STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY )

AFFAIRS, )

)

Petitioner, )

)

vs. ) Case No. 10-1283GM

)

TAYLOR COUNTY, )

)

Respondent, )

)

and )

)

KENNETH B. HUTCHINS, )

CATHERINE REDDING, AND )

CLINTON WOOD, )

)

Intervenors. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the Division of Administrative Hearings (DOAH) by its assigned Administrative Law Judge, D. R. Alexander, on September 15 and 16, 2010, in Perry, Florida.

APPEARANCES

For Petitioner: Matthew G. Davis, Esquire

Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

For Respondent: Conrad C. Bishop, Jr., Esquire

The Bishop Law Firm, P.A. Post Office Box 167

Perry, Florida 32348-0167

For Intervenor: Kenneth B. Hutchins, pro se (Hutchins) 22645 Fishcreek Highway

Perry, Florida 32348-8162 STATEMENT OF THE ISSUE

The issue is whether two map changes on the Future Land Use Map (FLUM) of the Comprehensive Plan (Plan) adopted by Taylor County (County) by Ordinance Nos. 2009-15 and 2009-17 on December 15, 2009, are in compliance.

PRELIMINARY STATEMENT

After the County amended the FLUM, on March 9, 2010, the Department of Community Affairs (Department) issued a Notice of Intent to Find the Taylor County Comprehensive Plan Not in Compliance (Notice of Intent) on the grounds three map changes were inconsistent with various statutes and rules and were internally inconsistent with other Plan provisions. (Three parcels of property were reclassified by three separate ordinances; however, the owner of the third parcel is not a party, and the County is not contesting that part of the Department's Statement of Intent. Therefore, this case concerns only two map changes.) Pursuant to Section 163.3184(10), Florida Statutes, on March 16, 2010, the Department filed with DOAH a Petition for Administrative Hearing (Petition) adopting the reasons expressed in its Notice of Intent as grounds for finding the amendments not in compliance.

On April 19, 2010, Intervenor, Dr. Kenneth B. Hutchins, who owns property affected by Ordinance No. 2009-15, was authorized to intervene in support of the amendment. By Order dated

June 24, 2010, Catherine Redding and Clinton Wood, who are siblings and with three other members of the Wood family own property affected by Ordinance No. 2009-17, were authorized to intervene in support of that amendment.

By Notice of Hearing dated March 30, 2010, a final hearing was scheduled on June 23 and 24, 2010, in Perry, Florida. By agreement of the parties, the hearing was canceled pending efforts to resolve the matter by mediation. When those efforts were unsuccessful, the matter was rescheduled to September 15 and 16, 2010, at the same location. Dr. Hutchins' Motion for a Continuance was denied. At hearing, Dr. Hutchins' Motion for Judgment on the Pleadings was denied, and the Department's Motion in Limine was denied.

A Joint PreHearing Stipulation was filed by the parties on September 10, 2010. At the final hearing, the Department presented the testimony of Anastasia Richmond, a Department planner and accepted as an expert; and Seth B. Blitch (incorrectly spelled as Bliech in the Transcript), an Environmental Administrator with the Department of Environmental Protection (DEP) and accepted as an expert. Also, it offered

Department Exhibits 1-7, 10-14, 18, 20, 24, and 25. All were received except Exhibits 12 and 13. The County presented the testimony of Dr. Hutchins; Malcolm V. Pace, current County Commissioner and former member of the County Planning Board;

J. Robert Sheffield, a real estate broker, former County Coordinator, and former Chairman of the County Planning Board; Jack R. Brown, County Administrator; and Scott R. Koons, Executive Director of the North Central Florida Regional Planning Council (Regional Planning Council) and accepted as an expert. Also, it offered County Exhibits 1, 2, 5, 7, 8, 10, 13A-18A, and 22, which were received in evidence. Intervenor

Hutchins presented the testimony of Leonard B. Bailey, a Florida Fish and Wildlife Conservation Commission employee who testified in an individual capacity; Herschel McCullen, a former member of the County Planning Board; Intervenor W. Clinton Wood, Sr., a former member of the County Planning Board; Intervenor Catherine

W. Redding; and W. Daniel Griner, County Director of Planning and Zoning. Also, he offered Intervenor's Exhibits 12-22, 24,

25 and 28. All were received except Exhibits 12-17 and 19-21, on which a ruling was reserved. Those exhibits are hereby received. Finally, Intervenors Redding and Wood did not participate except to offer testimony as witnesses. However, they indicated that they wished to retain party status.

