E. Canter, Administrative Law Judge of the Division of Administrative Hearings (“DOAH”).
David A. Acton, Esquire
Martin County Administrative Center 2401 Southeast Monterey Road Stuart, Florida 34996-3322
Marlene Katherine Stern, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
The issue to be determined in this case is whether Martin County's amendments to its Land Development Regulations (LDRs), adopted by Ordinance 833, are consistent with the Future Land Use Element of the Martin County Comprehensive Plan.
On November 17, 2009, Martin County adopted Ordinance 833, which amended Article 3 of the Martin County LDRs to address fishing and hunting camps. On December 8, 2009, Elisa Ackerly, Donna Melzer, Marge Ketter, and Martin County Conservation Alliance, Inc., filed a petition with the County, challenging the new LDRs as inconsistent with the Comprehensive Plan.
Martin County did not respond to the petition within 30 days and the same Petitioners filed a petition with the Department of Community Affairs (Department) on January 15, 2010.
The Department conducted an informal investigation and held an informal hearing. On July 16, 2010, the Department issued a written determination that the subject LDRs were inconsistent with the Martin County Comprehensive Plan. On August 2, 2010, the Department filed a petition for hearing with DOAH. The case
was abated for a period of time at the unopposed request of the Department. On March 25, 2011, the Department filed a notice that it had reconsidered its determination of inconsistency and now took the position that the new LDRs were consistent with the Comprehensive Plan. The Department voluntarily dismissed its petition for hearing and was then realigned as a Respondent.
On May 20, 2011, Petitioners Donna Melzer, Marge Ketter, and Martin County Conservation Alliance, Inc., withdrew all of their claims and Petitioner Elisa Ackerly withdrew her claims related to alleged inconsistency of the LDRs with capital improvements and infrastructure provisions of the Comprehensive Plan. On the same date, the parties represented that there was no genuine issue as to any material fact and, therefore, moved to cancel the scheduled final hearing and to submit proposed summary orders on a stipulated evidentiary record. These motions were granted. Official recognition was granted as to seven documents and the parties submitted 13 joint exhibits.
Petitioner Elisa Ackerly and Respondent Martin County filed Proposed Summary Orders. The Department joined in the Proposed Summary Order of Martin County. The proposed orders were carefully considered in the preparation of this Final Order.
The Department is the State land planning agency.
The Martin County is a political subdivision of the State of Florida. Through its Board of County Commissioners, it adopted Ordinance 833 on November 17, 2009, amending the LDRs pertaining to fishing and hunting camps.
Petitioner is a person who resides in Martin County.
She has an ownership interest in three parcels of land in the County. Two of the parcels are adjacent to land that is eligible for development as a hunting camp under the new LDRs. An owner of land that is adjacent to one of Petitioner's parcels has submitted plans for a hunting camp to the County.
Petitioner's principal complaint is that Ordinance 833 allows new commercial uses at fishing and hunting camps, which she contends are uses that are inconsistent with policies of the Future Land Use Element of the Comprehensive Plan that require new commercial development to be located in the Primary Urban Service Area and which require that agricultural lands be protected.
There are no policies of the Martin County Comprehensive Plan that specifically address fishing and hunting camps, but the following policies are relevant to the determination of the issues raised by Petitioner.
Policy 4.7A.2. Development in Primary Urban Service District. Martin County shall require new residential development with lots of one-half acre or smaller, commercial uses and industrial uses to locate in the
Primary Urban Service District. This requirement is to ensure consistency with the County's growth management policies and Capital Improvements Element and to assure that the Plan's LOS standards will be provided and maintained cost-efficiently.
Policy 4.7A.10. Priority for public services. In providing public services and facilities and allocating public financial resources for them first priority shall be given to the Primary Urban Service District. Second priority shall support the staged development of suitable lands in the Secondary Urban Service District at densities specified in Policy 4.7B.1 or as they are converted to the Primary Urban Service District.
Public Services that support or encourage urban development in other areas shall not be provided, except for improvements necessary to remedy an existing deficiency.
