Elawyers Elawyers
Washington| Change
Find Similar Cases by Filters
You can browse Case Laws by Courts, or by your need.
Find 49 similar cases
DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, BOARD OF PROFESSIONAL SURVEYORS AND MAPPERS vs WESLEY BRIAN HAAS, 15-000087PL (2015)
Division of Administrative Hearings, Florida Filed:West Palm Beach, Florida Jan. 08, 2015 Number: 15-000087PL Latest Update: Jul. 14, 2015

The Issue Whether Respondents failed to abide by various minimal technical standards applicable to the practice of surveying and mapping, in violation of Florida Administrative Code Rules 5J- and 5J-17.052, or were guilty of negligence in the practice of surveying and mapping, all in violation of section 472.0351, Florida Statutes (2012),1/ and if so, what is the appropriate sanction.

Findings Of Fact The Department is the state entity charged with regulating the practice of land surveying and mapping, pursuant to chapter 472, Florida Statutes. At all times material to this case, Mr. Haas was licensed as a professional surveyor and mapper in the state of Florida, with license number LS3708. Mr. Haas was employed by Exacta, which holds license number LB7337. A complaint was filed with the Department on January 27, 2014, by Mr. Charles B. Hatcher of Associated Surveyors, Inc., alleging numerous minimum technical standards errors on a survey prepared by Mr. Haas on September 25, 2012. Petitioner has failed to prosecute Mr. Haas or Exacta for the violations alleged in the complaint made by Mr. Hatcher, on January 27, 2014. Administrative complaints alleging identical counts were filed against Mr. Haas and Exacta. Count I alleges that some of the field data was not dated. Count I also alleges that the coordinates are not on the same datum as the survey, and thus, the survey map cannot be substantiated. Page 12 of Exhibit P-1, a page of computation notes, does not contain the date the information was observed and collected. Further, it is clear that page 12 is not simply a continuation of pages 10 and 11 (which are two halves of the same document) but is instead a separate document that is undated. Data shown in the raw data file and coordinates list differed from that reflected on the survey map. It appeared, however, that the data had been rotated and translated. Rotation and translation is an accepted survey technique which allows modern instrumentation to record data based upon an assumed initial point and bearing, and then calculate all further points and bearings relative to that initial measurement. This information recorded by the instrument must then be rotated and translated back to match the actual points and bearings on a parcel. The Department failed to show that the survey map could not be substantiated. As Mr. Gloer testified during cross examination: Q. My question is, wasn't it clear to you that the assumed bearing that Mr. Blackmon made, our party chief, on page 4 in his instrument-–in his data collector between Points 1 and 2 of a bearing of north zero degrees, or an azimuth of north zero degrees--isn't it clear to you that then in order for it to make sense on this drawing and all the other lines too, that you would have to rotate that to get on the same bearing basis? Doesn't that jump out to you as an expert, having done over 2,000 surveys? A. At the time two years-–well, it's been a year. A year ago when I did this original review, I based it on the data that was supplied to me. Now that you have explained it to me and I see that there is a note here that said they rotated it, yes, it's clear to me now, yes. Count II alleges that the field notes that are dated show a date of 9/24/12, while the survey drawing shows a field work date of 9/25/12. The parties stipulated as to the different dates shown on these documents.2/ The dated field notes show that field work was performed on September 24, 2012. The clear and convincing evidence is that the date of data acquisition was September 24, 2012, while the date on the survey drawing is September 25, 2012. Count III notes that the survey shows a found 3/4" iron rod at the point of beginning, notes that this appears to be the same corner shown on the coordinate list as point number 8, and states that the field notes do not show the setting or locating of the corner. The complaint concludes that this corner is not supported by accurate survey measurements. The notation "P.O.B." is found at the lowest corner of the property on the survey map, and underneath the corner is found the note "3/4 FIR NO ID." According to the Surveyor's Legend found on page 2, this indicates that the point of beginning is marked by a 3/4 inch found iron rod without identification, as Mr. Gloer testified. While page 12 shows a point marked as "set #8 @ DEED Dist/Dist frm 5 & 152" on the lot corner, it indicates this monument was set, and does not indicate a found iron rod. Point "6" has no notation at all on page 12 and does not appear to be aligned on the southeast property line, but point 6 is reflected in the raw data file and the coordinates list. The measurements to point 6, and description of it, are consistent with and support the property corner marked as the P.O.B. on the survey map. Count IV alleges that bearings shown on the survey as measured are not substantiated by the survey measurements in the raw data or coordinate list. Mr. Gloer testified that he inversed the data from the coordinates and that the bearings were different. However, as he admitted, he did not consider that the recorded survey measurements might reflect an assumed initial location and bearing and that they would therefore need to be rotated and translated to substantiate the bearings shown on the survey map. The Department failed to show by clear and convincing evidence that the bearings shown on the survey were not substantiated by measurements. Count V alleges that the three points used to locate the improvements, monumentation, and control for the survey are not part of a closed traverse and are not based on redundant measurements. As Mr. Gloer testified, the distance between points 1 and 2 was verified by redundant measurements: once measuring the distance from point 1 to point 2, and once measuring the distance from point 2 back to point 1. However, the angle created between points 2, 1, and 150 was not similarly measured on more than one occasion or from the opposite direction. Respondents argue that use of an instrument such as the robotic total station used here, which takes numerous measurements very quickly and then averages them, is, by definition, taking redundant measurements. However, Mr. Gloer testified that in his expert opinion, "redundant" measurement has a more specific meaning. It requires that an "independent check" be made. He noted that if a rodman had the rod on his toe, all of the measurements almost instantaneously taken and averaged by an instrument would reflect the same incorrect information and so these multiple readings would not serve the purpose of revealing the mistake and preventing the error. Only an independent measure, like shooting the distance backwards, would likely reveal the error and thus meet the purpose of a "redundant" measurement. The angle created between points 2, 1, and 150 was not verified by redundant measurements. Count VI alleges that the survey is based on found monumentation on the parcel being surveyed. No attempt was shown to find the point of commencement or boundary monumentation along the boundary of Beauclerc Gardens Replat, both of which are called for in the description. The legal description provides in part, "commence at an iron pipe located in the northeasterly line of Section 40, Township and Range aforementioned, at a point where said line is intersected by the line dividing Sections 31 and 32." Mr. Gloer testified that to ensure that the position of the boundary of real property was determined in complete accord with this real property description, an attempt to find the point of commencement and the boundary of Beauclerc Gardens Replat was required, and that there was no evidence that this was done. However, no evidence was presented to indicate that the survey as conducted was not in complete accord with the property description as attached to the survey map. Count VII alleges that the survey does not tie to an established identifiable real property corner. As Mr. Gloer testified, the parcel being surveyed was described by metes and bounds. Nothing on the survey tied into any identified corner of Beauclerc Gardens. The survey did not tie into a real property corner of either lot 1 or 2 of Beauclerc Gardens, which were the closest lots. Instead, the survey was tied to a monument on the line south of Beauclerc Terrace on that right-of-way, identified on page 12 as point "151." That point was not an established identifiable real property corner of Beauclerc Gardens. As Mr. Gloer testified, the survey did not tie to an established identifiable real property corner. Count VIII alleges that the field notes and raw data do not show either the fence corner or the water meter that supposedly made the two nearby corners inaccessible. The computation notes at page 12 and the survey map on page 1 do not show a monument set at the most easterly corner of the lot, but they do show an offset point and reasonably indicate that a water meter is at the corner. Similarly, neither the computation notes nor survey map show a monument set at the most westerly corner of the lot, but the survey map shows an offset monument and has an indication that there is a fence post at the corner. Mr. Gloer noted that neither the water meter nor the fence post, if they existed, had been positively located on the field notes or raw data as being at the corners.3/ Mr. Gloer noted that the coordinates list indicated that the location of the water meter was calculated. Count IX alleges that there is a monument shown in the field notes, point number 6, but not shown on the survey. As discussed earlier in connection with Count III, the field computation notes appear to show two monuments in fairly close proximity to the southernmost corner of the property. The survey map at page 1 shows only one monument at this corner, labeled "P.O.B." and described as "3/4 FIR NO ID" which, as noted above, refers to a 3/4 inch found iron rod without identification. This descriptive information appears to correlate with the side shot of point 6 found on page 6 of the raw data file and page 9 of the coordinates list. While the field notes are confusing, the Department did not show by clear and convincing evidence that point number 6 was not shown on the survey. Count X alleges that all the monuments were tied by side shots without a redundancy of the measurements. The raw data at page 4 indicate that the 1/2 inch found iron pipe and cap marked with "R. Miller," which is shown as the easternmost monument on the survey, was located by a side shot, a single measurement, and that Mr. Blackmon only turned one angle and one distance to that point. Similarly, the data at page 5 show that the 1/2 inch found iron pipe with no identification which is shown as the northernmost monument on the survey was located by a single side shot. Again, the data on page 6 show that the 3/4 inch found iron rod without identification which is shown as the southernmost monument and point of beginning on the survey was located by a side shot. The data sheets show no other ties to these points taken from another position, or otherwise demonstrate that redundant measurements were taken. Count XI alleges that the survey dated September 25, 2012, was negligently prepared. On this point, the Transcript records: Q. And then one final question, Mr. Gloer. In your professional opinion, expert opinion, do you believe that these ten MTS violations that you have discovered, taken as a whole constitutes-–of the minimum technical standards, taken as a whole, constitutes negligence in the practice of surveying and mapping in the State of Florida? A. I do. This question and answer, predicated on considering ten other violations as a whole, offers no insight as to whether a fewer number of violations might constitute negligence, or whether some of the violations are so serious, or are of such a nature, that they might do so even standing alone. No evidence was introduced at hearing to indicate that Mr. Haas' professional license has been previously disciplined. Exacta was the subject of five earlier administrative complaints alleging violations of Minimal Technical Standards, which were the subject of a Settlement Stipulation. Given the terms of the stipulation, there is no competent evidence showing that Exacta committed prior offenses. However, the Corrected Final Order Approving Settlement Stipulation constitutes prior disciplinary action against Exacta.

Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services, Board of Professional Surveyors and Mappers: Finding Wesley Brian Haas and Exacta Land Surveyors, Inc., in violation of section 742.0351(1)(h), Florida Statutes, for failing to conduct surveying and mapping in accordance with the minimum technical standards prescribed by Florida Administrative Code Rules 5J-17.051(2)(b)3., 5J-17.051(3)(b)3., 5J-17.051(3)(b)15.b.(II), 5J-17.052(2)(a)8., and 5J- 17.052(2)(b)7.; imposing an administrative fine of $1500.00 on Wesley Brian Haas; and imposing an administrative fine of $4000.00 on Exacta Land Surveyors, Inc. DONE AND ENTERED this 14th day of April, 2015, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 14th day of April, 2015.

Florida Laws (13) 120.57120.6817.011472.001472.005472.008472.015472.021472.027472.033472.0351472.0355472.037 Florida Administrative Code (4) 28-106.2175J-17.0115J-17.0515J-17.052
# 1
BOARD OF PROFESSIONAL LAND SURVEYORS vs. DENNIS HEASLEY, 84-000640 (1984)
Division of Administrative Hearings, Florida Number: 84-000640 Latest Update: Oct. 17, 1986

Findings Of Fact At all times pertinent to the allegations involved in this administrative hearing, the Respondent, Dennis Heasley, was a licensed land surveyor having been issued license number LS 3466 by the State of Florida. In January 1981 Respondent was an employee of James Bushouse and Associates, a land surveying firm. On January 31, 1981, MidSouth Engineering (MidSouth), a licensed land surveying company, entered into a contract with Figg and Muller Engineers, Inc., and the State of Florida, Department of Transportation, to provide engineering and land surveying services for the new Sunshine Skyway Bridge project. On June 10, 1981, MidSouth entered into a contract with Bushouse for Respondent, Heasley, and other Bushouse employees to perform some of the land survey services called for in the contract MidSouth had with the Department of Transportation. Thereafter, MidSouth entered into an agreement with Respondent Heasley and one Jorge R. Saniz providing that, for a fee of $200,000.00 Heasley and Sainz would provide land surveying and consulting services to MidSouth for its work under its state contract. On or about June 26, 1981, Heasley and Sainz began their work under the agreement with MidSouth, and the work called for by the agreement was satisfactorily completed by July 31, 1981. Thereafter, Heasley billed MidSouth for the unpaid remainder of the contract price and was paid. The contract between MidSouth and the State of Florida provided for payment by the State based on crew day rates wherein the State would pay so much money per crew day expended. The work in issue here was to take no more than 85 crew days with an upper limit on payment to be approximately $300,000.00. Respondent actually completed the work in 34 days. His speedy completion of the job resulted in MidSouth receiving less under its contract than anticipated. Shortly after completion, he became an employee of MidSouth. In the course of his continuing employment, he worked on some other aspects of the bridge project that were awarded to MidSouth. Respondent's lump-sum contract with MidSouth called for payment to him of $200,000.00. Out of that sum he was supposed to pay all his and Sainz' job expenses which included the salary, housing, and feeding of the employees he hired to perform the actual surveying work. His understanding with MidSouth called for him to utilize approximately 12 to 16 crew members. During the time the work was being performed, Respondent and Mr. Sainz rented a house near the work-site in which crew members were provided a place to live. Food paid for by Respondent Sainz was provided as were laundry facilities. The sums paid for these items as well as the transportation of the workers and the worker's salaries were to come from the $200,000.00 fee paid by MidSouth. Payments were made on the basis of periodic draws. Either Heasley or Sainz would contact MidSouth and state that some money was required for expenses and a sum was furnished. As this sum was expended Respondent would ask for more. He indicates that the relationship was like a game in that he asked for as much as he thought he could get and MidSouth would pay as little as it thought it could get away with. In any event, no actual per diem monies were paid by Respondent to the employees who were working on the survey crew. Respondent admits that during the 34 days this arrangement was in effect, he kept very few records and receipts. He relied on MidSouth to keep all the expense records and whatever receipts he received for money spent, he sent in to MidSouth which made up the payroll for Heasley and Sainz' crew members from the times he called in. Several months after the subcontract between Heasley, Sainz, and MidSouth was completed, Heasley was called by Tom Heinly, Executive Vice- President of MidSouth and his immediate supervisor, with a request that he, Heasley, prepare, sign and submit a list of per diem expenses for the crew which worked on the contract referenced above. In the course of the conversation, Heinly asked that it be prepared a certain way. In response, Respondent told Heinly that he could not do that because he had not paid the money as per diem payments but had provided payment in kind in the form of food, lodging, and laundry. Heinly advised Respondent to think about it and later called back again asking that Heasley prepare and sign a statement indicating per diem money paid. Heinly argued that MidSouth was entitled to the money and asked that Heasley do this as a favor. Again, Heasley refused. The third time Heinly called Heasley, he indicated that the list would be strictly a memorandum between Heasley and MidSouth to account for some of the money advanced by MidSouth and that the list had nothing to do with the State. Heinly assured Heasley that the improper, inaccurate list would not go to the State since this was one of Heasley's concerns. Heinly indicated that he had talked with representatives of the State and had been assured that it was legitimate to file an invoice such as this. Heasley was led to believe that the State would not reimburse MidSouth for advances made for in-kind payments but would reimburse for actual per diem expenses. Ultimately, since Heasley was convinced by Heinly that MidSouth was entitled to be reimbursed for these monies and since, to the best of his recollection, he, Heasley, had paid out in in-kind expense a sum similar to that claimed on the per diem list, it would be all right to so certify. Therefore, he agreed to sign the list after the third request. The list which Heasley signed was prepared by MidSouth personnel, not Heasley, and was brought to Heasley by Mr. Duffer, MidSouth's chief accountant. Respondent does not recall going over the list at the time he signed it and verified neither the names nor the amounts set out thereon. When he checked it over much later, he found that some of the names on the list should not have been there. Respondent admits signing the document and admits that the document as signed was false. When investigators from the State Attorney's Office initially talked with Mr. Heasley about this incident he was less than forthright. Though they had advised him they were investigating the relationship between MidSouth and the Department of Transportation, the tenor of their questions indicated to him that they were investigating him and his answers were evasive and, in fact, erroneous. However, when he subsequently found out the nature of the investigation, he attempted to get word to the investigators that he would like to continue the discussion. He was unable to do so, however, and was not interviewed by these officials again. He was, however, subsequently interviewed by Mr. Cartwright who, in mid to late 1981, was conducting an investigation into the MidSouth, Heasley and Sainz relationship with the Skyway Bridge project. An engineer with the State had expressed some concern regarding invoices submitted by MidSouth and the preliminary inquiry showed some cause for concern. As a result, a full investigation was begun which revealed that MidSouth had little if any documentation to cover invoices submitted to the State. It also showed that the company's accounting procedures and internal control were almost nonexistent. As a part of the investigation Cartwright interviewed Heasley who admitted that he had signed the documents referred to above regarding per diem payments. Heasley also admitted that in some cases the payees did not receive the money claimed but in his opinion, the bottom line balanced out and MidSouth was entitled to the total sum.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Dennis Heasley's license as a land surveyor in the State of Florida, be placed on probation for a period of two years, under such terms and conditions as shall be established by the Board of Land Surveyors, and that he be reprimanded and pay an administrative fine of $1,000.00. DONE AND ENTERED this 16th day of January 1985 in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of January 1985. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 E. C. Deeno Kitchen, Esquire Melissa Fletcher Allaman Post Office Drawer 1170 Tallahassee, Florida 32302 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Allen R. Smith, Jr. Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301

Florida Laws (4) 2.01455.227472.031472.033
# 2
PATRICIA J. EDWARDS AND HENRY A. OLYNGER, JR./TIC vs MONROE COUNTY PLANNING COMMISSION, 17-006177GM (2017)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Nov. 09, 2017 Number: 17-006177GM Latest Update: Mar. 27, 2018

The Issue The issue is whether to approve the Petitioners’ application for a beneficial use determination (BUD) regarding their property on Ramrod Key, Florida, and if approved, to determine the type of relief that is appropriate.