The Transcript of the hearing (three volumes) was filed on October 8, 2010. By agreement of the parties, the time for filing proposed findings of fact and conclusions of law was extended to November 30, 2010. They were timely filed by the Department and jointly by the County and Hutchins. None were filed by Redding and Wood. Although the 64-page filing by the County and Hutchins exceeds the 40-page limitation authorized under Florida Administrative Code Rule 28-106.215, both filings have been considered in the preparation of this Recommended Order.1

FINDINGS OF FACT

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

1. The Parties

   
   

   1. The Department is the state planning agency charged with the responsibility of reviewing and approving amendments to comprehensive plans adopted by local governments.

   2. The County is a local government that administers a Plan. It adopted the two plan amendments that are the subject of this proceeding. It is considered a "rural" county with a current population of around 20,000 residents.

   3. Dr. Hutchins owns property in the County. Although his initial pleading alleges, and his Proposed Recommended Order

      
      

      states, that he "submitted oral comments regarding the subject amendments at transmittal and prior to adoption of the amendment," no evidence was presented at hearing that Dr. Hutchins did so during the adoption process.

   4. Ms. Redding and Mr. Wood are siblings and along with three other members of the Wood family jointly own property in the County. Like Dr. Hutchins, no evidence was presented at the hearing that either Intervenor submitted written or oral comments to the County during the adoption process.

2. History Preceding the Amendments

   
   

   1. The process for adopting the County's first Plan, including the FLUM, began around 1988. For the purpose of drafting a FLUM, a Planning Board (Board) was created consisting of seven individuals, all of whom were volunteers with no formal planning experience. However, they received advice and assistance from two outside consultants, who also advised the County concerning the appropriate text to be used in the new Plan. Four members of the Board, including its former Chairman, testified at the final hearing.

   2. Over the next two years, the Board conducted meetings, spoke with numerous property owners, and collected information in order to assign each parcel an appropriate land use category. The collective efforts of the Board culminated in a large, hand-

      
      

      colored FLUM (consisting of numerous sections of aerial maps patched together) that was affixed to the wall of what is now the courtroom on the second floor in the County Courthouse.

      Testimony by former members of the Board established that the Hutchins parcel (then owned by Colin and Lucille Kelly) and the Bird Island parcel (owned by Wood, Redding, and other family members) were assigned a classification of Mixed Use-Urban Development. Because the County does not have a zoning code, the properties were never assigned a zoning classification consistent with that land use category.

   3. This classification was based upon the fact that at least two different businesses were being conducted on each parcel at the time, and the owners requested that they be given that classification. In the case of the Hutchins (then Kelly) property, it was being used to conduct a commercial fishing operation as well as a small construction company (with dump trucks, bulldozers, and front end loaders) that had a contract with Proctor & Gamble (now known as Buckeye Technologies, Inc.) to maintain roads. An office for the construction company was located in a separate mobile home placed on the property.

      Mr. Bird was a commercial fisherman and operated a wholesale fish business on Bird Island. Also, both he and his mother had separate homes on the property, another structure was used to

      
      

      store fish nets, and docking facilities for other commercial fisherman were maintained. Many of these structures were blown away during the so-called Storm of the Century on March 13, 1993, and never replaced.