Policy 4.12A.2. Restrictions outside urban service districts. Outside urban service districts, development options shall be restricted to low-intensity uses, including Agricultural lands, not exceeding one unit per 20 gross acres; Agricultural Ranchette lands not exceeding one unit per five gross acres; and small-scale service establishments necessary to support rural agricultural uses.
Policy 4.13A.1 The FLUM identifies those lands in Martin County that are allocated for agricultural development. This designation is intended to protect and preserve agricultural soils for agriculturally related uses, realizing that production of food and commodities is an essential industry and basic to the County's economic diversity.
* * *
The further intent of the Agricultural designation is to protect agricultural land from encroachment by urban or even low density residential development.
* * *
Policy 4.13A.8(3) General Commercial development.
* * *
The areas designated for General Commercial development are specifically not adapted to permanent residential housing, and such uses shall be located in other areas designated for residential development. On the other hand, transient residential facilities including hotels and motels, timesharing or fractional fee residential complexes, or other transient quarters should be located in areas designated for commercial use.
Ordinance 833 amended Article 3 of the LDRs, entitled "Zoning Districts." Section 3.3 was amended to change the definition of "fishing and hunting camps." The previous definition excluded overnight lodging facilities, but the amendment changed the definition to include "overnight accommodations, food, transportation, guides and other customary accessory uses and facilities as set forth in Section 3.76.1."
Section 3.76.1 is a new section entitled "Hunting Camps" and establishes development standards for hunting camps, including a limitation on overnight accommodations to six guest rooms and a limitation on food service to customers of the
hunting camp. Sales and rentals of hunting supplies and accessories are also limited to customers of the hunting camp.
Ordinance 833 also defined "fishing and hunting camps" in a new Section 3.403. The definition in Section 3.403 is identical to the definition in Section 3.3, except that instead of including a reference to Section 3.76.1, the definition refers to Section 3.412.A. Section 3.412.A. adds the same development standards for hunting camps that are found in Section 3.76.1. There is no material difference between the two definitions.
Common sense indicates that the lands designated "Agricultural" on the Future Land Use Map are more appropriate areas for fishing and hunting camps than the Primary or Secondary Urban Service Districts. People generally fish, hunt, and camp in rural areas, not in urban areas.
Martin County contends that fishing and hunting camps are not commercial land uses, but are recreational uses. Petitioner claims, however, that the addition of overnight accommodations, food facilities, and accessory uses at fishing and hunting camps makes them inconsistent commercial uses.
The dictionary definition of the word "camp" includes the idea of staying overnight in an area. See, e.g., Webster's New Collegiate Dictionary 158 (1979). If a person stays overnight in a camp, he or she must have shelter and food. It
is a matter of general knowledge of which the Administrative Law Judge takes judicial notice that fishing and hunting camps often provide lodging for hunters and fisherman to stay overnight and facilities for eating.
Policy 4.12A.2 of the Comprehensive Plan allows "low- intensity uses," including "small-scale service establishments necessary to support rural and agricultural uses" outside of urban service districts. This policy co-exists with Policy 4.7A.2, which requires new commercial development to be located in the Primary Urban Service District. Obviously, therefore, low-intensity uses and small-scale service establishments that support rural and agricultural uses are not the type of uses, even if they have commercial aspects, that must be located in the Primary Urban Service District.
Although the County does not claim (for reasons that are not clear) that "customary accessory uses and facilities" for fishing and hunting camps are encompassed by the term "small-scale service establishments," the County asserts that customary accessory uses and facilities are the types of low- intensity uses which Policy 4.12A.2 allows outside the urban service districts. That is a reasonable interpretation of Policy 4.12A.2.
