STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BREVARD COUNTY, )
)
Petitioner, )
)
vs. ) Case Nos. 00-1956GM
) 02-0391GM
DEPARTMENT OF COMMUNITY AFFAIRS ) and CITY OF PALM BAY, )
)
Respondents. )
__________________________________)
RECOMMENDED ORDER
On October 8-9, 2002, a final administrative hearing was held in this case in Palm Bay, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.
APPEARANCES
For Petitioner: Eden Bentley, Esquire
Brevard County Attorney's Office 2725 Judge Fran Jamieson Way Viera, Florida 32940-6605
For Respondent City: Gary Sack, Esquire
Nicholas F. Tsamoutales, Esquire 1900 Palm Bay Road, Northeast Suite G
Palm Bay, Florida 32905-2955
Richard E. Torpy, Esquire Scott Widerman, Esquire Richard E. Torpy & Associates
202 North Harbor City Boulevard Suite 300
Melbourne, Florida 32935-6762
Charles E. Heim, Esquire 2040 Highway A1A, Suite 201
Indian Harbour Beach, Florida 32937-3566
For Respondent DCA: Shaw P. Stiller, Esquire
Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
STATEMENT OF THE ISSUES
The issues in this case are whether two City of Palm Bay Comprehensive Plan Amendments, one of which was "small scale development amendment" under Section 163.3187(1)(c), Florida Statutes, are "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.
PRELIMINARY STATEMENT
On March 2, 2000, the City of Palm Bay (City) adopted Ordinance No. 2000-09, an amendment to the Future Land Use Map of the City's Comprehensive Plan to re-designate the future land use of a 1.16- acre parcel annexed by adoption of Ordinance 2000-08 on the same day from Brevard County Residential to City Commercial. Because this amendment was processed and adopted as a "small-scale amendment" under Section 163.3187(1)(c), Florida Statutes, the Department of Community Affairs (DCA) did not review the amendment or publish a Notice of Intent. See Section 163.3187(3)(a), Florida Statutes.
On March 28, 2000, Brevard County (County) filed with the Division of Administrative Hearings (DOAH) a Petition for an administrative hearing regarding this small-scale amendment, which was given DOAH Case No. 00-1956GM. Shortly after this Petition was filed, the City and County filed a Joint Motion to Abate on the
ground that the City was considering a similar plan amendment relating to an 18-acre parcel in the same vicinity which was expected to result in a related administrative proceeding in about a year. Administrative Law Judge (ALJ) Stevenson granted the Joint Motion to Abate on May 12, 2000, and placed the case in abeyance until March 30, 2001.
On January 4, 2001, the City adopted Ordinance No. 2000-79, which repealed and re-adopted Ordinance No. 2000-09. On January 29, 2001, Brevard County filed an Amended Petition regarding the re- adopted small-scale amendment.
On March 27, 2001, the City and County filed a Joint Motion to Continue Order of Abeyance, which was granted, and the case was continued in abeyance until November 30, 2001. On November 29, 2001, the County filed another Joint [sic] Motion to Continue Order of Abeyance (while stating that the City declined to join), which was granted, and case was continued in abeyance until April 3, 2002.
On October 2, 2001, the City adopted Ordinance No. 2001-65, another amendment to the City's Future Land Use Map to re-designate the future land use of a 19.57-acre parcel to be annexed from County Residential to City Commercial. Because this amendment did not meet the requirements for a "small-scale amendment," it was reviewed by DCA, which caused to be published a Notice of Intent to find this amendment "in compliance."
On December 20, 2001, the City adopted Ordinance 2001-105, which repealed and re-adopted Ordinance No. 2001-65. On January 21, 2002, DCA published a Notice of Intent to find this re-adopted so- called "large-scale amendment" "in compliance."
On February 2, 2002, the County timely filed a Petition for an administrative hearing regarding the large-scale amendment under Section 163.3184(9)(a), Florida Statutes. DCA referred this large- scale Petition to DOAH, where it was assigned to the undersigned ALJ and given DOAH Case 02-0391GM.
DCA filed a Motion to Dismiss the large-scale Petition on the ground that the County failed to allege standing, and the City joined in the Motion to Dismiss. While the Motion to Dismiss was pending, DOAH Case No. 02-0391GM was scheduled for final hearing in the City of Palm Bay on June 25 and 26, 2002. The Motion to Dismiss became moot when the County moved without objection for leave to file an Amended Petition in DOAH Case No. 02-0391GM to allege standing.
