STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
T & P ENTERPRISES OF BAY )
COUNTY, INC., a Florida ) corporation, and EDGAR GARBUTT, ) individually, )
)
Petitioners, )
)
vs. )
)
BAY COUNTY, FLORIDA, )
)
Respondent, )
)
and )
)
BARBARA S. HARMON, )
)
Intervenor. )
Case No. 03-2449GM
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its designated Administrative Law Judge, Richard A. Hixson, held a final hearing in the above-styled case on October 30-31, 2003, in Panama City, Florida.
APPEARANCES
For Petitioners: Gary K. Hunter, Jr., Esquire
Jennifer A. Tschetter, Esquire Hopping, Green & Sams
123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314
For Respondent: Terrell K. Arline, Esquire
3205 Brentwood Way
Tallahassee, Florida 32309
For Intervenor: Sherry A. Spiers, Esquire
Law Office of Robert C. Apgar
320 Johnston Street Tallahassee, Florida 32303
STATEMENT OF THE ISSUE
The issue for determination in this case is whether the Small Scale Comprehensive Plan Amendment No. SSA 03-07 (Plan Amendment) adopted by Bay County (County) through the enactment of Ordinance No. 03-06 is "in compliance" as that term is defined by Section 163.3184(1)(b), Florida Statutes.
PRELIMINARY STATEMENT
The County adopted the Plan Amendment on June 3, 2003. The Plan Amendment changed the future land use designation on the County's Future Land Use Map (FLUM) of an approximately 2.35-acre parcel from Seasonal Resort (SR) to Residential (R). On July 3, 2003, Petitioners filed a Petition for Administrative Hearing with the Division of Administrative Hearings (DOAH) under Section 163.3187(3), Florida Statutes, to contest the Plan Amendment.
On September 2, 2003, Barbara S. Harmon was granted leave to intervene in this proceeding as an additional party respondent.
On October 20, 2003, Intervenor's Motion to Strike the portion of the Petition alleging that the Plan Amendment was not in compliance for failure to comply with certain buffer requirements of the Land Development Code was granted.
On October 22, 2003, the parties filed a Pre-Hearing Stipulation.
On October 27, 2003, the parties filed a Joint Stipulation in which Petitioners dismissed their claim that the Plan Amendment should be invalidated based upon "spot zoning" allegations. Also on October 27, 2003, Petitioners' Motion to Amend the Petition was granted. As amended, the Petition alleges: (1) the Plan Amendment is internally inconsistent with the Bay County Comprehensive Plan; and, (2) there is inadequate data and analysis to support the Plan Amendment.
At hearing, Petitioners presented the testimony of Allara Mills Gutcher, Terry Jernigan, and Wendy Grey, who was qualified as an expert in the area of local government comprehensive planning and compliance determinations under
Chapter 163, Part II, Florida Statutes. The County presented the testimony of Tony Arrant, who was qualified as an expert in the area of local government comprehensive planning and compliance determinations under Chapter 163, Part II, Florida Statutes.
Intervenor Barbara S. Harmon testified on her own behalf.
Joint Exhibits A through F were admitted into evidence.
Petitioners' Exhibits C-1, C-2, C-6, E, F, I, J, L, M, and N were admitted in evidence. The County's (Respondent's) Exhibits A,
A-1, E, H, I, and L were admitted into evidence. Intervenor's Exhibit's A, B, X and Y were admitted into evidence.
The transcript of the final hearing was filed with DOAH on December 3, 2003. Proposed recommended orders were initially due on January 4, 2004; however, the County's Motion for Additional Time was granted on December 16, 2003, and the parties were allowed until January 12, 2004, in which to file proposed recommended orders. All of the parties filed Proposed Recommended Orders, which along with the Pre-Hearing Stipulation, have been considered in preparing this Recommended Order. All citations are to the Florida Statutes (2003) unless otherwise indicated.
FINDINGS OF FACT
Parties
Petitioner, T & P Enterprises of Bay County, Inc.
(T & P), is a Florida corporation authorized to do business in this state, and operates such business at 20016 Front Beach Road in Panama City Beach, Florida.