Findings Of Fact The following findings of fact are taken from the parties’ joint pre-hearing stipulation, and the direct evidence adduced at the hearing. The Property The Petitioners’ property is located at 475 Brown Drive, Ramrod Key, in Monroe County. According to the Monroe County Property Appraiser, the size of the site is 0.95 acres. The property is vacant and contains disturbed and undisturbed wetland habitat. The property’s immediate vicinity is described as residential development of single-family units to the west and south, environmentally sensitive lands to the south and east, and open water to the north. The property is legally described as “being a portion of Tract ‘A’, Ramrod Shores Third Addition, according to the plat thereof, as recorded in Plat Book 6, Page 108 of the Public Records of Monroe County, Florida” having real estate number 00209971-004600. The property’s current Land Use Map Zoning Districts are Improved Subdivision (IS) and Native Area (NA). The property’s Future Land Use Map (FLUM) designations are Residential Medium (RM) and Residential Conservation (RC). The Tier Designation is Tier III Infill Area. Relevant Prior County Actions On December 19, 1972, the Monroe County Board of County Commissioners (BOCC) passed Resolution No. 146-1972 approving the Plat of Ramrod Shores Third Addition and filed for record in Plat Book 6 at Page 108 of the Public Records of Monroe County. The landowner was James M. Brown, as Trustee. The subject property is within Tract A of this plat. In 1986, Monroe County adopted a revised set of zoning regulations via Ordinance No. 33-1986. Ordinance No. 33-1986 also approved a revised series of zoning maps (also known as the Pattison Maps) for all areas of the unincorporated county by reference. With the adoption of the 1986 Land Development Regulations and zoning maps, most of the Petitioners’ property was designated as IS zoning with a small portion as NA. In 1992, a revised series of zoning maps were approved (also known as the Craig Maps) for all areas of the unincorporated county. With the adoption of the revised (Craig) zoning maps, the Petitioners’ property remained designated as IS with a small portion as NA. In 1993, the County adopted a set of FLUM maps pursuant to a joint stipulated settlement agreement and section 163.3184, Florida Statutes. BOCC Ordinance No. 016-1993 memorialized the approval. The FLUM maps took effect in 1997 after approval from the state land planning agency. With the adoption of the FLUM maps, the Petitioners’ property was designated as RM and a small portion as RC. On March 23, 2015, the Petitioners were provided a Letter of Current Site Conditions for the subject property. The letter summarized the environmental habitats on the property and the applicable portions of the Comprehensive Plan and Land Development Code. The letter stated the KEYWEP score for disturbed portions of the wetland was 4.45. The score of 4.45 means the property was buildable, disturbed wetlands. The undisturbed wetlands consist of tidal mangroves and were by definition “red flag” wetlands. Disturbed wetlands may be developed under section 118-10, Monroe County Code. Development is not permitted in undisturbed wetlands where 100 percent open space is required. On November 24, 2015, the Petitioners applied for a building permit to construct a single-family detached residential dwelling unit. On December 4, 2015, the County’s Planning and Environmental Resources Department (the Department) sent the Petitioners a notice that the Department denied their building permit application number 15106233. The notice informed the Petitioners that the Department’s decision may be appealed within 30 calendar days. No appeal was filed to challenge the propriety of the Department’s decision. The Department’s December 4, 2015, notice stated that the Ramrod Shores Third Addition Plat shows that the Petitioners’ property is located within Tract A. Although Tract A was subdivided into seven parcels, this was never shown as lots on an approved and duly recorded plat. The Department determined that the property did not meet the definition of “lot” in section 101-1, Monroe County Code, and did not meet the residential density requirements of the IS Land Use District in order to allow the proposed development of a dwelling unit. See § 130-157, Monroe Cnty. Code. On December 7, 2016, the Department received the agent’s BUD Application, File No. 2016-202. On December 22, 2016, the Department sent the agent a Notice of Deficiencies pursuant to section 102-105, Monroe County Code, after the application was reviewed by staff to determine if the application was complete and included the materials and information listed in section 102-105(b). On January 6, 2017, the Department received additional materials and information from the agent. On January 27, 2017, the Department notified the agent that the application was determined to be sufficient. On March 28, 2017, the Department forwarded the BUD application to DOAH for adjudication. After the Petitioners sought to amend their application with a new basis for relief, DOAH relinquished its jurisdiction. On June 12, 2017, the Petitioners submitted an Amended BUD Application to the Department. After sending a second Notice of Deficiencies and receiving additional materials and information from the agent, the Department determined that the application was sufficient. The Amended BUD Application was suspended for 60 days, pursuant to BOCC Resolution No. 214-2017, as a temporary emergency measure after Hurricane Irma made landfall in the Florida Keys on September 10, 2017. On November 9, 2017, the Department forwarded the BUD Application to DOAH for adjudication. Petitioners’ Actions The Petitioners purchased the subject property on April 23, 1990. Between 1990 and 1991, the Petitioners submitted an application to the Department of Health and Rehabilitative Services (HRS) for an on-site aerobic septic system. At first, the HRS denied the application based on lot size issues. The HRS Variance Review Board recommended disapproval of the septic system application on June 7, 1991, on the grounds of insufficient lot size and an illegal canal. After the Petitioners failed to obtain HRS approval in 1991, they took no further steps to develop the property until they submitted an application for a Letter of Current Site Conditions on January 30, 2015, and an application for a single- family residence on November 24, 2015. Mr. Olynger testified that the Petitioners purchased the property because of the ocean view and expected to build a house on the property. He testified that after the HRS denials in the early 1990s, he started the process of trying to develop the property again in 2014 because central sewer was now available. IS Land Use District Due to the density requirements for the IS Land Use District of one dwelling unit per lot, the Petitioners are unable to construct a single-family home, which is an as-of- right use in the IS Land Use District. The IS Land Use District permits other as-of-right and conditional uses. While Mr. Olynger disputed the economic productivity of some of these uses, it was not disputed that the property could potentially be used for (a) recreational purposes; (b) a community park; (c) beekeeping; (d) wastewater system; (e) Rate of Growth Ordinance (ROGO) points or transferable development rights (TDRs); or (f) sold to a neighbor for open space, yard expansion or an accessory use, such as a pool. Mr. Bond testified that that the County’s Comprehensive Plan and Code allow landowners competing for the limited number of building allocations in the point-based ROGO to buy and donate vacant parcels such as the subject property to increase their ROGO scores. The subject property qualifies as a ROGO Lot and there is an active secondary market of people buying and trading ROGO Lots in Monroe County. Mr. Bond also testified that the Petitioners could apply for Future Land Use Map and Land Use (Zoning) District Map amendments to a category that would allow for the construction of a single-family dwelling based upon an adopted acreage density standard. The Petitioners have not made any such applications. There was no direct evidence on the fair market value of the property, as encumbered by the regulation.2/

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of County Commissioners deny the Petitioners’ application for relief under section 102-104, Monroe County Code. DONE AND ENTERED this 27th day of March, 2018, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES 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 27th day of March, 2018.

Florida Laws (2) 120.57163.3184
# 3
DEPARTMENT OF COMMUNITY AFFAIRS vs MIAMI-DADE COUNTY, 08-003614GM (2008)
Division of Administrative Hearings, Florida Filed:Midway, Florida Jul. 22, 2008 Number: 08-003614GM Latest Update: Jun. 04, 2010

The Issue The issue in this case is whether the amendments to Miami- Dade County’s Comprehensive Development Master Plan (CDMP), adopted through Ordinance Nos. 08-44 and 08-45, are “in compliance” as that term is defined in Section 163.3184(1)(b), Florida Statutes (2008).1