   4. Except for property within the small communities of Keaton Beach, Dekle Beach, Denzel Beach, and Steinhatchee, and a few other small parcels, such as Dark Island, Cedar Island, and Intervenors' property, all of the remaining land along the coastline was placed in either Conservation or Agriculture. An unusual feature of the County is that it has one of the longest coastlines in the State (58 miles), stretching on the Gulf of Mexico from Jefferson County to Dixie County. Because around

      88 percent of the coastline is owned by the State, very little waterfront land is left for development. In fact, Dr. Hutchins pointed out that except for his property and Bird Island, no other vacant, upland Gulf-front property within the County is in private ownership at this time.

   5. The FLUM, with the foregoing classifications, was adopted by the County by Ordinance No. 90-4 on June 19, 1990. Before it was submitted to the Department for its review, the County was advised by the Department that it would not accept the large, hand-colored FLUM in that format. Rather, the Department required that the map be reduced in size and

      
      

      digitized. To comply with this request, the original FLUM was dismantled into smaller sections and hand-carried to a firm in Crystal River that had the capability of reducing the large map into digital form. The original FLUM was then returned to the County Courthouse.

   6. When the larger map was reduced in size and converted to a digital format, it was not parcel-specific and failed to pick up the Hutchins parcel and Bird Island. Instead, except for larger tracts of land, especially in the small communities noted in Finding of Fact 8, the entire coastline was shown as being Conservation or Agriculture. This error was not detected by County officials or the affected property owners since they continued to rely upon the designations shown on the large, hand-colored FLUM in the Courthouse. The Department reviewed the FLUM, as digitized, assumed that the Hutchins and Bird Island property were Agriculture and Conservation, and found those parts of the FLUM to be in compliance. This agency action occurred on or about October 1, 1990. Thus, the Department never undertook a compliance review for either parcel with the intended higher density/intensity land use.

   7. In 1995, the room in which the original FLUM was mounted was taken over by another occupant of the Courthouse, and the original FLUM was moved to a different floor. During or

      
      

      after the moving process, it was lost or accidentally destroyed and its whereabouts have been unknown since that time.

   8. In 1993, Dr. Hutchins purchased his property from Colin and Lucille Kelly. Based on a conversation with a County employee, he purchased the property with the understanding that it was classified as Mixed Use-Urban Development. Although he had no specific plans to develop the property at that time, and still has none, the Mixed Use-Urban Development land use category was the major inducement for him to purchase the property. In 2005, Dr. Hutchins was approached by an investor who wished to develop the property at a later time. When the investor contacted the County to confirm its land use designation, Dr. Hutchins learned for the first time that the digitized map approved by the Department reflected the property carried an Agriculture/Rural Residential land use. Because of this, the agreement with the potential investor was never consummated.

   9. In a similar vein, Mr. Wood, who served on the Board that assigned land use designations to property on the original FLUM, and knew that the Board had designated his property as Mixed Use-Urban Development, placed the Bird Island property on the market in 2005 representing that it was classified in that category. A prospective purchaser checked with the County to

      
      

      verify its land use and learned that it was Conservation.

      
      

      Mr. Wood was unaware of this error until that time. Because of this, the sale was never consummated.

   10. After 2005, the County and Department held numerous meetings in an attempt to resolve this dispute. The Department refused to allow the FLUM to be changed to reflect the original land use designations. This led to the County adopting the two challenged amendments to correct what it characterizes as a "scrivener's error." Besides the two parcels that are in dispute here, on an undisclosed date, two other parcels (in the interior part of the County) were discovered by the County to have the wrong land use category as a result of the digitizing process. Both should have been placed in the Industrial land use category, and after a review, the Department had no objection to those errors being corrected by an amendment.

3. The Plan Amendments

   
   

   1. On December 15, 2009, the County adopted Ordinance Nos. 2009-15 and 2009-17, also known as CPA 08-1 and CPA 08-3. The first amendment changed the land use on the 14-acre Hutchins parcel from Agriculture/Rural Residential to Mixed Use-Urban Development. The present land use allows one dwelling unit per

      5 acres while the new land use designation allows up to 12 dwelling units per acre and a 60 percent impervious surface

      
      

      ratio for nonresidential development. See Department Exhibit 1, Future Land Use Policy I.3.2. Thus, up to 126 residential units and 96,476 square feet of non-residential development could be built on the Hutchins site. The second amendment changed the land use on the 3.36-acre Bird Island parcel from Agriculture-2 and Conservation to Mixed Use-Urban Development. The former land use allows one dwelling unit per 40 acres while the new land use would permit the same density/intensity as the Hutchins parcel. The new category would allow up to 30 residential units and 21,954 square feet of non-residential development. The amendments were transmitted by the County to the Department for its review in early April 2009.

