STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JAMES M. BISBEE, PATRICIA ) PATTERSON, and T. BRAGG MCLEOD, )
)
Petitioners, )
)
vs. ) Case No. 00-0680GM
) DEPARTMENT OF COMMUNITY AFFAIRS ) and TOWN OF JUNO BEACH, )
)
Respondents, )
)
and )
) CELESTIAL COURT PARTNERSHIP, )
)
Intervenor. )
)
RECOMMENDED ORDER
Notice was given and on November 28-29, 2000, a final hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569, 120.57(1), and 163.3184(9)(b), Florida Statutes. The hearing location was at the Town of Juno Beach, Conference Room, 340 Ocean Drive, Juno Beach, Florida. The hearing was conducted by Charles A. Stampelos, Administrative Law Judge.
APPEARANCES
For Petitioners: Thomas J. Baird, Esquire
Thomas J. Baird, P.A.
11891 U.S. Highway One, Suite 105 North Palm Beach, Florida 33408-2864
For the Town of Juno Beach:
W. Jay Hunston, Jr., Esquire Gregory S. Kino, Esquire
Boose Casey Ciklin Lubitz Martens McBane & O'Connell
515 North Flagler Drive 17th Floor, Suite 190
West Palm Beach, Florida 33401-4330 For the Department of Community Affairs:
Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
For Celestial Court Partnership:
Daniel K. Corbett, Esquire
300 Mercury Road
Juno Beach, Florida 33408 STATEMENT OF THE ISSUE
Whether Amendment 99-1-NOI-5017-(A)-(I), Ordinance Number 509, to the Town of Juno Beach's (Town) Comprehensive Plan (Comprehensive Plan) is "in compliance" as defined in chapter 163, Part II, Florida Statutes, and as alleged in the Petition for Formal Administrative Hearing.
PRELIMINARY STATEMENT
On November 17, 1999, the Town adopted an amendment to its Comprehensive Plan, Amendment 99-1-NOI-5017-(A)-(I), Ordinance Number 509 (Plan Amendment). On January 9, 2000, the Department of Community Affairs (Department) published its Notice of Intent to find the Plan Amendment in compliance pursuant to Sections
163.3184, 163.3187, and 163.3189, Florida Statutes. The Notice was published in the Jupiter Courier, a newspaper published twice a week and available in some areas of the Town of Juno Beach.
On or about February 9, 2000, a Petition for Formal Administrative Hearing was filed on behalf of Petitioners,
Mr. James M. Bisbee, Dr. Patricia M. Patterson, and Mr. T. Bragg McLeod (Petitioners). On February 8, 2000, the Department referred the Petition to the Division of Administrative Hearings (Division) for the assignment of an Administrative Law Judge pursuant to Section 163.3184(9), Florida Statutes.
On or about August 30, 2000, a Petition to Intervene was filed on behalf of Celestial Court Partnership, a Florida General Partnership (Celestial). Over Petitioners' objection, intervention was granted.
Prior to final hearing, Petitioners filed a Motion requesting the Administrative Law Judge to view the property subject to the Plan Amendment, and surrounding neighborhoods. The Motion was denied by Order dated November 14, 2000.
Petitioners also filed a Motion in Limine to exclude the Town's Staff Report and Recommendation from consideration during the final hearing. Respondents opposed this Motion and after considering argument of counsel, the Motion was denied by Order dated November 21, 2000.
On November 21, 2000, the Parties filed a Prehearing Stipulation. A final hearing was held on November 28 and 29, 2000, in Juno Beach, Florida. During the final hearing, Petitioners offered the testimony of Petitioner, Dr. Patricia M. Patterson, and expert witnesses, Mr. James P. Fleischmann, and Mr. Dana Little. Petitioners' Exhibits 1-15 were admitted into evidence. The Department offered the testimony of Mr. Roger Wilburn, an expert witness, and Exhibit 1, which was admitted into evidence. The Town offered the testimony of Mr. Damian Peduto, an expert and fact witness, and the Town's Exhibits 1-40 were admitted into evidence. Mr. Daniel K. Corbett testified on behalf of Celestial and Celestial's Composite Exhibit 1 was admitted into evidence.
The Transcript of the final hearing was filed with the Division on December 21, 2000. By mutual agreement, the parties' Proposed Recommended Orders were filed on February 2, 2001, and were considered by the undersigned during the preparation of this
Recommended Order.
The Parties
FINDINGS OF FACT
Patterson, Bisbee, and McLeod
Petitioners, Dr. Patricia M. Patterson and James M. Bisbee, are husband and wife and have resided at 431 Olympus
Drive, Town of Juno Beach, Florida, since February, 1999. Dr. Patterson is a Professor of Public Administration at the
Florida Atlantic University. Prior to occupying this residence, Dr. Patterson investigated the neighborhood and wanted to reside in an ungated, single-family neighborhood. Dr. Patterson describes her neighborhood as the Ridge Area, which has a southern border of Olympus Drive or south to a new development, a western border of U.S. Highway 1 (U.S. 1), an eastern border of Ocean Drive or A1A, and a northern boundary of the Ocean View Methodist Church (Church). The linear Ridge bisects this area, running approximately north and south. See (Town's Exhibit 1A); (Petitioners' Exhibits 9A & 9B).