On March 5, 2002, the County filed a Motion to Consolidate the two DOAH cases. DCA did not object, but the City objected and filed a Response in opposition. Noting the inconsistency between the City's opposition to consolidation and its positions taken in earlier proceedings in Case No. 00-1956GM (having joined in the Joint Motion to Abate and first Joint Motion to Continue Order of Abeyance for the very purpose of awaiting the ripening of what
became Case No. 02-0391GM so that the two cases could be consolidated, and not having articulated its new position as the reason for declining to join in the second Joint [sic] Motion to Continue Order of Abeyance), and the lack of merit in the City's expressed concern that consolidation could cause confusion and delay in the resolution of Case 00-1956GM (still languishing in abeyance), the two above-captioned cases were consolidated over the City's objection for further proceedings and for final hearing on June 25- 26, 2002, as already scheduled in Case No. 02-0391GM. DCA was given leave to intervene in Case No. 00-1956GM, and the County was given leave to file a Second Amended Petition combining the allegations in the two consolidated cases.
On June 4, 2002, DCA filed an Unopposed Motion to Continue Final Hearing, which was granted; and final hearing was continued to October 8-9, 2002. On August 8, 2002, the County filed a Motion to Continue Final Hearing, which was opposed by the City and was denied, as was the City's Motion to Compel or Alternatively Motion to Strike Respondent's [sic] Use of Traffic-Expert Testimony, which the County opposed. DCA's unopposed Motion in Limine was granted, and traffic count data taken in 2002, after adoption of the two plan amendments at issue, were excluded.
On September 26, 2002, the County filed a Motion to Continue Final Hearing or to Exclude Brian West's Testimony at Trial due to the County's difficulties in taking his deposition. By the time the
City responded in opposition, the deposition had been taken, and the Motion was moot.
On October 4, 2002, the parties filed a Prehearing Stipulation, which narrowed the issues and stipulated, among other things, to facts sufficient to establish the County's standing under Section 163.3184(1)(a), Florida Statutes, as an "adjoining local government that can demonstrate that the plan or plan amendment will produce substantial impacts on the increased need for publicly funded infrastructure."
At final hearing, the County announced that it was dropping paragraphs 22 and 24 of the Second Amended Petition, and Joint Exhibits A-J were received in evidence. The County then called its Comprehensive Plan Manager, Todd Corwin, as its sole witness and had Exhibits L, N, O, P, and Q admitted in evidence. The City called its Planning Manager, David Watkins, and recalled Corwin for limited adverse party testimony. The City also had the following Exhibits admitted in evidence1: J-1, J-2, J-3, J-5 through J-9, J-13, J-14, J-20, L-2, L-6, L-7, L-11, L-12, L-14 through L-21, L-23, L-24, L-
25, S-1, S-3, S-4, S-5, S-6, S-9, S-10, S-11, and S-14. DCA called
its Planner, Joseph Addae-Mensa, but introduced no additional exhibits.
After presentation of evidence, the City requested the Transcript of the final hearing, and the parties were given ten days from the filing of the Transcript in which to file proposed
recommended orders (PROs). The Transcript was filed on October 28, 2002, making PROs due November 7, 2002. DCA and the County each filed a PRO directed to both plan amendments; the City filed a PRO as to the large-scale amendment and adopted DCA's PRO as to the small-scale amendment. On November 20, 2002, the County filed Exceptions to the PROs filed by DCA and the City. On November 25, 2002, DCA filed a Motion to Strike the County's Exceptions on the ground that there is no statutory or rule authority for filing exceptions to PROs. The City filed Notice of Joinder in DCA's Motion to Strike on December 4, 2002. The County filed no response in opposition in the time allotted by Florida Administrative Code Rule 28-106.204(1). The Motion to Strike is granted, and the County's Exceptions are stricken.
FINDINGS OF FACT
Brevard County (County) is a political subdivision of the State of Florida. See Section 7.05, Florida Statutes. The County is bordered on the north by Volusia County, on the west by Volusia, Orange, and Osceola Counties, on the south by Indian River County, and on the east by the Atlantic Ocean.
The City of Palm Bay (City) is a municipality in southeast Brevard County, just to the southwest of the City of Melbourne. In its extreme northeast, the City borders on the Intracoastal Waterway. From there, it fans out to the southeast, surrounded on all sides by the County.
The Department of Community Affairs (DCA) is the state land planning agency and has the authority to administer and enforce the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes.
The Small-Scale Amendment: Review and Adoption
On June 3, 1999, William Wilson submitted an application to amend the City's Future Land Use Map (FLUM) for a 1.1558-acre (small-scale) parcel of land in the unincorporated County at the southeast corner of the intersection of Valkaria Road (an east/west thoroughfare) and Babcock Street (a north/south thoroughfare), in anticipation of annexation by the City. In this vicinity, the unincorporated County lay to the east, across Babcock Street, between the City and the Intracoastal Waterway. The unincorporated
County land to the north, east, and south of the parcel had a future land use designation of "Residential" on the County's FLUM; the City land to the west had a residential future land use designation on the City's FLUM. The requested amendment was from the existing County "Residential" designation to City "Commercial." A zoning change also was requested from County AU (Agricultural Residential) to City CC (Community Commercial).