   2. On June 5, 2009, the Department issued its Objections, Recommendations and Comments (ORC) report. The Department lodged objections to both amendments generally on the grounds the sites are not environmentally suitable for the proposed density and intensity increases; the amendments authorize an improper increase in density within the Coastal High Hazard Area (CHHA) without proper mitigation; the amendments failed to discourage urban sprawl; and they are internally inconsistent with existing provisions within the Plan. The ORC recommended that the County not adopt the amendments.

      
      

   3. Besides the Department, DEP and the Regional Planning Council also provided written comments on the amendments. By letter dated May 8, 2009, DEP generally noted that it had concerns regarding development adjacent to the Big Bend Seagrasses Aquatic Preserve (the Preserve) where the parcels are located, and that careful planning strategies should be used for any development on the land. See Department Exhibit 4. The Regional Planning Council issued a staff report on February 25, 2010, generally concluding that the amendments were consistent with the applicable Strategic Regional Policy Plan goals and objectives. See Department Exhibit 15; County Exhibit 1.

   4. The County did not respond in writing to the ORC. On December 15, 2009, it adopted the amendments without change. On March 10, 2010, the Department published its Notice of Intent to find the amendments not in compliance in the Taco Times. On March 16, 2010, the Department filed its Petition with DOAH raising the same grounds that are in its Notice of Intent.

4. The Property

   
   

   1. The Hutchins parcel is located in the southwest part of the County, a few miles south of Keaton Beach, with around

      500 to 600 feet fronting on the Gulf of Mexico. The 14 upland acres that are the subject of this case are a sub-site of a larger 25-acre parcel owned by Dr. Hutchins, with the remaining

      
      

      11 acres being adjoining wetlands on the north and south sides.

      
      

      Dr. Hutchins has built a home on pilings on his property along with a smaller ancillary structure. Photographs indicate that except for trees, the remainder of the upland property is vacant. Bird Island also lies on the Gulf of Mexico just northwest of the Hutchins parcel and is surrounded by water on three sides. Photographs reflect one residence and a dock still on the property. The two parcels are separated by "marsh grass and a little water." Both parcels of property are easily accessible to, and just west of, County Road 361, a paved two- lane highway that begins south of the subject properties and runs adjacent to, or near, the coastline, eventually turning northeast and terminating on U.S. Highway 19 south of Perry.

   2. Both properties abut portions of the Gulf of Mexico that have been designated as an Outstanding Florida Water (OFW). The waters are a part of the Preserve, which was established in 1985 and is managed by DEP. The Preserve has exceptional biological, aesthetic, and scientific value.

   3. The two parcels are located in the Coastal High Hazard Area (CHHA). That is to say, they are in "the area below the elevation of the category 1 storm surge line as established by a Sea, Lake, and Overland Surges from Hurricanes (SLOSH) computerized storm surge model." § 163.3178(2)(h), Fla. Stat.

      
      

      In order to increase density within the CHHA, the County must meet certain criteria set forth in Section 163.3178(9)(a), Florida Statutes.

5. The Department's Objections

1. As summarized in its Proposed Recommended Order, the Department contends that the two plan amendments are not in compliance because the sites are not environmentally suitable for the proposed density and intensity increases; there is an improper increase in density within the CHHA without proper mitigation; and the amendments fail to discourage urban sprawl. Although the Notice of Intent also raised the issue of whether the amendments are internally inconsistent with other provisions in the County's existing Plan, the Proposed Recommended Order does not address any specific internal inconsistencies, and the evidence focuses on the first three concerns. Therefore, the undersigned has assumed that those objections have been withdrawn or abandoned.

