STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES HARVEL SMITH, )

)

Petitioner, )

)

vs. ) Case No. 01-1310GM

)

CITY OF LAUREL HILL, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its assigned Administrative Law Judge, Donald R. Alexander, on August 7, 2001, in Crestview, Florida.

APPEARANCES

For Petitioner: James Harvel Smith, pro se

Post Office Box 206

Laurel Hill, Florida 32567

For Respondent: T. Martin Knopes, Esquire

Post Office Box 727 Crestview, Florida 32536

STATEMENT OF THE ISSUE

The issue is whether the small scale development amendment adopted by Respondent by Ordinance No. 231 on March 1, 2001, is in compliance.

PRELIMINARY STATEMENT

This matter began on March 1, 2001, when Respondent, City of Laurel Hill, adopted a small scale development amendment which amended the Future Land Use Map by changing the land use on certain property from Residential to Commercial. On

March 30, 2001, Petitioner, James Harvel Smith, a nearby resident, filed a Petition requesting a hearing under Section 163.3187(3), Florida Statutes (2000), to contest the amendment. As grounds, he contended that the amendment was inconsistent with certain provisions in the Comprehensive Plan and Land Development Code. Although the Petition was inadvertently filed with the Department of Community Affairs, it was referred by that agency to the Division of Administrative Hearings on April 5, 2001. On April 12, 2001, Petitioner filed an amendment to his Petition.

By Notice of Hearing dated May 9, 2001, a final hearing was scheduled on June 18, 2001, in Crestview, Florida. By agreement of the parties, the matter was continued to

August 8, 2001, at the same location. On June 25, 2001, the case was transferred from Administrative Law Judge Charles A. Stampelos to the undersigned.

At the final hearing, Petitioner testified on his own behalf and presented the testimony of Christine Jowers, a

former member of the City Council. Also, he offered Petitioner's Exhibits A-J. Exhibits A-C, F, and H were received in evidence at the hearing. A ruling on the admissibility of Exhibits D, E, G, I, and J is found in the Conclusions of Law. Respondent offered Respondent's Exhibits A-D, which were received in evidence. Finally, at the conclusion of the hearing, the owner of the property, Glenda Lanasse, who was not a party or witness in the case, made an unsworn statement.

There is no transcript of the hearing. Proposed findings of fact and conclusions of law were due no later than

August 22, 2001. Petitioner submitted a letter and attachment on August 21, 2001. Nothing was filed by Respondent.

FINDINGS OF FACT

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

1. In this land use dispute, Petitioner, James Harvel Smith, has challenged a small scale development amendment adopted by Respondent, City of Laurel Hill (City). The City is located in northern Okaloosa County, Florida, just south of the Florida-Alabama State Line. By the amendment, the City proposes to amend its Future Land Use Map (FLUM) by changing the land use classification on a small parcel of land from Residential to Commercial.

2. Despite opposition from residents who live near the affected area, the City adopted Ordinance No. 231 (Ordinance) on March 1, 2001, which changed the land use on a 2.58-acre parcel of property from Residential to Commercial. The amendment is a small scale development amendment subject to the requirements of Section 163.3187, Florida Statutes (2000). As such, it was not reviewed for consistency by the Department of Community Affairs (DCA). It is undisputed that the City followed all pertinent statutory requirements in noticing the matter and conducting a public meeting before the adoption of the Ordinance.

3. In his Petition, Petitioner contends that the amendment violates (or is inconsistent with) various provisions within the City's Comprehensive Plan (Plan) and Land Development Code (Code). More specifically, he contends that the Ordinance violates Section 7.A.2.3 of the Plan, which provides that new development shall be located in conformity with the land use categories shown on the FLUM. He also asserts that the Ordinance is inconsistent with Page 4-14 of the Code, which restricts commercial development to intersections of two-lane arterial roads. He further contends that the change in land use is inconsistent with Sections 13 and 17 of Ordinance No. 222, which contain the regulations applicable to single-family residential and commercial land

   use districts. Finally, by amendment to his Petition filed on April 14, 2001, Petitioner contends that until the City identifies in its future land use element the land use categories in which public schools are an allowable use, as required by Section 163.3177(6)(a), Florida Statutes (2000), it is statutorily barred from adopting any plan amendments, including the one in issue.

4. The City's current FLUM depicts a large residential area which makes up the greater part of the central section of the City. State Road 85 (a two-lane arterial road) and an old Louisville & Nashville railroad track run through the middle of the City, including the residential district. The subject property is an odd-shaped parcel fronting on Clary Road (owned by the Department of Transportation) in the residential district approximately "1,000 feet as the crow flies" east of State Road 85. The property is now vacant, but single-family residences are located on three sides of the property. The closest commercial property on the FLUM is several blocks away.

5. Section 7.A.2.3 of the Plan requires that "[n]ew development will be located in conformance with the land use categories shown on the Future Land Use Map, while Section

   7.A.3.3. provides that "[e]xpansion or replacement of land

   uses which are inconsistent or incompatible with the Future Land Use Map shall be prohibited."

6. Page 14-4 of the Plan, which was adopted by Ordinance No. 202 in December 1990, reflects that "[f]uture Commerical development will occur only at intersections of two-lane Arterial Roads in order to protect neighborhoods from Commercial intrusion." Although State Road 85 is an arterial road, the subject property is not located at an intersection of that roadway. Indeed, at the present time, access to the property from State Road 85 can only be obtained by entering the residential district at least two or three blocks north or south of the subject parcel, and then meandering for several blocks through a residential neighborhood. Therefore, the amendment is inconsistent with the requirements that commercial development occur only at intersections of a two- lane arterial road, and that development be in conformity with the land use categories shown on the FLUM.

