Transcript of the hearing (three volumes) was filed on June 8, 2000. Proposed Findings of Fact and Conclusions of Law were filed by Petitioner on June 26, 2000, and jointly by Respondent and Intervenor on June 28, 2000, and they have been considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

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

1. Background

   
   

   1. In this land use dispute, Petitioner, Shady Historic and Scenic Trails Association, Inc. (SHASTA), has challenged the

      consistency of a plan amendment adopted by Respondent, City of Ocala (City). The amendment changes the land use on certain real property owned by Intervenor, Norbert M. Dorsey, as Bishop of the Diocese of Orlando (Intervenor).

   2. By stipulation, the parties have agreed that SHASTA is a not-for-profit corporation whose members include residents of Marion County, Florida (County). Through the testimony of its registered agent, it was established that SHASTA is a "county- wide organization" formed in 1985 because of its concern "about where growth was going," and the potential impact of growth on the "plan." Another witness (Baldwin) made comments to the City at one of its meetings concerning the adoption of the plan. Whether she is a member of SHASTA is not of record, and it can reasonably be inferred that the witness resides and owns property outside of the City. SHASTA's registered agent also presented testimony at hearing, but whether she resides within the City or in the County is unknown. Finally, while SHASTA's registered agent presented argument during her opening statement concerning the organization's standing, she presented no evidence (through sworn testimony or exhibits received in evidence) that any member of the organization who resides, owns property, or owns or operates a business within the City made comments, recommendations, or objections to the City during the course of its review and adoption of the amendment. Therefore, there is

      insufficient evidence to demonstrate that Petitioner is an affected person within the meaning of the law.

   3. The City is a local government located within the County. It is one of five cities in the State designated by the Department of Community Affairs (DCA) as a "sustainable community" under Section 163.3244, Florida Statutes (1999). To this end, the City has entered into a sustainable community designation agreement with the DCA, and thus its plan amendments are not reviewed by the DCA or the regional planning council. Intervenor is an affected person since it owns the property which is the subject of the amendment.

2. The amendment

   
   

   1. The City adopted plan amendment 98-51C by Ordinance No. 2869 on August 4, 1998. That amendment changed the land use on Intervenor's property from agriculture to public buildings and facilities.

   2. Section 1.1.12 of the City's Future Land Use Element specifies that the public buildings and facilities category "includes areas or facilities that serve the general public," such as "government buildings, public grounds, airports, cemeteries, churches and educational facilities."

   3. In making its recommendation, the City's Planning Department considered factors such as the type of soil on the property; the absence of known caves, sinkholes, or wetlands on the site; the suitability of the property for development; the

      property's location in the City's urban service area; the County's land use designation of the property as an urban land use; and the compatibility of the property with the surrounding land uses, including the proximity of the property to adjacent developments of regional impact (DRI), malls, large movie theaters, shopping centers, and other heavy commercial and retail development.

   4. In addition, the Planning Department considered the comments of other state and governmental agencies, including the DCA, St. Johns River Water Management District (SJRWMD), and County. The County did not object to the amendment.

   5. Based on the foregoing data and analysis, the Planning Department recommended to the City's Planning and Zoning Commission (Commission) that the plan amendment be adopted. The Commission in turn recommended to the City Council that the amendment be approved. That recommendation was accepted by the City on August 4, 1998.

3. The property

   
   

   1. The subject property consists of 40 acres and was annexed into the City in 1998. It lies within the boundaries of the City at the southeastern corner of the intersection of Southwest 42nd Street and Southwest 27th Avenue. Both roads are two-lane paved roads designated by the County as special scenic roads. This means that the right-of-way on those roadways cannot

      be widened or altered, and trees cannot be removed in or adjacent to the right-of-way.

   2. Prior to annexation, the property had a low-density residential land use designation in the County, and it was zoned agricultural. However, this zoning was inconsistent with the land use designation and a more likely zoning classification under the County comprehensive plan would have been R-1, which permits a maximum of four dwellings per acre. Had the property been assigned a City zoning classification most similar to the County's R-1, it would have received a low-density residential use allowing five residential units per acre.

   3. Intervenor purchased the property for the purpose of building a private school on the site. In the County, schools are located in both rural and urban areas. Under the County's land use designation for the property, schools are an allowable use.

   4. Before the property was annexed, it was located within what is known as the City's "urban service area." Under an interlocal agreement with the County, the City had the exclusive right to provide water and sewer services to that area and to condition the provision of such services upon annexation.