The LDRs establish development guidelines for hunting camps that are consistent with low-intensity uses. Petitioner
argues that no development guidelines are established for fishing camps and, therefore, they could be potentially include high-intensity commercial activities. If Ordinance 833 did not create development guidelines for fishing camps, that would not constitute a change because the previous LDRs already permitted fishing camps in agricultural areas without specifying any development guidelines other than a prohibition against overnight lodging. Both of the new definitions for "fishing camps" created by Ordinance 833 appear to incorporate by reference the guidelines applicable to hunting camps. However, even if the guidelines are not applicable to fishing camps, it cannot be assumed for the purposes of this consistency determination that the new LDRs permit uses at fishing camps that would not be low-intensity uses. The LDRs do not express or imply that intent.
The new LDRs are not inconsistent with Policy 4.7A.10, related to the County's priorities for providing public services, because the LDRs do not support or encourage urban development.
The new LDRS are not inconsistent with Policy 4.13A.1, related to the protection of agricultural soils because the allowance in the Comprehensive Plan for uses other than farming in the agricultural areas shows that the policy to protect
agricultural soils is not meant to preserve every square foot of agricultural soil for farming.
The new LDRS are not inconsistent with Policy 4.13A.1, related to the protection of agricultural lands from encroachment by urban or residential development because the LDRs do not authorize urban or residential uses in conjunction with fishing and hunting camps.
Petitioner did not show that the restricted commercial activities at fishing and hunting camps are urban uses. Therefore, such uses do not contribute to urban sprawl. They are reasonably treated by the County as low-intensity, support services which are consistent with the Comprehensive Plan policies to prevent urban sprawl into agricultural areas and to otherwise protect agricultural lands.
CONCLUSIONS OF LAW
Petitioner is a substantially affected person with standing to challenge the subject LDRs.
All land development regulations must be consistent with the local government comprehensive plan. See
§ 163.3194(1)(b), Fla. Stat. (2010)1/
Section 163.3194(3) provides that a land development regulation is consistent with the comprehensive plan if:
the land uses, densities or intensities, and other aspects of development permitted by such . . . regulation are compatible with
and further the objectives, policies, land uses, and densities or intensities in the comprehensive plan and if it meets all other criteria enumerated by the local government.
The adoption of a land development regulation is legislative in nature and shall not be found to be inconsistent with the local plan if it is fairly debatable that it is consistent with the plan. § 163.3213(5), Fla. Stat.
The term “fairly debatable” is not defined in chapter 163, Florida Statutes, but the Supreme Court of Florida stated in Martin Cnty. v. Yusem, 690 So. 2d 1288, 2195 (Fla. 1997), that: “The fairly debatable standard of review is a highly deferential standard requiring approval of a planning action if reasonable persons could differ as to its propriety.” Quoting from City of Miami Beach v. Lachman, 71 So. 2d. 148, 152 (Fla. 1953), the Court stated further that “an ordinance may be said to be fairly debatable when for any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction that in no way involves its constitutional validity.”
Section 163.3213(5)(b), Florida Statutes, provides that the order of the administrative law judge in a case to determine whether an LDR is consistent with the local government comprehensive plan shall be the final order.
Pursuant to section 120.57(1)(h), Florida Statutes, any party in a proceeding in which the administrative law judge
has final order authority may move for a summary final order when there is no genuine issue as to any material fact. The parties have stipulated that there is no genuine issue as to any material fact. Therefore, a summary final order is appropriate.
There is no direction in section 163.3213 to review an LDR against a standard of clarity, detail, or enforceability. The statute does not require a determination whether it is possible to apply the LDR in a manner that would be inconsistent with the comprehensive plan.
If it is unclear whether an LDR authorizes an activity that is inconsistent with the comprehensive plan, section 163.3213 does not require the administrative law judge to assume that the inconsistent activity is authorized. The requirement of section 163.3213 to use the fairly debatable standard points to the opposite analysis –- that unless the LDR clearly authorizes an inconsistent activity, it remains fairly debatable that the LDR does not authorize the inconsistent activity. An adversely affected person has a remedy if an LDR is misapplied to authorize development that is inconsistent with the comprehensive plan. See § 163.3215, Fla. Stat.
It is fairly debatable that the amendments to the LDRs adopted through Ordinance 833 are consistent with the Comprehensive Plan. Petitioner did not meet her burden to prove otherwise.