The top of the Ridge consists predominantly of single- family residences. There is a significant increase in elevation from the U.S. 1 corridor, east to the top of the Ridge.
The Patterson/Bisbee residence is located on the top of the Ridge, toward the middle of Olympus Drive. Mr. McLeod resides in a single-family residence, east and adjacent to the Patterson/Bisbee residence. There is a rental, single-family home immediately adjacent to the west of the Patterson/Bisbee residence. The lots to the west of the rental property are vacant and include the corner property (+/-.34 acre) subject to the Plan Amendment, which is at the bottom of the hill on the
U.S. 1 side.
Shortly after they moved into their new residence,
Dr. Patterson learned from a neighbor that a Key West-style home was proposed to be built on a portion of the vacant lot.
Dr. Patterson attended the Town's Land Planning Agency (LPA) April 1999, meeting and learned that there was a proposal to change a portion of the use of the vacant lot to "commercial." She learned that an application was filed on behalf of the Town's former Mayor and a former Councilman.
Dr. Patterson expressed concern that the area should remain residential and not be changed to commercial.
Dr. Patterson appeared at the May 1999, Town Council meeting and objected to the proposal on behalf of herself and Mr. Bisbee. Dr. Patterson also furnished the members of the Town Council with a letter dated May 17, 1999, which set forth her objections to the proposed changes. Dr. Patterson also attended part of the November 1999 Town Council meeting.
Mr. Baird appeared before the LPA and the Town Council on behalf of Mr. McLeod.
Dr. Patterson objects to the proposed Plan Amendment to the Town's Comprehensive Plan based on the proposed "commercial" use of the site, rather than the architectural style of the building proposed by Celestial.
The Petitioners are "affected persons" as defined in Section 163.3184(1)(a), Florida Statutes, and have standing to participate as parties in this proceeding.
Celestial
Celestial is a partnership, which owns property and conducts a business in the Town of Juno Beach, Florida.
In or around March of 1999, Celestial, the applicant, submitted an Application for an amendment to the Town of Juno Beach Comprehensive Plan. Celestial proposed to re-designate a
+/-.34 acre portion (the Property) of a +/-.57 acre parcel owned by Celestial. The entire +/-.57 acre parcel is vacant property at the northeast corner of U.S. 1 and Olympus Drive. Celestial sought to amend the Town's Future Land Use Map (FLUM) from the existing "low density residential" classification to the "commercial" classification for the western or corner portion, which is approximately +/-.34 acre.
Celestial proposes to build a two (2)-story structure, with a professional office with residential units on the second level. The structure would be of an architectural style that will be compatible with surrounding, existing residential developments.
Celestial has standing to participate as a party in this proceeding. Section 163.3184(1)(a), Florida Statutes.
The Town
The Town is a local government subject to the provisions of the Local Government Comprehensive Planning and Land Development Regulation Act (Act), Chapter 163, Part II, Florida Statutes. On November 17, 1999, the Town adopted Ordinance Number 509 as an amendment to the Town's Comprehensive Plan. The Town also adopted Ordinance Number 510, which rezones the Property to "commercial office."
The Department
The Department is the state land planning agency, having authority to administer and enforce the Act. Among other responsibilities of the Department under the Act, the Department has the responsibility to review comprehensive plan amendments submitted by local governments and to determine if the plan amendments are in compliance with the Act. Section 163.3184(8), Florida Statutes. The Department reviewed the Plan Amendment and determined that it was "in compliance" pursuant to Sections 163.3184, 163.3187, and 163.3189, Florida Statutes.
The Town of Juno Beach, the Property, and the "Neighborhood"
The Town is a small coastal community consisting of approximately 903 acres. The Town is located along the U.S. 1 corridor in Northern Palm Beach County, with municipalities, Jupiter and Tequesta to the north, and Palm Beach Gardens, North
Palm Beach, Lake Park, and Riviera Beach to the south. The Town is bounded on the east by the Atlantic Ocean.
The U.S. 1 corridor was the subject of a study, conducted by the Treasure Coast Regional Planning Council in 1999, which became known as "Seven Cities: Northern Palm Beach County US 1 Corridor Study." "[T]he 16-mile corridor is primarily a four-lane facility involving a mixed bag of landscape and lighting treatments, roadway designs, land uses, access management, and drainage infrastructure. Conditions in the corridor range from urban to rural, from healthy to blighted. Long range transportation plans have called for the corridor to be widened to six lanes over times, but the need for this widening has been called into question."
"Juno Beach's segment of US 1 is a long expanse with a variety of situations, ranging from the semirural or naturalistic sea scrub landscape to suburban areas of shopping malls & hotels, to strategically located vacant parcels ideal for infill development. The planning team recommends that each of these areas have its own distinct planning approach for improvement over time." Several recommendations are made for the Town, including the provision of "[a] variety of uses" for the town center location at the intersection of Donald Ross Road and U.S. 1, north of the Property, "including adding 'in-town' residential options: apartments above shopfronts, rowhouses
along intimate streets, live/work loft combinations and so on would complement Juno Beach other excellent housing offerings." The Study also generally encourages attractive building facades with doors and windows facing the street, as opposed to "[b]lank, windowless facades facing streets [which] are absolutely deadening to the scene for pedestrians and motorists alike." There seems to be some criticism of the existence of "halfhearted 'buffer' of landscaping between the highway and a 'sound wall,'" in the Town area, which does appear along U.S. 1, north and south of the Property.
