ROBERT J. DENIG,
vs.
Respondent.
) Case No. 01-4845GM
On March 27, 2002, a formal administrative hearing was held in this case in Palatka, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.
For Petitioner: Michael W. Woodward, Esquire
Keyser & Woodward, P.A. Post Office Box 92
For Respondent: James L. Padgett, Esquire
The issue in this case is whether the small-scale comprehensive plan amendment adopted by the Town of Pomona Park (Town) through enactment of Ordinance No. 01-7 (the Plan Amendment) is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes (2001).
The Town adopted the Plan Amendment on November 13, 2001. The Plan Amendment changed the future land use designation of an 8-acre portion of a 13-acre parcel ("the Fouts parcel") from Residential to Agricultural. On November 27, 2001, Petitioner, Robert J. Denig, an adjoining landowner, filed a Petition for Administrative Hearing under Section 163.3187(3), Florida Statutes, to contest the amendment. As grounds, Petitioner contended that the amendment was not based on surveys, studies, data, and analyses and was inconsistent with certain provisions of the Town's Comprehensive Plan.
Petitioner's standing was conceded by the Town.
Final hearing was first scheduled for February 13, 2002, in Palatka, Florida; but an Agreed Motion for Continuance was granted, and final hearing was continued to March 27, 2002.
At final hearing, the parties had their prehearing statements (which, together, comprised their prehearing stipulation) admitted in evidence as a Joint Exhibit.
Petitioner testified in his own behalf and called four additional witnesses, including the present Town Clerk and her predecessor. Petitioner also had Petitioner's Exhibits A-D,
F-I, K, and M-V admitted in evidence. The Town cross-examined but called no witnesses and introduced no additional exhibits.
transcript, and the parties requested and were given 20 days from the filing of the transcript to file proposed recommended orders (PROs). The Transcript was filed on May 6, 2002, and Petitioner timely filed his PRO on May 13, 2002. The Town's unopposed Motion for Extension of Time to File [Proposed] Recommended Order was granted, and the time to file the Town's PRO was extended to May 28, 2002. The Town's PRO was filed on the extended deadline, and both PROs have been considered in preparing this Recommended Order.
The Town's current Future Land Use Map (FLUM) (Exhibit H) depicts the subject parcel and Petitioner's adjoining parcel as fronting on the western shore of Lake Broward and being within a primarily residential land use area that encompasses most of the Town's land area lying west of Lake Broward and northeast of Highway 17. The parcels immediately to the north and south of the subject parcel and Petitioner's adjoining parcel are in Low Density Residential future land use, which allows densities up to two units per acre; the lake is to the east. The eastern five acres of the 13-acre subject parcel, including the lake frontage, were not included in the amendment; only the western eight acres were changed to Agricultural land use, which allows densities up to one unit per five acres (unless occupied only by the owner's
family members, in which case densities up to one unit per acre are allowed).
The property owner, Town Council member Barry Fouts, had previously requested to have the entire 13-acre parcel changed to Agricultural land use but withdrew that request. Fouts testified that, in requesting the same change for only eight acres of his parcel, he took into consideration that keeping the request under 10 acres would avoid review by the Department of Community Affairs (DCA).
Several parcels near the Fouts parcel, including some of the parcels across the street to the west, are designated for Agricultural future land use. However, those parcels across the street to the west of the subject parcel are actually being used for residential rather than agricultural purposes. The nearest parcel that might be considered to be in actual use for agricultural purposes is a horse farm located approximately one quarter mile to the north. However, the present Town Clerk testified in her capacity as Town zoning officer that a horse farm (or an exotic bird breeding operation) is not to be considered an agricultural use because the animals are not being raised for human consumption.
Fouts has voluntarily provided some visual buffering along his property line, but there is no requirement in the Plan Amendment that it be maintained in the future, nor would visual screening be particularly effective in protecting nearby Residential properties against noises and odors
produced by some common types of agricultural livestock.
The Plan Amendment was not initiated by the Town; rather, it was requested by the subject parcel's owner, Barry Fouts, whose request for a change in land use stated that his purpose was to bring his "established agricultural activities, which include horse and bird breeding" into conformity with "Putnam County [sic] zoning recommendations." Fouts gave no other reasons for wanting the change. The former Town Clerk (and zoning officer) testified that there were no restrictions on keeping any type or number of animals in Residential future land use, that Fouts could engage in horse and bird breeding without changing the future land use or zoning, and that there was no need for the land use change.