Petitioner, Edgar Garbutt, is a resident of Bay County, Florida, and is the President of T & P, which operates a seasonal resort at 20016 Beach Front Road in Panama City Beach, Florida.
Petitioner, Edgar Garbutt, submitted written comments in opposition to the Small Scale Comprehensive Plan Amendment at issue before the adoption of SSA 03-07.
Intervenor, Barbara S. Harmon, owns a house located at
190 16th Street in Panama City, Florida. Mrs. Harmon and her husband purchased their house in 1994. The Harmon property is located in the Laguna Beach subdivision. Mrs. Harmon was one of the property owners who petitioned the County for adoption of SSA 03-07.
The Property
The property affected by SSA 03-07 consists of twelve separate parcels of land totaling approximately 2.35 acres located in unincorporated Bay County. The property lies within a two-block area generally situated south of First Avenue, East of Wisteria Lane, and along both sides of 16th Street, which is west of the municipal boundaries of Panama City Beach in what is commonly known as the West Beaches. Two of the parcels subject to the Plan Amendment are located on the Gulf of Mexico south of Front Beach Road.
The twelve parcels are not contiguous. The predominant type of structure on these parcels are one-story housing structures used primarily for residential purposes. Some of the structures are used as short-term or long-term rentals. Others, including the Harmons' house, are used as second homes during the summer season, or on weekends.
Mrs. Harmon and her husband purchased their house in Bay County in 1994. They reside there six to nine months a
year. They also have a residence in Gadsden, Alabama. The Harmons bought their house in Bay County because they wanted a house close to the beach in a clean, quiet neighborhood.
The area affected by the Plan Amendment is predominantly residential in character. The area is generally built-out as residential land use. The area has not substantially changed since the Harmons purchased their house in 1994.
Background
Bay County adopted a Comprehensive Plan in 1990. The 1991 existing conditions map accompanying the Comprehensive Plan shows that most of the property in the West Beaches Area was "predominantly medium density residential with low density residential also being a majority land use category."
Mrs. Harmon testified that her house on 16th Street was designated Residential under the County's Comprehensive Plan at the time she purchased it in 1994.
In 1994-1995, as part of its Comprehensive Plan evaluation and appraisal process, Bay County's planning staff undertook a "windshield survey" of the West Beaches Area. The windshield survey indicated that Laguna Beach 1st through 7th additions were platted or developed between 1938 and 1954, and consisted primarily of a mix of older single-family houses, mobile homes, multi-family buildings, and church buildings. The
windshield survey reflected seasonal resort uses on the south side of Front Beach Road on the Gulf of Mexico. The windshield survey shows that the predominate land use in the West Beaches Area in 1994-1995 continued to be residential, as it was at the time of the 1991 existing conditions map.
In December 1999, Bay County adopted amendments to its Comprehensive Plan in which it created the SR FLUM category. Under the Plan, the purpose of the SR FLUM category is "to provide areas for a functional mix of compatible seasonal/resort land uses where the clientele are predominantly seasonal or temporary visitors and tourists." The uses allowed include beach houses, cottages, condominiums, townhouses, apartments or other similar multi-family structures, motels, lodges, restaurants, convenience stores, retreats, and lounges, bars, and other similar uses and public utilities." The criteria for designating areas as SR are "areas with concentrations of accommodations and businesses that are used for non-residential, tourist-oriented purposes." The Plan further provides that "Year-round, permanent residences should not be located in this area."
The County's Evaluation and Appraisal Report (EAR), which was the data and analysis relied upon by Bay County for the 1999 plan amendments, defined these seasonal or temporary visitors and tourists as people who visit Bay County for an
average 5.385 days. Terry Jernigan, the former Bay County Planning Director, testified that in developing the SR category, the County focused primarily on "typical summertime tourists" who stay for weekend, weekly, and monthly rental periods and attempted to identify areas that were tourist areas or were likely to become transient in nature in the future. Second homeowners and seasonal visitors were not considered when the SR category was developed.