The lands contiguous to the +/-.34 acre Property, on the north and east, are designated "low density residential," on the Town's FLUM. The land to the immediate east of the subject property is vacant and owned by Celestial. See Finding of
Fact 3. The land to the immediate north is developed with a single-family home.
A four-lane divided highway (U.S. 1), with a 120-foot right-of-way, is located to the west of the vacant Property, and extends from the Town's southern boundary to its northern boundary. There are approximately 24,000 daily trips of traffic passing the Property on U.S. 1. The speed limit on U.S. 1 is fifty (50) miles-per-hour, a speed not consistent with low residential development.
The southern and western borders of the Town consist of lands owned by Palm Beach County and maintained as conservation areas.
The land immediately to the west of the Property from
U.S. 1 is designated "commercial" on the Town's FLUM and is called Seminole Plaza (Seminole), a 65,400-square foot, fairly large-scale, shopping center with various commercial and professional tenants, located on approximately five (5) acres. The property west of U.S. 1, north and south of Seminole, is owned and maintained by Palm Beach County as conservation areas.
A short distance south of Seminole are Florida Power and Light's Juno Beach Offices and West Offices, both of which are office developments approved for land totaling over sixty
(60) acres.
To the immediate south of the Property is Olympus Drive. The land across Olympus Drive, to the immediate south of the Property, is designated "low density residential," and is developed as a Planned Unit Development (P.U.D.) consisting of single-family homes. This is the "Seaside" area and is bounded on the north by a white picket fence, which does not provide access to "Seaside." Pedestrian and vehicle traffic enter the Seaside development from the east along Ocean Drive or A1A.
The southeast corner of Olympus Drive and U.S. 1, which is directly across from the Property, is within Seaside.
There is no residential development on the southeast corner. Rather, the corner is developed with a concrete cul-de-sac. This parcel is not eligible for residential development under the Town's zoning code.
The Town presented a composite exhibit of photographs of various commercial and other non-residential uses which are interspersed in the vicinity of the Property. The photographs were overlaid onto an aerial photograph of the general area between Donald Ross Road to the north of the Property, and Juno Road, to the south of the Property. The Property is located approximately mid-point between these roads. This visual depiction of the area demonstrates the variety of the uses and structures, which have developed along this segment of the
U.S. 1 corridor within the Town, as well as the impact of that highway upon the development in the vicinity of the Property.
The developments, north and south of the Property, include office buildings, the Church, an automotive repair business (e.g. Goodyear), motels (e.g. Hampton Inn) and a golf course. For example, the two-story, 9,000 square foot Juno Beach Professional Office Building, is located four-tenths of a mile north of the Property, east and fronting U.S. 1, and between a duplex and a single-family house. (This house has a yellow retaining wall directly fronting U.S. 1.) The Church is directly east of the office building. There are several vacant
lots south and east of U.S. 1, designated "low density residential," which are undeveloped. There is a vacant, two (2) acre, commercially-designated parcel, two-tenths of a mile to the south of the Property on the east side of U.S. 1. Compare with Findings of Fact 1-3.
Amendment to the Town's Comprehensive Plan
In April of 1999, Celestial filed a revised Application requesting an amendment to the Town's Comprehensive Plan, changing the FLUM classification of the Property from "low density residential" to "commercial."
Among other things, Celestial advised that its Application was for a low-density project on the northeast corner of U.S. 1 and Olympus Drive. Celestial further stated that the proposed commercial (mix-use) land is compatible with the commercial uses adjacent to and across from U.S. 1 from the Property and that the residential component of the mixed-use proposal will be compatible with the residential uses to the north, east, and south of the Property. Celestial did not request a change to the Town's "commercial" FLUM designation.
Several documents were attached to the Application including a vegetation survey with indicated that the Property had no environmental constraints which would prohibit its development. Other correspondence included with the Application indicate that all major utilities including telephone, electric,
water, and sanitary sewer, would be provided. The described project also met the Traffic Performance Standards of Palm Beach County. Further, the Florida Department of Transportation concluded that the placing the drive on Olympus Drive would better serve the development for the convenience and safety of the proposed access.
On April 19, 1999, the Town of Juno Beach Planning and Zoning Board considered the proposed Plan Amendment to the Town's Comprehensive Plan's FLUM. Mr. Peduto, Director of Planning and Zoning, reviewed the Application, coordinated the review by other governmental entities, prepared the staff report, and recommended approval of the Plan Amendment. The report describes the proposal and sets forth an analysis which included, in part, the following:
The proposal meets the adequate facilities standards and is not in the Coastal High Hazard area, as defined by the Treasure Coast Regional Planning Council (TCRPC) and State of Florida. The proposed change is an appropriate classification for the subject property. The proposed project is an "infill" development, as opposed to "sprawl" development. Infill development is supported by the TCRPC Strategic Regional Policy Plan. Sprawl, which is typical through "Euclidean" planning, creates isolated uses through non-flexible zoning districts, and also through "single-use" structures. The opposite of this is more "neo-traditional" planning, which encourages multi-use structures and is more community oriented, creating more livable, healthy and sustainable communities and neighborhoods.