   1. Environmental Suitability

      
      

2. With the exception of an area in the middle part of the County's coastline (where the Fenholloway River flows into the Gulf), the Preserve extends along the County's entire coastline, including the area in which the two parcels are located. The Preserve, designated as an OFW, contains various

   
   

   types of seagrasses, whose function is to provide habitat for a number of species, improve water quality, and reduce currents or wave energy in the event of a storm. It is undisputed that the seagrass beds near the amendment sites are high-quality, healthy, and of high environmental value.

3. Coastal marshes are prevalent in the area of the County where the amendment sites are located. They serve many functions, including cleaning water flowing into The Preserve, functioning as a habitat for a number of species, and acting as a coastal barrier against storm surge during large storm events.

4. Section 163.3177(6)(d), Florida Statutes, requires that local governments protect and conserve natural resources through the conservation element of the local plan. See also

   Fla. Admin. Code R. 9J-5.006(3)(b)4. A Department rule also requires local governments to limit the specific impacts and cumulative impacts of development or redevelopment upon water quality and living marine resources. See Rule 9J-5.012(3)(c)1.

5. High-density development (up to 12 units per acre) on the parcels clearly has the potential to negatively impact coastal marshes and seagrasses adjacent to and near the subject sites. Although Dr. Hutchins indicated that he would develop his property only to the extent allowed by DEP so that the marshes and seagrasses would be safeguarded, the Department's

   
   

   practice for many years has been to assume that the property will be developed at its maximum allowable density and intensity. See, e.g., Sheridan v. Lee Cty, et al., Case No. 90- 7791 (DOAH Jan. 27, 1992; DCA June 28, 1993; Admin. Comm. Feb.

   15, 1994)(compliance determination must be made based on maximum impacts authorized by the amendment terms, not speculation of a lesser impact). Mr. Wood's development intentions are not known. In any event, the two parcels potentially authorize 156 residential units and 113,430 square feet of non-residential uses adjacent to an OFW. Even so, the Mixed Use-Urban Development land use designation may still be permissible if specific conditions limiting the density/intensity on the parcels are incorporated into the Plan by asterisk or text language in conjunction with a new amendment. As noted in the Conclusions of Law, this planning practice has been used in other cases. Without any limitations, though, the preponderance of the evidence supports a finding that the maximum allowable density/intensity contravenes the cited statute and rules.

   1. CHHA

      
      

6. Both parcels are located within the CHHA of the County. Section 163.3178(2)(h), Florida Statutes, requires that the County establish mitigation criteria for plan amendments located in the CHHA. Probably because of its small size in

   
   

   terms of population, and the lack of development (or ability to do so) along the coastline, the County has no goals, objectives, or policies addressing criteria for mitigation.

7. Rule 9J-5.012(3)(b)6. requires that a plan "direct population concentrations away from known or predicted coastal high-hazard areas." Also, Rule 9J-5.012(3)(b)7. requires that a plan "maintain or reduce evacuation times."

8. Prior to 2006, the Department would allow a local government to comply with the foregoing rules by allowing density increases in the CHHA if the local government decreased a similar type of density elsewhere. This practice was known as "offsets." In 2006, however, the Legislature amended the statute to include criteria for compliance with the two rules. Due to the change in the law, the Department no longer engages in the practice of offsets for land use changes in the CHHA. Instead, it requires a local government that proposes to increase density within the CHHA to meet the requirements of Section 163.3178(9)(a)1.-3., Florida Statutes. Under the statute, if the County can demonstrate a 16-hour out-of-county evacuation time for a category 5 storm event as measured on the Saffir-Simpson scale and a 12-hour evacuation time to shelter within the County for a category 5 storm event, an increase in density within the CHHA may be allowed. See § 163.3178(9)(a)1.