No survey, study, or analysis of the Plan Amendment is reflected anywhere in the Town's files relating to the Plan Amendment, and it is found that there were none. When the Plan Amendment was presented to the Town Council for consideration, all that the former Town Clerk and present Town Clerk presented to the Town Council was a one-page note prepared by the former Town Clerk relating Fouts' desire to continue with his agricultural activities, including horse and bird breeding.
At final hearing (with the assistance of leading questions on cross-examination by the Town's attorney), the
present Town Clerk and former Town Clerk testified that, notwithstanding the absence of any written survey, study, or analysis, they made a site visit and recalled reviewing the Plan Amendment in relation to the Town's Comprehensive Plan, including the FLUM, as well as analyzing and considering the need for more agricultural land use within the Town's municipal boundaries and the desirability of keeping residential development and septic tanks away from the lake, in arriving at a recommendation to approve the land use change. Regardless whether any such analyses actually occurred by the time of adoption of the Plan Amendment, they clearly were presented as part of the evidence at final hearing.
The analysis presented at final hearing that the Town's Comprehensive Plan calls for more land area to be designated for Agricultural future land use was based on an erroneous reading of the Comprehensive Plan adopted by the Town in 1991. The analysis presumed that, under the plan, 1220.3 acres of agricultural land use was "desired" (compared to less that 600 acres in actual agricultural use in 2001). This presumption was based on parenthetical references to 1220.3 acres next to the word "Agricultural" in two places in the plan. But it is clear from a fair reading of the plan that, in designating Agricultural future land use, the plan
transferred all 648.6 acres in the "Vacant or Undeveloped" existing land use category to the Agricultural future land use category "for lack of a better land use designation," in addition to the 571.7 acres of existing agricultural land use, for a total of 1220.3 acres. (Other future land use designations mirrored 1991 existing land use.) There was no intention to indicate a need for 1220 acres of agricultural land use in the Town. To the contrary, the plan projected a need for 170 additional housing units through 2001 and stated that "[m]ost of the Town's . . . agricultural and vacant/undeveloped land is suitable for development." Consistent with that, the evidence showed that in the vicinity of the subject parcel most if not all of the parcels designated for Agricultural land use are actually being used for residential purposes and not for agriculture. If anything, it would seem that in 1991 the Comprehensive Plan anticipated a need to designate more acreage for Residential future land use and less for Agricultural.
Even if the Comprehensive Plan reflected a perceived
need for 1220 acres of actual agricultural use, 1220 acres already is designated for Agricultural future land use, and no reason was given for designating additional acreage for the category.
Finally, this part of the Town's analysis makes no
sense in light of the undisputed testimony of the Town Clerk, as zoning officer, that "agricultural use" consists of the raising of plants or animals for human consumption. The evidence was clear that the horses, cows, and exotic birds on the Fouts property are not for human consumption. It was not clear from the evidence what the 15-20 chickens on the Fouts property are used for.
The analysis that the Plan Amendment was to protect Lake Broward from septic tanks associated with residential land use also is shallow and faulty. While it is true that allowable development densities are lower in the Agricultural future land use category, the five acres of the Fouts parcel that were nearest the lake were not included in the amendment but remained in Residential future land use. Second, the present Town Clerk testified that there never have been any negative effects on the lake from septic tanks, which are regulated, whereas she had no way of knowing whether the unregulated effects of agricultural runoff might be worse than any effects from septic tanks.
Objective A.1.1 provides that the Town "shall coordinate future land uses with . . . adjacent land uses,
. . . through implementing the following policies . . ..". In this case, the immediately adjacent land uses are designated on the FLUM as Residential, and most if not all of the nearby
parcels that are designated Agricultural are actually being used for residential purposes. But Petitioner did not allege that the Plan Amendment was inconsistent with any of the policies listed under Objective A.1.1, and the evidence did not prove any such inconsistencies.
Policy A.1.3.2 requires that the Town's Subdivision and Zoning Code shall require buffering and separation between land uses of different densities or intensities of use sufficient to ensure compatibility between uses and also requires the elimination of non-conforming land uses. In this case, the Plan Amendment did not provide for separation or buffering between the newly designated Agricultural future land use and the directly adjoining Residential properties, but neither did it have any effect on the Policy requiring the Town's Subdivision and Zoning Code to require such buffering and separation.