This is why infill development becomes so important to revitalizing and recreating community in a town's neighborhoods. The Town of Juno Beach has expressed through historical efforts and its Comprehensive Plan (as well as its Zoning Code) that it envisions a sustainable community atmosphere. Mixed-use projects play an important role in this long term, committed effort. While remaining consistent with the Comprehensive Plan and Zoning Code, the subject property is an ideal location to further express this effort.
The subject property is located along an "urban principal arterial" highway, within an older residential neighborhood. Just south of the subject property [across Olympus Drive] is an newer residential neighborhood [Seaside]. West of the subject property is a commercial plaza (Seminole Plaza) with various commercial uses, from office uses to restaurant, retail, service oriented, medical and private educational uses. Further east is a large public recreational area and the Juno Beach Town Center. In the general area there is an existing mixed use which functions as an important community/neighborhood element in this section of the town. As part of the revitalization process of this overall area of town, the proposed project and petition brings an element of balance between newer residential and older residential, introduces a mixed-use and creates an ideal "bridge" between the western commercial uses and eastern residential, community and recreational uses. The proposed project meets the standards set forth by the Goals, Objectives and Policies in the adopted Town of Juno Beach Comprehensive Development Plan.
The report also indicated that "[t]he Comprehensive Plan directly encourages mixed-uses throughout the document,"
and cited to several Objectives and Policies. The report confirmed that utilities and service providers have sufficient capacity to serve the Property for a potential project within the proposed designation/classification; that there are no environmental concerns concerning the entire +/-.57 acre site including the Property (+/-.34 acre); that the existing level of service standards of the adjacent U.S. 1 will not be adversely impacted by the proposed change of land use; that water and wastewater facilities exist nearby the site and will be able to provide for appropriate services to the site; that solid waste removal services will also be provided; and that all specific drainage designs must be acceptable to the Town engineer upon submittal of any site plan. The report concluded that the Plan Amendment is consistent with the Town's Comprehensive Plan and, in part, that the proposed change is "an appropriate land use classification for the subject property, providing for an appropriate use of the property considering existing, surrounding uses and land uses "
The Town's Planning and Zoning Board considered the Application. Numerous local residents, including Dr. Patterson and Attorney Thomas Baird representing Petitioner McLeod, opposed the Application. A motion to approve the Application to amend the Comprehensive Plan's FLUM failed with a 3 to 2 vote. Further, a motion to approve a request for a change in zoning
from the existing designation of residential single-family to the designation of commercial office was not approved by a vote of 3 to 2.
On or about May 12, 1999, Celestial submitted a "memorandum on proposed land use changes" to the Town, which provided a historical analysis of the development of the Town, including but not limited to changed circumstances around Olympus Drive and U.S. 1.
The Town Council (Council) of the Town of Juno Beach met on May 26, 1999, to consider Ordinance Number 509 which provided the amendment vehicle to the Town's Comprehensive Plan requested by Celestial. This was the first reading and public hearing for this Ordinance. Several area residents and others were in attendance. The results were mixed with some residents speaking in favor and some against approval of Ordinance Number
509. After some discussion by the Council members, and responses from the Town planner and Celestial's representative, the Council approved Ordinance Number 509 on first reading by a vote of 4 to 1.
The Council also discussed, on first reading and during a public hearing, Ordinance Number 510, which proposed to approve a rezoning request for the Property to "commercial office." Attorney Tom Baird, on behalf of Petitioner McLeod, opposed the rezoning request. Dr. Patterson also opposed the
request. "Town Planner Peduto pointed out the property that was annexed into town with a residential zoning designation, surrounded on three sides by residential and rezoned to Commercial. This parcel is known as Dr. Hinman's Building, Juno Beach Professional Building. He also pointed out another parcel on U.S. 1 surrounded by residential that was given a commercial land use classification and commercial general zoning designation upon its recent annexation into the town."
The minutes indicate that the Council was aware that the Planning and Zoning Board had recommended denial. The Council had before it the Town's Staff Report and Recommendation, which was previously presented to the Town's Planning and Zoning Board in substantially the same form. See,
e.g., Finding of Fact 30. The Council unanimously approved Ordinance Number 510 on first reading.
On or about August 5, 1999, the Town submitted numerous documents to the Department of Community Affairs, including but not limited to, the Town's Staff Report and Recommendation and proposed Ordinance Number 509. The Town requested no formal review.
By letter dated September 3, 1999, the Florida Department of Transportation advised the Department that it did not recommend a formal review of the proposed amendment. By
letter dated September 16, 1999, the Department of Environmental Protection offered no comments to the Department.
The staff at the Treasure Coast Regional Planning Council (TCRPC) submitted a memorandum dated September 17, 1999, for the Council members. The TCRPC is required to review the Plan Amendment prior to formal adoption by the Town Council.
The TCRPC stated, in part, in its evaluation:
The Town indicates that the proposed amendment is consistent with the Town Comprehensive Plan. The proposed development represents infill. Mixed-use projects of the nature are intended to play an important role in the Town's efforts to create a sustainable community. The amendment is consistent with several objectives of the Town Comprehensive Plan and also with the SRPP which encourages infill development and multi-use structures. The Town indicates that the proposed development will bring a balance between newer and older residential areas and creates a good transition between commercial and residential uses. All urban services are available to the site, there are no level of service concerns, and an environmental survey indicates that there are no environmental concerns relating to development of the site.
