STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HILDRETH L. COOPER, )

)

Petitioner, )

)

vs. ) Case No. 05-0921GM

)

CITY OF PANAMA CITY, )

)

Respondent, )

)

and )

) CREEKSTONE BOATYARDS, LLC, )

)

Intervenor. )

)

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 June 30, 2005, in Panama City, Florida.

APPEARANCES

For Petitioner: Hildreth L. Cooper, pro se

117 East Second Place

Panama City, Florida 32401-3226

For Respondent: Gary K. Hunter, Jr., Esquire

Douglas M. Smith, Esquire Hopping, Green & Sams, P.A. Post Office Box 6526

Tallahassee, Florida 32314-6526

For Intervenor: Brian D. Leebrick, Esquire

Barron, Redding, Hughes, Fite, Fenson, Sanborn & Klein, P.A.

Post Office Box 2467

Panama City, Florida 32402-2467 STATEMENT OF THE ISSUE

The issue is whether the City of Panama City's small scale development amendment adopted by Ordinance No. 2055.1 on February 8, 2005, is in compliance.

PRELIMINARY STATEMENT

On February 8, 2005, Respondent, City of Panama City (City), adopted a small-scale plan amendment (Ordinance No. 2055.1), which changed the future land use designation on the City's Future Land Use Map (FLUM) on a 3.212-acre parcel from Mixed Use (MU) to General Commercial (GC). The parcel was then subject to a purchase contract by Intervenor, Creekstone Boatyards, LLC (Creekstone).

On March 10, 2005, Petitioner, Hildreth L. Cooper (then pro se), filed with the Division of Administrative Hearings (DOAH) a Petition Challenging Small-Scale Plan Amendment and Request for Administrative Hearing under Section 163.3187(3)(a), Florida Statutes (2004).1 On April 7, 2005, Creekstone was authorized to intervene in this proceeding. The matter was set for final hearing on April 21 and 22, 2005, in Panama City, Florida.

After the City filed a Motion to Dismiss, or, in the

Alternative, Motion for Summary Final Order, Petitioner requested leave to file an amended petition. Authorization to make an amended filing was given by Order dated April 18, 2005, and the final hearing was cancelled.

On April 11, 2005, Petitioner filed a Motion to Disqualify [Respondent's] Counsel, which was denied by Order dated

April 28, 2005.

On April 21, 2005, Petitioner (through counsel) filed his [Amended] Petition Challenging Small-Scale Plan Amendment and Request for Administrative Hearing (Amended Petition), which challenged the small-scale amendment generally on the grounds that the amendment conflicted in various respects with Florida Administrative Code Chapter 9J-5, was not based on adequate data and analyses, was inconsistent with various provisions within the City's Comprehensive Plan (Plan), and was inconsistent in certain respects with Chapter 163, Florida Statutes, the West Florida Strategic Regional Policy Plan, and the State Comprehensive Plan. (At hearing, however, most of these allegations were withdrawn or abandoned.)

By Notice of Hearing dated May 24, 2005, the final hearing was rescheduled to June 21 and 22, 2005, in Panama City, Florida. Due to the illness of his counsel, Petitioner's request for a continuance was granted, and the matter was

continued to June 30, 2005, at the same location. Petitioner then discharged his counsel and elected to represent himself at that hearing.

At the final hearing, Petitioner testified on his own behalf and presented the testimony of Candis Harbinson, a resident of the area and former member of the City Planning Board, and Neil Fravel, director of the City's Public Works Department. Also, he offered Petitioner's Exhibit 10, which was received in evidence.2 The City presented the testimony of Michael W. Harper, a professional engineer and accepted as an expert, and Wendy Grey, a planner and accepted as an expert.

Also, it offered City Exhibits 4-6, 8A-F, 11-14, 16, 17A-G, 18A, 20, 21A-21L, and 26, which were received in evidence.

Intervenor presented the testimony of Martin Gawronski, an environmental consultant and accepted as an expert. Finally, the parties offered Joint Exhibits 1-13, which were received in evidence.

Because the parties elected not to order a transcript of the hearing, this Recommended Order has been prepared without the benefit of a transcript. By agreement of the parties, the time for filing proposed findings of fact and conclusions of law was extended to July 29, 2005. The same were timely filed by Petitioner and Respondent and have been considered by the

undersigned in the preparation of this Recommended Order. On August 2, 2005, Intervenor filed a Notice indicating that it was joining in, and adopting, the City's Proposed Recommended Order.