The parcel subject to the small-scale amendment request has a single-family home and free-standing residential garage located onsite. Projected impacts from commercial development on the parcel met all relevant City level of service (LOS) standards. (The County
has not put environmental suitability at issue with respect to the parcel.)
The City planning staff recommended approval of the requested plan amendment; staff recommended approval of the zoning change but to City NC (Neighborhood Commerical). These requests were heard by the City Planning and Zoning Board, sitting as the local planning agency (LPA), on October 20, 1999. The LPA voted to recommend to the City Council that the plan amendment be approved and that the zoning change to City NC also be approved.
By Ordinance 2000-08, adopted on March 2, 2000, the City annexed the small-scale parcel, effective immediately upon enactment of the Ordinance. By Ordinance No. 2000-09, also adopted on
March 2, 2000, the City Council granted the request to change the future land use designation of the parcel on the City's FLUM to City "Commercial." By Ordinance No. 2000-10, zoning on the parcel was changed to City NC.
The Large-Scale Amendment: Review and Adoption
On July 6, 1999, Brian West submitted an application to amend the City's FLUM for a 19.57-acre parcel on the northeast corner of the intersection of Valkaria Road and Babcock Street (immediately north of the small-scale parcel, across Valkaria), in anticipation of annexation by the City. The requested amendment was from the existing Brevard County "Residential" designation to City "Commercial" future land use. A zoning change from County AU
(Agricultural Residential) to City CC (Community Commercial) also was requested.
This 19.57-acre (large-scale) parcel is vacant. The County has not put environmental suitability at issue with respect to the large-scale parcel.
The City's planning staff recommended approval of the requested plan amendment, which was heard by the City's Planning and Zoning Board, sitting as the LPA, on October 20, 1999, along with the small-scale request. The LPA voted to recommend to the City Council that the large-scale amendment be denied.
On February 15, 2000, the City Council conducted a special meeting to consider the requested large-scale annexation, plan amendment, and zoning change and voted to approve the requests. However, at the time, the City also was in the process of developing plan amendments in response to its Evaluation and Appraisal Report (EAR); as a result, transmittal to DCA was deferred until transmittal of the EAR-based amendments.
On January 18, 2001, the City Council met in regular session and voted to transmit the requested large-scale amendment to DCA, along with the other EAR-based amendments.
On May 17, 2001, DCA issued its Objections, Recommendations, and Comments (ORC) Report regarding the transmitted comprehensive plan amendments. DCA raised several objections and made comments regarding the amendment. The ORC Report was received
by the City on May 21, 2001. (The greater weight of the evidence was contrary to testimony of the City's Planning Manager that the ORC Report received on that date was incomplete.)
On October 2, 2001, the City Council adopted Ordinance No.
2001-65, which adopted the requested amendment for the large-scale parcel from County Residential to City Commercial future land use. The EAR-based amendments also were adopted on the same date by Ordinance 2001-66.
By Ordinance 2001-86 adopted on November 1, 2001, the City annexed the large-scale parcel, effective immediately.
Re-Adoption of Plan Amendments at Issue
At some unspecified time after October 2, 2001, the City became aware of concerns voiced by DCA regarding the sequence and timing of the large-scale annexation and FLUM amendment. To address these concerns, the City adopted Ordinance No. 2001-105 on
December 20, 2001. This Ordinance repealed and re-adopted Ordinance No. 2000-65.
At some unspecified time after March 2, 2000, the City became aware of concerns raised by DCA that adoption of the small- scale FLUM amendment took place before the City adopted plan amendments to comply with new school siting requirements, contrary to a statutory prohibition. In order to address these concerns, the City adopted Ordinance No. 2000-79 on January 4, 2001, to repeal and
re-adopt Ordinance No. 2000-09, re-designating the small-scale parcel for "Commercial" future land use.
DCA Notice of Intent and City's EAR-Based Amendments
On January 21, 2002, DCA published a Notice of Intent to find the readopted large-scale amendment "in compliance." DCA subsequently caused to be published a Notice of Intent to find this readopted amendment "in compliance."
The EAR-based amendments adopted on October 2, 2001, included certain text amendments, but these amendments had no direct bearing on the plan amendments at issue in this case. All plan text provisions relating to the plan amendments at issue in this case remained "substantially the same" after the EAR-based amendments.
Need for Additional Commercial Future Land Use and Internal Consistency
The County contends that analysis of the data in existence at the time of adoption of the plan amendments at issue in this case does not support a need to change the future land use on these parcels from County Agricultural Residential to City Commercial.
But the following Findings are based on these data and analysis.
City data and analysis dated January 2001 indicated in pertinent part:
In 2011 the City will need 719 acres of commercial land and at buildout, will need approximately 1,725 acres.
The Future Land Use Map currently allocated approximately 1,612 acres for commercial and office development. This is slightly
below the needs identified over the long term time periods. The expansion of existing Activity Centers and the development of new Activity Centers should easily accommodate this minor increase.