According to the TCRPC, the proposed Plan Amendment would not have adverse effects on significant regional resources or facilities. The TCRPC concluded that "[b]ased on the lack of extrajurisdictional impacts or effects on significant regional resources and facilities, [TCRPC] does not recommend that the amendment be formally reviewed." However, the [TCRPC] noted:
According to the SRPP, a mix of uses on a single property is desirable. However, the first mixed-use development in an area which has previously been devoted entirely to residential use can create controversy and result in opposition from nearby property owners. According to the Town, this has been the case for the subject amendment.
Some of this controversy can be avoided and property owner objections lessened by creating a very fine-grained plan. The Town's comprehensive plan contains only a single commercial FLUM category. Therefore, neighbors are understandably concerned about what the type of commercial use might occupy the subject property. During the preparation of its Evaluation and Appraisal Report, the Town should consider the preparation of a more fine-grained plan for those parts of town where the "richness" of the urban fabric is important to protect, preserve, and enhance.
On September 17, 1999, the Department advised the Town of its determination that the proposed Plan Amendment should be formally reviewed for consistency.
On October 26, 1999, the South Florida Water Management District advised the Department that the District had no water resources related comments regarding the Town's proposed Plan Amendment.
No state, regional, or local governmental entity requested review of the Plan Amendment.
On November 12, 1999, the Department advised the Town that the Department had no objection to the proposed Plan
Amendment. This letter served as the Department's Objections, Recommendations, and Comments (ORC) report.
On October 27, 1999, Celestial provided the Town with a Supplemental Memorandum regarding land use changes in the Town since 1990.
On November 17, 1999, the Council met to consider Ordinance Numbers 509 and 510 for second reading and received a Staff Report and Recommendation, authored by Mr. Peduto, which contained similar data and analysis from the prior report. See,
e.g., Finding of Fact 30. The Town's staff also prepared a report and recommendation regarding the rezoning request/petition, Ordinance Number 510. During the hearing held regarding Ordinance Number 509, the report and recommendation, with backup, and the file for both this hearing and from the previous approval hearing, were entered into the record.
During the hearing, the Council was apprised, in part, that the Planning and Zoning Board had recommended denial, by a three-to-two vote, "based on traffic concerns." The minutes further reflect that "[t]he [t]own traffic consultant agrees to the traffic studies from the applicant and the County. He reviewed other areas in [t]own that similar re-zoning occurred located on a local collector, abutted by residential and located on a major thoroughfare."
During the public hearing, attorney Baird, representing Petitioner McCloud, advised the Council that Ordinance Number 509 needed to be corrected in the second "WHEREAS" clause stating that the land planning agency had recommended that the Town not adopt the ordinance. "He said the primary reason (to not approve the ordinance) is that the land use classification was incompatible with the residential neighborhood." Several persons opposed the Ordinance, whereas others favored the Ordinance. The Council received numerous letters both for and against Ordinance Number 509. The Council also received petitions for and against the Ordinance. After discussing the issue, the Council approved Ordinance Number 509 by a vote of 4 to 1.
The Council also considered Ordinance Number 510 and after considering information both for and against, the Council voted 5 to 0 to approve Ordinance Number 510.
On November 23, 1999, the Town submitted the adopted Plan Amendment to the Department.
On January 7, 2000, the Department completed its review of the adopted Plan Amendment, Ordinance Number 509, and "determined that it meets the requirements of Chapter 163, Part II, Florida Statutes (F.S.), for compliance, as defined in Subsection 163.3184(1)(b), F.S."
Petitioners' Objections to the Plan Amendment
Petitioners claim that the Plan Amendment, as applied to the Property, is inconsistent with and, therefore, does not further the "Goal," Objective 1, and Policy 1.3, of the FLUE of the Comprehensive Plan. Petitioners also claim that the Plan Amendment is inconsistent with and fails to comply with Rules 9J-5.005(2)(a) and 9J-5.006(4)(c), Florida Administrative Code, and Section 163.3177(6)(a), Florida Statutes. Petitioners' claim that the Town has approved the Plan Amendment, which approves a mixed-use, without any specific provision in the Comprehensive Plan for a mixed-use designation. Petitioners further claim that the Plan Amendment is not supported by
sufficient data and analysis, nor is the analysis professionally acceptable.
Petitioners' inconsistency and incompatibility arguments focus primarily on Petitioners' description of the relevant "neighborhood." Mr. James Fleischmann testified on behalf of Petitioners as to his definition of the relevant "neighborhood." Mr. Fleischmann and Dr. Patterson carved out the area east of U.S. 1 and west of A1A and bordered on the north by the Church and on the south by the Seaside area, designated "low density residential," as the appropriate "neighborhood." They opined that any non-residential
development within this area was inconsistent with this "neighborhood." See also Findings of Fact 1-3.
The "Goal" of the Town's Comprehensive Plan Future Land Use Element (FLUE) provides:
A Town characterized by a community spirit that: recognizes its historical development patterns and styles; maintains its established neighborhoods in a safe, secure, beautified, and efficient manner by providing for both vehicular and pedestrian movement in, and around, town; which promotes future growth and development that is creative and enhances historical values and architectural styles that are indigenous to Juno Beach; which protects natural environmental features; and which reflects those development values by well defined neighborhoods and public areas that create an overall continuity to the Town while providing effective and efficient community services.