Findings Of Fact The Parties The Department is the state land planning agency and is statutorily charged with the duty to review amendments to local comprehensive plans and to determine whether the amendments are “in compliance,” pursuant to Section 163.3184, Florida Statutes. The County is a political subdivision of the State and has adopted a local comprehensive plan that the County amends from time to time. 1000 Friends is a Florida not-for-profit corporation that maintains its headquarters in Tallahassee, Florida. Its corporate purpose is to ensure the fair and effective implementation of the Growth Management Act, Chapter 163, Part II, Florida Statutes, through education, lobbying, research and litigation. 1000 Friends has approximately 3,500 members, 174 of whom live in the County. NPCA is a foreign, not-for-profit corporation that is registered to do business in Florida. Its headquarters are in Washington, D.C. It has a branch office in Hollywood, Broward County, Florida. NPCA’s purpose is to protect and preserve national parks, including Everglades National Park. NPCA has approximately 340,000 members, 1,000 of whom live in the County. Barry White and Karen Esty are residents of the County. Lowe’s is a for-profit corporation that owns and operates a business in the County. David Brown, along with his father and brother, is a co-applicant for the Brown amendment. For the purpose of this Recommended Order, the Department and the Intervenors aligned with the Department will be referred to, collectively, as Petitioners. Standing Lowe’s filed the application with the County that resulted in Ordinance No. 08-44 (Lowe’s Amendment). Lowe’s submitted comments to the County concerning the Lowe’s Amendment during the period of time from the County’s transmittal of the amendment to the County’s adoption of the amendment. Brown filed the application with the County that resulted in Ordinance No. 08-45 (Brown Amendment). Brown resides in the County. Brown is a manager/member of BDG Kendall 172, LLC, which has a contract to purchase the larger of the two parcels on the application site. Brown is also a manager/member of BDG Kendall 162, LLC, which owns and operates a business in Miami-Dade County. Brown submitted comments to the County at the transmittal and adoption hearings. 1000 Friends submitted comments to the County during the period of time from the transmittal of the amendments to their adoption. 1000 Friends presented its comments to the County on behalf of its members who reside in the County. 1000 Friends does not own property or maintain an office in the County. 1000 Friends does not pay local business taxes in the County and did not show that it is licensed to conduct a business in the County. 1000 Friends has engaged in fundraising, lobbying, and litigation in the County. Its activities include efforts to promote growth management, affordable housing, and Everglades restoration. 1000 Friends did not show that its activities in the County subject it to the provisions of the CDMP. NPCA submitted comments to the County during the period of time from the transmittal of the amendments to their adoption. NPCA presented its comments to the County on behalf of NPCA members who reside in the County. NPCA does not own property or maintain an office in the County. No evidence was presented to show that NPCA pays business taxes in the County or that it is licensed to conduct business in the County. NPCA did not show that its activities in the County subject it to the provisions of the CDMP. Barry White and Karen Esty are residents of the County. They submitted comments to the County regarding the amendments during the period of time from the transmittal of the amendments to their adoption. The Amendment Adoption Process The applications which resulted in the Lowe’s and Brown Amendments were submitted to the County during the April 2007 plan amendment cycle. The County’s review process for comprehensive plan amendments includes a public hearing before the community council which has jurisdiction over the area of the County where the affected lands are located. Following the public hearings on the proposed Lowe’s and Brown Amendments, the community councils recommended that the Board of County Commissioners approve the amendments. The County’s Planning Advisory Board also reviews proposed amendments before the transmittal and adoption hearings. Following public hearings on the proposed Lowe’s and Brown Amendments, the Planning Advisory Board recommended that the Board of County Commissioners approve the amendments for transmittal and for adoption. The County planning staff recommended that the proposed amendments be denied and not transmitted to the Department. The principal objection of the planning staff was that the expansion of the Urban Development Boundary (UDB), an aspect of both proposed amendments, was unjustified. In November 2007, the Board of County Commissioners voted to transmit the amendments to the Department. The Department reviewed the proposed amendments and issued its Objections, Recommendations, and Comments (ORC) Report on February 26, 2008. In the ORC Report, the Department stated that expanding the UDB would be internally inconsistent with the CDMP because the need for the expansion had not been demonstrated. In addition the Department determined that the Lowe’s Amendment was inconsistent with CDMP policies regarding the protection of wetlands, and the Brown Amendment was inconsistent with CDMP policies regarding the protection of agricultural lands. When the amendments came before the Board of County Commissioners after the ORC Report in March 2008, the County planning staff recommended that the amendments be denied, repeating its belief that the expansion of the UDB would be inconsistent with the CDMP. Under the County’s Code of Ordinances, an expansion of the UDB requires approval by a two-thirds vote of the Board of County Commissioners. The County adopted the amendments through Ordinances No. 08-44 and 08-45 on April 24, 2008. On April 30, 2008, the Mayor Carlos Alvarez vetoed the ordinances, citing inconsistencies with the UDB policies of the CDMP. His veto was overridden by a two-thirds vote of the Board of County Commissioners on May 6, 2008. On July 18, 2008, the Department issued its Statement of Intent to Find Comprehensive Plan Amendments Not in Compliance. The Lowe’s Amendment The Lowe’s Amendment site consists of two parcels located in close proximity to the intersection of Southwest 8th Street, also known as Tamiami Trail, and Northwest 137th Avenue. The easternmost parcel, Parcel A, is 21.6 acres. The adjacent parcel to the west, Parcel B, is 30.1 acres. Neither parcel is currently being used. About 50 percent of both Parcels A and B are covered by wetlands. The wetlands are partially drained and show encroachment by exotic vegetation, including Melaleuca and Australian pine. The Lowe’s site is located within the Bird Trail Canal Basin, which the CDMP characterizes as containing “heavily impacted, partially drained wetlands.” Both Parcels A and B are currently designated Open Land under the CDMP, with a more specific designation as Open Land Subarea 3 (Tamiami-Bird Canal Basins), and can be used for residences at densities of up to one unit per five acres, compatible institutional uses, public facilities, utility and communications facilities, certain agricultural uses, recreational uses, limestone quarrying, and ancillary uses. East of the Lowe’s site is another parcel owned by Lowe’s that is designated Business and Office and is within the UDB. North and west of the Lowe’s site is Open Land. The Lowe’s site is bordered on the south by Tamiami Trail, a six- lane road. Across Tamiami Trail is land designated Business and Office. The Lowe’s amendment would reclassify Parcel A as Business and Office and Parcel B as Institution, Utilities, and Communications. The Lowe’s Amendment would also extend the UDB westward to encompass Parcels A and B. The Business and Office designation allows for a wide range of sales and service activities, as well as compatible residential uses. However, the Lowe’s amendment includes a restrictive covenant that prohibits residential development. The Institution, Utilities, and Communications land use designation allows for “the full range of institution, communications and utilities,” as well as offices and some small businesses. Parcel A is subject to another restrictive covenant that provides that Lowe’s shall not seek building permits for the construction of any buildings on Parcel A without having first submitted for a building permit for the construction of a home improvement store. The use of Parcel B is restricted to a school, which can be a charter school. If a charter school is not developed on Parcel B, the parcel will be offered to the Miami-Dade County School Board. If the School Board does not purchase Parcel B within 120 days, then neither Lowe’s nor its successors of assigns have any further obligations to develop a school on Parcel B. The Brown Amendment The Brown Amendment involves four changes to the CDMP: a future land use re-designation from “Agriculture” to “Business and Office”; an expansion of the UDB to encompass the Brown site; a prohibition of residential uses on the site; and a requirement that the owner build an extension of SW 172nd Avenue through the site. The Agriculture designation allows agricultural uses and single family residences at a density of one unit per five acres. The proposed Business and Office land use designation allows a wide range of commercial uses, including retail, professional services, and office. Residential uses are also allowed, but the Declaration of Restrictions adopted by the County with the Brown Amendment prohibits residential development. The Brown Amendment site is 42 acres. Some of the site is leased to a tenant farmer who grows row crops. The balance is vacant and not in use. The Brown site has a triangular shape. Along the sloping northern/eastern boundary is Kendall Drive. Kendall Drive is a major arterial roadway, a planned urban corridor, and part of the state highway system. On the site's western boundary is other agricultural land. There is commercial development to the east. Along the southern boundary is the 1200-unit Vizcaya Traditional Neighborhood Development, which is within the UDB. The entirety of the Brown site has been altered by farming activities. In the southwest portion of the site is a four-acre, degraded wetland that is part of a larger 28-acre wetland located offsite. The wetland is not connected to any state waters and the Army Corps of Engineers has not asserted jurisdiction over it. The wetland is not on the map of “Future Wetlands and CERP Water Management Areas” in the Land Use Element of the CDMP. The dominant plants in the wetland are exotic species. There is no evidence that any portion of the site is used by any threatened or endangered species. The Urban Development Boundary and Urban Expansion Area The principal dispute in this case involves the application of Policies LU-8F and LU-8G of the CDMP regarding the expansion of the UDB. Policy LU-8F directs that adequate supplies of residential and nonresidential lands be maintained in the UDB. If the supply of lands becomes inadequate, Policy LU-8G addresses where the expansion of the UDB should occur. The UDB is described in the Land Use Element: The Urban Development Boundary (UDB) is included on the LUP map to distinguish the area where urban development may occur through the year 2015 from areas where it should not occur. Development orders permitting urban development will generally be approved within the UDB at some time through the year 2015 provided that level- of-service standards for necessary public facilities will be met. Adequate countywide development capacity will be maintained within the UDB by increasing development densities or intensities inside the UDB, or by expanding the UDB, when the need for such change is determined to be necessary through the Plan review and amendment process. The UDB promotes several planning purposes. It provides for the orderly and efficient construction of infrastructure, encourages urban infill and redevelopment, discourages urban sprawl, and helps to conserve agricultural and environmentally-sensitive lands. The County only accepts applications for amendments seeking to expand the UDB once every two years, unless they are directly related to a development of regional impact. In contrast, Chapter 163, Florida Statutes, allows two amendment cycles in a calendar year, Amendments that would expand the UDB must be approved by at least two-thirds of the total membership of the Board of County Commissioners. Other types of amendments only require a majority vote of the quorum. Outside the UDB are County lands within the relatively small Urban Expansion Area (UEA), which is described in the CDMP as “the area where current projections indicate that further urban development beyond the 2015 UDB is likely to be warranted some time between the year 2015 and 2025.” The UEA consists of lands that the CDMP directs “shall be avoided” when the County is considering adding land to the UDB. They are (1) future wetlands, (2) lands designated Agriculture, (3) hurricane evacuation areas, and (4) lands that are part of the Comprehensive Everglades Restoration Plan. The “future” wetlands on this list are existing wetland areas delineated by the County on Figure 14 of the Land Use Element. A far larger area of the County, mostly west of the UDB and UEA, consists of lands that the CDMP directs “shall not be considered” for inclusion in the UDB. These are water conservation areas, lands associated with Everglades National Park, the Redland agricultural area, and wellfield protection areas. Policy LU-8F Policy LU-8F of the Land Use Element provides: The Urban Development Boundary (UDB) should contain developable land having capacity to sustain projected countywide residential demand for a period of 10 years after adoption of the most recent Evaluation and Appraisal Report (EAR) plus a 5-year surplus (a total 15-year Countywide supply beyond the date of EAR adoption). The estimation of this capacity shall include the capacity to develop and redevelop around transit stations at the densities recommended in policy LU-7F. The adequacy of non- residential land supplies shall be determined on the basis of land supplies in subareas of the County appropriate to the type of use, as well as the Countywide supply within the UDB. The adequacy of land supplies for neighborhood- and community- oriented business and office uses shall be determined on the basis of localized subarea geography such as Census Tracts, Minor Statistical Areas (MSAs) and combinations thereof. Tiers, Half-Tiers and combinations thereof shall be considered along with the Countywide supply when evaluating the adequacy of land supplies for regional commercial and industrial activities. There is no further guidance in the CDMP for determining the “adequacy of land supplies” with respect to nonresidential land uses. Neither Chapter 163, Florida Statutes, nor Florida Administrative Code Chapter 9J-5 requires that local governments use a particular methodology to determine the adequacy of nonresidential land supplies. The County’s usual methodology for determining need is described in the Planning Considerations Report that the County planning staff prepared for the 2007 amendment cycle. A report like this one is prepared by the staff for each amendment cycle to evaluate the adequacy of the CDMP to accommodate growth and to evaluate pending amendment applications. The County compares a proposed use to its immediate surroundings and the broader area of the County in which the proposed use is located. The basic geographic unit used in the County’s need analysis is the Minor Statistical Area (MSA). Larger planning areas, called Tiers, are groupings of MSAs. The County is divided into 32 MSAs and four Tiers. The Lowe’s Amendment site is in MSA 3.2, but it is on the border with MSA 6.1, so the two MSAs were consolidated for the County’s need analysis regarding the Lowe’s Amendment, even though MSA 3.2 is in the North Central Tier and MSA 6.1 is in the South Central Tier. The Brown Amendment is in MSA 6.2, but it is close to MSA 6.1, so the County combined the two MSAs for its need analysis for the Brown Amendment. Both MSAs are in the South Central Tier. The Planning Considerations Report contains a 2007 inventory of commercial land. The only vacant land used in the analysis of available commercial land supply was land zoned for business, professional office, office park, or designated Business and Office on the Land Use Map. Although it is stated in the Planning Considerations Report that lands zoned or designated for industrial uses are often used for commercial purposes, this situation was not factored into the calculation of the available supply of commercial lands. The County also excluded any supply that could be gained from the redevelopment of existing sites. Petitioners contend, therefore, that the County’s need for commercial land is less than the planning staff calculated in the Planning Considerations Report. On the other hand, Respondents contend that the County’s need for commercial land is greater than the planning staff calculated in the Planning Considerations Report because the County planning staff did not apply a “market factor” for commercial lands as it does for residential lands. A market factor is considered by some professional planners to be appropriate for commercial land uses to account for physical constraints and other factors that limit the utilization of some vacant parcels, and to prevent situations where the diminished supply of useable parcels causes their prices to rise steeply. The CDMP recognizes the problem in stating that: impediments can arise to the maximum utilization of all lands within the boundaries [of the UDB]. In some urbanized areas, it may be difficult to acquire sufficiently large parcels of land. In other areas, neighborhood opposition to proposed developments could alter the assumed density and character of a particular area. The County used a market factor of 1.5 (50 percent surplus) to determine the need for residential land. The County did not use a market factor in its analysis of the need for commercial land. The Department’s expert planning witness, Mike McDaniel, testified that the Department generally supports use of a 1.25 allocation (25 percent surplus). The County’s most recent UDB expansions for nonresidential uses (other than Lowe’s and Brown) were the Beacon Lakes and Shoppyland amendments in 2002. The Beacon Lakes and Shoppyland UDB expansions were approved despite the fact that the County did not project a need for more industrial land within the planning horizon. The need determinations for these amendments were not based on the use of a market factor, but on a percieved2`` need for the particular land uses proposed – warehouses and related industrial uses on large parcels to serve the Miami International Airport and the Port of Miami. The evidence indicates that the County’s exclusion from its analysis of industrial lands that can be used for commercial purposes, and additional commercial opportunities that could be derived from the redevelopment of existing sites, is offset by the County’s exclusion of a market factor. If the supply of commercial land had been increased 25 percent to account for industrial lands and redevelopment, it would have been offset by a 1.25 market factor on the demand side. The calculations made by the County in its Planning Considerations Report would not have been materially different. The Planning Considerations Report analyzes commercial demand (in acres) through the years 2015 and 2025, and calculates a “depletion year” by MSA, Tier, and countywide. A depletion year is the year in which the supply of vacant land is projected to be exhausted. If the depletion year occurs before 2015 (the planning horizon for the UDB), that is an indication that additional lands for commercial uses might be needed. The County planning staff projected a countywide depletion year of 2023, which indicates there are sufficient commercial lands in the County through the planning horizon of 2015. The County then projected the need for commercial land by MSA and Tier. MSA 3.2, where the Lowe’s site is located, has a depletion year of 2025, but when averaged with MSA 6.1’s depletion years of 2011, results in an average depletion year of 2018. The North Central Tier, in which the Lowe’s Amendment site is located, has a depletion year of 2023. The County’s depletion year analysis at all three levels, MSA, Tier, and countywide, indicates no need for more commercial lands in the area of the Lowe’s site. MSA 6.2, where the Brown site is located, has a depletion year of 2017, but when combined with MSA 6.1’s depletion of 2011, results in an average depletion year for the two MSAs is 2014. The South Central Tier, in which the Brown Amendment site is located, has a depletion year of 2014. Therefore, the County’s depletion year analysis, at the MSA and Tier levels, indicates a need for more commercial lands in the area of the Brown site. The County also analyzed the ratio of commercial acres per 1,000 persons by MSA, Tier, and county-wide. The countywide ratio is not a goal that the County is seeking to achieve for all Tiers and MSAs. However, if a Tier or MSA shows a ratio substantially lower than the countywide ratio, that MSA or Tier might need more commercial lands. The countywide ratio of commercial lands per 1,000 persons is projected to be 6.1 acres per 1,000 persons in 2015. MSA 3.2, in which the Lowe’s site is located, has a ratio of 11.3 acres per 1,000 persons. MSA 6.1 has a ratio of 2.6 acres. The average for the two MSAs is 6.95 acres. The ratio for all of the North Central Tier is 6.3 acres per 1,000 persons. Therefore, a comparison of the countywide ratio with the MSAs and Tier where the Lowe’s site is located indicates there is no need for additional commercial lands in the area of the Lowe’s site. MSA 6.2, where the Brown site is located, has a ratio of 4.1 acres per 1,000 persons. When combined with MSA 6.1’s ratio of 2.6 acres, the average for the two MSAs is 3.35 acres. The ratio for all of the South Central Tier is 4.5 acres per 1,000 persons. Therefore, a comparison with the countywide ratio of 6.1 acres indicates a need for additional commercial lands in