FINDINGS OF FACT

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

1. Background

   
   

   1. Creekstone is a limited liability corporation and presumed to be the owner of a 3.212-acre tract of land at 305 East Beach Drive, Panama City.3 (The record does not show when or if Creekstone actually purchased the property; when the application for a land use change on the property was filed with the City, Creekstone was a contract purchaser. In its Proposed Recommended Order, however, the City states that Creekstone "recently acquired" the property.) The property lies at the northwest edge of a residential area known as The Cove and is just south of the central business district of the City. The Cove is separated from the business district by a small waterbody known as Massalina Bayou (Bayou), which is spanned by the Tarpon Bridge (Bridge) at one of the Bayou's most narrow points. The 225-foot Bridge provides the most direct and easiest access between the two areas of the City.

   2. For many years, and beginning before the City adopted its Plan, Tibbetts Boat Works, Inc. (Tibbets) occupied the site and was engaged in the boat repair business, consisting of hull repair, engine maintenance, other mechanical services, and boat bottom painting, a legal but nonconforming use under the City's land development code. Photographs of the area suggest that the business is no longer active, presumably because the property has been sold.

   3. On or about December 8, 2004, SFB Investment Company, LLLP (SFB), who then owned the property but had a contract to sell it to Creekstone, filed an application with the City Planning Board seeking a change in the land use and zoning on the property. At the Planning Board meeting on January 10, 2005, the staff noted that the proposed change would "allow an encroachment of commercial into a predominately residential area" and recommended denial of the application on the ground that the change "is inconsistent with the LDR and the Comp Plan."4 By a 3-1 vote, the City Planning Board rejected the staff recommendation and recommended that the application be approved.

   4. On February 8, 2005, by a 4-1 vote, the City accepted the recommendation of the City Planning Board and adopted Ordinance No. 2055.1, which amended the FLUM by reclassifying

      the land use designation on the property from MU to GC for the purpose of allowing the owner to "develop [a] multi-family project on [the] property." (Simultaneously with that change, the City also changed the zoning on the property from Mixed Use-

      3 to General Commercial-2, which allows a wide range of activities, including residential, professional office and services, low-intensity commercial, public/institutional/ utilities, and high-intensity commercial.)

   5. The MU land use classification "is intended to provide areas for medium to high density residential development and low intensity commercial development," allows a density of "not more than twenty (20) dwelling units per acre," and an intensity of "[n]o more than 75% lot coverage as determined by the size of the lot compared to the amount of impervious roof and driveway/ parking lot surface."

   6. On the other hand, the GC district is "intended to provide areas for high intensity commercial development, including retail sales and services, wholesale sales, shopping centers, office complexes, and other similar land uses." There are no density restrictions, but intensity is limited to "[n]o more than 90% lot coverage." Thus, while the two land uses are similar in some respects, the highest and best use on the property will now be "high intensity commercial development,"

      such as shopping centers and office complexes, a much more intensive use than is presently permitted under the MU land use category. To address this concern, witness Harper indicated that SFB has filed a restrictive covenant on the property which includes a shoreline buffer, as well as use, height, and setback restrictions. At the Planning Board meeting on January 10, 2005, however, the staff stated "that a covenant would not be enforceable."

   7. Under the existing land use (MU), the owner can construct up to 64 residential units on the property. That number is derived by multiplying the size of the property (3.212 acres) times the allowed density (20 units per acre). However, the current zoning on the property (which is apparently tied to the MU land use category) prohibits the construction of buildings which exceed 65 feet in height. Because of this height restriction, which limits the number of residential units that can be constructed on the property, the owner has requested a change in the land use (and zoning) so that it can develop a multi-family residential condominium project (nine stories in height) with approximately 77 units.

   8. On March 10, 2005, Mr. Cooper filed his Petition challenging the small-scale amendment. He later filed an Amended Petition on April 21, 2005. Mr. Cooper resides and owns

      property one-half block south of the subject property (in an area designated as a special historical zone of the City) and submitted objections to the amendment during the adoption process. As such, he is an affected person and has standing to file this challenge.

   9. Joint Exhibit 9 reflects that Creekstone is a "contract purchaser" of the subject property. It also reflects that it appeared through counsel at the adoption hearing on February 8, 2005, and offered comments in support of the plan amendment. As such, Creekstone is an affected person and has standing to participate in this case.