The SR Future Land Use Map category has also been applied in the beach areas of unincorporated Bay County located east of the municipal boundaries city of Panama City Beach. Development in that area includes large high-rise condominiums and hotels, bars, T-shirt shops, and night clubs.
The SR category was also applied to a number of properties in the West Beaches Area that are indicated as residential uses in the County's official windshield survey, including the parcels that are the subject of the amendment at issue. Mr. Jernigan testified that an indicator of an area that was transient in nature was the large number of signs indicating that the properties were for rent. Mrs. Harmon testified that since she purchased her property in 1994, she had observed no signs advertising rentals in the area in which the properties subject to the amendment are located.
Mrs. Harmon was motivated to seek the FLUM amendment from SR to Residential to prevent high-rise development, bars, T-shirt shops, and noise increases that she has observed in the SR category east of Panama City Beach. The applicants for the subject amendment are concerned that the SR category may adversely affect the character of the neighborhood.
Development of the Plan Amendment
In the spring and early summer of 2002, Bay County began receiving "grass roots petitions" from property owners in the West Beaches Area requesting that either their future land use designation or zoning be changed from SR back to Residential. The petitions stated that the FLUM designations were changed without notice to the property owners. These petitions initially involved 400-500 parcels of land.
In response to the grass roots petitions, the County identified several "target areas" where there were a large number of parcels generally contiguous to each other. At the direction of the Board of County Commissioners, on August 28, 2002, County staff sent letters to individuals within the target areas asking them if they wanted the land use designated on their properties changed from SR to Residential and attaching a land use map application form. Allara Mills Gutcher, a County Senior Planner III, testified that the County wanted assurances
that the petitioning property owners understood the nature of the change they were requesting.
The County's letter directed to the property owners in the target areas not only asked if the owners wanted a land use designation change, but also indicated that a petitioning property owner would be required to pay the County a $1,100 fee to apply for the land use change. Although the letter indicated that the Board was considering waiving the fee, no evidence was presented that the Board made a decision on the waiver or that the approximately 180 property owners to whom the County had written had received further notice from the County regarding the $1,100 fee. Some County property owners, including
Mrs. Harmon, complained to the County that the application fee discouraged a number of property owners from submitting FLUM amendment applications.
The forms accompanying the County's August 28, 2002, letter also advised the property owners that small scale plan amendments could only be considered in connection with a specific plan of development or hardship, restrictions not contained in either the County's Plan or Chapter 163, Part II, Florida Statutes.
Ms. Gutcher testified that only 20 responses to the County's letter were received. The Plan Amendment Summary Sheet on the subject amendment, however, indicates that a result of
the mail out was the submittal of an application to change approximately 30 properties along Front Beach Road in another area, Sunnyside Beach, from SR to Residential. This amendment is known as the Centeno amendment, and was adopted by the Board of County Commissioners in December 2002.
One of the target areas of the mail out was the Laguna Beach Subdivision area where Intervenor Harmon's property is located. After receiving the County's August 28, 2002, letters and learning of the Centeno/Sunnyside small scale plan amendment, Mrs. Harmon spearheaded an effort to seek the subject small plan amendment in her neighborhood. She worked with County staff on the locations of properties to be included in the proposed amendment.
Erroneously included in the first proposed plan amendment was The Laguna Beach Christian Retreat property on Front Beach Road, owned by Petitioners. Mrs. Harmon brought this error to the attention of County staff, and Petitioners' property was removed from the proposed amendment, leaving 16 lots included in the amendment package.
County staff initially supported the 16-lot proposed small scale plan amendment in Mrs. Harmon's neighborhood in part because it included properties adjacent to First Avenue on the north and contiguous to properties currently designated Residential on the FLUM.
Prior to and at the Planning Commission meeting at which the subject amendment was considered, three individuals owning four of the 16 lots withdrew from the plan amendment application. These withdrawals included the two lots on First Avenue contiguous to the existing Residential FLUM area, a lot on 16th Street, and a lot on Front Beach Road.