the area of the Brown site. The County’s need analysis treated the Kendall Town Center as vacant (i.e., available) commercial land, but the Kendall Town Center is approved and under construction. If the Kendall Town Center had been excluded, the County’s projected future need for commercial land in the area of the Brown site would have been greater. The Planning Considerations Report does not discuss parcel size in its commercial need analysis. Lowe’s contends that the County should have considered whether there is a need for larger “community commercial” uses in the area of the Lowe’s site. Policy LU-8F refers only to the need to consider (by “Tiers, Half-Tiers and combinations thereof”) the adequacy of land supplies for “regional commercial activities.” Lowe’s planning expert testified that there are few undeveloped commercial parcels in MSAs 3.2 and 6.1 that are ten acres or more, or could be aggregated with contiguous vacant parcels to create a parcel bigger than ten acres. Lowe’s submitted two market analyses for home improvement stores, which conclude that there is a need for another home improvement store in the area of the Lowe’s site. The market analyses offered by Lowe’s differ from the County’s methodology, which focuses, not on the market for a particular use, but on the availability of commercial lands in appropriate proportion to the population. Even when it is reasonable for the County to consider the need for a unique use, the County’s focus is on serving a general public need, rather than on whether a particular commercial use could be profitable in a particular location. Some of the assumptions used in the market analyses offered by Lowe’s were unreasonable and biased the results toward a finding of need for a home improvement store in the study area. The more persuasive evidence shows that there is no need for more commercial land, and no need for a home improvement store, in the area of the Lowe’s site. Lowe’s Parcel B is proposed for use as a school. The elementary, middle and high schools serving the area are over- capacity. Lowe’s expects the site to be used as a charter high school. Using an inventory of lands that was prepared by the County staff, Lowe’s planning expert investigated each parcel of land located within MSAs 3.2 and 6.1 that was over seven acres2 and determined that no parcel within either MSA was suitable for development as a high school. The record is unclear about how the Lowe’s Amendment fits into the plans of the County School Board. The proposition that there are no other potential school sites in the area was not firmly established by the testimony presented by Lowe’s. The need shown for the school site on Parcel B does not overcome the absence of demonstrated need for the Business and Office land use on Parcel A. It is beyond fair debate that that the Lowe’s Amendment is inconsistent with Policy LU-8F. The County’s determination that the Brown Amendment is consistent with Policy LU-8F is fairly debatable. Policy LU-8G Policy LU-8GA(i) identifies lands outside the UDB that “shall not be considered for inclusion in the UDB. Policy LU- 8G(ii) identifies other lands that “shall be avoided,” including (1) future wetlands, (2) lands designated Agriculture, (3) hurricane evacuation areas, and (4) lands that are part of the Comprehensive Everglades Restoration Plan. A peculiarity of the UEA is that it is composed entirely of lands that “shall be avoided” when the County considers adding lands to the UDB. The Department contends that “shall be avoided” means, in this context, that the County must make “a compelling showing that every other option has been exhausted” before the UDB can be expanded. However, the CDMP does not express that specific intent. The CDMP does not provide any direct guidance about how compelling the demonstration must be to expand the UDB. Policies LU-8F and LU-8G appear to call for a balancing approach, where the extent of the need for a particular expansion must be balanced against the associated impacts to UEA lands and related CDMP policies. The greater the needs for an expansion of the UDB, the greater are the impacts that can be tolerated. The smaller the need, the smaller are the tolerable impacts. Because the need for the Lowe’s Amendment was not shown, the application of the locational criteria in Policy LU- 8G is moot. However, the evidence presented by Lowe’s is addressed here. Within the meaning of Policy LU-8G(ii)(a), the wetlands that “shall be avoided” are those wetlands that are depicted on the Future Wetlands Map part of the Land Use Element of the CDMP. About 50 percent of the Lowes site is covered by wetlands that are on the Future Wetlands Map. Petitioners speculated that the construction of a Lowe’s home improvement store and school on the Lowe’s site could not be accomplished without harm to the wetlands on the site, but they presented no competent evidence to support that proposition. The wetland protections afforded under the environmental permitting statutes would not be affected by the Lowe’s Amendment. Nevertheless, this is a planning case, not a wetland permitting case. It is a well-recognized planning principle that lands which have a high proportion of wetlands are generally not suitable for land use designations that allow for intense uses. The Lowe’s Amendment runs counter to this principle. Policy LU-8F(iii) identifies areas that “shall be given priority” for inclusion in the UDB: Land within Planning Analysis Tiers having the earliest projected supply depletion year; Lands contiguous to the UDB; Locations within one mile of a planned urban center or extraordinary transit service; and Lands having projected surplus service capacity where necessary services can be readily extended. The Lowe’s site satisfies all but the first criterion. The Lowe’s site is in the Tier with the latest projected supply depletion year. It is beyond fair debate that that the Lowe’s Amendment is inconsistent with Policy LU-8G. Because a reasonable showing of need for the Brown Amendment was shown, it is appropriate to apply the locational criteria of Policy LU-8G. The Brown Amendment would expand the UDB into an area of the UEA that is designated Agriculture. The single goal of the CDMP’s Land Use Element refers to the preservation of the County’s “unique agricultural lands.” The CDMP refers elsewhere to the importance of protecting “viable agriculture.” Brown argued that these provisions indicate that the County did not intend to treat all agricultural lands similarly, and that agricultural activities like those on the Brown site, that are neither unique nor viable, were not intended to be preserved. Petitioners disagreed. The County made the Redland agricultural area one of the areas that “shall not be considered” for inclusion in the UDB. Therefore, the County knew how to preserve “unique” agricultural lands and prevent them from being re-designated and placed in the UDB. The only evidence in the record about the economic “viability” of the current agricultural activities on the Brown site shows they are marginally profitable, at best. The Brown site is relatively small, has a triangular shape, and is wedged between a major residential development and an arterial roadway, which detracts from its suitability for agricultural operations. These factors also diminish the precedent that the re-designation of the Brown site would have for future applications to expand the UDB. The Brown site satisfies all of the criteria in Policy LU-8G(iii) to be given priority for inclusion in the UDB. The County’s determination that the Brown Amendment is consistent with Policy LU-8G is fairly debatable. Policy EDU-2A Policy EDU-2A of the CDMP states that the County shall not purchase school sites outside the UDB. It is not clear why this part of the policy was cited by Petitioners, since the Lowe’s Amendment would place Parcel B inside the UDB. Policy EDU-2A also states that new elementary schools “should” be located at 1/4 mile inside the UDB, new middle schools “should” be located at least 1/2 mile inside the UDB, and new high schools “should” be located at least one mile inside the UDB. The policy states further that, “in substantially developed areas,” where conforming sites are not available, schools should be placed as far as practical from the UDB. Petitioners contend that the Lowe’s Amendment is inconsistent with Policy EDU-2A because Parcel B, the school site in the Lowe’s Amendment, would be contiguous to the UDB if the Lowe’s Amendment were approved. However, when a policy identifies circumstances that allow for an exception to a stated preference, it is necessary for challengers to show that the exceptional circumstances do not exist. It was Petitioners’ burden to demonstrate that there were conforming school sites farther from the UDB in the area of the Lowe’s site. Petitioners did meet their burden. The County’s determination that the Lowe’s Amendment is consistent with Policy EDU-2A is fairly debatable. Urban Sprawl 1000 Friends and NPCA allege that the Brown and Lowe’s Amendments would encourage the proliferation of urban sprawl. The Department did not raise urban sprawl as an “in compliance” issue. Florida Administrative Code Rule 9J-5.006(5)(g) identifies 13 “primary indicators” of urban sprawl. The presence and potential effects of multiple indicators is to be considered to determine “whether they collectively reflect a failure to discourage urban sprawl.” Fla. Admin. Code R. 9J- 5.006(5)(d). Indicator 1 is designating for development “substantial areas of the jurisdiction to develop as low- intensity, low-density, or single use development or uses in excess of demonstrated need.” It was found, above, that the County had a reasonable basis to determine there was a need for the Brown Amendment, but not for the Lowe’s Amendment. Therefore, this indicator is triggered only by the Lowe’s Amendment. Indicator 2 is designating significant amounts of urban development that leaps over undeveloped lands. The facts do not show that undeveloped lands were leaped over for either of the amendments. Indicator 3 is designating urban development “in radial, strip, isolated, or ribbon patterns.” The Lowe’s and Brown Amendments do not involve radial or isolated development patterns. What would constitute a “ribbon” pattern was not explained. Not every extension of existing commercial uses constitutes strip sprawl Other factors need to be considered. For example, both the Lowe’s and Brown sites are at major intersections where more intense land uses are commonly located. Under the circumstances shown in this record, this indicator is not triggered for either amendment. Indicator 4 is premature development of rural land that fails to adequately protect and conserve natural resources. This indicator is frequently cited by challengers when an amendment site contains wetlands or other natural resources, without regard to whether the potential impact to these resources has anything to do with sprawl. In the area of the Lowe’s site, the UDB generally divides urbanized areas from substantial wetlands areas that continue west to the Everglades. The Lowe’s Amendment intrudes into an area dominated by wetlands and, therefore, its potential to affect wetlands is an indication of sprawl. In the area of the Brown Amendment, the UDB generally separates urbanized areas from agricultural lands that already have been substantially altered from their natural state. The Brown Amendment invades an agricultural area, not an area of natural resources. Therefore, the potential impacts of the Brown Amendment on the small area of degraded wetlands on the Brown site do not indicate sprawl. Indicator 5 is failing to adequately protect adjacent agricultural areas and activities. Because this indicator focuses on “adjacent” agricultural areas, it is not obvious that it includes consideration of effects on the amendment site itself. If this indicator applies to the cessation of agricultural activities on the Brown site, then the Brown Amendment triggers this primary indicator. If the indicator applies only to agricultural activities adjacent to the Brown site, the evidence was insufficient to show that this indicator is triggered. Indicators 6, 7, and 8 are related to the orderly and efficient provision of public services and facilities. Urban sprawl is generally indicated when new public facilities must be created to serve the proposed use. Petitioners did not show that new public facilities must be created to serve the Lowe’s or Brown sites. The proposed amendments would maximize the use of existing water and sewer facilities. Petitioners did not show that the amendments would cause disproportionate increases in the costs of facilities and services. Indicator 9 is failing to provide a clear separation between rural and urban uses. The Lowe’s Amendment would create an irregular and less clear separation between urban and rural uses in the area and, therefore, the Lowe’s Amendment triggers this indicator. The Brown Amendment does not trigger this indicator because of it is situated between the large Vizcaya development and Kendall Drive, a major arterial roadway. The Brown Amendment would create a more regular separation between urban and rural uses in the area. Indicator 10 is discouraging infill or redevelopment. The CDMP delineates an Urban Infill Area (UIA) that is generally located east of the Palmetto Expressway and NW/SW 77th Avenue. Petitioners did not demonstrate that the Brown and Lowe’s Amendments discourage infill within the UIA. Petitioners did not show how any particular infill opportunities elsewhere in the UDB are impaired by the Lowe’s and Brown Amendments. However, the expansion of the UDB would diminish, at least to a small degree, the incentive for infill. This indicator, therefore, is triggered to a small degree by both amendments. The CDMP promotes redevelopment of buildings that are substandard or underdeveloped. Petitioners did not show how any particular redevelopment opportunities are impaired by the Lowe’s and Brown Amendments. However, the expansion of the UDB would diminish, at least to a small degree, the incentive to redevelop existing properties. This indicator, therefore, is triggered to a small degree by both amendments. Indicator 11 is failing to encourage or attract a functional mix of uses. Petitioners failed to demonstrate that this primary indicator is triggered. Indicator 12 is poor accessibility among linked or related uses. No evidence was presented to show that this indicator would be triggered. Indicator 13 is the loss of “significant” amounts of open space. These amendments do not result in the loss of significant amounts of open space, whether measured by acres, by the percentage of County open lands converted to other uses, or by any specific circumstances in the area of the amendment sites. Evaluating the Lowe’s Amendment using the primary indicators of urban sprawl and the criteria in Florida Administrative Code Rule 9J-5.006(5)(h) through (j), it is found by a preponderance of the evidence that the County’s adoption of the Lowe’s Amendment fails to discourage the proliferation of urban sprawl. Evaluating the Brown Amendment using the primary indicators of urban sprawl and the criteria in Florida Administrative Code Rule 9J-5.006(5)(h) through (j), it is found by a preponderance of the evidence that the County’s adoption of the Brown Amendment does not fail to discourage the proliferation of urban sprawl. Land Use Analysis The Department claims that the Lowe’s and Brown Amendments are inconsistent with Florida Administrative Code Rule 9J-5.006(2)(c), which requires that the land use element of a comprehensive plan be based on an analysis of the amount of land needed to accommodate projected population. The Department believes the analyses of need presented by Lowe’s and Brown’s consultants were not professionally acceptable. Petitioners proved by a preponderance of the evidence that there was no need for the Lowe’s Amendment. Therefore, the Lowe’s Amendment is inconsistent with Florida Administrative Code Rule 9J-5.006(2)(c). A preponderance of competent, substantial, and professionally acceptable evidence of need, in conformance with and including the methodology used by the County planning staff, demonstrated that the Brown Amendment is consistent with Florida Administrative Code Rule 9J-5.006(2)(c).3 Florida Administrative Code Chapter 9J-5 - Natural Resources Petitioners contend the Lowe’s Amendment is inconsistent with the provisions of Florida Administrative Code Chapter 9J-5, which require that the land use element of every comprehensive plan contain a goal to protect natural resources, and that every conservation element contain goals, objectives, and policies for the protection of vegetative communities, wildlife habitat, endangered and threatened species, and wetlands. Petitioners failed to prove by a preponderance of the evidence that the CDMP does not contain these required goals, objectives, and policies. Therefore, Petitioners failed to prove that the Lowe’s amendment is inconsistent with these provisions of Florida Administrative Code Chapter 9J-5.4 The State Comprehensive Plan Petitioners contend that the Lowe’s and Brown amendments are inconsistent with several provisions of the State Comprehensive Plan. Goal (9)(a) of the State Comprehensive Plan and its associated policies address the protection of natural systems. Petitioners contend that only the Lowe’s Amendment is inconsistent with this goal and its policies. For the reasons stated previously, Petitioners showed by a preponderance of the evidence that the County’s adoption of the Lowe’s Amendment is inconsistent with this goal and its policies. Goal (15)(a) and its associated policies address land use, especially development in areas where public services and facilities are available. Policy (15)(b)2. is to encourage a separation of urban and rural uses. Because the Lowe’s Amendment is inconsistent with Policies LU-8F and LU-8G of the CDMP, the County’s adoption of the Lowe’s Amendment is inconsistent with this goal and policy. For the reasons stated above, Petitioners failed to show by a preponderance of the evidence that the County’s adoption of the Brown Amendment is inconsistent with this goal and its associated policies Goal (16)(a) and its associated policies address urban and downtown revitalization. Although the expansion of the UDB diminishes the incentive to infill or redevelop, Petitioners did not show this effect, when considered in the context of the CDMP as a whole and the State Comprehensive Plan as a whole, impairs the achievement of this goal and its associated policies to an extent that the proposed amendments are inconsistent with this goal of the State Comprehensive Plan and its associated policies. Goal (17)(a) and its associated policies address the planning and financing of and public facilities. For the reasons stated previously, Petitioners failed to prove by a preponderance of the evidence that the County’s adoption of the proposed amendments is inconsistent with this goal and its associated policies. Goal (22)(a) addresses agriculture. Policy(b)1. is to ensure that state and regional plans are not interpreted to permanently restrict the conversion of agricultural lands to other uses. This policy recognizes that agricultural landowners have the same right to seek to change the use of their lands, and that engaging in agricultural activities is not a permanent servitude to the general public. The policies cited by Petitioners (regarding the encouragement of agricultural diversification, investment in education and research, funding of extension services, and maintaining property tax benefits) are not affected by the Brown Amendment. For the reasons stated above, Petitioners failed to prove by a preponderance of the evidence that the County’s adoption of the Brown Amendment is inconsistent with this goal and its associated policies. Goal (25)(a) and its associated policies address plan implementation, intergovernmental coordination and citizen involvement, and ensuring that local plans reflect state goals and policies. Because the Lowe’s Amendment is inconsistent with Policies LU-8F and LU-8G of the CDMP, and was found to contribute to the proliferation of urban sprawl, Petitioners proved by a preponderance of the evidence that the County’s adoption of the Lowe’s Amendment is inconsistent with this goal and its associated policies. Petitioners proved by a preponderance of the evidence that when the State Comprehensive Plan is construed as a whole, the County’s adoption of the Lowe’s Amendment is inconsistent with the State Comprehensive Plan. Petitioners failed to prove by a preponderance of the evidence that when the State Comprehensive Plan is construed as a whole, the County’s adoption of the Brown Amendment is inconsistent with the State Comprehensive Plan.. Strategic Regional Policy Plan Petitioners claim that the Lowe’s Amendment is inconsistent with Goals 11, 12, and 20 of the Strategic Regional Policy Plan of the South Florida Regional Planning Council (SFRPC) and several policies associated with these goals. The SFRPC reviewed the proposed Brown Amendment and found it was generally consistent with the Strategic Regional Policy Plan. Goal 11 and its associated policies encourage the conservation of natural resources and agricultural lands, and the use of existing and planned infrastructure. For the reasons stated previously, Petitioners proved by a preponderance of the evidence that the County’s adoption of the Lowe’s Amendment is inconsistent with this goal and its associated policies. Goal 12 and its associated policies encourage the retention of rural lands and agricultural economy. The CDMP encourages the retention of rural lands and agricultural economy. Because it was found that the Lowe’s Amendment was inconsistent with Policies LU-8F and LU-8G, Petitioners proved by a preponderance of the evidence that the County’s adoption of the Lowe’s Amendment was inconsistent with this regional goal and its policies. Goal 20 and its associated policies are to achieve development patterns that protect natural resources and guide development to areas where there are public facilities. Because it was found that there is no need for the Lowe’s Amendment and that it constitutes urban sprawl, Petitioners proved by a preponderance of the evidence that the County’s adoption of the Lowe’s Amendment is inconsistent with these regional goal and policies.