   10. In the parties' Pre-Hearing Stipulation, Mr. Cooper (through his former counsel) identified numerous issues, many of which were not raised in his Amended Petition. At hearing, however, he contended only that the GC land use is incompatible with the character of the surrounding area, and that the amendment is internally inconsistent with Objectives 1.1 and 1.4 and Policies 1.1.1, 1.2.1, and 1.4.1 of the Future Land Use Element (FLUE) of the Plan. All of the objectives and policies relate to the compatibility issue. In all other respects, Petitioner agrees that the plan amendment is in compliance.

   11. Because the City's action involves a small scale (as opposed to a large scale) development plan amendment, the

       Department of Community Affairs did not formally review the plan amendment for compliance. See § 163.3187(3)(a), Fla. Stat.

2. The Subject Property

   
   

   1. West Beach Drive runs in a northwest-southeast direction through the downtown business portion of the City until a few blocks north of the Bridge, where it changes to East Beach Drive. The roadway continues south across the Bridge and in a southerly direction along the eastern edge of St. Andrews Bay, a much larger waterbody which lies between the City and Panama City Beach. Approximately one-half mile south of the Bridge, East Beach Drive takes a 90-degree turn to the east. Most, if not all, of the peninsula south of the Bayou and Bridge and continuing until East Beach Drive turns to the east is known as The Cove, a part of which has been designated by the City as a historic special treatment zone because of its historical significance. The predominate character of The Cove is older, single-family homes. As noted above, the Bayou separates The Cove from the central business district and serves as a natural barrier between the two areas.

   2. The property is an odd-shaped parcel which sits just east of the southern terminus of the Bridge and fronts on the Bayou. (The central business district lies directly across the Bayou to the north and northwest, is classified as General

      Commercial or Public/Institutional, and includes a wide array of offices, government buildings, restaurants, and other commercial and public uses.) The western side of the property faces East Beach Drive. Immediately across East Beach Drive to the west (and facing St. Andrews Bay) is the Cove Harbor Condominium, a nine-story, multi-family residential condominium which was apparently constructed under MU standards, which apply to that parcel. Immediately to the east of the property is a single- family residence and then a two-story townhouse complex.

   3. The southern boundary of the property (which appears to run approximately 325 feet or so) faces East Second Court, a local road which begins on East Beach Drive and runs eastward until Watson Bayou (perhaps a mile or so away). Although a map of the historical district was not introduced into evidence by the parties, the northern and western reaches of the special treatment zone appear to begin just east of the intersection of East Second Court and East Beach Drive since the homes at 114 and 122 East Second Court are designated as having historical significance. See Respondent's Exhibit 4. These two homes appear to lie directly across the street from the southern boundary of Creekstone's property. Except for a two-story, multi-family structure (Cedar Cove Townhouses) which sits across East Second Court facing the southwest corner of the subject

      property, the remainder of the southern boundary of Creekstone's property faces four single-family homes.

   4. Several other multi-family structures are scattered throughout the area to the south and east, while the remainder of the neighborhood extending for at least one-half mile to the south and all the way to Watson Bayou on the east is predominately single-family residences. Finally, a condominium is located about one-half mile south of the property on the waterfront where East Beach Drive makes a 90-degree turn to the east. Except for Tibbets' activities, there is no commercial encroachment (by non-conforming use or land use classification) in the immediate area south of the Bridge and Bayou.

   5. The current FLUM shows that, with three exceptions, the entire area south of the Bridge and the Bayou to the end of the peninsula, and extending east at least a mile to Watson Bayou, is either classified as Mixed Use or Residential Low Density. (Perhaps a mile or so to the southeast there is one parcel classified as Recreation, another as Public/Institutional (which is probably a school), and a smaller adjoining parcel classified as General Commercial.) Thus, if the change is approved, the subject property will be the only parcel south of the Bridge and Bayou (except for the above exceptions which lie

      around a mile away) which is classified as commercial; the remainder is either mixed use or residential.

   6. Over the years, Tibbets has been the subject of City code enforcement actions, investigations by City code enforcement personnel, and investigations by the Department of Environmental Protection (DEP). It has also caused chronic environmental problems in the area. On August 27, 2002, DEP and Tibbets executed a Consent Order to resolve certain violations. Also, on April 10, 2001, Mr. Paul L. Benfield, who apparently either owned Tibbets or was associated with it in some manner, entered into a Consent Order with DEP because of his unlawful filling of 0.114 acres of jurisdictional wetlands on the site. It is fair to describe the subject property as blighted, unsightly, and in disrepair. Photographs received in evidence suggest that the business is no longer active. The parcel is fenced on three sides, and, besides an older structure which apparently housed Tibbets' office, the property contains a mixture of empty storage crates, pilings, and various pieces of equipment that were once used in the boat repair business. There are also several docks or small piers extending into the Bayou from the northwestern corner of the site.