Policy A.1.9.3.C.1 provides in pertinent part: "Residential land use is intended to be used primarily for housing and shall be protected from intrusion by land uses that are incompatible with residential density." The Plan Amendment intrudes a small area of Agricultural future land use into an area that is primarily designated for Residential land use and that is in actuality almost exclusively used for residential purposes. The sounds and smells associated with
at least some types of agricultural activity, such as the pasturing and raising of livestock and poultry, are capable of adversely affecting nearby residents and are incompatible with residential land use.
Policy A.1.9.3.C.4 provides in pertinent part: "Agricultural land is intended to be used primarily for pasture, grove operations or silviculture with possibly some row crops." In this case, the evidence shows that the primary purpose of the Plan Amendment was to allow the landowner to breed horses and operate an exotic bird breeding facility.
The Town Clerk, as zoning officer, has taken the position that those activities do
not fit within the definition of agriculture. But the Plan Amendment itself is not inconsistent with this Policy.
CONCLUSIONS OF LAW
For small-scale amendments, Section 163.3187(3)(a), Florida Statutes (2001), states:
The local government’s determination that the small scale development amendment is in compliance is presumed to be correct. The local government’s determination shall be sustained unless it is shown by a preponderance of the evidence that the amendment is not in compliance with the requirements of the Act.
(All cited sections refer to sections of the 2001 codification of the Florida Statutes.)
Section 163.3184(1)(b) states:
"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 this part and with the principles for guiding development in designated areas of critical state concern.
Standard of Review and Burden and Standard of Proof
The Town contends that the "preponderance of the evidence" language in Section 163.3187(3)(a) only speaks to the burden and standard of proof in this proceeding and that the standard of review in this case is to sustain the Plan Amendment if it is fairly debatable that the Plan Amendment is
"in compliance." In support of its position, the Town cites Martin County v. Yusem, 690 So. 2d 1288 (Fla. 1997), and Fleeman v. City of St. Augustine Beach, 728 So. 2d 1178 (Fla. 5th DCA 1999).
Both Yusem and Fleeman prescribe the "fairly debatable" standard of review to comprehensive plan and plan amendment challenges; Fleeman was a small-scale plan amendment. But both those cases involved the standard of review when a court reviews a local government's comprehensive plan. (In the case of Yusem, at least, the local government denied the property owner's request for a plan amendment for the property.) See also Coastal Development of North Florida, Inc. v. City of Jacksonville Beach, 788 So. 2d 204, 209 (Fla. 2001)(another case in which the local government denied the property owner's request for a plan amendment for the property, which noted the availability of administrative remedies). It does not necessarily follow that the same standard of review applies in an administrative proceeding.
Most administrative proceedings under Sections
120.569 and 120.57(1) are de novo proceedings initiated after preliminary agency review and notice of the agency's intent to take final action; they are designed to "formulate final agency action, not to review action taken earlier and preliminarily." McDonald v. Florida Department of Banking and
Finance, 346 So. 2d 81 (Fla. 1st DCA 1977). However, the Legislature has chosen to treat administrative review of comprehensive plan and plan amendment cases differently. In proceedings under Section 163.3184(9), the Department of Community Affairs (DCA) has preliminarily reviewed a comprehensive plan or plan amendment and found it to be "in compliance." In these "compliance" proceedings, a different standard of review is established: "In this proceeding, the local plan or plan amendment shall be determined to be in compliance if the local government's determination of compliance is fairly debatable." On the other hand, in a "noncompliance" proceeding under Section 163.3184(10) (where DCA has preliminarily reviewed a comprehensive plan or plan amendment and found it not "in compliance"), the statute provides: "The local government's determination shall be sustained unless it is shown by a preponderance of the evidence that the comprehensive plan or plan amendment is not in compliance. The local government's determination that elements of its plans are related to and consistent with each other shall be sustained if the determination is fairly debatable."