Between now and the next required Plan update in 2007, the City should analyze the available commercial land to determine if existing designated lands are appropriately located or whether new areas should be established and existing designations converted to other land use types. Of particular interest in that regard would be the large amount of neighborhood commercial presently designated but which is primarily vacant.
It was not clear from the evidence how the acreage figures in the data and analysis were calculated. It does not appear from the evidence that the figure for commercial acreage "needed" included any "cushion" or "margin of error."
If the City has more land allocated for commercial future land use than is expected to be "needed" within the planning horizon of its Comprehensive Plan (the year 2011), it may be the result of pre-platting of the City by General Development Corporation. If so, the City also has an even greater excess of acreage allocated for residential future land use since approximately 90 percent of the City was pre-platted for small, quarter-acre residential lots. As a result of pre-platting, it now appears that, at build-out (expected in about 20-30 years), the City will have an excess of allocated for residential land use and a shortage of acreage allocated for commercial land use (among other non-residential uses.) As a result, there is a current need to begin to reduce the amount of
acreage allocated for residential future land use and add commercial acreage (as well as other non-residential uses.)
A disproportion of City land allocated to commercial future land use is in the northern part of the City, between Malabar Road and Palm Bay Road, a considerable distance from the intersection of Babcock Street and Valkaria Road. Before the plan amendments at issue in this case, there was hardly any commercial future land use in the City in the vicinity of the Babcock/Valkaria intersection. Almost all of what little commercial future land use could be found in the vicinity was in small parcels--the single exception being a 15-acre parcel at the intersection of Eldron and Grant approximately two miles to the south.
There also was very little land allocated to commercial future land uses in the unincorporated County anywhere near the Babcock/Valkaria intersection. Almost all of the unincorporated County in the vicinity had Rural Residential future land use. There was some County Neighborhood Commercial across Babcock from the 15- acre parcel of City Commercial two miles to the south of the intersection. There also was some County Neighborhood Commercial and a small amount of County Community Commercial future land use east of Babcock about a mile to the north of the intersection. A
40-acre parcel approximately 650 feet to the east of the intersection was changed from County rural residential to general commercial zoning in 1988. But at around the time the City began to
process the plan amendments at issue in this case, the County purchased the land and re-designated it for Public future land use and GML (Government-Managed Land) zoning.
Most of the City's population growth in the last 20 years has been in the southern and western part of the City, to the west of the Babcock/Valkaria intersection. Between 1986 and 1999, residential development within 2-3 miles of the amendment sites increased approximately 160 percent. As a result, whereas 17 years ago most of the City's population was east of Interstate 95, now approximately half the population resides west of Interstate 95 (although 60 percent still resides north of Malabar Road.) Due to the sparse commercial use in the vicinity, either in the City or the unincorporated County, there is a need for more land designated for commercial future land uses in the southern part of the City to serve the rapidly growing population in that area.
The applicant for the large-scale amendment submitted a letter projecting a need for 1.5 million square feet of retail space in the City based on a comparison of "current space" with average retail space per capita in Florida. The County criticized the professional acceptability of this submission as data and analysis to demonstrate need for additional commercial acreage in the City. Standing alone, the submission may be fairly subject to the County's criticism; but considered along with the other data and analysis,
the submission adds to the demonstration of need for the plan amendments.
It was estimated that commercial uses at the intersection of Babcock and Valkaria will generate an additional 12,000 vehicle trips on Babcock in the vicinity of its intersection with Valkaria. This estimate further demonstrates a need for additional commercial future land use in the vicinity.
At least some of the vehicle trips expected to be generated in the vicinity of the Babcock/Valkaria intersection as a result of adding commercial future land use there would correspond to a reduction in vehicular traffic from the southern part of the City to and from commercial areas in the northern part of the City. For that reason, by helping balance the amount of commercial land use available in the northern and southern parts of the City, adding commercial future land use in the southern part of the City could be reasonably expected to reduce traffic overall.
Commercial land uses generally generate higher tax revenue and demand fewer government services than residential land uses. Meanwhile, the City provides most of the government services in the Babcock/Valkaria vicinity and has a backlog of infrastructure projects. For that reason, an economic benefit reasonably is expected to accrue to the City from adding commercial in the southern part of the City.2
Future Land Use Element FLU Objective 3.1 in the City's Comprehensive Plan is to: "Provide additional commercial areas by type, size and distribution, based upon area need. . . ." FLU Policy 3.1A states: "The acreage of commercial land permitted by the Future Land Use Map shall not exceed projected needs." The County did not prove that the proposed FLUM amendments are inconsistent with either this Objective or this Policy. The plan amendments at issue are based upon area need and do not exceed projected needs, as reflected in the data and analysis.