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: Ordinance No. 08-44, the Lowe’s Amendment, is not in compliance, and Ordinance No. 08-45, the Brown Amendment, is in compliance. DONE AND ENTERED this 11th day of May, 2009, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER 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 11th day of May, 2009.

Florida Laws (7) 120.569163.3177163.3178163.3184163.3187163.3191163.3245 Florida Administrative Code (2) 9J-5.0059J-5.006
# 4
ROBERT WILLIAM MORGAN vs. BOARD OF PROFESSIONAL LAND SURVEYORS, 81-002502 (1981)
Division of Administrative Hearings, Florida Number: 81-002502 Latest Update: Aug. 20, 1982

Findings Of Fact The Petitioner, Robert William Morgan, applied for a land surveyor's license pursuant to Chapter 472, Florida Statutes. He qualified for and passed the first part of the exam on April 9 and 10, 1981, took the second part of the written examination administered by the Board of Land Surveyors of the Florida Department of Professional Regulation (Respondent). Mr. Morgan was notified that he had failed to pass the second part of the examination by the Respondent by notice dated July 17, 1981. He requested a review of his examination by the Board and filed written objections. On September 3, 1981 he was informed by the Respondent that his protest was denied and his failing grade on the examination would stand. On October 1, 1981, the Petitioner made a timely petition to contest the Board's denial of his application for licensure pursuant to Section 120.57(1) , Florida Statutes. There is no dispute that the only obstacle to the Petitioner's licensure in the eyes of the Board is that he made a score of 66 percent on the examination when 70 percent is required for passing. The rules cited below set forth the subject matter of the examination as well as the guidelines for preparing, administering and grading it. The Rules provide that the examination will consist of two parts which shall be prepared by the National Council of Engineering Examiners and, in part, by a consultant or testing service employed by the Department of Professional Regulation. The second part of the examination is the sole portion in dispute in this proceeding. Pursuant to the Rules cited below, the examination is designed to test an applicant's knowledge in land boundary plot problems (either metes and bounds or lot and block types), general surveying computations, trigonometry, curves, intersections (areas) legal responsibilities in professional practice, writing land or legal descriptions, construction or topographic surveying, specialty problems involving water boundary surveys, error theory and condominium surveys. The content of part two of the examination generally involves six (6) to eight (8) problems drawn from those areas, each of which problems will normally generate between five (5) to fifteen (15) multiple choice questions, each of which receive 2 points of credit when completed correctly. Part two of the examination, according to the Rule, is not to be machine graded and grades for part two of the examination must be based upon the application of "good land surveying judgment and a selection and evaluation of pertinent information with the demonstration of ability to make reasonable assumptions when necessary". The Rules require that the applicant must choose the multiple choice answer for a question on part two that is most nearly correct, further he is to be given space on his examination sheet to outline his reasons, methods and references by which the graders may determine his land surveying judgment which went into his answer. In the absence of such an outline, in explanation of an answer, even though the preliminary answer is marked correct, it is not to be given credit. Further, it has long been the Board's policy (expressed in the Rules) that if an outline or explanation of reasons for an answer is judged by the Board's testing service as adequate according to fundamental land surveying principles then credit will be given for the entire question pair "if the correct answer is close. . ." The second part of the examination, in dispute herein, was formulated and administered by Mr. Dave Gibson of the University of Florida School of Engineering who prepared the multiple choice examination to be machine scored in its entirety. No space was provided on the examination sheet for the applicant to outline his reasons or his methods and references in arriving at his solution so that the examining graders could determine his land surveying judgment underlying his answers to the multiple choice questions. The applicant, instead, was required by the format of the examination prepared by Mr. Gibson, and the instructions given by the Board, to choose the most nearly correct answer from a series of multiple choice answers on a machine scored answer sheet (emphasis supplied). The applicant was thus forced to select a single reason for his answer to the immediately preceding multiple choice question in each pair without having a blank space in order to outline the reasons for his answer. The choices were adequate for the applicant to express his reasons for his answers in some cases and in some cases they were not. In grading of the examination, credit was only given for the most nearly correct answer instead of an "adequate outline". Thus, where there was more than one acceptable method or reason for an answer to a specific question, the Board only gave credit for the one its consultant considered most nearly correct, even though another answer in a number of instances could have been correct by the Board's own admission. Indeed, the Board admitted that where there was more than one correct answer to a question, the standard policy of the Board had been to give credit for both answers. The parties are in agreement that the only questions in dispute are questions 13 and 14, 31 and 32, and 45 and 46, passage of all of which would give him a total score of 72 percent instead of 66 percent. These questions are arranged in pairs, 13 is the preliminary question and answer with 14 being the answer to be supplied in explanation to the answer to question 13 (no space being given, as formerly by the Board, to write an explanation). The same paired relationship is true of questions 31 and 32, with 32 providing the explanatory answer and question 46 containing the explanatory answer for question 45. The second part of the exam in question, consisted of forty (40) multiple choice questions followed by forty (40) multiple choice reasons, methods or references for the answer to the questions, as well as an essay question worth twenty (20) points. The odd numbers on the machine scored answer sheet for part two of the exam are the questions and the even numbers are the methods or reasons for the answers to the odd-numbered questions. The parties do not dispute that Mr. Morgan received 54 points on the multiple choice questions and 12 points on the essay question for a total of 66 percent on the examination. It must be remembered, however, that in order to get credit for a correct answer an "adequate outline" of the reason for the answer must be given as the second answer in the pair. It is also undisputed that Mr. Morgan correctly answered questions 13, 31 and 46 of the three pairs, but was not given credit for these answers at all because of his answers to questions 14, 32 and 45 were not in the view of the Board the "most nearly correct answers for 14 and 31" or as "equally correct as other answers" for question 45. Mr. Gibson, the Board's consultant who administered and graded the examination, did not give credit for an "adequate explanatory answer or outline". In some instances, however, more than one answer was accepted as correct, after Mr. Gibson and the Board determined that the examination should be "re-keyed", because of sixteen (16) questions on part two which the Board felt were ambiguous and could be correctly answered in more than one way. Question 13 on the examination was one of a series of questions testing the applicant's knowledge of topography and grading of land. It reads as follows: 13. If a lath were placed at the cul-de-sac center on road A, how far above the existing ground should a mark be placed on the lath that reads, 'cut three feet', most nearly. The elevation of the existing ground was determined from other parts of the examination. The notes on Mr. Morgan's examination reflect that he correctly calculated this to be eighty-six (86) feet. He also correctly answered question 13 by selecting choice B or "two feet". Solution number 14, the reason, method or reference for question 13, then states: This is the usual amount for most of Florida. By subtracting the elevation of the mark from the proposed pavement elevation. By subtracting the elevations of the mark from the existing ground elevation. Of those three choices, A, B and C, Mr. Morgan picked choice B as his reason for his answer to question 13. Mr. Gibson felt that the correct answer should be choice C in solution 14. The Board's witnesses admitted that the determination of the answer to question 13 was a two step process. The elevation of the mark on the stake must be determined from the proposed grade elevation within the meaning of the term "cut three" on the stake. Once the elevation of the mark is calculated, the height of the mark above existing ground elevation could be determined by calculating the difference between the elevations of the existing ground and the mark on the grade stake. If the elevation of the mark, which is eighty-eight feet, is subtracted from the elevation of the existing ground as directed in choice C of solution 14, the result is minus 2. The mark cannot logically be minus 2 feet above the existing ground on a grade stake as described in the question. Further, minus 2 was not even one of the choices for an answer to question 13. The correct and acceptable answer under the Board's "key" was 2 or plus 2 feet as Mr. Morgan correctly marked on his answer sheet. If one applies the "most nearly correct rule" to the answers in a mathematical sense, the most nearly correct answer would have been zero for question 13 using choice C as the answer for 14. This is obviously not the most logical and correct answer. Choice A for question 14 in explanation of the answer for 13 is admittedly a "detractor" type choice and not worthy of serious consideration. Choice B is an expression of the meaning of "cut three" and is the key to solving the problem stated in question 13, that is, the elevation of the existing grade, 85 feet, minus the elevation of the mark equals minus 3, which is directly symbolic of the surveyors term "cut three". Until this relationship is known, the elevation of the mark cannot be determined from the information given and therefore without knowing the elevation of the mark, the height of the mark above existing ground cannot be determined. Thus, choice C is an expression of the first step to a two-step process required to arrive at the correct answer to question 13. It is not the final step in explanation of the answer for question 13, but it must be found to be an "adequate reason", since the only other alternatives offered the examinee require him to disregard elementary mathematical principles, such as subtraction, which he is charged with applying in solving the examination. Thus, choice 14-B is the correct explanation for the answer to question 13 since it correctly expresses the initial part of the two-part process required to arrive at the correct answer to question 13 and since the other two choices A and C are either illogical or do not comport with applicable mathematical principles such as subtraction. Question 31 reads as follows: Concerning Palm Avenue about the 1955 MHW line, which statement is most nearly correct? The original developer is fee owner subject to public easement. The public is the complete owner subject to easements for the subdivision lot owners. Each lot owner owns fee title to the street center line subject to a public easement. State of Florida holds fee title subject to a public easement. The public is the complete owner subject to no easement. Mr. Morgan selected choice C for his answer, which is agreed to be the correct answer. Question 32 reads: Reason for Response given in question 31 Public only receive an easement from the developer. The public received complete title from the developer. Riparian rights. Deed for lots presumes grant to center of adjoining street. The lack of improving the street gives the fee title to the state. Mr. Morgan selected choice D as his answer for question 32, the Board did not give him credit for this answer because it felt the reason he gave was not the most nearly correct. As admitted by the Board's consultant, Mr. Gibson, the object of question 31 was to test the applicant's knowledge of legal principles pertaining to street or subdivision plats. Specifically, it required the applicant to state the title for that portion of the street above the mean high water mark, given the facts presented to him in the problem. Mr. Gibson also admitted that the applicant was expected to apply the substantive law of Florida as its existed at the time the applicant took the exam in April of 1981. He also admitted that the correct answer for the state of the title for question 31 contained two parts: an easement held by the public; and the underlying fee title held by the abutting lot owners. Both Witnesses Gibson and Davis admitted that the two best explanations contained in question 32, A and D, each only explain one part of the state of the title of the property involved. Response A only explains the easement portion of the title and response D explains the state of the fee title. These two witnesses conceded that Mr. Morgan's choice for question 32, response D, was a correct answer. Although they maintained they did not consider it the best answer, they failed to establish that response A is an any more correct or complete statement of title in explaining that an easement goes to the public for use of the street than is the explanation in the Petitioner's answer D, which states that the deed for the lots presumes a grant of the fee title to the center of the street. The Respondent's answer obviously is "adequate" if it is one of two possible correct answers. The Petitioner should thus get credit for his answers to questions 13 and 14 and questions 31 and 32. His reasons given for his obviously correct answers to the first questions in the two pairs are clearly adequate, which would have been obvious to the Board had it afforded him the hitherto provided space on his answer sheet to explain the answers to the first question in each pair. The final pair of answers in dispute are those for questions 45 and Question 45 reads: At what point of construction should the measurements be made for the surveyor's certificate required for a condominium? After the architect's plans are prepared but before construction starts. After the piling and footers are placed but before construction of the buildings. After the columns and floors are completed but before framing of the units. After framing of the units but before the walls are finished. After the interior walls are finished. Mr. Morgan chose response A. One of the requirements of applicants for licensure and examinees is that they be knowledgeable of substantive Florida Law pertaining to the profession of land surveying. Chapter 718, Florida Statutes, pertaining to land surveying, provides for two certifications which a surveyor is called upon to make during the course of development and construction of a condominium. One of these is the certificate which should be issued by the surveyor after construction is substantially complete. Accordingly, with that in mind, the Board maintained that the Petitioner should have answered "E" to question 45 which reads "after the interior walls are finished", as being the time at which the surveyor's certificate should be issued. The other surveyor's certificate required in the course of the development of a condominium, must be prepared much earlier as one of the documents that a developer must file with the Division of Land Sales and Condominiums when he wants to offer sales contracts and take advance subscription agreements for condominium reservation deposits. The developer cannot take a reservation or deposit until he files a surveyor's certificate filed with the Division. The Petitioner chose response A because of his knowledge of this last-described surveyor s certificate. The author of the examination, Witness Gibson, admitted that when he prepared the examination he was not aware of this other certificate required of surveyors when dealing with condominium developments. His question, therefore, did not specify which certificate was required for a correct response to the question. It was finally admitted that Mr. Morgan's choice, response A, was one of two correct answers to question 45 given the requirements of Chapter 718, Florida Statutes, which he is charged with knowledge of as a candidate for licensure. The Respondent acknowledged that historically it has been the Board's policy to give credit for a question where there is more than one correct answer to that question. If an answer is correct for any reasonable reading of the question to which it applies, then it is just as correct as any other answer. Accordingly, the Petitioner should be given credit for a correct answer to question 45. The Respondent admitted that the Petitioner correctly answered question 46, thus he should be given total credit for both questions 45 and 46.

Recommendation Having considered the above findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is therefore RECOMMENDED: That a Final Order be entered by the Department of Professional Regulation, Board of Land Surveyors awarding Robert William Morgan a passing score of seventy-two percent (72 percent) on part two of the land surveyor's examination administered April 9 and 10, 1981 and therefore, it being agreed that no other impediment to licensure is extant, that the Board grant him licensure as a land surveyor. DONE and ENTERED this 2nd day of June, 1982 at Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1982. COPIES FURNISHED: Ken Davis, Esquire DAVIS, JUDKINS & SIMPSON Post Office Box 1368 Tallahassee, Florida 32302 Susan Tully, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32301 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Allen R. Smith, Jr., Executive Director Board of Land Surveyors Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION ROBERT MORGAN, Petitioner, vs. CASE NO.: 81-2502 STATE OF FLORIDA, DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF LAND SURVEYORS, Respondent. /

Florida Laws (1) 120.57
# 5
OUTDOOR ADVERTISING OF THE KEYS vs. DEPARTMENT OF COMMUNITY AFFAIRS, 88-001067RP (1988)
Division of Administrative Hearings, Florida Number: 88-001067RP Latest Update: Mar. 28, 1989