   5. At the time the plan amendment was adopted, the property immediately south of the subject property was being operated as a thoroughbred horse farm known as Glen Hill Farm. Immediately to the north and across Southwest 42nd Street was

      property with a land use designation of low-density residential allowing five residential units per acre. That property was previously approved as a planned unit development of mixed commercial and residential uses.

   6. The adjacent property on the northwest corner of the intersection of Southwest 42nd Street and Southwest 27th Avenue has been developed as a high-density assisted living facility. Immediately behind the assisted living facility are two DRIs. The first includes retail uses (including a shopping center), professional and medical offices, two large apartment complexes (consisting of more than 700 units), and three or four nursing homes or adult living facilities; this DRI would allow a vocational or technical school with approximately 500 students. The second DRI consists of the Paddock Mall, which includes 580,000 square feet of developed retail use and another 173,000 square feet of available but undeveloped use.

   7. Across Southwest 27th Avenue to the west is property commonly known as the Red Oak Farm property, which is the subject of another plan amendment challenge by Petitioner in Case No. 98- 4144GM. That amendment allows medium-density residential use.

   8. Finally, the property is located within one mile of the fastest growing and most intensively developed property within the City, which lies in and around State Road 200.

4. The objections raised by Petitioner

   
   

   1. In its Amended Petition filed on November 2, 1998, SHASTA has alleged that the plan amendment is not in compliance for a number of reasons. They include contentions that the property is unsuitable for a private high school in that all of the land slopes to the south where extensive flooding has occurred (paragraph 9); that the site cannot be engineered to prevent flooding or that control surface water flow by retention ponds will leak into the aquifer (paragraph 10); that the site is vulnerable to stormwater pollution (paragraph 11); that the City has inadequate data and analysis to support development regulations for natural resources protection, including sinkholes and floodplains pursuant to the Conservation Element (paragraph 12); that the City has not specified how sinkholes or solution pipes to the aquifer will be protected pursuant to Policies 1.5 and 1.7 of the Conservation Element (paragraph 13); that the City has violated Policy 1.4 of the Conservation Element by not continuing the County land use designations on the property (paragraph 14); that the City has not distributed proposed interlocal agreements for annexation and future land uses as required by Policy 2.8 of the Future Land Use Element (paragraph 15); that the amendment is not in compliance with Goal II of the Future Land Use Element (paragraph 16); that the amendment is not in compliance with Policy 3.5 of the Intergovernmental Coordination Element (paragraph 17); that the amendment is

      inconsistent with revisions made by the 1998 Legislature concerning school siting in Section 163.3177(6)(a), Florida Statutes (1999)(paragraph 18); that the amendment does not further "the six broad principles of sustainability," as set forth in Section 163.3244(1), Florida Statutes (1999)(paragraph 19); that extending water and sewer lines to the property is unfair to City taxpayers (paragraph 20); that City taxpayers will be forced to pay a higher rate to fund expansion of City services into the area (paragraph 21); and that the school will not be compatible with adult living facilities located northwest of the property (paragraph 24). Allegations not raised until hearing, such as a contention that the amendment would promote urban sprawl, were deemed to be untimely raised and were not considered. Finally, concerns about the specific design of the school, assuming one is built, are not relevant to a determination of whether the amendment is in compliance.

   2. As to the allegation in paragraph 18 concerning the amendment's lack of compliance with school siting requirements in Section 163.3177(6)(a), Florida Statutes, that allegation is irrelevant since the new law became effective more than a year after the amendment was adopted. Likewise, the allegation in paragraph 19 has been found to be irrelevant for the reasons stated in the Conclusions of Law, while the allegation in paragraph 16 regarding Goal II of the Future Land Use Element has no relevance to the amendment since it refers to a transportation

      concurrency exception/urban area redevelopment area, a matter not in issue here. Finally, the allegations in paragraphs 20 and 21 regarding the potential for taxes being raised are not grounds on which to find an amendment not in compliance.

   3. The undisputed (and only) evidence shows that there are no sinkholes or known wetlands on the property; that the property did not have a conservation land use under the County's Comprehensive Plan; that the City has entered into an interlocal agreement with the County establishing an urban service area; that the amendment is compatible with surrounding land uses, including adult living facilities; and that the City considered and analyzed all of the data summarized in Findings of Fact 6 and

      7 before it adopted the amendment. Therefore, the allegations in paragraphs 12-15, 17, and 24 of the Amended Petition have not been sustained.