   
   

   and 2., Fla. Stat. Alternatively, the County may use one of the mitigation measures described in Section 163.3178(9)(a)3., Florida Statutes. Except for Coastal Element Objective IX-7 of the Plan, which provides that the County maintain a hurricane evacuation time of 9 hours for a category 1 storm, see County Exhibit 7, no data and analysis, such as a hurricane evacuation study for a category 5 storm event, was presented to demonstrate compliance with these requirements. Dr. Hutchins' submission during the mediation process of an evacuation plan for a category 3 storm does not satisfy this criterion. Typically, a local government will have an adopted plan for a category 5 storm, as well as an evacuation model. The preponderance of the evidence supports a finding that the mitigation measures in Section 163.3178(9)(a), Florida Statutes, have not been satisfied.

9. At hearing, the County and Dr. Hutchins contended that offsets should still be used in this case to satisfy the mitigation requirements. They point out that the County has recently purchased property (totaling 51.7 acres) that is designated Mixed Use-Urban Development and more than compensates for any potential increase of residents needing to evacuate if the two amendments are found to be in compliance. As noted above, however, the practice of offsets was discontinued in 2006

   
   

   with the passage of the new law. Notwithstanding assertions to the contrary, there was no legal requirement that the Department notify every affected local government and property owner that it was discontinuing that practice to comply with the new law.2

   1. Urban Sprawl

   
   

10. Rule 9J-5.006(5)(g)1.-13. identifies thirteen "primary" indicators of urban sprawl. The Department contends that eight indicators are "tripped" or "triggered" by the new amendments and collectively they indicate that the proliferation of urban sprawl is not discouraged. No evidence was presented regarding five indicators. According to the rule, "[t]he presence and potential effects of multiple indicators shall be considered to determine whether they collectively reflect a failure to discourage urban sprawl." Fla. Admin. Code R. 9J- 5.006(5)(d).

11. Indicator 1 is tripped if the amendments allow uses in excess of demonstrated need. In this case no need analysis for additional land in the Mixed Use-Urban Development category was submitted by the County. The absence of a study is sufficient to trigger this indicator.

12. Indicator 2 is tripped if the amendments allow "significant" amounts of urban development to occur in rural areas at substantial distances from existing urban areas. The

    
    

    only true existing "urban" area in the County, as that term is commonly understood, is the City of Perry. Other residential and some commercial development (but to a much lesser degree) is found mainly in a few small communities on the coastline such as Steinhatchee, an unincorporated community perhaps 15 miles south of the subject parcels with probably around 1,500 residents, and Keaton Beach and Dekle Beach, both having no more than a few hundred residents each. (Official recognition has been taken of the population data.) Keaton Beach is around 2 or 3 miles north of the subject property and has condominiums and other limited residential/commercial development. In addition, Dark Island is located a short distance north of Bird Island and is classified as Mixed Use-Urban Development, which authorizes the higher density/intensity development. Given this lack of "urban areas" in the County, virtually any development outside of Perry could arguably be considered "urban development . . . in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development." Fla. Admin. Code R. 9J-5.006(5)(g)2.

    Notwithstanding this unique (and perhaps unfair) situation, it is fair to characterize the potential addition of 12 units per acre as urban development and a total of around 150 residential units with associated commercial development as "substantial"

    
    

    when considering the County's size and existing development. Therefore, the second indicator has been triggered.

13. Indicator 3 is triggered if the amendments allow urban development in "radial, strip, isolated or ribbon patterns generally emanating from existing urban development." Because urban development will occur in a rural, isolated area, this indicator is triggered.

14. Indicator 4 is triggered if there is premature development of rural land that fails to adequately protect and conserve natural resources. The evidence supports a finding that this indicator is triggered.