Compatibility and Internal Consistency
The County contended that City Commercial future land use for the amendment parcels is incompatible with surrounding land uses and internally inconsistent with provisions the City's FLU Objective 2.3, to: "Prevent incompatible land uses from locating in residential areas in order to promote neighborhood stability and prevent deterioration."
In the unincorporated County to the east of Babcock Street, there are primarily large-lot, rural residential land uses with some agricultural uses such as horses and tree-farming. But, as indicated, there are platted residential lots in the City to the west of Babcock Street that are urban (or suburban) in character.
During the course of these proceedings, the County abandoned its contentions as to incompatibility of the small-scale amendment except for the existence of a residential structure on the
property. In arguing that the existence of the residential structure on the property makes commercial future land use incompatible, the County relied on the City's zoning LDRs. But zoning and consistency of zoning with the requirements of zoning LDRs are not at issue in this comprehensive plan amendment case. See Conclusion 52, infra. Even if zoning and consistency with zoning LDRs were at issue, the applicant's residential structure would not defeat the applicant's proposed future land use change; rather, granting the application would mean that use of the
residential structure would have to be discontinued after the future land use change.
As to the large-scale amendment, the County also relies in part on alleged inconsistency with an LDR--in this instance, the City's LDR for Community Commercial zoning that these areas are "to be primarily located in or near the intersection of arterial roadways." But, again, zoning and consistency of zoning with the requirements of zoning LDRs are not issues for determination in this comprehensive plan amendment case. Id.
Even if zoning and consistency of zoning with the requirements of zoning LDRs were at issue, consistency and compatibility still would be fairly debatable. The evidence was that Valkaria was designated as a collector road at the time of adoption of the proposed large-scale amendment and that Babcock was designated as an arterial roadway to the north of Valkaria and as a
collector to the south of Valkaria. The City characterized Babcock as a minor arterial. By its terms, the LDR in question does not prohibit Community Commercial zoning except in or near the intersection of arterial roadways; it only provides that these areas are to be located primarily in or near these intersections.
Even if City Community Commercial zoning were clearly inconsistent with the City's LDR for Community Commercial zoning, City Neighborhood Commercial zoning has no similar provision for location vis-a-vis arterial roads. Since the City only has one commercial future land use category, City Commercial would be the appropriate City future land use designation for City Neighborhood Commercial zoning.
The County's contentions as to the large-scale amendment also are seriously undermined by the existence of both County Community Commercial and County Neighborhood Commercial future land use east of Babcock. In addition, a County-sponsored Small Area Study (SAS) of approximately 11,500 acres of land east of the intersection along Valkaria Road recommended County Neighborhood Commercial future land use for the northeast and southeast corners of the intersection of Babcock and Valkaria (as well as County Restricted Neighborhood Commercial zoning). As indicated, the City's Comprehensive Plan does not distinguish between the two categories of commercial future land use and, if any commercial future land use is compatible with surrounding land uses, City
Commercial future land use is appropriate. Contrary to the County's argument, it makes no difference to the appropriateness of City Commercial future land use that County Neighborhood Commercial future land is more limited than City Commercial future land use (or that County Restricted Neighborhood Commercial zoning is more limited than City Community Commercial zoning).
The County argued that the large-scale future land use amendment was inconsistent with City FLUE Policy 2.3A, which states that LDRs must "continue to contain provisions to ensure that land uses surrounded by and/or abutting residential areas are not in conflict with the scale, intensity, density and character of the residential area." There is nothing about the proposed FLUM changes that is inconsistent with this Policy. Consistency of LDRs with this Policy is not at issue in this proceeding. See Conclusion 53, infra.
The County also questioned the adequacy of buffer between commercial uses on the large-scale parcel and nearby residential uses. Precise questions as to the adequacy of buffer are decided under the LDRs, during site development review and permitting. However, it is noted that there is a 50-foot wide "paper street" (i.e., a platted right-of-way that never was developed as a street) to the west of the large-scale parcel. In addition, zoning as City Community Commercial was conditioned upon additional buffer to the east (25 feet wide) and to the north (50 feet wide). Consideration
also is being given to a Habitat Conservation Plan of an undetermined size in the northern portion of the site for use as a "fly-over" for scrub jays. In addition, actual use of the residential land in the unincorporated County to the north of the large-scale parcel includes a car repair business with garage and approximately 15 cars in various states of disrepair.3
For all of the foregoing reasons, the evidence did not establish either internal inconsistency or incompatibility of commercial uses on the large-scale parcel with existing residential uses.
Infrastructure and Internal Consistency
At the time of adoption of the plan amendments at issue, central water and sewer services had not yet been extended to the two parcels. However, it was clear from the evidence that adequate central water and sewer capacity existed to accommodate commercial development on these parcels and that central water and sewer was being extended to the parcels. The Capital Improvements Element of the City's Comprehensive Plan listed $1.7 million being budgeted for water and sewer improvements in fiscal year 2001/2002, and in excess of $15.3 million budgeted in fiscal year 2002/2003.