   4. Still in issue are the allegations in paragraphs 9-11 of the Amended Petition concerning potential flooding and stormwater pollution. They will be discussed below.

5. The property

   
   

   1. The property was once one of the three largest horse farms in the County. These farms have already been developed or, as is the case here, are in the process of being developed. The entire City, including Intervenor's property, and most of the land in the County, lie within a Karst sensitive area, which features sinkhole and cave systems. Mapped and documented cave

      systems are found approximately one-half mile to the west- southwest (Briar Cave) of the property and a like distance to the east (Oak Creek Caverns). However, no sinkholes, caves, or wetland systems have been found on the property, and the rules of the SJRWMD pertaining to Karst sensitive areas do not prohibit the construction in question.

   2. The tract is part of a high Floridan Aquifer (Aquifer) recharge area which permits very rapid infiltration of surface waters to the Aquifer, and it discharges into a 100-year-old flood plain. However, the property itself is not located in a flood plain.

   3. Two basic soils are found on the property. They are the Kendrick soil and Zuber soil. Due to shrinkage or swelling of the clay and "low strength," these types of soil present "slight" or "moderate" construction limitations. Expert testimony confirmed, however, that through good planning and design, or presite removal of the soils, these limitations could be readily overcome. This was also acknowledged by two of Petitioner's witnesses. At the same time, if SJRWMD regulations for construction of water retention areas in Karst sensitive areas are followed, those limitations would be resolved. Typically, the City does not impose specific requirements concerning stormwater retention or groundwater protection at the comprehensive plan stage. Rather, these are normally imposed through the City's land development regulations at the site plan

      stage of the process. Presumably, at that point, Petitioner will have an opportunity to raise these types of concerns.

   4. The City has had experience with other properties having Karst topography and water recharge features similar to the property in question. For example, on the Heathbrook DRI, the City imposed groundwater protection provisions which other local governments throughout the State have used as a model for other developments.

   5. To prevent groundwater contamination, the City uses a tool called a DRASTIC Index (Index), which was prepared by the United States Environmental Protection Agency. The Index is used by the City and a host of other regulatory agencies to determine the potential of property for groundwater contamination. According to the Index, the property is less vulnerable to contamination than approximately seventy percent of the rest of the land in the County.

   6. City water facilities are available in the right-of-way on the north and west sides of the property, while City sanitary sewer facilities are approximately one-half mile away. If the project goes forward, Intervenor would be required to run sewer lines from the existing sewer facility to the improvements to be located on its property.

   7. If stormwater retention facilities are constructed on the property pursuant to City land development regulations, more pre-development water would be retained on the property than

      would be the case if the property were not developed. In addition, less runoff would be generated from the property if it were developed under the public buildings and facilities land use than would occur if the property was developed under the City land use most comparable to the County's R-1 classification.

6. The potential for flooding

   
   

   1. Because the property slopes from the north to the south, stormwater run-off naturally flows over the property to the south and east across Glen Hill Farm to a natural low area or pond located on that farm. The evidence shows that in February and March 1998, when unusually heavy rains occurred, substantial flooding occurred on the farm, causing one of its road to be closed for almost two weeks.

   2. Intervenor has entered into an agreement with Glen Hill Farm whereby the farm has agreed to allow a portion of stormwater to continue to flow onto its property. Without such an agreement, the City would have required that Intervenor retain all stormwater from a 100-year storm on its property.

   3. A stormwater run-off system and a drainage system can be designed on the property to fully satisfy the SJRWMD's Karst sensitive development regulations. Such a system will retain all post-development run-off created by a 100-year storm. Thus, development of the property is unlikely to cause flooding on adjacent properties.

7. Stormwater runoff

1. As noted above, the SJRWMD has promulgated regulations for the design and construction of drainage systems and drainage basins within Karst sensitive areas, which are designed to protect against stormwater run-off contamination of the underlying aquifer. These regulations are more stringent than those that apply to other areas; if adhered to by Intervenor, they will adequately contain and control stormwater run-off and prevent groundwater contamination.

2. In order to develop the property, Intervenor will be required to go through the site plan approval process with the City and to comply with the SJRWMD Karst sensitive regulations.

3. Sufficient testing has been performed on the property to determine that stormwater retention systems may be designed for the property which will avoid unreasonable risk of groundwater contamination.