7. The amendment is also inconsistent with Sections 13

   
   

   and 17 of the Code, which set forth the regulations applicable to single-family and commercial land use districts, respectively. More specifically, Section 13 provides that the "express purpose" of the Single Family Residential District is "to exclude from this district all building[s] or other structures and uses having commercial characteristics, whether

   operated for profit or otherwise." Section 17 provides that the Commercial District "is intended to be situated along selected segments of City thoroughfares and in the vicinity of intersections." The amendment is contrary to both provisions since it inserts a commercial enclave into an existing residential district.

8. Finally, Petitioner's Composite Exhibit No. G includes a letter dated March 12, 2001, from the DCA to the City regarding the City's transmittal of Ordinance No. 231 to the DCA. The letter stated in pertinent part as follows:

   The Department has received the City of Laurel Hill's small scale amendments adopted by Ordinance No. 231 on March 1, 2001. The adopted amendment package received by the Department is incomplete because the City has not been demonstrated to meet the requirements of Paragraph 163.3177(6)(a), Florida Statutes (F.S.), with regards to the public school siting criteria.

   
   

   The Department's records indicate that these [school siting] requirements have not been incorporated into your plan and therefore this amendment appears to be invalid.

   
   

9. There is no evidence of record that the City has complied with the requirements of Section 163.3177(6)(a), Florida Statutes (2000), since the date of the letter. Under the terms of the statute, the City is barred from adopting any

   plan amendments, including Ordinance No. 231, until the requirement is satisfied.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 163.3187(3), Florida Statutes (2000).

11. Section 163.3187(1)(c), Florida Statutes (2000), governs the process for a local government to propose and adopt a small scale development amendment. It is undisputed that the City correctly followed the statutory requirements in adopting Ordinance No. 231, and Petitioner has not challenged any aspect of that process. He does, however, challenge the consistency of the amendment with other provisions in the Plan. Internal consistency is, of course, required by Section 163.3187(2), Florida Statutes (2000). See also Coastal Development of North Fla., Inc. et al. v. City of Jacksonville, 788 So. 2d 204, 208 (Fla. 2001)("[t]he FLUM must be internally consistent with the other elements of the comprehensive plan"). Therefore, the contentions raised in the Petition are appropriate for a challenge to a small scale development amendment.

12. Under Section 163.3187(3)(a), Florida Statutes

    
    

    (2000), "the local government's determination that the small scale development amendment is in compliance is presumed to be

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

13. By a preponderance of the evidence, Petitioner has demonstrated that the small scale development amendment is not in compliance because it is inconsistent with Section 7.A.2.3 of the Plan, which requires that new development be located in conformity with the land use categories shown on the FLUM; it is inconsistent with Page 4-14 of the Code, which restricts commercial development to intersections of two-lane arterial roads; and it is inconsistent with Sections 13 and 17 of Ordinance No. 222, which contain restrictions applicable to residential and commercial land use districts. This evidentiary showing was not credibly contradicted.

14. In addition to the foregoing deficiencies, Section 163.3177(6)(a), Florida Statutes (2000), contains a requirement that the future land use element of a local

    government "must clearly identify the land use categories in which public schools are an allowable use." The same section goes on to provide that:

    All comprehensive plans must comply with the school siting requirements of this paragraph no later than October 1, 1999. The failure by a local government to comply with these school siting requirements by

    October 1, 1999, will result in the prohibition of the local government's ability to amend the local comprehensive plan, except for plan amendments described in s. 163.3187(1)(b), until the school siting requirements are met.

    
    

15. Because the evidence shows that the City has not yet complied with the foregoing requirement, the City is barred from amending its comprehensive plan.

16. Petitioner's Composite Exhibit G (consisting of three letters from the DCA to the City) has been received in evidence. The undersigned is satisfied that the documents are authentic, and they are relevant to this controversy. Conversely, an objection by the City to Petitioner's Exhibits D, E, I, and J, which are copies of petitions signed by various residents and filed with the City prior to the adoption of the Ordinance, a list of persons attending the City meeting, a City notice of a meeting to "attempt amicable resolution" of this case, and a letter from the Okaloosa County School Superintendent to the City's counsel, respectively, has been sustained on the ground the documents are not probative of any relevant issue in this matter. Finally, a letter with attachments submitted by the former City Clerk after the record was closed has also been disregarded.

17. In summary, because the plan amendment adopted by the City by Ordinance No. 231 is inconsistent with other provisions of the City's Plan and Code, and the City has failed to satisfy the requirements of Section 163.3177(6)(a), Florida Statutes (2000), the challenged amendment "is not in compliance with the requirements of this act."

RECOMMENDATION

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

RECOMMENDED that the Administration Commission enter a final order determining that the small scale development amendment adopted by the City of Laurel Hill by Ordinance No.

231 on March 1, 2001, is not in compliance.

DONE AND ENTERED this 24th day of August, 2001, in Tallahassee, Leon County, Florida.

___________________________________ DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 2001.

COPIES FURNISHED:

Barbara Leighty, Clerk

Growth Management and Strategic Planning The Capitol, Suite 2105

Tallahassee, Florida 32399-0001

Charles Canaday, General Counsel Office of the Governor

The Capitol, Suite 209 Tallahassee, Florida 323999-0001

Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Suite 325

Tallahassee, Florida 32399-2100

James Harvel Smith Post Office Box 206

Laurel Hill, Florida 32567

T. Martin Knopes, Esquire Post Office Box 727 Crestview, Florida 32536

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days of the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will render a final order in this matter.

Docket for Case No: 01-001310GM

Orders for Case No: 01-001310GM