Findings Of Fact On or about December 10, 1987, the Department filed Proposed Rules 9J- 14.006 and 9J-15.006 with the Department of State, and published notice of its intent to adopt these proposed rules in the December 18, 1987 edition of the Florida Administrative Weekly. In pertinent part, these proposals disapprove certain Map Amendments requested by Petitioners, and approved by the Monroe County Board of County Commissioners in October, 1987. Petitioners timely filed petitions for draw-out proceedings pursuant to Section 120.54(17), Florida Statutes, and in March, 1988, the Department transmitted these petitions to the Division of Administrative Hearings for a hearing under the provisions of Section 120.57, Florida Statutes. The Department has determined that normal rule-making proceedings under Section 120.54 are not adequate to protect Petitioners' substantial interests, and has suspended rule-making regarding these Petitioners and the Map Amendments at issue in this case. Petitioners' standing is not at issue in this proceeding. The Florida Keys' Comprehensive Plan was adopted by the Monroe County Board of County Commissioners in February, 1986, and Volume III of the Plan, consisting of land development regulations, was approved by the Department and the Administration Commission in July, 1986. The Department uses, and relies upon, the provisions of this Plan in interpreting and applying the Principles For Guiding Development set forth at Section 380.0552(7), Florida Statutes, and in determining if proposed changes in land development regulations or Plan amendments are in compliance with said Principles. As part of its Comprehensive Plan, Monroe County adopted land use district maps in February, 1986, which depict the approved land use and zoning of individual parcels. Petitioners herein urge that the zoning of their parcels in February, 1986, as portrayed on the district maps, is in error or is not justified due to their particular circumstances. Therefore, they have sought Map Amendments which were approved by the Monroe County Board of County Commissioners in October, 1987, but which the Department proposes to disapprove as not in conformance with the Principles for Guiding Development. All proposed changes to land use district maps must take into account the uses and restrictions applied to the districts by the development regulations, as well as the goals and policies set forth in the Plan. The Keys' Comprehensive Plan states that amendments or changes may be considered by the Board of County Commissioners based on: changed projections, such as public service needs, from those on which the text or boundary was based; changed assumptions, such as regarding demographic trends; data errors, including errors in mapping, vegetative types and natural features; new issues; recognition of a need for additional detail or comprehensiveness; and data updates. However, no change may be approved if it results in an adverse community change. Typographical or drafting errors may be corrected by the Board at any time, without notice or hearing. In pertinent part, the land development regulations set forth in Volume III of the Keys' Comprehensive Plan provide: Existing Uses All uses existing on the effective date of these regulations which would be permitted as a conditional use under the terms of these regulations shall be deemed to have a conditional use permit and shall not be considered nonconforming. * * * Sec. 5-201. Uses permitted as of right are those uses which are compatible with other land uses in a land use district provided they are developed in conformity with these regulations. * * * Sec. 5-301. Conditional uses are those uses which are generally compatible with the other land uses permitted in a land use district, but which require individual review of their location, design and configuration and the imposition of conditions in order to ensure the appropriateness of the use at a particular location. * * * Sec. 7-101. The purpose of this Chapter is to regulate and limit the continued existence of uses and structures established prior to the enactment of these regulations that do not conform to the provisions of these regulations. Many non-conformities may continue, but the provisions of this Chapter are designed to curtail substantial investment in non-conformities and to bring about their eventual elimination in order to preserve the integrity of these regulations. * * * Sec. 7-103. Nonconforming Uses. Authority to continue. Nonconforming uses of land or structures may continue in accordance with the provisions of this Section. Ordinary repair and maintenance. Normal maintenance and repair to permit continuation of registered nonconforming uses may be performed. Extensions. Nonconforming uses shall not be extended. This prohibition shall be construed so as to prevent: Enlargement of nonconforming uses by additions to the structure in which such nonconforming uses are located; or Occupancy of additional lands. Relocation. A structure in which a nonconforming use is located may not be moved unless the use thereafter shall conform to the limitations of the land use district into which it is moved. Change in use. A nonconforming use shall not be changed to any other use unless the new use conforms to the provisions of the land use district in which it is located. Termination. Abandonment or discontinuance. Where a nonconforming use of land or structure is discontinued or abandoned for six (6) consecutive months or one (1) year in the case of stored lobster traps, then such use may not be re-established or resumed, and any subsequent use must conform to the provisions of these regulations. Damage or destruction. ... if a structure in which a nonconforming use is located is damaged or destroyed so as to require substantial improvement, then the structure may be repaired or restored only for uses which conform to the provisions of the land use district in which it is located. Fair market value shall be determined by reference to the official tax assessment rolls for that year or by an appraisal by a qualified independent appraiser. The extent of damage or destruction shall be determined by the Building Official, in consultation with the Director of Planning, by comparing the estimated cost of repairs or restoration with the fair market value. Sec. 7-104. Nonconforming Structures. Authority to continue. A nonconforming structure devoted to a use permitted in the land use district in which it is located may be continued in accordance with the provisions of this Section. Ordinary repair and maintenance. Normal maintenance and repair of registered nonconforming structures may be performed. Relocation. A nonconforming structure, other than an historic structure previously listed on the National Register of Historic Places or the Florida Inventory of Historic Places, or designated as historic by the Board of County Commissioners, shall not be moved unless it thereafter shall conform to the regulations of the land use district in which it is located. Termination. Abandonment. Where a nonconforming structure is abandoned for twelve (12) consecutive months, then such structure shall be removed or converted to a conforming structure. Damage or destruction. Any part of a nonconforming structure which is damaged or destroyed to the extent of less than fifty percent of the fair market value of said structure may be restored as of right if a building permit for reconstruction shall be issued within six (6) months of the date of the damage. ... any nonconforming structure which is damaged or destroyed so as to require substantial improvement may be repaired or restored only if the structure conforms to the provisions of the land use district in which it is located. Fair market value shall be determined by reference to the official tax assessment rolls for that year or by an appraisal by a qualified independent appraiser. The extent of damage or destruction shall be determined by the Building Official, in consultation with the Director of Planning, by comparing the estimated cost of repairs or restoration with the fair market value. THE BROTHERS' PROPERTIES Map Amendment 48 was requested by R. Krajfasz, Bruce Barkley and Betty Brothers Rein (Case No. 88-1071 RP) concerning certain property they own on the west shore of Little Torch Key which is currently zoned NA (native area) , and which they are seeking to have rezoned SC (suburban commercial). This is an undeveloped parcel with 700 feet adjacent to, and to the south of, U.S. 1, which is surrounded by other, larger, undeveloped properties zoned NA and SR (suburban residential). The property is a salt marsh wetland which cannot be developed without substantial filling. Existing conditions include scrub mangroves, buttonwood and mangrove stands. The Keys' Comprehensive Plan recognizes the unique and irreplaceable character of the area's natural environment and seeks to protect the quality of nearshore waters, wetlands, and transitional areas through the designation, NA. It expresses the policy of prohibiting the destruction, disturbance or modification of any wetland, except where it is shown that the functional integrity of such wetland will not be significantly adversely affected by such disturbance. There has been no such showing regarding Map Amendment 48. It is also an expressed policy in the Plan to establish and promote a scenic corridor along U.S. 1, and prohibit development along U.S. 1 that disturbs the natural horizon. (See Sections 2-103, 104, 105 and 109, Vol. II, Keys' Comprehensive Plan.) Approval of this Map Amendment is inconsistent with these policies since SC zoning allows much more intensive use of the property, placing a greater demand on water resources and other infrastructure in the Keys. Bud and Patricia Brothers have requested the rezoning of certain undeveloped properties they own on Big Pine Key, known as Long Beach Estates, consisting of approximately 14 acres planned for a motel site, and 30 lots of greater than one acre each. These requests are for Map Changes 61 and 63 (Case Nos. 88-1074 and 88-1075 RP). These properties are currently zoned NA, and the rezoning sought is SR. Existing conditions consist of red mangrove, hammock species, sea grape, pond apple, bay cedar and similar species. Map Amendments 61 and 63 have not been shown to be consistent with the Future Land Use Element in that they would reasonably result in development which would have significant adverse affects on wetland areas, beaches, berms and the quality of nearshore waters. (See Sections 2-104, 105 and 107.) The requested rezonings of the Brothers' Properties (Map Amendments 48, 61 and 63) would be inconsistent with the Principles for Guiding Development. Specifically, they would adversely affect the shoreline and marine resources, including mangroves and wetlands, native tropical vegetation, dunes, water quality and the natural scenic resources of the Florida Keys. Petitioners failed to present competent substantial evidence in support off these requested Map Amendments. There is no demonstrated need for additional commercial development in the Little Torch Key area. BIG PINE KEY Petitioners Schirico Corporation and BHF Corporation have filed Map Amendments 66 and 67, respectively, (Case Nos. 88-1076 and 88-1077 RP) which seek to rezone their properties on Big Pine Key to SC from NA and SC (Schirico), and from SR (BHF). Although there was conflicting evidence concerning the exact extent of wetlands on the Schirico property, both the Petitioner and the Department presented evidence demonstrating that a significant portion of the property in Map Amendment 66 is wetland with wetland species, including black, white and red mangroves, and buttonwood. The property is in a transition zone between uplands and wetlands, and is crisscrossed with mosquito ditches. The requested Amendment is for the entire undeveloped parcel of almost ten acres, designating it all SC. The BHF parcel is approximately 5 acres in size, undeveloped, and is located off of U.S. 1 with SC property between it and U.S. 1. The property is also adjacent to SR and IS (improved subdivision) properties. The traffic flow along an arterial road from this parcel to U.S. 1 is very heavy due to existing commercial development and the county road prison camp located in close proximity. This parcel acts as a buffer between commercial uses, and would be an ideal site for affordable housing. There is an excess of undeveloped SC property on Big Pine Key, and, therefore, both of these proposals are inconsistent with sound economic development. Map Amendment 66, requested by Schirico, is inconsistent with the Principles of Guiding Development which seek to protect mangroves, wetlands, fish and wildlife, and their habitat, as well as native tropical vegetation, and to limit adverse impacts of development on water quality in the Keys. Map Amendment 67, requested by BHF, is inconsistent with the Principles for Guiding Development which emphasize the need to strengthen local government's land use management capabilities, provide affordable housing, and to protect the public welfare. THE MEDIAN STRIP The following Petitioners own property which comprise the median strip between U.S. 1 and County Road 5 on Plantation Key: Robert Vaughn (Map Amendment 170; Case No. 88- 1094 RP); Diane Droney (Map Amendment 172; Case No. 88-1095 RP); Jean Anderson (Map Amendment 173; Case No. 88-1096 RP); Monte Green (Map Amendment 174; Case No. 88-1097 RP); Harry Palen (Map Amendment 175; Case No. 88-1098 RP); Robert Vaughn (Map Amendment 176; Case No. 88-1099 RP); and Karl Beckmeyer and William Horton (Map Amendment 177; Case No. 88-1100 RP). In addition, Petitioners Outdoor Advertising of the Keys (Case No. 88-1067 RP), Dorothy M. Baer (Case No. 88-1092 RP) and C. W. Hart (Case No. 88-1093 RGA) support Map Amendments 170, 172-177. The median strip between U.S. 1 and County Road 5 is 120 feet deep and individual lots in the median are generally 60 feet wide. Petitioners each own from one to six lots in the median strip which are currently used and developed for substantially commercial purposes, such as cabinet making and sales, greeting card and novelty shop, retail plant nursery and office, a mini-mall with 17 stores, gas station and a professional office building. Current zoning of this property is SR, and Petitioners seek SC zoning with these Map Amendments. Although there is some undeveloped property in the median strip, there is no residential development in this strip. A 120 foot wide strip between highways is not appropriate for residential development. This median strip is primarily a commercial area, and Petitioners in this case have existing commercial uses, or own property adjacent to such commercial uses. Therefore, these applications should be dealt with together, as one package, rather than individually, according to Maria Abadal, the Department's planning manager who directs the critical area program in the Keys. Abadal testified that commercial areas should be zoned for commercial uses, and SC is a commercial zoning classification. Donald Craig also testified that some of these Map Amendments should be approved because SR is intended to encourage residential development, and residential uses are not appropriate in a median strip. He noted that other median strips in the Upper Keys have SC zoning. Finally, Bernard Zyscovich confirmed that the character of this strip is clearly commercial, and it is not appropriate for residential development. Of particular relevance to these Map Amendments are the following provisions of the Keys' land development regulations: Sec. 9-106. Purpose of the Sub Urban Commercial District (SC) The purpose of this district is to establish areas for commercial uses designed and intended primarily to serve the needs of the immediate planning area in which they are located. This district should be established at locations convenient and accessible to residential areas without use of U.S. 1. Sec. 9-107. Purpose of the Sub Urban Residential District (SR) The purpose of this district is to establish areas of low to medium density residential uses characterized principally by single-family detached dwellings. This district is predominated by development; however, natural and developed open space create an environment defined by plants, spaces and over-water views. All of Petitioners' properties allow access from County Road 5, and, therefore, can be used without disrupting the flow of traffic along U.S. 1. Most of Petitioners' existing commercial buildings are less than 2500 square feet. Buildings of this size are allowed as a matter of right in SC zoning, but are a conditional use in SR zoning. Therefore, if destroyed by fire or natural disaster, Petitioners could not replace existing structures as a matter of right under their current SR zoning, but could do so under SC zoning sought by these Map Amendments. Maria Abadal expressed the Department's opposition to these Map Amendments, which she stated ware inconsistent with the policies expressed in the Keys' Comprehensive Plan to restrict upland clearing along U.S. 1, prohibit development that is disruptive of the natural horizon along U.S. 1, and promote a scenic corridor along U.S. 1. However, these parcels are already cleared, and have been used for commercial purposes for many years. There is, therefore, no basis for a finding of inconsistency based upon these policies. She also testified that these Amendments are inconsistent with the Principles for Guiding Development which seek to protect the historical heritage, character, and natural scenic resources of the Keys. There is no basis to find that an existing commercial area will be inconsistent with these Principles since there is no evidence in the record of any unique historical heritage, character or scenic resources associated with these commercial uses. By recognizing the existing character of these parcels, and allowing their continued commercial use as a matter of right in the event of destruction by fire or a natural disaster, approval of these Map Amendments would appear to reduce the need for new commercial uses elsewhere on Plantation Key, while assuring continued citizen access to long-standing commercial activities. THE SEWAGE PLANT NEIGHBOR Robert and Judy Wittey have filed Map Amendment 194 which seeks to rezone their 100 foot by 152.47 foot lot on Plantation Key from IS (Improved Subdivision) to SC (Case No. 88-1113 RP). Petitioners currently use this property to operate a commercial air conditioning business, with fiberglassing, welding and associated storage. There is a 5200 square foot commercial building on the property. Surrounding uses include a condominium, with its sewage treatment plan located immediately adjacent to the Wittey property, a high school athletic field, with a sewage treatment facility within 150 feet of this property, the high school's automotive repair garage and vocational training facilities, and a commercial contracting business. A generator for the condominium is also located next to this property. There are no single-family residential uses on the street where this property is located. The Wittey property is not part of a platted subdivision. Under its current IS zoning, the building located on this property is a nonconforming use, and may not be expanded or reconstructed if destroyed by fire or a natural disaster. SC is the lowest intensity land use designation that could be applied to this property which would result in the current structure being a conforming use. In pertinent part, the Keys' land development regulations provide that the purpose of the IS designation is to accommodate the legally vested residential development rights of the owners of subdivision lots that were lawfully established and improved prior to the adoption of the regulations. There was no showing of inconsistency with the Principles for Guiding Development if Map Amendment 194 were to be approved. Specifically, it was not shown that approval of this Map Amendment would have an adverse impact on public facilities or the natural resources. The Petitioners demonstrated that SC is, in fact, the appropriate zoning for this property, and that IS is totally inappropriate since this property is not part of a platted subdivision. There is no basis to zone this property IS based upon the existing uses surrounding this property. THE PILOT/FISH HOUSES Map Amendments 242, 243 and 245 involve the applications filed by Petitioners Coral Lake Realty, Inc. (Case No. 88-1114 RP), Jack and Dorothy Hill (Case No. 88-1115 RP) and Shirley Gunn (Case No. 88-1117 RP) for the rezoning of properties they own surrounding a basin, known as Lake Largo, on North Key Largo. The Coral Lake Realty property is the site of an existing restaurant, known as The Pilot House, and marina. The Gunn property is the former site of a commercial fish house, which was abandoned in 1985 due to a decline of commercial fish harvests and a loss of wholesalers. Gunn's property is also the location of a burned out building, a dive shop, and a few commercially leased docks. The Hill property is used to operate a commercial fish house, fish processing, and the patching and building of traps. These properties are one- half mile off of U.S. 1. Petitioners' properties are currently zoned CFSD-5 (Commercial Fishing-Key Largo), and they are seeking to have them rezoned MU (mixed use). In pertinent part, the Keys' land use regulations provide: Sec. 9-118. Purpose of the Commercial Fishing Special Districts (CFS). The purpose of these districts is to establish areas where various aspects of commercial fishing have been -traditionally carried out while prohibiting the establishment of additional commercial fishing uses which are inconsistent with the natural environment, immediate vicinity or community character of the area. Sec. 9-119. Purpose of the Mixed Use District (MU) The purpose of this district is to establish or conserve areas of mixed uses including commercial fishing, resorts, residential, institutional and commercial uses and preserve these as areas representative of the character, economy and cultural history of the Florida Keys. The only uses permitted as of right in a CFSD-5 district are commercial-fishing, detached dwellings and accessory uses. The MU designation allows, but does not encourage or promote, commercial fishing. It is designed for intense mixed uses, some of which would be inappropriate for this basin. There are areas in the Keys where fish houses are located in MU zoning. Petitioners have not demonstrated there is any shortage of MU areas in the Keys. According to Lane Kendig, an expert in comprehensive planning, promoting commercial fishing is one of the main aims of the Keys' Comprehensive Plan, and the CFSD zoning category is a primary method of implementing this aim. Because commercial fishing activities can only be located in areas such as this which have deep water access, CFSD zoning of properties with these site specific characteristics should be encouraged, and approval of these Map Amendments would be inconsistent with this objective of the Plan. The community character of the Lake Largo basin is heavily dominated by commercial fishing and associated activities, although some mixed uses are also present. (See Section 2-109.) It is surrounded by SR and IS districts, and existing residential uses. The Pilot House restaurant (Map Amendment 242; Case No. 88-1114 RP) is a nonconforming use in the CFSD-5 zone which could not be expanded, or replaced as of right if destroyed by fire or natural disaster. Bernard J. Costello, principal stockholder in The Pilot House, testified that MU zoning is being sought to allow the placement of more docks in the basin, and to make additional improvements to the restaurant which could not be allowed in CFSD-5. It is his intention to continue to use this property as a restaurant and marina if the Map Amendment is approved. The Hill fish house (Map Amendment 243; Case No. 88-1115 RP) processes, freezes and cooks fish which is primarily shipped in from other countries and states. Only 10 percent of the product handled through this fish house is caught locally in the Keys, while in 1972, all of the product was local. Due to the decline of local commercial fishing, about five years ago imported fish became the majority of product handled in this fish house. Some fishermen now sell directly to trucks, and bypass the fish houses. Recreational users now comprise a significant portion of boat slip renters on the basin. While there has been a decline in local commercial fishing, such uses are still present and the uses permitted as of right in CFSD-5 are more appropriate for this basin than those uses for which the MU designation was developed. These Map Amendments would be inconsistent with the community character of this basin, and would not comply with those Principles for Guiding Development which seek to strengthen the capabilities of local government for managing land use and development, limit adverse impacts of development on water quality, and protect the unique historic character and heritage of the Keys. "NOSEEUMS" Jerome and Mary Behrmann have filed Map Amendment 263 (Case No. 88- 1118 RP) seeking to have their property located on Key Largo rezoned from SR to SC. This property has been operated as a tropical plant nursery for about five years. Donald W. Ross has filed Map Amendment 268 (Case No. 88-1119 RP) seeking to also have property located on Key Largo rezoned from SR to SC. This property is used to operate an aluminum siding business. There is no access to these properties, except from U.S. 1. Petitioners' present uses are nonconforming in a district zoned SR, and, therefore, may not be modified, repaired or replaced if destroyed by fire or natural disaster. Both of these petitions deal with properties located on the same side of U.S. 1 in an area of intense natural vegetation and hardwood hammocks. With the exception of Petitioners' properties, the area immediately adjacent on the same side of U.S. 1 is undeveloped. However, on the opposite side of U.S. 1 is intense commercial development, including strip stores, used car sales, a flea market and convenience store. A power station is located to the north of these properties on the same side of U.S. 1. Due to the heavy infestation of microscopic insects, known locally as "Noseeums," resulting from natural vegetation on these and adjoining properties, residential development would be very difficult. These mosquito-like gnats become active in the early evening and at night, and are so small that they cannot be prevented from entering residences by screening. Local residents will not go outdoors after dark in areas infested with "Noseeums." Petitioners' commercial activities do not require them to be on these properties at night. In the area adjoining Petitioners' properties, U.S. 1 is a four lane divided highway which forms a natural land use, and zoning barrier from the commercial activities on the opposite side of the highway. Petitioners' parcels represent relatively small portions of an area zoned SR which extends approximately one mile along U.S. 1, and is from 650 to 700 feet deep. The only issue in this case is whether Petitioners' properties should be rezoned SC, which would leave the rest of this area zoned SR. Such a rezoning of these parcels to SC would be a classic case of spot zoning since it would confer special benefits to these owners without regard to adjoining owners, and would destroy and disrupt the overall integrity of this SR district. There are sufficient undeveloped SC properties in this immediate area, and there is, therefore, no demonstrated need for additional SC zoning. Petitioners' expert, Bernard Zyscovich, acknowledged that those properties presently zoned SR which adjoin Petitioners' properties could be used for residential development. This is an area in Key Largo where the County is attempting to direct residential development. Although it is not on the water and does not have a water view, there are other residential areas in the Keys which lack these amenities. The rezoning to SC sought by Map Amendments 263 and 268 would be inconsistent with the following objectives and policies of the Keys' Comprehensive Plan (Sections 2-106 and 109): To protect the functional integrity of upland hammocks that contribute to the tropical and native character of the Florida Keys, particularly along U.S. 1 and County Road 905. * * * To restrict the clearing of upland vegetation that contributes to the tropical and native character of the Florida Keys along the U.S. 1 and County Road 905 corridors. * * * To limit the development of new land uses to intensities and characters that are consistent with existing community character where a community character change would have undesirable social, cultural, economic or environmental impacts. * * * To establish and promote a scenic corridor along U.S. 1 and County Road 905. These Map Amendments would also be inconsistent with those Principles for Guiding Development that mandate protection of upland resources and native tropical vegetation such as hardwood hammocks, limiting adverse impacts of development on water quality, and enhancement of natural scenic resources. CAPTION'S COVE Robert Maksymec is the principal stockholder of development partnerships known as Tormac and Planmac which are Petitioners in Cases 88-1121 and 88-1122 RP, respectively, and which are seeking Map Amendments 135 and 136 for certain undeveloped, scarified properties owned by Petitioners surrounding a basin known as Captain's Cove on Lower Matecumbe Key. These properties are zoned CFA (commercial fishing area) and Map Amendments 135 and 136 seek SC zoning. Although this property is located between Captain's Cove and U.S. 1, it is accessible by arterial roads without using U.S. 1. Petitioners propose to develop these properties into a hotel with 52 boat slips, and marine shops. Deed restrictions on the property bar commercial fishing. The Department of Environmental Regulation has issued Permit Number 441008425 to construct a 52 boat slip and docking facility conditioned on non- commercial uses, and prohibiting fuel or storage facilities, as well as boat cleaning, hull maintenance and fish cleaning at the permitted facility. Under CFA zoning, Petitioners' proposed use is nonconforming. CFA allows more commercial and intense uses than CFSD-5. In pertinent part, the Keys' land use regulations provide: Sec. 9-106. Purpose of the Sub Urban Commercial District (SC) The purpose of this district is to establish areas for commercial uses designed and intended primarily to serve the needs of the immediate planning area in which they are located. This district should be established at locations convenient and accessible to residential areas without use of U.S. 1. * * * Sec. 9-116. Purpose of the Commercial Fishing Area District (CFA) The purpose of this district is to establish areas suitable for uses which are essential to the commercial fishing industry including sales and service of fishing equipment and supplies, seafood processing, fishing equipment manufacture and treatment, boat storage and residential uses. These properties are surrounded by commercial and marine commercial uses, and across the basin is a residential area. There is no demonstrated need for undeveloped SC properties in this area. Since these properties are located on a water basin with residential areas in close proximity, SC zoning is inappropriate and inconsistent with the Principles For Guiding Development, which seek to limit the adverse impacts of development on water quality, and ensure sound economic development. It also appears, however, that the current CFA zoning may also be inappropriate for this property due to existing deed restrictions, DER permit conditions, and the decline in commercial fishing activities in the Keys in recent years. Nevertheless, the only issue in dispute in this case is whether the SC designation sought in Map Amendments 135 and 136 is consistent with the Principles For Guiding Development, and it is not. THE OLD POST OFFICE Petitioner Catherine Nash has filed Map Amendment 215 (Case No. 88- 1128 RP) by which she seeks to have property she owns in Tavernier, known as The Old Post Office, rezoned from its current SR to SC. The subject property is currently used to operate an art gallery and related business, but was formerly used from 1926 to about 1960 as a grocery store and post office. The only access to this property is from U.S. 1. The property is surrounded by SR zoning. Across U.S. 1 there are SC zoned properties. There was conflicting testimony whether Petitioner's existing building could be rebuilt in SR zoning if destroyed by fire or natural disaster. It has, therefore, not been established that SC zoning is necessary to protect the present existing use of this property. Due to the lack of access to the property other than from U.S. 1, it fails to meet an essential requirement for SC zoning. Approval of Map Amendment 215 would also represent a clear case of spot zoning since this would be an isolated SC parcel amid an SR district. Petitioner's Map Amendment has not been shown to be consistent with the Principles For Guiding Development, and in particular those which seek to strengthen local government's capabilities for managing land use and development, and which seek to ensure sound economic development which is compatible with the unique historic character of the Keys. TROPIC SOUTH Petitioner Tropic South was represented at hearing, but no evidence in support of Map Amendment 91 (Case No. 88-1083 RP) was offered. ECONOMIC IMPACT STATEMENT There is no evidence that the Department has developed an economic impact statement (EIS) for those portions of the proposed rules disapproving the above referenced Map Amendments previously approved by Monroe County. The Department did prepare an EIS for those Map Amendments transmitted by Monroe County which the Department approved, but those Amendments, and that EIS, are not the subject of this proceeding.