   7. Finally, it appears that much of the eastern half of the parcel contains wetlands and is largely undeveloped.

      Although the staff report dated December 31, 2004, recommended denial of the application, noting that it would allow "an encroachment of commercial into a predominately residential area," it acknowledged that "[a]llowing this request can make a case for helping to rid this area of a problematic non- conforming use." See Joint Exhibit 6, page 2.

3. Petitioner's Objections

1. As narrowed at hearing, Mr. Cooper contends only that the plan amendment is not compatible with the character of the adjoining land in The Cove and is thus internally inconsistent with Objectives 1.1 and 1.4 and Policies 1.1.1, 1.2.1, and 1.4.1 of the FLUE. He also relies upon Policy 2.5.5(6)(e) of the City's Land Development Code. However, plan amendments do not have to be consistent with land development regulations in order to be in compliance. See § 163.3184(1)(b), Fla. Stat.

2. Objective 1.1 requires that the City maintain a FLUM "which coordinates future land uses with . . . [compatibility]5 of adjacent land uses." Policy 1.1.1, which furthers that objective, provides in part that the City will regulate land uses through the designation of land use districts on a FLUM, and that the "location and extent of development within the City" should be "consistent with . . . compatibility of adjacent land uses." Under this objective and policy, then, land use

   districts on the FLUM should be located in a manner which assures compatibility with adjacent land uses.

3. Objective 1.4 provides that the City shall "maintain procedures for the elimination or reduction of land uses inconsistent with the character of the City and the future land uses designated in the Plan." In furtherance of that objective, Policy 1.4.1 requires that the City "restrict proposed development which is inconsistent with the character of the community." Taken literally, the objective encourages the City to reduce or eliminate land uses that are inconsistent with the character of the surrounding area or other land use districts. In the same fashion, the policy requires that the City prohibit development that is not consistent with the character of the adjoining area.

4. Finally, among other things, Policy 1.2.1 requires that the City "administer land development regulations for implementation of the Comprehensive Plan" in such a manner as to "ensure the compatibility of adjacent land uses." (The City has adopted such regulations for this purpose.) Because the implementation of land development regulations is not in issue, the provision does not appear to be relevant.

5. According to the City's Director of Public Works, The Cove, or at least that part which lies in the area around

   Creekstone's property, is considered to be a part of the central business district since the two areas are "contiguous," and therefore the extension of the commercial land use district across the Bayou would be consistent with the character of the immediate area. The same view was also expressed by witness Grey. However, the two areas are physically separated by a waterbody (the Bayou) and are connected only by a 225-foot bridge which spans the Bayou at one of its most narrow points.

   At the same time, the land uses in the two areas are distinctly different: the business district contains a wide array of commercial and public/institutional uses while the predominate character of The Cove is single-family residential, with a scattering of multi-family residential dwellings such as townhouses and a condominium. The fact that the City interprets its GC district (presumably through its zoning regulations) as allowing certain residential uses does not change this dichotomy in character. Therefore, it is inappropriate to consider The Cove and the central business district as being contiguous, or to base a finding of compatibility on the fact that commercial uses are now found across the Bayou in the business district.

6. The commercial land use classification has never been extended into the residential neighborhood south of the Bayou. If the change becomes effective, the new land use would be

   incompatible with the Residential Low Density and Mixed Use land uses which now make up the entire neighborhood. It would also be incompatible with the historic special treatment zone, which lies directly across the street from Creekstone's property.

   Finally, the creation of a commercial district in this area of The Cove would change the character of the neighborhood, and it is fair to infer that, even if SFB's covenant is enforceable, it would still lead to, and justify, the reclassification of other nearby parcels into commercial uses. Given these considerations, the proposed land use is internally inconsistent with the City's objective and policy that there be "[compatibility] of adjacent land uses," see Objective 1.1 and Policy 1.1.1, and Plan provisions encouraging the elimination of land uses and associated development which are inconsistent with the "character of the community." See Objective 1.4 and Policy 1.4.1.