4. The land use assigned to the property has less potential for detrimental impact upon the environment than would occur had the County permitted development using an R-1 classification, or a similar one by the City upon annexation.

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 163.3244, Florida Statutes (1999).

6. Upon designation as a sustainable community under the foregoing statute, a local government receives certain benefits, including the elimination of state and regional agency review of amendments "affecting areas within the urban growth boundary or functional equivalent." However, affected persons "may file a petition for administrative review pursuant to s. 163.3187(3)(a) to challenge the compliance of an adopted plan amendment." Therefore, the administrative appeal is governed by the statute pertaining to small scale development amendments.

7. Section 163.3187(3)(a), Florida Statutes (1999), provides that

   the local government's determination that the small scale development amendment is in compliance is presumed to be correct. The local government's determination shall be sustained unless it is shown by a preponderance of the evidence that the amendment is not in compliance with the requirements of the act.

   Thus, the City's amendment "is presumed to be correct" and will be "sustained unless it is shown by a preponderance of the evidence that the amendment is not in compliance with the requirements of the act."

8. The right to initiate an action under Section 163.3244, Florida Statutes (1999), is limited to "affected persons," as that term is defined in Section 163.3184(1)(a), Florida Statutes (1999). There, the term is defined as persons who reside, own property, or own or operate a business within the boundaries of the local government, and who have submitted oral or written

   comments, recommendations, or objections to the local government during the adoption process for the amendment. Therefore, to demonstrate standing, SHASTA must offer proof at hearing that at least some of its members reside, own property, or own or operate a business within the City, and that they submitted oral or written comments, recommendations, or objections to the City during the consideration and adoption of Plan Amendment 98-51C.

9. Because the record does not show clearly that any members of SHASTA reside, own property, or own or operate a business within the City, the organization lacks standing. Even if it can be inferred that the residence of SHASTA's registered agent is within the City (which fact was not specifically shown at hearing), there was still no evidence (sworn testimony or exhibits received in evidence) that any member submitted comments, recommendations, or objections to the City during the time when the amendment was being adopted. This being so, the amended petition should be denied on this basis alone. For the sake of a complete record, however, the merits of the allegations will be addressed.

10. As noted in the Findings of Fact, the more persuasive (and only) evidence establishes that the allegations in paragraphs 12-15, 17, and 24 of the Amended Petition are without merit and should be dismissed. Likewise, the undersigned has rejected Petitioner's contention in paragraph 19 that the amendment must comply with the "six broad principles of

    sustainability" identified in Section 163.3244(1), Florida Statutes (1999). This is because an amendment need only be consistent with those statutes enumerated in the statutory definition of "in compliance." The six broad principles pertain to demonstration project goals, and it does not appear that they were intended to be additional criteria for compliance determinations. In addition, claims regarding the site plan itself have been disregarded since those matters can be raised during the site plan stage of the process. Also, any issues raised for the first time at hearing, such as urban sprawl, have not been considered on the ground that they were untimely raised. Finally, the allegations in paragraphs 20 and 21 pertaining to higher taxes have been deemed to be irrelevant to a compliance determination.

11. As to the remaining two issues found in paragraphs 9-11 of the Amended Petition, the more persuasive evidence shows that development pursuant to the amendment is unlikely to cause flooding or stormwater pollution. This being so, the Amended Petition must be denied.

12. Finally, SHASTA's initiation of this action was sincere and well-intentioned. Its registered agent, a lay person, faced the daunting task of attempting to prove her case against two opposing parties represented by counsel. Nonetheless, the far greater weight of evidence supports a determination that the amendment is in compliance.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the City of Ocala enter a final order finding Plan Amendment 98-51C to be in compliance.

DONE AND ENTERED this 28th day of July, 2000, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

, 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 28th day of July, 2000.

COPIES FURNISHED:

Darlene Weesner, Registered Agent Shady Historic and Scenic Trails

Association, Inc.

655 Southwest 80th Street Ocala, Florida 34476

W. James Gooding, III, Esquire Gilligan, King & Gooding, P.A.

7 East Silver Springs Boulevard Suite 500

Ocala, Florida 34470-6659

Bryce W. Ackerman, Esquire Hart & Gray

Post Office Box 3310 Ocala, Florida 34478-3310

Cari L. Roth, General Counsel Department of Community Affairs

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will enter a final order.

Docket for Case No: 98-005019GM

Orders for Case No: 98-005019GM