The Planning Commission recommended approval of the requested FLUM change from SR to Residential on the 12 remaining parcels.
County staff did not dispute the appropriateness of the Residential FLUM designation for the subjected properties, but did not support the plan amendment for the remaining 12 lots because of the configuration of the map. Ms. Gutcher testified that her objection was not to the actual land use designation of the subject land parcels, but to the configuration of the Plan Amendment which interspersed parcels designated SR with the residential parcels. The 12 lots subject to the Plan Amendment are not contiguous to existing Residential lands and there are SR lots adjacent to lots that were changed to Residential.
Ms. Gutcher, however, stated that adjacency of future land uses is not a requirement of Chapter 163, Part II, Florida Statutes, or Chapter 9J-5, Florida Administrative Code.
Ms. Gutcher further testified that although she considered the Plan Amendment "poor planning" and did not
support the Plan Amendment, she did not consider the Plan Amendment violative of the Bay County Comprehensive Plan, Chapter 163, Florida Statutes, or Chapter 9J-5, Florida Administrative Code.
On June 3, 2003, the Bay County Board of County Commissioners accepted the Planning Commission recommendation and voted to adopt small scale amendment No. SSA 03-07 amending the FLUM designation on the 12 lots from SR to Residential.
Internal Consistency
Section 163.3177(2), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(5), require that all comprehensive plan amendments, including amendments to the FLUM be consistent with the other provisions of the applicable comprehensive plan taken as a whole. Petitioners allege that the Plan Amendment is internally inconsistent with several discrete provisions contained in the County's Comprehensive Plan; however, when taken as a whole, the Plan Amendment is not inconsistent with the goals and policies of the County's Comprehensive Plan.
Because the Plan Amendment at issue here amends the FLUM designation from SR to Residential, of particular significance to the analysis of internal consistency in this case is the County Comprehensive Plan's Residential FLUM Category. Policy 3.3.1. of the Future Land Use Element in the
County's Plan provides that "criteria for designating land use categories on the FLUM and attendant standards for development shall be as shown on Table 3A."
Table 3A contains the following criteria and standards for the Residential FLUM category:
Purpose: To provide areas for a functional, compatible mix of residential land uses, and to protect property values in viable residential neighborhoods.
Designation Criteria: Existing residential areas, residential subdivisions recorded with the Clerk of the Court prior to adoption of this Plan, areas adjacent to existing residential areas, "in-fill" of vacant areas otherwise surrounded by urban development, and low density rural community development.
Allowable Uses: Those land uses typically associated with residential occupancy including single-family, duplex, triplex, quadraplex, and manufactured housing. These uses are generally coded as 100 to 900 on the DOR Property Use Code Table for property tax purposes. Public utilities, recreation, conservation. Limited public institutional uses and educational facilities (Policy 2.8.1) may also be allowed.
The County Comprehensive Plan does not define the terms "residential occupancy" or "residential use." Florida Administrative Code Chapter 9J-5, setting out the minimum criteria for review of comprehensive plans, defines "residential uses" as "activities within land areas used predominantly for housing." Fla. Admin. Code R. 9J-5.003(108).
In its compatibility analysis, the County described the subject area as "primarily developed as a single-family use today" "similar to current uses in the area." The area is an existing residential area. The predominant type of structure in the area is one-story residential structures used for housing.
Except for one vacant lot, each property that is the subject of the amendment contains a one-story single-family residence. All houses on the amendment properties are used as homes, second homes or long-term rentals. None of the houses included in the Plan Amendment are rented on a short-term basis.
The evidence demonstrates that the properties included in the Plan Amendment are now used for housing.
All but one of the Plan Amendment properties are coded
100 on the tax code, which is the same as the DOR Property Use Code Table referenced in the Residential FLUM category in Table 3A of the Plan. One lot included in the Plan Amendment is vacant and is coded 0000 on the tax code.
The Plan Amendment is consistent with the stated purpose, designation criteria for existing residential areas, and allowable uses for the Residential FLUM designation stated in the County's Comprehensive Plan.