7. The minutes of the two meetings which culminated in the adoption of Ordinance No. 2055.1 reflect that the City's (and Planning Board's) principal rationale for the reclassification of the property was to eliminate an unsightly nonconforming use (boat repair business) which occupied the site. While it is true that the City's Plan encourages the revitalization and redevelopment of blighted areas, and provides

   that developers should be given "flexibility" when seeking to revitalize blighted areas, see Objectives 1.3 and 1.15 of the FLUE, there is no evidence that these objectives are intended to override (and trump) the provisions of the Plan which require that adjacent land uses be compatible with one another and preserve the character of the neighborhood.

   CONCLUSIONS OF LAW

   
   

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

9. The parties agree that Mr. Cooper and Creekstone have standing in this proceeding.

10. Under Section 163.3187(3)(a), Florida Statutes, the local government's determination that the small scale amendment is in compliance is presumed to be correct. Further, this determination will 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." Therefore, the test is whether the evidence supports or contradicts the determination of the City. Denig v. Town of Pomona Park, DOAH Case No. 01-4845GM, 2001 WL 1592220 (DOAH June 18, 2002; Admin. Comm. Oct. 23, 2002). This specific statutory burden of proof has been applied in this proceeding.

11. Petitioner has contended that the new land use adopted by the plan amendment is incompatible with the character of the neighborhood, conflicts with certain objectives and policies within the FLUE, and is therefore internally inconsistent with the Plan. Internal consistency is, of course, required by Section 163.3187(2), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(5). 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").

12. Based upon the documentation (maps, photographs, Plan, minutes, and reports) and testimony submitted by the parties, the more persuasive and preponderance of the evidence supports a conclusion that the City's determination that the amendment is in compliance is incorrect. As previously found, because the new land use district is not compatible with adjacent land uses or the neighborhood, and does not comport with the City's objective and policy of reducing or eliminating land uses which are inconsistent with the character of the community, the plan amendment is internally inconsistent with Objectives 1.1 and 1.4 and Policies 1.1.1 and 1.4.1. Therefore, the amendment is not in compliance. § 163.3187(2), Fla. Stat.; Fla. Admin. Code R. 9J-5.005(5); Coastal Development at 208.

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 plan amendment adopted by Ordinance No. 2055.1 is not in compliance.

DONE AND ENTERED this 19th day of August, 2005, 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 19th day of August, 2005.

ENDNOTES

1/ All statutory references are to Florida Statutes (2004).

2/ During his case-in-chief, Mr. Cooper also referred to documents identified on his exhibit list as Petitioner's Exhibits 5, 7, 15, and 50. However, Exhibit 50 could not be authenticated by witness Harbison, and Petitioner did not attempt to authenticate or offer the exhibit through another witness. Also, while Exhibits 5, 7, and 15 were pre-marked by Petitioner for identification purposes and referred to during the hearing, they were never offered into evidence.

3/ The subject property has been described in various papers as being both 3.212 and 3.6 acres. The former number is the correct size.

4/ In its report (Joint Exhibit 6, page 2) dated December 31, 2004, the staff stated that it found the request to be "consistent with the Comp Plan," but that it was "not consistent with Subsection 2-5.5.6.d of the LDR Code." According to the minutes of the Planning Board meeting on January 10, 2005, however, the staff expanded its objections and took the position that "it [the plan amendment] is inconsistent with the LDR and the Comp Plan." See Joint Exhibit 7, page 6. The position of the staff at the City adoption hearing held on February 8, 2005, is not found in the minutes. See Joint Exhibit 9, pages 6-8.

5/ The provision actually reads "capability" instead of "compatibility." All parties concede that this is probably a typographical or scrivener's error and should read "compatibility."

COPIES FURNISHED:

Barbara Leighty, Clerk

Growth Management and Strategic Planning The Capitol, Room 2105

Tallahassee, Florida 32399-0001

Raquel A. Rodriguez, General Counsel Office of the Governor

The Capitol, Room 209 Tallahassee, Florida 32399-0001

Heidi Hughes, General Counsel Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399-2100

Hildreth L. Cooper

117 East Second Place

Panama City, Florida 32401-3226

Gary K. Hunter, Jr., Esquire Hopping Green & Sams, P.A. Post Office Box 6526

Tallahassee, Florida 32314-6526

Rowlett W. Bryant, Esquire Bryant & Higby

Post Office Box 860

Panama City, Florida 32402-0860

Brian D. Leebrick, Esquire

Barron, Redding, Hughes, Fite, Fensom, Sanborn & Klein, P.A.

Post Office Box 2467

Panama City, Florida 32402-2467

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: 05-000921GM

Orders for Case No: 05-000921GM