FLU Objective 3.1 in the City's Comprehensive Plan is to: "Provide additional commercial areas by type, size and distribution, based upon . . . the availability of supporting infrastructure."
The County did not prove that the proposed plan amendments are inconsistent with this Objective.
Urban Sprawl and Internal Consistency
The County maintains that the proposed plan amendments exacerbate urban sprawl. But the County provided no detailed analysis of the indicators of urban sprawl in Rule 9J-5, Florida Administrative Code, to support its contention.
In arguing urban sprawl, the County relied on its contentions that there was no demonstrated need to convert County rural residential land use to City commercial land use. This argument has been rejected. See Findings 20-31, supra.
The County's urban sprawl argument also focused on uses in the unincorporated County east of Babcock and characterizes the plan amendments as placing commercial land use in a rural area. This focus and characterization ignores the existence of urban residential uses in the City west of Babcock. Seen in proper perspective, the proposed plan amendments allow commercial land use that would tend to mitigate and discourage the kind of urban sprawl promoted by the pre-platting of the City. Instead of having to travel to access commercial uses in distant parts of the City, City residents in the vicinity would have a much closer option under the proposed amendments (as would County residents in the vicinity).
FLU Objective 1.4 in the City's Comprehensive Plan is to: "Establish a Growth Management Area to control urban sprawl." FLU
Policy 1.4B states: "City funds shall not be utilized to expand public facilities and services for future growth outside of the established Growth Management Area." The small-scale parcel was outside the established Growth Management Area (GMA) at the time of adoption of the small-scale amendment. But it does not follow that the small-scale amendment constitutes urban sprawl. Nor does it follow that the small-scale amendment is inconsistent with either the Objective or the Policy. The small-scale amendment can be made a GMA before any City funds are used to expand public facilities and services for future commercial use of the small-scale parcel.
CONCLUSIONS OF LAW
Jurisdiction
Jurisdiction over the County's challenge to the City's "small scale development amendment" is based on Section 163.3187(3)(a), Florida Statutes.
Jurisdiction over the County's challenge to the City's other amendment, the so-called "large-scale" amendment, is based on Section 163.3184(9), Florida Statutes.
The County concedes jurisdiction under these statutes.
However, the County questions the jurisdiction of the City to adopt the comprehensive plan amendments at issue. See Conclusions 69-70, infra.
Compliance Criteria
Section 163.3184(1)(b), Florida Statutes, sets out the compliance criteria for this case:
"In compliance" means consistent with the requirements of ss. 163.3177, 163.31776, when a local government adopts an educational facilities element, 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 this part and with the principles for guiding development in designated areas of critical state concern.
Out of these compliance criteria, only Section 163.3177, Florida Statutes, and Florida Administrative Code Rule Chapter 9J-5, are pertinent to this case.
Consistency with local government LDRs adopted under Section 163.3202, Florida Statutes, to implement a local comprehensive plan is not a compliance criterion.
Consistency of LDRs with the local comprehensive plan is the issue in a proceeding under Section 163.3213, Florida Statutes. It is not a compliance criterion in this case.
Standing
The County is an "affected person" with standing to bring its challenges in these cases under Section 163.3184(1)(a), Florida Statutes, as an "adjoining local government that can demonstrate that the plan or plan amendment will produce substantial impacts on the increased need for publicly funded infrastructure."
Burden of Proof and Standard of Proof
Absent a statutory directive to the contrary, the burden of proof generally is on the party (or parties) asserting the affirmative of the issue in an administrative proceeding. Young v. Dept. of Community Affairs, 625 So. 2d 831 (Fla. 1993); Balino v. Dept. of Health, etc., 348 So. 2d 349 (Fla. 1st DCA 1977). In this case, DCA and the City are asserting the affirmative of the issues: that the City's plan amendments are in compliance, i.e., that they are "consistent" with the requirements listed in Section 163.3184(1)(a), Florida Statutes.
Section 163.3187(3)(a), Florida Statutes, provides that the County has the burden of proof in the small-scale development proceeding and also assigns the standard of proof: "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 "
Section 163.3184(9)(a), Florida Statutes, provides that the large-scale amendment "shall be determined to be in compliance if the local government's determination of compliance is fairly debatable" (since DCA issued notice of intent to find the amendment "in compliance"). This language also has been interpreted consistently as shifting the burden of proof to the party seeking to establish noncompliance.
"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." Martin v. Yusem, 690 So. 2d 1288, 1295 (Fla. 1997).
Need for Additional Commercial
The County contends essentially that the City's plan amendments are inconsistent with Section 163.3177(6)(a), Florida Statutes, and Rules 9J-5.005 and 9J-5.006, Florida Administrative Code, because the data and analysis regarding need for commercial land was inadequate.4 Specifically, the County's argument is that allocation of additional City Commercial future land use is impermissible in view of data and analysis indicating that City Commercial future land use already exceeds the gross acreage calculated as needed by 2011, the applicable planning horizon.