Many properties in the West Beaches area are rented; however, according to Mrs. Harmon, most properties that are
subject to the Plan Amendment are not rented or are rented on a long-term basis.
Neither the provisions of Table 3A describing the Residential FLUM category, nor the definition of "residential use" in Chapter 9J-5, distinguish between owner-occupied and rental housing use.
One significance of a land use designation from a planning perspective is its impact on infrastructure. That impact is the same whether a house is rented or owner-occupied.
Whether the structures are owner-occupied or rented is not a land use amendment compliance issue.
Wendy Grey, Petitioners' expert witness, testified that the configuration of the Plan Amendment is not consistent with those portions of the Goal Statement in the Future Land Use Element of the Plan that express the County's goals "to promote an orderly and efficient pattern of growth and development" and "to promote compatibility between land uses and reduce the potential for nuisances." Ms. Grey opined that leaving some properties designated SR surrounded by Residential properties does not promote an orderly and efficient pattern of growth and development.
That portion of the Goal Statement referring to an orderly and efficient pattern of growth and development was taken directly from the intent sections of Chapter 163, Part II,
Florida Statutes, and Chapter 9J-5, Florida Administrative Code. The language governs the overall planning process of allocation of future land uses based upon infrastructure, natural resource protection and efficiency in terms of using existing infrastructure. It is based upon the purpose of the Growth Management Act to manage the extent, distribution and timing of future growth, discourage urban sprawl, and maximize existing infrastructure. These are terms of art under the Growth Management Act, and have nothing to do with drawing the polygons on the map.
Tony Arrant, the County's expert witness, testified that the predominance of the small scale amendments he has seen focus on specific areas that have other land use classifications next to the parcel amended, just as with the Plan Amendment.
Further, the Goal Statement also includes a statement that the plan should "protect viable neighborhoods." The amendment is consistent with this portion of the goal statement by designating an existing residential area for residential use. When read as a whole, the Plan Amendment is consistent with this Goal Statement.
Designating residential properties for residential use is also consistent with the Goal Statement in the Housing Element of the Plan and with Housing Element Objective 8.5, which requires that the County preserve and protect the
character, compatibility, and aesthetics of residential areas and neighborhoods.
To make a land use amendment uniform throughout a block, connected to existing residential land uses, and following street rights-of-way helps with code enforcement issues and is easier for the public to understand. However, these are not compliance issues. The configuration of the Plan Amendment and the symmetry or lack of symmetry of the future land use map is not a compliance issue.
Policy 3.2.1 of the Future Land Use Element governs amendments to the FLUM. It does not require any particular map configuration, or that FLUM boundary lines follow street rights- of-way. There is no express requirement in the Plan that FLUM boundaries must always follow roads.
Petitioners contend that the Plan Amendment is internally inconsistent with Policy 3.7.2. of the Future Land Use Element of the County's Plan. Policy 3.7.2. prescribes the general criteria for zoning districts shown on an Official Zoning District Map. This policy implements Objective 3.7, which provides that "By 2001, (the County will) adopt a zoning code to further the intent, and implement the objectives and policies of this Plan." The County has not yet adopted a zoning code.
Petitioners specifically rely on the following criteria in Policy 3.7.2.:
4. District boundaries will be drawn so as to follow property lines, road rights-of way, geographic features, section lines, or other readily identifiable features.
Where possible, district boundaries will be drawn so as to create buffers between potentially incompatible land uses.
District boundary lines shall be drawn so as to minimize the potential for nuisances caused by incompatible land uses.
Ms. Grey opined that the Plan Amendment is not consistent with Policy 3.7.2. because the FLUM boundary lines do not follow roads and other geographic features, making it difficult to implement Policy 3.7.2. when a zoning code is adopted. Ms. Grey, however, also acknowledged that it would be possible to draw a zoning map that is consistent with the Plan Amendment.