15. Indicators 6, 7, and 8 are related to the orderly and efficient provision of existing and future public services and facilities. The evidence shows that the area is not currently served by central sewer and is not near any fire or police stations. While no public facilities are planned for that area in the five year capital improvement schedule, at a meeting in March 2010 the Taylor County Coastal Water & Sewer District indicated that a request for partial federal funding to extend central sewer services to Fish Creek, which lies beyond and to the south of the subject parcels, would be placed on the April agenda. See County Exhibit 7. Whether a request was actually made at that meeting is not of record. In any event, Coastal

    
    

    Element Policy IX.6.5 provides that where central sewer is not available in an area classified as Mixed Use-Urban Development, septic tanks may be used within the CHHA. See Department Exhibit 1. As to fire and law enforcement support, there is insufficient evidence to establish that these services cannot be provided in an efficient manner. Given these circumstances, there is less than a preponderance of the evidence to support a finding that indicators 6 through 8 are triggered.

16. Indicator 9 is triggered if the plan amendments fail to provide a clear separation between rural and urban uses. There is insufficient evidence to support a finding that this indicator is triggered.

17. Collectively, the presence of four indicators is sufficient to support a finding that the County has failed to discourage urban sprawl.

    E. Scrivener's Error

    
    

18. The County and Intervenors rely heavily upon the fact that the plan amendments are in compliance because the amendments simply correct an error that occurred when, at the Department's direction in 1990, the original FLUM was reduced in size and digitized. While at first blush this argument is appealing, it assumes that the Department would have approved the new land use classifications in 1990 when it performed a

    
    

    compliance review of the original FLUM. But this never occurred, and the new amendments give the Department its first opportunity to determine if the new land uses are in compliance.

19. It is undisputed that on an undisclosed date the Department approved an amendment based on the same type of error. While the record is somewhat confusing, it appears that in that case, the two properties were Industrial, they were not located in the CHHA, and on-going business concerns were operating on the properties.

20. Intervenor Hutchins also cited several instances where mapping errors were allowed to be corrected by subsequent plan amendments. Where final agency action in those matters is of record, however, it shows that approval was given only after a compliance review was made by the Department.3

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.569, 120.57(1), and 163.3184(10), Florida Statutes.

22. In order to have standing to challenge a plan amendment, a challenger must be an affected person as defined in Section 163.3184(1)(a), Florida Statutes.4 While Intervenors own property within the County, no evidence was presented to show

    
    

    that they submitted written or oral comments to the County during the adoption process. Given Intervenors' long-standing interest in this matter, this evidentiary omission was probably due to oversight. Even so, they are not affected persons and lack standing to participate. However, Intervenors were allowed to fully participate in the hearing process.

23. Once the Department renders a notice of intent to find a plan amendment not in compliance, as it did here, "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." § 163.3184(10)(a), Fla. Stat. As to allegations of internal inconsistency, if any are raised, they will not be sustained if the County's determination is fairly debatable. Id. Because the undersigned has only considered objections that do not involve internal inconsistency issues, the fairly debatable standard does not apply. Therefore, the Department has the burden of showing by a preponderance of the evidence that the County's determination should not be sustained. Finally, if a Recommended Order in favor of the Department is rendered, it must be submitted to the Administration Commission for final agency action.

24. For the reasons given in the Findings of Fact, the Department has shown by a preponderance of the evidence that the

    
    

    two plan amendments are not in compliance because, if built out to their maximum potential, they fail to adequately protect the environment; they are inconsistent with Department rules and Section 163.3178(9)(a), Florida Statutes, by increasing density in the CHHA without appropriate mitigation or hurricane evacuation plans; and they fail to discourage urban sprawl.

25. Finally, Intervenors are not left without a remedy.

They are reminded that it is a common technique in comprehensive planning to place restrictions on FLUM amendments so that particular land uses, densities, or intensities that would otherwise be allowed under a future land use designation are prohibited or restricted on the affected lands. See, e.g., Patricia Curry, et al. v. Palm Beach Cty, et al., Case No. 09- 1204GM, 2009 Fla. ENV LEXIS 160 (DOAH Oct. 21, 2009), adopted,

2009 Fla. ENV LEXIS 159 (DCA Nov. 24, 2009); Leseman Family Land Partnership, et al. v. Clay County, et al., Case No. 07-5755GM, 2008 Fla. Div. Adm. Hear. LEXIS 425 (DOAH May 30, 2008, DCA Oct.