There is no definition of "neighborhood" in the Town's Comprehensive Plan, Chapter 163, Florida Statues, or Rule 9J-5, Florida Administrative Code. Mr. Fleischmann provided his definition based upon his experience and expertise.
Mr. Fleischmann did not rely on any specific portion of the Town's Comprehensive Plan in defining his view of the relevant "neighborhood."
Mr. Fleischmann testified that all of his opinions concerning compatibility and internal Comprehensive Plan inconsistency in this case are based upon his definition of the relevant "neighborhood."
U.S. 1 is a major, four-lane highway, which accommodates traffic at speeds, which are incompatible with a low-density residential neighborhood. It was not unreasonable for the Town to consider that the "neighborhood" area is not as limited or restricted as proposed by Mr. Fleischmann. In fact, Seminole, across U.S. 1 from the Property, actually serves the identified "neighborhood" east of U.S. 1.
The data and analysis presented in this hearing, most of which was presented to the Town Council, demonstrates that the area in proximity to the Property has changed over the years, including but not limited to the expansion of U.S. 1 and the development of Seminole directly across from the Property.
The weight of the evidence demonstrates that approval of the Plan Amendment will not cause the "neighborhood," as defined by Mr. Fleischmann, to be unsafe, insecure, or not beautified, nor will it impede vehicular and pedestrian movement in and around the Town.
The data and analysis presented in this record do not support Petitioners' argument that the Plan Amendment is inconsistent with the "Goal." Also, the analysis was performed in a professional manner.
Objective 1 of the FLUE of the Comprehensive Plan provides:
To manage growth and development through the preparation, adoption, implementation, and enforcement of land development regulations which: coordinate future land uses with the appropriate topography, some of the conditions and the availability of the facilities and services; prevent, eliminate, or reduce uses inconsistent with the Land Use Goal, Future Plan, and Future Land Use Map; and which require redevelopment, renewal or renovation, where and when necessary through the establishment of standards or for density and intensity of land development.
This Objective requires only the adoption of land development regulations to implement its provisions. The record is clear that the Plan Amendment, as a future land use amendment, is not a land development regulation.
Petitioners also contend that the Plan Amendment is inconsistent with Policy 1.3 of the FLUE and Rule 9J- 5.006(3)(c)(2), Florida Administrative Code. See Conclusion of law 87.
Policy 1.3 states: "Implementing ordinances, regulations and requirements regarding the development of land shall consider adjacent land uses and promote compatibility with those uses." Mr. Fleischmann claimed that he was unaware of any analysis of compatibility in the Staff Report and Recommendation presented to the Town Council in support of the Plan Amendment. However, Mr. Peduto, in the staff report, analyzed the relationship of the Plan Amendment to the surrounding
properties, and stated, in part: "[T]he proposed project and petition bring an element of balance between newer residential, older residential and existing commercial, introduces a mixed- use and creates an ideal transition between the western commercial uses and eastern residential, community, and recreation uses." Mr. Peduto also considered the issue of compatibility and stated: "[The Plan Amendment] is an appropriate land-use classification for the subject property, providing for an appropriate use of the property considering existing, surrounding uses and land uses "
Petitioners next contend that the Plan Amendment is not in compliance with Section 163.3177(6)(a), Florida Statutes, and Rule 9J-5.006(4)(c), Florida Administrative Code, because the "commercial" FLUM land-use category is not a "mixed-use" category, does not contain a percentage mix of uses, and does not contain densities and intensities of use for all identified land uses.
The Town's Comprehensive Plan has numerous future land use classifications, including a classification called "commercial." This definition provides:
Land Uses and activities within land areas which are predominantly related to and used for the sale, rental, and distribution of products; the provision or performance of business, personal and professional services. However, in order to allow for mixed uses, a maximum of 75 percent of the
total gross floor area on the site may be used for residential development, not to exceed a density of 22 dwelling units per gross acre.
The land uses allowed in the "commercial" category include mixed uses, such as residential and commercial. These general descriptions are consistent with the requirements of Section 163.3177(6), Florida Statutes, and the definitions in Rules 9J-5.003(21)("commercial uses") and 9J- 5.003(108)("residential uses"), Florida Administrative Code.
The mix of uses is established within the description of the "commercial" land use category itself. A maximum of seventy-five percent (75%) of the total gross floor area on-site may be residential, with the remainder being commercial.
The residential density is also established in the definition of "commercial" for a maximum of twenty-two (22) units per gross acre. Further, it appears the intensity standard for allowable commercial uses is found in FLUE Object 1, Policy 1.13 b. of the Town's Comprehensive Plan which provides: "The Building Site Area Requirements, as established in the CG-Commercial General and CO-Commercial Office zoning districts, shall provide the basis for intensity of use and be the development criteria standards for general commercial and commercial office development, respectively, in Juno Beach."
The definition of "commercial" includes, and authorizes a "mixed-use" of the Town's property, including the Property, which is the subject of the Plan Amendment.
Petitioners also claim that the Plan Amendment is not supported by data and analysis as required by Rule 9J- 5.005(2)(a), Florida Administrative Code. Mr. Fleischmann opined that based upon his examination of the record as it existed on November 19, 1999, the data submitted to the Town was insufficient and the analysis not professionally acceptable.