Petitioners contend that the Plan Amendment is inconsistent with Future Land Use Element Policy 3.9.1. which defines "compatibility" of land uses. Ms. Grey opined that interspersing SR with Residential land uses does not promote compatibility. The Plan Amendment recognizes the current use of the subject property. Under the broad categories of permissible uses for the SR designation there are many compatible uses. Moreover, Mrs. Harmon testified that she believes Petitioners
are entitled to engage in their business activity, and that everyone in the West Beaches Area got along fine until the SR designation was adopted.
The Plan Amendment can be viewed to support the compatibility of land uses because it is consistent with the land uses that are already there. Therefore, the Plan Amendment may serve to decrease the possibility of future incompatibility. It will provide a level of security for the areas that are residential in that any redevelopment of other developed properties will have to be reviewed in light of Comprehensive Plan policies requiring protection of viable residential areas.
Additionally, Petitioners contend that the Plan Amendment is inconsistent with several of the many policies set forth in the Comprehensive Plan to implement Objective 1.2. Policy 1.2.1.2 states that it is the intent of the Comprehensive Plan to encourage the most appropriate use of land, water and resources consistent with the public interest. The subject property has historically been residential, the current use of the property is residential, and the interest of the public is served in continuing the residential nature of the
property as indicated by the responses to the County's letter of August 28, 2002.
Policy 1.2.1.3 states that a purpose of the Comprehensive Plan is to overcome "present handicaps." Ms. Grey
opined that if the SR category is a handicap, the Plan Amendment does not overcome it because there are still SR parcels around the subject property. However, the Comprehensive Plan does not define "present handicap" and there is no evidence that the SR category is a "present handicap."
Policy 1.2.1.4 requires that the Plan deal effectively with future problems that may result from the use and development of land because the Plan Amendment does not address potential incompatible uses between SR and Residential. There are many permissible land uses, including beach houses, cottages, condominiums, townhouses, and apartments in the SR category that are compatible with the Plan Amendment. Moreover, Ms. Grey stated that a zoning map could be drawn consistent with the Plan Amendment.
The Plan Amendment recognizes the land uses that currently exist on the subject property. The Plan Amendment is consistent with the land uses already there. Taken as a whole, the Plan Amendment furthers the goals, objectives and policies of the Comprehensive Plan.
Data and Analysis
Petitioners contend that the amendment is not supported by adequate data and analysis. Ms. Grey opined that there was not adequate data and analysis to demonstrate that residential land use was the most appropriate or suitable for
the subject property and within the public interest. Ms. Grey stated that the primary purpose for the Plan Amendment was to respond to individual requests to change the land use classification. She also believed that the lack of homestead exemptions for the majority of the area was data that supported the SR and not the Residential land use classification.
Ms. Gutcher, however, testified that she reviewed appropriate data and the Plan Amendment was supported by the types of data and analysis typically provided for FLUM amendments listed in Policy 3.2.1. of the plan. These data included the national wetlands inventory, the ITE Journal for the Traffic Counts, and other data contained in the checklist in Chapter 3 of the Comprehensive Plan.
There was sufficient data and analysis to support the Plan Amendment, including the following: (a) the fact that the 1990 Plan designated the area as Residential; (b) the 1994 windshield survey identifying the area as residential; (c) the fact that the actual uses of the properties are for housing; (d) the existing residential character of the area; (e) the property owners' desire that their properties be designated Residential; and (f) the 1991 existing land use map identifying the area that is the subject of this case as "predominantly medium density, residential with low density residential also being a majority land use category."
The population projections in the County's EAR are required to include both resident and seasonal populations to arrive at a functional population. This number is then used to plan for the amount of residential, commercial land use authorized. Chapter 9J-5 and Chapter 163, Part II, Florida Statutes, do not differentiate seasonal housing from permanent housing in forecasting future land use needs.
There is adequate data and analysis to support the Plan Amendment.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction to conduct a hearing on the subject matter of this proceeding. §§ 120.569, 120.57(1), and 163.3187(3)(a), Fla. Stat.
Standing
The Petitioners and the Intervenor are "affected persons" as defined in Section 163.3184(1)(a), Florida Statutes, and have standing in this proceeding.
Burden of Proof
The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Young v. Department of Community Affairs, 625 So. 2d 831 (Fla. 1993).