One might have expected that the Legislature's use
of language normally used to describe a standard of review (the "fairly debatable" standard) in Section 163.3184(9) and
language normally used to describe a burden and standard of proof (the "preponderance of the evidence" standard) in Section 163.3184(10) would have been a cause of some confusion, but it is does not appear that the mixing of standard of review language and burden or standard of proof language ever has been raised as an issue. Usually, the language is viewed as simply describing different standards of proof. In any event, it seems clear that the Legislature did not intend for the "fairly debatable" language to apply in Section 163.3184(10) "noncompliance" proceedings, except as to internal consistency of plan elements. Instead, the Legislature's choice of language would suggest a standard de novo administrative proceeding using the "preponderance of the evidence" burden and standard of proof, except as to internal consistency of plan elements.
Under Section 163.3187(3)(a), there is no DCA
preliminary review and determination (to which the "fairly debatable" language in Section 163.3184(9) defers in "compliance" proceedings); the "fairly debatable" language is omitted; and the "preponderance of the evidence" language is used. It seems clear from the Legislature's choice of language that, as in the case of a "noncompliance" proceeding under Section 163.3184(10), the Legislature intended a standard de novo administrative proceeding using the
"preponderance of the evidence" burden and standard of proof, at least for all but internal consistency of plan elements.
Section 163.3187(3)(a) omits the sentence regarding internal consistency contained in Section 163.3184(10). But it is unnecessary in this case to determine whether the "fairly debatable" standard applies to determine whether the elements of the Town's plan are related to and consistent with each other, since Petitioner has not alleged any such inconsistencies.
Data and Analysis; Demonstration of Need.
Section 163.3177(6)(a) provides in pertinent part:
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; and the need for redevelopment, including the renewal of blighted areas and the elimination of nonconforming uses which are inconsistent with character of the community.
Section 163.3177(8) also requires all elements of comprehensive plans to be "based upon data appropriate to the element involved."
Florida Administrative Code Rule 9J-5.006(2)(c) 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 . . . .
(All rule citations are to the current codification of the Florida Administrative Code.)
Rule 9J-5.005(2) 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. Data or summaries thereof shall not be subject to the compliance review process. However, the Department will review each comprehensive plan for the purpose of determining whether the plan is based on the data and analyses described in this Chapter and whether the data were collected and applied in a professionally acceptable manner.
* * *
(e) The comprehensive plan shall be based on resident and seasonal population estimates and projections. Resident and seasonal population estimates and projections shall be either those provided by the University of Florida, Bureau of Economic and Business Research, those
provided by the Executive Office of the Governor, or shall be generated by the local government. . . .
* * *
2. The Department will evaluate the application of the methodology utilized by a local government in preparing its own population estimates and projections and determine whether the particular methodology is professionally accepted.
As reflected in the Findings of Fact, Petitioner proved by a preponderance of the evidence that the Plan Amendment was not based on demonstrated need and was not supported by adequate data and analysis, as required by Section 163.3177(6)(a) and (8), Rule 9J-5.006(2)(c), and Rule 9J-5.005(2).
Internal Consistency.
Section 163.3177(2) requires: "The several elements of the comprehensive plan shall be consistent . . . ." Rule 9J-5.005(5) repeats this admonition in subparagraph (a), and subparagraph (b) adds: "Each map depicting future conditions must reflect goals, objectives, and policies within all elements and each such map must be contained within the comprehensive plan." Elements of comprehensive plans are "consistent" if they are not in conflict with each other.
As reflected in the Findings of Fact, Petitioner proved by a preponderance of the evidence that the Town's FLUM amendment is inconsistent with (future) Land Use Element Policy A.1.9.3.C.1 in the Town's Comprehensive Plan.
Petitioner did not prove that the Plan Amendment was inconsistent with other future land use policies.
Disposition.
Under Section 163.3187(3)(b)1., the ALJ's recommended order is submitted to the Administration Commission for final action if it recommends that a small- scale amendment be found not "in compliance."
RECOMMENDED that the Administration Commission enter a final order finding that the Town's small-scale amendment adopted by Ordinance No. 01-7 is not "in compliance."
DONE AND ENTERED this 18th day of June, 2002, in Tallahassee, Leon County, Florida.
J. LAWRENCE JOHNSTON Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 2002.
James L. Padgett, Esquire
Michael W. Woodward, Esquire Keyser & Woodward, P.A.
Cari L. Roth, General Counsel Department of Community Affairs
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.