Conversely, the data available to the Town and the evidence presented at the de novo hearing, is adequate to support a finding that the Town's decision to change the land use category for the Property from "low density residential" to "commercial" is at least fairly debatable. Mr. Fleischmann's disagreement with Mr. Peduto and the Town staff's analysis of the facts is not conclusive. Mr. Fleischmann offers a different opinion, which failed to overcome the data and analysis of record in this case.
Petitioners also argue that the Plan Amendment could not be approved without the Town, and the Department's, requiring an analysis of a "worst case scenario." However, Mr. Wilburn's testimony in this regard is persuasive in that this analysis is normally employed in the planning field for a FLUM amendment only in terms of analyzing the five areas that a
local government is required to set level of service standards, i.e., roads, water, sewer, recreation, and open space.
It is not appropriate to use a "worst case scenario" when reviewing issues of compatibility. Importantly, the record indicates that there is no issue raised in this case regarding the sufficiency of the existing or proposed level of service standards.
The Town Council held two public hearings regarding the Plan Amendment, heard from the public, including Petitioners, and was presented with adequate data and analysis to reasonably conclude that the Plan Amendment was consistent with its Comprehensive Plan and the relevant statutes and rules at issue in this case.
In summary, the Plan Amendment's change of the FLUM land use category for the Property is fairly debatable, particularly in light of the historical development occurring within the Town, and the changing conditions affecting the
U.S. 1 corridor in the vicinity of the Property. Based upon the totality of the circumstances and factors presented in this case, the Plan Amendment is consistent with the Act.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this
proceeding. Sections 120.569, 120.57(1), 163.3184(9), and
163.3187(3), Florida Statutes.
Standing
Any "affected person" may participate in proceedings challenging proposed plans and plan amendments under the Act. Sections 163.3184(9)and(10), and 163.3187(3)(a), Florida Statutes. See also Section 163.3184(1)(a), Florida Statutes, for the definition of "affected person." Petitioners and Celestial have standing to participate as parties in this proceeding
Burden and Standard of Proof
The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in any proceeding before the Division. Young v. Department of Community Affairs, 625 So. 2d 831 (Fla. 1993); Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). See also Section 120.57(1)(j), Florida
Statutes.
81. Sections 163.3184(9)and(10), and 163.3187(3)(a),
Florida Statutes, impose the burden of proof on the person challenging amendments to a local government's comprehensive plan. Therefore, the Petitioners have the burden of proof in this proceeding. See Young v. Department of Community Affairs.
Section 163.3184(9), Florida Statutes, imposes the following standard of proof: "[T]he local plan or plan amendment shall be determined to be in compliance if the local government's determination of compliance is fairly debatable." Since the Department gave such notice as to the Plan Amendment at issue in this case, Petitioners bear the burden of proving "beyond fair debate," that the Plan Amendment is not "in compliance."
The term "fairly debatable" is not defined in the Act or the rules promulgated thereunder. The Supreme Court of Florida has opined, however, that the fairly debatable standard under the Act is the same as the common law "fairly debatable" standard applicable to decisions of local governments acting in a legislative capacity. In Martin County v. Yusem, 690 So. 2d 1288, 1295 (Fla. 1997), the Court opined: "The fairly debatable standard of review is a highly deferential standard requiring approval of a planning action if reasonable persons could differ as to its propriety." See also B & H Travel Corp. v. Department of Community Affairs, 602 So. 2d 1362 (Fla. 1st DCA), app. dism. and rev. denied, 613 So. 2d 1 (Fla. 1992).
Quoting from City of Miami Beach v. Lachman, 71 So. 2d
148, 152 (Fla. 1953), the Court stated further: "[a]n ordinance may be said to be fairly debatable when for any reason it is open to dispute or controversy on grounds that make sense or
point to a logical deduction that in no way involves its constitutional validity." 690 So. 2d at 1295. The Court cautioned, however: "even with the deferential review of legislative action afforded by the fairly debatable rule, local government action still must be in accord with the procedures required by chapter 163, part II, Florida Statutes, and local ordinances." Id.
The issues which may be considered in this proceeding are limited to those issues alleged in Petitioners' Petition for Formal Administrative Hearing. Heartland Environmental Council, v. Department of Community Affairs, et al., 96 E.R.F.A.L.R. 185 (DCA Nov. 25, 1996). Petitioner's attempt to challenge an alleged inconsistency of the Plan Amendment with Policies 1.2 and 1.13 of the FLUE of the Town's Comprehensive Plan is outside the Petition and should not be considered in this case.
The Plan Amendment is "In Compliance"
The ultimate issue in this case is whether the Petitioners have proven to the exclusion of any reasonable debate that the Plan Amendment is not "in compliance" for any of the reasons set forth in their Petition. Sections 163.3184 and 163.3187, Florida Statutes.
The term "in compliance" is defined in Section 163.3184(1)(b), Florida Statutes, as follows:
(b) "In compliance" means consistent with the requirements of ss. 163.3177, 163.3178, 163.3180, 163.3191, and 163.3245, with the state comprehensive plan, with the appropriate strategic regional policy plan, and with chapter 9J-5, Florida Administrative Code, where such rule is not inconsistent with [chapter 163, part II] and with the principles for guiding development in designated areas of critical state concern.