Section 163.3187(3)(a), Florida Statutes, imposes the burden of proof on Petitioners, the persons challenging the small scale development amendment. This subsection also provides in part:
The parties to a hearing held pursuant to this subsection shall be the petitioner, the local government, and any intervenor. In the proceeding, 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.
Relevant here, "in compliance" means consistent with the requirements of Sections 163.3177, 163.3178, 163.3180, 163.3191, and 163.3245, Florida Statutes, the state comprehensive plan, the appropriate strategic regional policy plan, and Florida Administrative Code Chapter 9J-5.
§ 163.3184(1)(b), Fla. Stat. For the reasons stated herein, Petitioners did not prove that the FLUM Plan Amendment is not "in compliance."
The Plan Amendment is "in compliance"
A comprehensive plan is composed of several elements including but not limited to a future land use element.
§ 163.3177, Fla. Stat. The future land use element designates "proposed future general distribution, location, and extent of the uses of land for residential uses, commercial uses,
industry, agriculture, recreation, conservation, education, public buildings and grounds, other public facilities, and other categories of the public and private uses of land."
§ 163.3177(6)(a), Fla. Stat. The FLUM is a component of the future land use element of the plan as "[t]he proposed distribution, location, and extent of the various categories of land use shall be shown on a land use map or map series which shall be supplemented by goals, policies, and measurable objectives." Id. In other words, "[t]he FLUM is a pictorial depiction of the future land use element and is supplemented by written 'goals, policies, and measurable objectives.' The FLUM must be internally consistent with the other elements of the comprehensive plan." Coastal Development of North Florida, Inc. v. City of Jacksonville Beach, 788 So. 2d 204 at 208. (Fla.
2001)(citations omitted.)
A small scale development amendment reviewed under Section 163.3187(1)(c), Florida Statutes, by a local government, "does not involve a text change to the goals, policies, and objectives of the local government's comprehensive plan, but only proposes a land use change to the future land use map for a site-specific small scale development activity."
§ 163.3187(1)(c)1.d., Fla. Stat.
The Plan, including the FLUM and amendments thereto, are legislative decisions. Coastal Development of North
Florida, Inc. v. City of Jacksonville Beach, 788 So. 2d at 208-
209. The Plan should be read as a whole in determining the County's intent with respect to a discrete portion. Id.
Taken as a whole, the Plan Amendment furthers the goals and policies of the Comprehensive Plan by protecting and preserving a viable historically residential area, while still accommodating the types of uses allowed in an SR category.
Further, Petitioner did not prove by a preponderance of the evidence that the County did not have sufficient surveys, studies, or data regarding the parcel when the Plan Amendment was adopted. See § 163.3177(6)(a), Fla. Stat.
Based upon the foregoing, Petitioner did not prove that the Plan Amendment is not "in compliance."
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Department of Community Affairs enter a final order concluding that the FLUM Plan Amendment No. SSA 03-07 adopted by the Board of County Commissioners of Bay County in Ordinance No. 03-06 is "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes.
DONE AND ENTERED this 23rd day of January, 2004, in Tallahassee, Leon County, Florida.
S
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 23rd day of January, 2004.
COPIES FURNISHED:
Terrell K. Arline, Esquire 3205 Brentwood Way
Tallahassee, Florida 32309
Gary K. Hunter, Jr., Esquire Hopping, Green & Sams
123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314
Sherry A. Spiers, Esquire
Law Office of Robert C. Apgar
320 Johnston Street Tallahassee, Florida 32303
Colleen M. Castille, Secretary Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 100
Tallahassee, Florida 32399-2100
Heidi Hughes, 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 |
|---|---|---|
| Mar. 22, 2004 | Agency Final Order | |
| Feb. 27, 2004 | Agency Final Order | |
| Jan. 23, 2004 | Recommended Order | Small scale comprehensive plan amendment which changed 12 lots from a seasonal resort to a residential zone was "in compliance" with Chapter 163, Florida Statutes, and Rule 9J-5, Florida Administrative Code. |