The pertinent part of Section 163.3177(6)(a), Florida Statutes, states:
The future land use plan shall be based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth; the projected population of the area; the character of undeveloped land; the availability of public services; the need for redevelopment, including the renewal of blighted areas and the elimination of nonconforming uses which are inconsistent with the character of the community; and, in rural communities, the need for job creation, capital investment, and economic development that will strengthen and diversify the community's economy.
The "amount of land required to accommodate anticipated growth" is only one of several possible bases for the future land use plan. It is possible that other bases for the future land use plan--such as projected population of the area and availability of public
services--could justify exceeding the "amount of land required to accommodate anticipated growth" in this case. In addition, a future land use plan does not have to be restricted to a gross acreage total in order to be "based upon the amount of land required to accommodate anticipated growth."
Section 163.3177(8), Florida Statutes, requires all elements of comprehensive plans to be "based upon data appropriate to the element involved." Rule 9J-5.006(2)(c), Florida Administrative Code, provides:
(2) Land Use Analysis Requirements. The element shall be based upon the following analyses which support the comprehensive plan pursuant to Subsection 9J-5.005(2).
* * *
(c) An analysis of the amount of land needed to accommodate the projected population, including:
The categories of land use and their densities or intensities of use,
The estimated gross acreage needed by category, and
A description of the methodology used;
While this Rule refers to an analysis of "estimated gross acreage needed," like Section 163.3177(6)(a), Florida Statutes, it only requires the future land use element to be "based upon" such an analysis. Like the statute it implements, the Rule does not
necessarily limit the local government to the gross acreage calculated in the analysis.
Rule 9J-5.005(2), Florida Administrative Code, provides in pertinent part:
All goals, objectives, policies, standards, findings and conclusions within the comprehensive plan and its support documents, and within plan amendments and their support documents, shall be based upon relevant and appropriate data and the analyses applicable to each element. To be based on data means to 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.
In this case, the plan amendments at issue were based on all the data and analysis--which included not only the calculation of gross acreage "needed" but also other data and analysis. The County did not prove that the City failed to react to the totality of the data and analysis in an appropriate way and to the extent necessary. To the contrary, the facts found in this case justified adding City Commercial future land use at the intersection of Babcock Street and Valkaria Road to the gross acreage totals calculated to be "needed" during the current planning horizon.
As a result, it is concluded that the County did not prove that the plan amendments in this case are inconsistent with Section 163.3177(6)(a), Florida Statutes, or with Florida Administrative Code Rule Chapter 9J-5.
Compatibility, Infrastructure, Urban Sprawl and Internal Consistency
The County contended that compatibility and infrastructure gave rise to inconsistency with compliance criteria. But the only compliance criterion related to those subjects cited by the County related to internal consistency.
Section 163.3177(2), Florida Statutes, requires coordination and internal consistency of the several elements of the local comprehensive plan. As found, the County did not prove any internal inconsistencies with City plan provisions relating to compatibility and infrastructure.
As found, the evidence also did not prove internal inconsistency with City plan provisions relating to urban sprawl.
As found, the evidence also did not prove inconsistency with Rule 9J-5.006, Florida Administrative Code, on urban sprawl. The plan amendments at issue do not exacerbate existing indicators of urban sprawl resulting from the pre-platting of the City by General Development Corporation. To the contrary, they tend to help mitigate and discourage urban sprawl.
Timeliness of LPA Review and Adoption
As found, the large-scale amendment was not adopted within
120 days from receipt of DCA's ORC Report, as required by Section 163.3184(7), Florida Statutes. But that procedural requirement is not a compliance criterion under Section 163.3184(1)(b), Florida Statutes. In addition, a plan or plan amendment will not be set
aside for such a procedural breach absent a showing of prejudice. See Caliente Partnership v. Johnston, 604 So. 2d 886 (Fla. 2d DCA 1991)(45-day time limit period for publishing a notice of intent prescribed by subsection 163.3184(15)(b), Florida Statutes, not jurisdictional and not ground for default reversal notice of intent); Dept. of Community Affairs, et al., v. Hamilton County, DOAH Case No. 91-6038GM, 1995 WL 1052618, at *15 (Admin. Comm'n
1995)(County's untimely adoption not jurisdictional and not ground to set aside plan or plan amendment absent showing of prejudice). See also Edmond J. Gong and Dana L. Gong v. Department of Community Affairs and City of Hialeah, Case No. 94-3506GM, 1994 WL 1027737 (Fla. Div. Admin. Hrgs. November 28, 1994)(actions of City and DCA not a nullity for failure to give statutory notice, and no showing of prejudice). The County failed to show any prejudice in this case from the City's untimely adoption of the large-scale amendment.