A "goal" in a comprehensive plan is "the long-term end toward which programs or activities are ultimately directed." Rule 9J-5.003(51), Florida Administrative Code. The Plan Amendment is not inconsistent with the Town's long-term goal of maintaining neighborhoods by providing for both vehicular and pedestrian movement. The persuasive data and analysis presented in this case proves that the relevant "neighborhood" is more expansive than as proposed by Petitioners, particularly in light of the historical uses of property along the U.S. 1 corridor within the Town. Petitioners have failed to prove beyond fair debate that the Plan Amendment is inconsistent with "Goal" of the Town's FLUE to protect existing neighborhoods.
Petitioners have also failed to prove beyond fair debate that the Plan Amendment is inconsistent with Objective 1 of the FLUE to adopt and enforce land development regulations.
Petitioners have also failed to prove beyond fair debate that the Plan Amendment is inconsistent with
Rule 9J-5.006(3)(c)(2), Florida Administrative Code, and Policy
1.3 of the FLUE regarding consideration of compatibility.
Petitioners have also failed to prove beyond fair debate that the Plan Amendment is inconsistent with Rule 9J- 5.006(4)(c), Florida Administrative Code, and Section 163.3177(6)(a), Florida Statutes, regarding mixed use land categories. Additionally, the "commercial" future land use category was not amended by Ordinance Number 509. Rather, the Plan Amendment re-designates a parcel with the "commercial" land use designation. The Department's Notice of Intent, as required by statute, was directed only at the actual Plan Amendment adopted by the Town. Section 163.3184(8)(a), Florida Statutes. Because the Plan Amendment was only directed to the FLUM, and not to the text of the FLUE where "commercial" is defined, there is no legal basis upon which to find the underlying land use category not "in compliance."
The evidence presented does not establish any inconsistency between the Plan Amendment and Chapter 9J-5, Florida Administrative Code, nor any internal inconsistency with other elements of the Comprehensive Plan.
Finally, any amendment to a comprehensive plan must be based upon appropriate data. Although such data need not be original data, local governments are permitted to utilize original data so long as appropriate methodologies are used for
data collection. Sections 163.3177(8) and (10)(e), Florida Statutes.
Rule 9J-5.005(2), Florida Administrative Code, requires that, in order for a plan provision to be "based" upon appropriate "data available on that particular subject at the time of adoption of the . . . plan amendment at issue," the local government must "react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue." The data must also be the "best available existing data" "collected and applied in a professionally acceptable manner." Rule 9J- 5.005(2)(a)-(c), Florida Administrative Code.
However, the data and analysis which may support a plan amendment are not limited to those identified or actually relied upon by a local government. All data available to a local government in existence at the time of the adoption of a plan amendment may be relied upon to support an amendment in a de novo proceeding. Zemel v. Lee County, et al., 15 F.A.L.R 2735 (DCA June 22, 1993), aff'd, 642 So. 2d 1367 (Fla. 1st DCA 1994). Analysis which may support an amendment, however, need not be in existence at the time of the adoption of a plan amendment. Id. Data which existed at the time of the adoption of a plan amendment may be subject to new or even first time
analysis at the time of an administrative hearing challenging a plan amendment. Id.
Petitioners claim that the Plan Amendment is not in compliance because it is based on faulty data and analysis and not otherwise supported by the data and analysis of record in this proceeding, including the Staff Reports. Petitioners provided data and analysis to support their arguments of inconsistency. However, when viewed with the other evidence of record presented by the Respondents and Intervenor, Petitioners' evidence suggests, at best, that reasonable minds could differ regarding the various aspects of the alleged inconsistencies of the Plan Amendment at issue in this case. Petitioners failed to prove that the Plan Amendment is not supported adequately by appropriate data and analysis.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that a final order be issued concluding that the Town of Juno Beach's Comprehensive Plan Amendment, Ordinance Number 509, is "in compliance" as defined in chapter 163, Part II, Florida Statutes, and rules promulgated thereunder.
DONE AND ENTERED this 5th day of March, 2001, in
Tallahassee, Leon County, Florida.
CHARLES A. STAMPELOS
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 5th day of March, 2001.
COPIES FURNISHED:
Thomas J. Baird, Esquire Thomas J. Baird, P.A.
11891 U.S. Highway One Suite 105
North Palm Beach, Florida 33408-2864
Daniel K. Corbett, Esquire
300 Mercury Road
Juno Beach, Florida 33408
W. Jay Hunston, Jr. Esquire Gregory S. Kino, Esquire
Boose Casey Ciklin Lubitz Martens McBane & O'Connell
515 North Flagler Drive
Northbridge Center-19th Floor, Suite 190 West Palm Beach, Florida 33401-4330
Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
Steven M. Seibert, Secretary Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 100
Tallahassee, Florida 32399-2100
Cari L. Roth, General Counsel Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 100
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 issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| May 30, 2001 | Agency Final Order | |
| Mar. 05, 2001 | Recommended Order | Local governmental adoption of amendment to Local Comprehensive Plan, to re-designate +/- .34 acre from "low density residential" to "commercial" fairly debatable and in compliance with Chapter 163, Part II, Florida Statutes. |