17, 2008); Diane Brown, et al. v. Dep't of Community Affairs, et al., Case No. 06-0881GM, 2006 Fla. ENV LEXIS 229 (DOAH Dec. 5, 2006), adopted, 2007 Fla. ENV LEXIS 25 (DCA April 3, 2007);

Tierra Verde Community Assn., Inc., et al. v. City of St. Petersburg, Case No. 09-3408 (DOAH June 30, 2010; Admin. Comm. Nov. 10, 2010); Dep't of Community Affairs, et al. v. City of

Jacksonville, et al., Case Nos. 07-3539GM and 08-4193GM, 2009 Fla. ENV LEXIS 66 (DOAH Jan. 12, 2009), adopted, 2009 Fla. ENV

LEXIS 65 (Admin. Comm. June 10, 2009); Flagler Retail Associates, Ltd, et al. v. Dep't of Community Affairs, et al., Case No. 09-4713GM, (DOAH July 14, 2010), Determination of Non- Compliance (DCA Dec. 7, 2010).

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 Plan Amendments CPA 08-1 and CPA 08-3 adopted by Ordinance Nos. 2009-15 and 2009-17 are not in compliance.

DONE AND ENTERED this 13th day of December, 2010, in Tallahassee, Leon County, Florida.

S

D. R. ALEXANDER Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 2010.

ENDNOTES

1/ On December 2, 2010, or after the filing was made, the County and Dr. Hutchins filed a Joint Motion to Exceed Allowable Pages in Submitted Proposed Recommended Order.

2/ Even if offsets were still used, the evidence does not show that the proposed new densities within the CHHA would be offset elsewhere within the County. While the County has purchased three parcels and assigned them a similar land use designation, the largest parcel (43.45 acres) has restrictions that forbid using the purchased density to offset other density increases. The remaining parcels total only 11.8 acres, while the Hutchins and Bird Island parcels make up 17.36 acres. Even then, the 11.8 acres were purchased with County funds and probably cannot be used for offsets due to language in Section 163.3178(1), Florida Statutes, which provides that it is the legislative intent that comprehensive plans "limit public expenditures in areas that are subject to destruction by natural disaster." To support his argument, Dr. Hutchins also submitted Intervenor's Exhibit 15, which is a copy of an ORC issued in 2008 in response to a Charlotte County plan amendment increasing its Urban Service Area (USA). However, that amendment did not involve the CHHA or Section 163.3178(9). Rather, the ORC simply recommended that the expansion of the USA could be offset by removing other lands from the USA. A copy of the final disposition of that matter is not of record.

3/ The exhibits submitted by Dr. Hutchins to support his position are either distinguishable or inapposite. For example, in some cases, the local government had assigned a zoning classification to a parcel which was incorrectly mapped when the original comprehensive plan was adopted, and the changes were necessary to conform the land use with the existing zoning and uses on the property. The preponderance of the evidence is that the Department still performed a compliance review before approving any of these changes.

4/ The Department has not stipulated to the facts necessary to show that Intervenors are affected persons. In fact, the standing of all Intervenors is identified as an issue in paragraphs G.1. and H.1. of the parties' Joint PreHearing Stipulation.

COPIES FURNISHED:

Barbara Leighty, Clerk Transportation and Economic

Development Policy Unit The Capitol, Room 1801

Tallahassee, Florida 32399-0001

Rick Figlio, General Counsel Office of the Governor

The Capitol, Room 209 Tallahassee, Florida 32399-0001

Shaw P. Stiller, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

Conrad C. Bishop, Jr., Esquire The Bishop Law Firm, P.A.

Post Office Box 167

Perry, Florida 32348-0167

Matthew G. Davis, Esquire Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399-2100

Kenneth B. Hutchins 22645 Fishcreek Highway

Perry, Florida 32348-8162

Clinton Wood

45 Bird Island Road

Perry, Florida 32348-8187

Catherine W. Redding

3855 U.S. Highway 19 South

Perry, Florida 32348-6447

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: 10-001283GM

Orders for Case No: 10-001283GM