The County also asserts that LPA review of the plan amendments was lacking. Specifically, the County criticizes LPA review in this case both for taking place prior to annexation of the amendment parcels and for taking place prior to adoption of EAR- based amendments in effect at the time the plan amendments at issue were adopted. But it does not appear that procedural requirements of LPA review under Section 163.3174(4)(a), Florida Statutes, is a compliance criterion under Section 163.3184(1)(b), Florida Statutes. In addition, as already indicated, procedural defects are not
jurisdictional and are not grounds to set aside City and DCA action without a showing of prejudice. Cf. also B&H Travel Corp. v. Dept. of Community Affairs, 602 So. 2d 1362 (Fla. 1st DCA 1992)(LPA's action without quorum was not jurisdictional and not a ground for reversal of DCA finding of compliance). Absent any showing of prejudice, the plan amendments at issue in this case should not be set aside as a result of alleged infirmities in the LPA's review.
As for the assertion that LPA review prior to annexation was without jurisdiction or otherwise deficient, the County cited no authority for the proposition that LPA review cannot precede annexation. To the contrary, planning for land to be annexed was approved at least implicitly in Martin County v. Dept. of Community Affairs, 771 So. 2d 1268, 1270 (Fla. 4th DCA 2000)("Future Annexation Area Map" was adopted part of the comprehensive plan of the City of Stuart but was not supported by adequate data and analysis). Similarly, in 1000 Friends of Florida, Inc. v. Dept. of Community Affairs, 824 So. 2d 989 (Fla. 4th DCA 2002), the court rejected the argument of 1000 Friends that the comprehensive plan of the City of Stuart had to be amended in order for the City to begin planning jointly with Martin County for future annexation--implying that it was permissible for the City to amend its comprehensive plan for that purpose in advance of annexation if the City desired.
As for LPA review prior to adoption of the EAR-based
amendments, Section 163.3174(4)(a), Florida Statutes, requires "at
least one public hearing, with public notice, on the proposed plan or plan amendment." It is clear from the evidence that this was done. The County has cited no authority for the proposition that LPA review must be repeated because the plan amendments were repealed and re-adopted after adoption of the EAR-based amendments.
Disposition by ALJ and DCA
Under Section 163.3187(3)(b), Florida Statutes, if the ALJ recommends that a small-scale amendment be found "in compliance," the recommended order (RO) is submitted to the DCA. (The RO is submitted to the Administration Commission only if the recommendation is to find the small-scale amendment not "in compliance.") If DCA agrees with the RO, DCA enters the final order finding the small-scale amendment "in compliance."
The ALJ also submits the recommended order to DCA under Section 163.3184(9)(b), Florida Statutes. If DCA determines that the plan or plan amendment is "in compliance," DCA issues the final order. (Only if DCA determines that the plan or plan amendment is not in compliance does DCA shall submit the RO to the Administration Commission for final agency action.)
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Department of Community Affairs enter a final order finding both the small-scale amendment and the large-
scale amendment of the City of Palm Bay (adopted by Ordinance 2000-
79 and by Ordinance 2001-105, respectively) "in compliance." DONE AND ENTERED this 16th day of December, 2002, in
Tallahassee, Leon County, Florida.
___________________________________
J. LAWRENCE JOHNSTON 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 16th day of December, 2002.
ENDNOTES
1/ Exhibit numbers used in the Prehearing Stipulation were also used at final hearing. For the City's Exhibits, letters and numbers were used; the letter J designated relevance to both amendments, the letter L designated relevance to the so- called "large-scale amendment," and the letter S designated relevance to the small-scale development amendment.
2/ Economic benefit also would accrue to the County. While the City provides most of the government services in the Babcock/Valkaria vicinity, the County also provides some of them.
3/ This use appears to be illegal under County LDRs, but the County has not taken enforcement action to halt the illegal commercial use.
4/ The County also asserted inconsistency with Rule 9J- 11.007, but that Rule is not a compliance criterion.
COPIES FURNISHED:
Eden Bentley, Esquire
Brevard County Attorney's Office 2725 Judge Fran Jamieson Way Viera, Florida 32940-6605
Gary Sack, Esquire
Nicholas F. Tsamoutales, Esquire
1900 Palm Bay Road, Northeast, Suite G Palm Bay, Florida 32905-2955
Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
Richard E. Torpy, Esquire Scott Widerman, Esquire Richard E. Torpy & Associates
202 North Harbor City Boulevard, Suite 300 Melbourne, Florida 32935-6762
Charles E. Heim, Esquire 2040 Highway A1A, Suite 201
Indian Harbour Beach, Florida 32937-3566
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 325
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 |
|---|---|---|
| Feb. 25, 2003 | Agency Final Order | |
| Dec. 16, 2002 | Recommended Order | Data and analysis, taken as a whole, supported City plan amendments to change land use on annexed land from County residential to City commercial, although there was some data and analysis that no more commercial acreage was "needed." |