Recommendation Based upon the foregoing, it is RECOMMENDED that the Department approve Map Amendments 170 and 172 through 177 (The Median Strip), as well as 194 (Sewage Plant Neighbor), and otherwise disapprove all other Map Amendments which are the subject of this proceeding, as proposed in Rules 9J-14.006 and 9J-15.006, Florida Administrative Code. Further, it is RECOMMENDED that the Department prepare an Economic Impact Statement which addresses the impact of its proposed action on Petitioners. DONE and ENTERED this 28th day of March, 1989, in Tallahassee, Leon County, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1989.

Florida Laws (6) 120.54120.5720.19380.031380.05380.0552 Florida Administrative Code (1) 9J-14.006
# 6
DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, BOARD OF PROFESSIONAL SURVEYORS AND MAPPERS vs EXACTA LAND SURVEYORS, INC., 15-000089 (2015)
Division of Administrative Hearings, Florida Filed:West Palm Beach, Florida Jan. 08, 2015 Number: 15-000089 Latest Update: Jul. 14, 2015

The Issue Whether Respondents failed to abide by various minimal technical standards applicable to the practice of surveying and mapping, in violation of Florida Administrative Code Rules 5J- and 5J-17.052, or were guilty of negligence in the practice of surveying and mapping, all in violation of section 472.0351, Florida Statutes (2012),1/ and if so, what is the appropriate sanction.

Findings Of Fact The Department is the state entity charged with regulating the practice of land surveying and mapping, pursuant to chapter 472, Florida Statutes. At all times material to this case, Mr. Haas was licensed as a professional surveyor and mapper in the state of Florida, with license number LS3708. Mr. Haas was employed by Exacta, which holds license number LB7337. A complaint was filed with the Department on January 27, 2014, by Mr. Charles B. Hatcher of Associated Surveyors, Inc., alleging numerous minimum technical standards errors on a survey prepared by Mr. Haas on September 25, 2012. Petitioner has failed to prosecute Mr. Haas or Exacta for the violations alleged in the complaint made by Mr. Hatcher, on January 27, 2014. Administrative complaints alleging identical counts were filed against Mr. Haas and Exacta. Count I alleges that some of the field data was not dated. Count I also alleges that the coordinates are not on the same datum as the survey, and thus, the survey map cannot be substantiated. Page 12 of Exhibit P-1, a page of computation notes, does not contain the date the information was observed and collected. Further, it is clear that page 12 is not simply a continuation of pages 10 and 11 (which are two halves of the same document) but is instead a separate document that is undated. Data shown in the raw data file and coordinates list differed from that reflected on the survey map. It appeared, however, that the data had been rotated and translated. Rotation and translation is an accepted survey technique which allows modern instrumentation to record data based upon an assumed initial point and bearing, and then calculate all further points and bearings relative to that initial measurement. This information recorded by the instrument must then be rotated and translated back to match the actual points and bearings on a parcel. The Department failed to show that the survey map could not be substantiated. As Mr. Gloer testified during cross examination: Q. My question is, wasn't it clear to you that the assumed bearing that Mr. Blackmon made, our party chief, on page 4 in his instrument-–in his data collector between Points 1 and 2 of a bearing of north zero degrees, or an azimuth of north zero degrees--isn't it clear to you that then in order for it to make sense on this drawing and all the other lines too, that you would have to rotate that to get on the same bearing basis? Doesn't that jump out to you as an expert, having done over 2,000 surveys? A. At the time two years-–well, it's been a year. A year ago when I did this original review, I based it on the data that was supplied to me. Now that you have explained it to me and I see that there is a note here that said they rotated it, yes, it's clear to me now, yes. Count II alleges that the field notes that are dated show a date of 9/24/12, while the survey drawing shows a field work date of 9/25/12. The parties stipulated as to the different dates shown on these documents.2/ The dated field notes show that field work was performed on September 24, 2012. The clear and convincing evidence is that the date of data acquisition was September 24, 2012, while the date on the survey drawing is September 25, 2012. Count III notes that the survey shows a found 3/4" iron rod at the point of beginning, notes that this appears to be the same corner shown on the coordinate list as point number 8, and states that the field notes do not show the setting or locating of the corner. The complaint concludes that this corner is not supported by accurate survey measurements. The notation "P.O.B." is found at the lowest corner of the property on the survey map, and underneath the corner is found the note "3/4 FIR NO ID." According to the Surveyor's Legend found on page 2, this indicates that the point of beginning is marked by a 3/4 inch found iron rod without identification, as Mr. Gloer testified. While page 12 shows a point marked as "set #8 @ DEED Dist/Dist frm 5 & 152" on the lot corner, it indicates this monument was set, and does not indicate a found iron rod. Point "6" has no notation at all on page 12 and does not appear to be aligned on the southeast property line, but point 6 is reflected in the raw data file and the coordinates list. The measurements to point 6, and description of it, are consistent with and support the property corner marked as the P.O.B. on the survey map. Count IV alleges that bearings shown on the survey as measured are not substantiated by the survey measurements in the raw data or coordinate list. Mr. Gloer testified that he inversed the data from the coordinates and that the bearings were different. However, as he admitted, he did not consider that the recorded survey measurements might reflect an assumed initial location and bearing and that they would therefore need to be rotated and translated to substantiate the bearings shown on the survey map. The Department failed to show by clear and convincing evidence that the bearings shown on the survey were not substantiated by measurements. Count V alleges that the three points used to locate the improvements, monumentation, and control for the survey are not part of a closed traverse and are not based on redundant measurements. As Mr. Gloer testified, the distance between points 1 and 2 was verified by redundant measurements: once measuring the distance from point 1 to point 2, and once measuring the distance from point 2 back to point 1. However, the angle created between points 2, 1, and 150 was not similarly measured on more than one occasion or from the opposite direction. Respondents argue that use of an instrument such as the robotic total station used here, which takes numerous measurements very quickly and then averages them, is, by definition, taking redundant measurements. However, Mr. Gloer testified that in his expert opinion, "redundant" measurement has a more specific meaning. It requires that an "independent check" be made. He noted that if a rodman had the rod on his toe, all of the measurements almost instantaneously taken and averaged by an instrument would reflect the same incorrect information and so these multiple readings would not serve the purpose of revealing the mistake and preventing the error. Only an independent measure, like shooting the distance backwards, would likely reveal the error and thus meet the purpose of a "redundant" measurement. The angle created between points 2, 1, and 150 was not verified by redundant measurements. Count VI alleges that the survey is based on found monumentation on the parcel being surveyed. No attempt was shown to find the point of commencement or boundary monumentation along the boundary of Beauclerc Gardens Replat, both of which are called for in the description. The legal description provides in part, "commence at an iron pipe located in the northeasterly line of Section 40, Township and Range aforementioned, at a point where said line is intersected by the line dividing Sections 31 and 32." Mr. Gloer testified that to ensure that the position of the boundary of real property was determined in complete accord with this real property description, an attempt to find the point of commencement and the boundary of Beauclerc Gardens Replat was required, and that there was no evidence that this was done. However, no evidence was presented to indicate that the survey as conducted was not in complete accord with the property description as attached to the survey map. Count VII alleges that the survey does not tie to an established identifiable real property corner. As Mr. Gloer testified, the parcel being surveyed was described by metes and bounds. Nothing on the survey tied into any identified corner of Beauclerc Gardens. The survey did not tie into a real property corner of either lot 1 or 2 of Beauclerc Gardens, which were the closest lots. Instead, the survey was tied to a monument on the line south of Beauclerc Terrace on that right-of-way, identified on page 12 as point "151." That point was not an established identifiable real property corner of Beauclerc Gardens. As Mr. Gloer testified, the survey did not tie to an established identifiable real property corner. Count VIII alleges that the field notes and raw data do not show either the fence corner or the water meter that supposedly made the two nearby corners inaccessible. The computation notes at page 12 and the survey map on page 1 do not show a monument set at the most easterly corner of the lot, but they do show an offset point and reasonably indicate that a water meter is at the corner. Similarly, neither the computation notes nor survey map show a monument set at the most westerly corner of the lot, but the survey map shows an offset monument and has an indication that there is a fence post at the corner. Mr. Gloer noted that neither the water meter nor the fence post, if they existed, had been positively located on the field notes or raw data as being at the corners.3/ Mr. Gloer noted that the coordinates list indicated that the location of the water meter was calculated. Count IX alleges that there is a monument shown in the field notes, point number 6, but not shown on the survey. As discussed earlier in connection with Count III, the field computation notes appear to show two monuments in fairly close proximity to the southernmost corner of the property. The survey map at page 1 shows only one monument at this corner, labeled "P.O.B." and described as "3/4 FIR NO ID" which, as noted above, refers to a 3/4 inch found iron rod without identification. This descriptive information appears to correlate with the side shot of point 6 found on page 6 of the raw data file and page 9 of the coordinates list. While the field notes are confusing, the Department did not show by clear and convincing evidence that point number 6 was not shown on the survey. Count X alleges that all the monuments were tied by side shots without a redundancy of the measurements. The raw data at page 4 indicate that the 1/2 inch found iron pipe and cap marked with "R. Miller," which is shown as the easternmost monument on the survey, was located by a side shot, a single measurement, and that Mr. Blackmon only turned one angle and one distance to that point. Similarly, the data at page 5 show that the 1/2 inch found iron pipe with no identification which is shown as the northernmost monument on the survey was located by a single side shot. Again, the data on page 6 show that the 3/4 inch found iron rod without identification which is shown as the southernmost monument and point of beginning on the survey was located by a side shot. The data sheets show no other ties to these points taken from another position, or otherwise demonstrate that redundant measurements were taken. Count XI alleges that the survey dated September 25, 2012, was negligently prepared. On this point, the Transcript records: Q. And then one final question, Mr. Gloer. In your professional opinion, expert opinion, do you believe that these ten MTS violations that you have discovered, taken as a whole constitutes-–of the minimum technical standards, taken as a whole, constitutes negligence in the practice of surveying and mapping in the State of Florida? A. I do. This question and answer, predicated on considering ten other violations as a whole, offers no insight as to whether a fewer number of violations might constitute negligence, or whether some of the violations are so serious, or are of such a nature, that they might do so even standing alone. No evidence was introduced at hearing to indicate that Mr. Haas' professional license has been previously disciplined. Exacta was the subject of five earlier administrative complaints alleging violations of Minimal Technical Standards, which were the subject of a Settlement Stipulation. Given the terms of the stipulation, there is no competent evidence showing that Exacta committed prior offenses. However, the Corrected Final Order Approving Settlement Stipulation constitutes prior disciplinary action against Exacta.

Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services, Board of Professional Surveyors and Mappers: Finding Wesley Brian Haas and Exacta Land Surveyors, Inc., in violation of section 742.0351(1)(h), Florida Statutes, for failing to conduct surveying and mapping in accordance with the minimum technical standards prescribed by Florida Administrative Code Rules 5J-17.051(2)(b)3., 5J-17.051(3)(b)3., 5J-17.051(3)(b)15.b.(II), 5J-17.052(2)(a)8., and 5J- 17.052(2)(b)7.; imposing an administrative fine of $1500.00 on Wesley Brian Haas; and imposing an administrative fine of $4000.00 on Exacta Land Surveyors, Inc. DONE AND ENTERED this 14th day of April, 2015, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 14th day of April, 2015.

Florida Laws (13) 120.57120.6817.011472.001472.005472.008472.015472.021472.027472.033472.0351472.0355472.037 Florida Administrative Code (4) 28-106.2175J-17.0115J-17.0515J-17.052
# 7
BOARD OF LAND SURVEYORS vs GARY D. HUNT, 91-007302 (1991)
Division of Administrative Hearings, Florida Filed:Orlando, Florida Nov. 13, 1991 Number: 91-007302 Latest Update: Jun. 30, 1992

The Issue The central issue in case no. 91-7302 is whether the Respondent is guilty of the violations alleged in the administrative complaint dated October 14, 1991; and, if so, what penalty should be imposed. The central issue in case no. 91-8259 is whether the Respondent is guilty of the violations alleged in the administrative complaint dated November 11, 1991; and, if so, what penalty should be imposed.

Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: At all times material to this case, Respondent has been licensed as a land surveyor in the State of Florida, license no. LS Respondent signed and sealed three surveys for property belonging to Mr. and Mrs. Michael Lengfellner. Those surveys (received in evidence as Petitioner's exhibits 2, 3, and 4) were prepared and certified by Respondent to be in compliance with the Minimum Technical Standards found in Section 472.027, Florida Statutes, and Chapter 21HH-6, Florida Administrative Code. With regard to Petitioner's exhibit 2, the survey drawing shows a 90 degree right angle corner at the northeast property corner when that angle should have been depicted at the southeast corner. The plat for the property shows the 90 degree corner at the southeast corner. Further, the survey reflects incorrect bearing and distances along the easterly property line. Additionally, the angular data provided for the non-radial side of the property lines is not shown on the survey. When a non-radial line is shown, additional information must be given to clarify the dimensions. Such information is not shown on Petitioner's exhibit 2. With regard to Petitioner's exhibit 3, the Respondent, again, did not provide the non-radial line angular data. More specifically, no data was depicted showing the delta, radius, and arc, or chord bearing or angle. With regard to Petitioner's exhibit 4, the Respondent, again, omitted the non-radial line data described above. Further, while Respondent's field notes state the survey was tied to a permanent reference monument, that information was not depicted on the survey drawing. Bearings for the well- defined line relied upon by Respondent were not indicated on the drawing. The survey drawing also did not compare the measured direction and distances in relation to the recorded direction and distances. Finally, this survey failed to provide a legend for abbreviations used in the drawing. Any abbreviation not listed by rule must be explained in a legend. Respondent signed, sealed and certified the survey drawing identified as Petitioner's exhibit 7. With regard to Petitioner's exhibit 7, the Respondent failed to depict the partial lot distances in the survey drawing. The fractional parts of the lots (lots 14 and 15) were not shown on the drawing. Fractional parts of a lot excluded from the surveyed description should be dimensioned. Respondent did not show the distance to the nearest street line or identifiable reference in Petitioner's exhibit 7. Nor did the survey drawing depict the distance to a well defined corner or block corner. In short, the survey did not reference an identifiable point. The Respondent did not provide a legend for the survey drawing, Petitioner's exhibit 7, which explained all abbreviations used on the drawing. The fence depicted on the west boundary of the lots is not related to the boundary lines. Since the fence is pertinent to the survey, the relationship of the fence to the boundary lines should be explained on Petitioner's exhibit 7. Respondent failed to refer Petitioner's exhibit 7 to a specific well- established line. Respondent did not disclose the type of survey performed on Petitioner's exhibit 7. Respondent signed, sealed, and certified the survey drawing identified as Petitioner's exhibit 9. With regard to Petitioner's exhibit 9, Respondent failed to identify the type of road (public or private) depicted on the survey. Further, the first course of the legal description was not shown on the survey drawing. Even if the first course were an easement, it should be depicted on the drawing to reflect the property's access interest as that property is described in the legal description for the parcel. The errors or omissions noted above catalog the instances where Respondent failed to comply with the minimum technical standards for surveys.

Recommendation Based on the foregoing, it is RECOMMENDED: That the Board of Professional Land Surveyors enter a final order finding the Respondent guilty of having violated Section 472.033(1)(h), Florida Statutes, and imposing an administrative fine in the amount of $1500.00. DONE and ENTERED this 30th day of June, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1992. APPENDIX TO CASE NOS. 91-7302 AND 91-8259 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY PETITIONER: Paragraphs 1 through 4 are accepted. Paragraphs 5 and 6 are rejected as comment, argument, or irrelevant. The first sentence of paragraph 7 is accepted, the remainder rejected as conclusion of law or recitation of rules. Paragraphs 8 through 11 are accepted. Paragraph 12 is rejected as a conclusion of law. Paragraphs 13 through 17 are accepted. Paragraphs 18 and 19 are rejected as conclusion of law. Paragraph 20 is accepted. Paragraph 21 is rejected as statement of the rule, not fact at issue. Paragraph 22 is accepted except as to the conclusion of law of the violation. Except as to the conclusion of law and the recitation of the rule, paragraph 23 is accepted. Paragraphs 24 and 25 are accepted. Except as to the conclusion of law regarding a violation and the recitation of the rule, paragraph 26 is accepted. Except as to the conclusion of law regarding a violation, paragraph 27 is accepted. Except as to the conclusion of law regarding a violation and the recitation of the rule, paragraph 28 is accepted. Paragraph 29 is rejected as irrelevant or contrary to the weight of the evidence; the paragraph is vague as it does not specify to which "above abbreviations" it refers. Paragraphs 30 and 31 are accepted. Paragraph 32 is rejected as comment, not fact in dispute. Except as to the conclusion of law regarding a violation, paragraph 33 is accepted. Except as to the conclusion of law regarding a violation, paragraph 34 is accepted. Except as to the conclusion of law regarding a violation and the recitation of the rule, paragraph 35 is accepted. Except as to the conclusions of law regarding violations and the recitation of the rule, paragraphs 36 through 42 are accepted. Paragraph 43 is rejected as comment or irrelevant. Except as to the conclusions of law regarding violations and the recitation of the rule, paragraphs 44 through 51 are accepted Paragraphs 52 and 53 are rejected as repetitive, comment, or irrelevant. Except as to the conclusions of law regarding violations and the recitation of the rule, paragraphs 54 through 65 are accepted. Paragraphs 66 through 71 are rejected as argument, conclusion of law or comment. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY RESPONDENT: 1. None submitted. COPIES FURNISHED: William S. Cummins Senior Attorney Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Gary D. Hunt 247 Lake Ellen Drive Casselberry, Florida 32707 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Angel Gonzalez, Executive Director Board of Professional Land Surveyors 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792

Florida Laws (3) 120.57472.027472.033
# 9
HISTORIC GAINESVILLE, INC.; DUCKPOND NEIGHBORHOOD ASSOCIATION, INC.; MARK BARROW; AND JANE MYERS vs CITY OF GAINESVILLE, JOHN AND DENISE FEIBER, KATHERINE BODINE AND DEPARTMENTOF COMMUNITY AFFAIRS, 95-000749GM (1995)
Division of Administrative Hearings, Florida Filed:Gainesville, Florida Feb. 21, 1995 Number: 95-000749GM Latest Update: Dec. 06, 1995

The Issue The issue in this case is whether the City of Gainesville comprehensive plan amendment adopted by Ordinance No. 4036 on October 24, 1994, is in compliance.

Findings Of Fact Based upon all of the evidence, the following findings of fact have been determined: The Parties Respondent, City of Gainesville (City), is a local government subject to the comprehensive land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered and enforced by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive land use plans and amendments made thereto. Petitioners, Mark Barrow, Jane Myers, Wilse Barnard, Mary Webb, and Steven and Mary Reid, own property and reside within the City. Petitioners, Historic Gainesville, Inc. and Duckpond Neighborhood Association, Inc., are organizations made up of persons who reside, own property, or operate businesses within the City. By stipulation of the parties, petitioners are affected persons within the meaning of the law and have standing to bring this action. Intervenors, John and Denise Feiber and Katherine Bodine, are the owners of two parcels of property which are at issue in this case. Intervenors submitted oral and written comments during the plan amendment review and adoption proceeding and thus have standing as affected persons to participate in this proceeding. Background During 1993 and 1994, John Feiber unsuccessfully attempted to sell his 1,800 square foot single-family home for an asking price that was disproportionately high for residential property, and was more in keeping with a commercial asking price. Recognizing that the property would be far more valuable with a commercial classification than its current residential designation, on June 11, 1994, Feiber, his wife, and the owner of the property next door, Katherine Bodine, submitted an application for an amendment to the City's Future Land Use Map (FLUM) to convert a .57 acre parcel from Residential- low Density to Planned Use District (PUD) to change a single family home into a law office, potentially convert an adjacent structure into mixed office and residential uses, and possibly build a third office building. Although the City's Plan Board unanimously recommended that the application be denied, by a 4-1 vote the City approved the application on October 3, 1994. This approval was formally ratified through the adoption of Ordinance No. 4036 on October 24, 1994. After essentially deferring to the City's findings, on January 25, 1995, the DCA completed its review of the amendment and issued a Notice of Intent to find the amendment in compliance. On February 15, 1995, petitioners filed their petition for administrative hearing with the DCA generally contending the amendment was internally inconsistent and violated certain parts of Chapter 163, Florida Statutes, the state comprehensive plan, and Chapter 9J- 5, Florida Administrative Code. In resolving these contentions, on which conflicting evidence was presented, the undersigned has accepted the more credible and persuasive evidence. Finally, by order dated March 30, 1995, intervenors were authorized to participate in this proceeding in support of the amendment. The Affected Neighborhood The parcel in question consists of two lots, one owned by the Feibers, the other by Bodine. Both lots are located within, and on the edge of, the Northeast Gainesville Residential Historic District (Historic District), a 63- acre collection of properties, which by virtue of the historically significant structures and residential land use patterns, qualified for listing on the National Register of Historic Places in 1980. The dominant land use and character within the Historic District is residential, and has been since it was zoned residential in 1932. Land uses on Northeast First Street, which forms the western boundary of the District, were always institutional, but on the east side of Northeast Second Street eastward, the uses were always residential with the exception of the Thomas Center, a 1920's vintage building now serving as a City office building. The Historic District is located in downtown Gainesville, beginning just north of East University Avenue and continuing northward until Northeast Tenth Avenue. Within its boundaries on the FLUM are two distinct land use designations, Residential-Low Density and Office. Northeast Second Street serves as the land use boundary between the two, with residential uses permitted on the east side and nonresidential uses permitted on the west side of the street. There have been no encroachments across the residential land use line since 1976 when a nonconforming parking lot was approved by the City. When the City adopted its comprehensive plan in 1985, and revised it in 1991, it continued the same two land uses, thereby codifying existing residential land use patterns and the conversion of office uses that had already occurred along First Street Northeast in the early 1970s. The Amendment As noted above, the parcel in question consists of two legal lots, one owned by the Feibers, the other by Bodine. The amendment changes the FLUM portion of the City's 1991-2001 comprehensive plan to reflect a PUD overlay for the parcel. The land is presently designated as residential-low density, a category in which office uses are not permitted. According to policy 2.1.1 of the Future Land Use Element (FLUE), this land use category is appropriate "for single family development, particularly the conservation of existing traditional low-density neighborhoods, single-family attached and zero-lot line development, and small scale multi-family development." Conversely, the same policy provides that "office designations shall not encroach in viable residential areas nor expand strip development." By their application, John and Denise Feiber seek to convert their single-family home at 206 N. E. Third Street into a law office. An adjacent two-story structure located at 206 N. E. Second Avenue would possibly be converted to office uses on the first floor and residential uses on the second floor. That building is owned by Katherine Bodine, an absentee landlord who resides in Jacksonville, Florida. The amendment also permits, but does not require, future consideration of a third, multi-story structure to accommodate offices. After the amendment was approved by the City, Bodine immediately listed her parcel for sale, and its future development is uncertain at this time. FLUE policy 2.1.1 describes the PUD designation as follows: This category is an overlay land use district which may be applied on any specific property in the City. The land use regulations pertaining to this overlay district shall be adopted by ordinance in conjunction with an amendment to the Future Land Use Map of this comprehensive plan. The category is created to allow the consideration of unique, inno- vative or narrowly construed land use proposals that because of the specificity of the land use regulations can be found to be compatible with the character of the surrounding land uses and environmental conditions of the subject land. Each adopting PUD overlay land use designation shall address density and intensity, permitted uses, traffic access and trip generation, environmental features and buffering of adjacent uses. Planned Development zoning shall be required to implement any specific development plan. In the event that the overlay district has been applied to a site and no planned development zoning has found approval by action of the City Commission within one year of the land use designation, the overlay land use district shall be deemed null and void and the overlay land use category shall be removed from the Future Land Use Map, leaving the original and underlying land use in place. Therefore, any land use proposal under this category must be "compatible with the character of the surrounding land uses and environmental conditions" and address the "buffering of adjacent uses." It follows that a PUD may not be applied arbitrarily, but rather it must be appropriate for the area and specific site. The amendment applies the following land use regulations to both the Feiber and Bodine parcels: Residential use of up to ten (10) units per acre and all uses permitted by right and by special use permit within the RMF-5 zoning district is authorized; the maximum floor area of all buildings and structures is 7,185 square feet; the Historic Preservation/ Conservation District requirements of Section 30-79, Land Development Code of the City of Gainesville regulate and control the development and design of all buildings, structures, objects and related areas; in addition to the Landscape and Tree management requirements of the Land Development Code, the property is required to be planted and maintained with residential scale landscaping to conform to the surrounding residential neighborhood, as well as act as a buffer for the surrounding uses; the average weekday afternoon peak trip generation rate per 1,000 square feet of gross floor area in office use is not permitted to exceed 1.73; any application for development is required to meet concurrency requirements of Article III of the City of Gainesville Land Development Code for each phase of development; and off-street parking is required to be provided unless on- street parking is created, pursuant to a plan attached to the ordinance as Exhibit "D". The amendment also applies the following land use regulations specifically to the Feiber parcel: An additional land use, Legal Services, as defined in Major Group 81 of the Standard Industrial Classification Manual, 1987 ed. is authorized; the maximum floor area authorized for such Legal Services is one thousand seven hundred eighty five (1,785) square feet; and, if on-street parking is not provided in accordance with the plan provided in Exhibit "D" of the ordinance, then off-street parking must be provided within 300 feet of the Feiber parcel. Finally, the amendment applies the following land use regulations to the Bodine parcel: Non-residential land uses are permitted as specified in Exhibit "E" of the ordinance; the maximum floor area authorized for non-residential uses is three thousand six hundred (3,600) square feet; the second story of the existing building is limited to residential use only; and on-site parking limitations are imposed. In accordance with policy 2.1.1, Planned Development (PD) zoning is required to implement the development plan and the uses permitted in the amendment. The underlying FLUM designation of Residential Low Density, which allows up to 12 units per acre, is neither abandoned nor repealed, but rather remains inapplicable, so long as the property is developed in accordance with a development plan to be approved when the implementing PD zoning is adopted, and such implementing zoning must be adopted within one year of the amendment becoming effective. Data and Analysis Data and Analysis Before the City Basically, the City concluded that the amendment could be justified on the theory that the conversion would provide commercial "infill" of an underutilized parcel with step-down transitions to the inner neighborhood. It further concluded that because of the small size of the parcel involved, the conversion would have a de minimis effect on the neighborhood. When the amendment was adopted, the City had before it the previously adopted comprehensive plan, including the original data and analysis to support that plan, and testimony and exhibits offered both for and against the amendment during a local government hearing conducted on October 4, 1994. Significantly, the City had no studies of any kind regarding marketability, neighborhood stability, availability of land for office and residential uses, or traffic. Indeed, in preparation for final hearing, its expert simply made a walking tour of the neighborhood. Data and Analysis Before the Department On October 28, 1994, the City transmitted the amendment to the DCA for review. The transmittal package contained the following items: The City's Final Order; Ordinance No. 4036, with Exhibits A-E; interoffice communication to the City Commission from the City Plan Board dated July 11, 1994; interoffice communication to the City Plan Board, Planning Division Staff dated June 16, 1994; attachment to Land Use Application (pages 1-5); and excerpts from the City Zoning and Future Land Use Maps showing the zoning and land uses assigned to adjacent properties. However, the transmittal package did not include transcripts of the City Plan Board hearing, the Commission Adoption hearing, or any part of the record of the quasi-judicial hearing of October 4, 1994. The DCA planning staff consulted data contained in the Department of Transportation's ITE Manual in analyzing the traffic and parking impacts of the adopted land use map amendment. It also contacted the Department of State, Division of Historic Resources (Division), for analysis of the amendment's impact on historic resources, and it received comments on the amendment from the the North Central Florida Regional Planning Council (NCFRPC). The DCA planning staff also analyzed the FLUM to determine compatibility of the amendment with surrounding uses. During this review, the DCA planning staff reviewed all pertinent portions of the City's Plan Goals, Objectives and Policies (GOPs) and data and analysis. This review was done in a cursory fashion, however, since the DCA viewed the application as being a very small project with no perceived impact. Given the lack of any studies concerning marketability, neighborhood stability, availability of land for office and residential uses, and traffic, all of which are pertinent to this amendment, it is found that the City and DCA did not use the best available data and analysis. Therefore, the amendment is inconsistent with the requirement in Rule 9J-5.005(2), Florida Administrative Code, and Section 163.3177, Florida Statutes, that the best available (and appropriate) data and analysis be used. Compatibility with Adjacent Uses To the south of the subject parcels is a four-lane loop road (Northeast Second Avenue) which now serves as a buffer from the adjacent uses. Across the street to the south is City Hall, which was constructed more than thirty years ago. To the west of the property is a commercial parking lot with an office building next door to that parking lot. On the east side of the property are multi-family dwellings. To the south and east from the parcels is a commercial lot. An area from the corner of Northeast Second Avenue and Northeast First Street, one block from the subject parcels, and proceeding north along Northeast First Street, contains many non- residential uses, including offices. Areas to the north are predominately multi-family and single-family uses. Transitional uses and buffering are professionally-acceptable planning tools. However, changing a single-family dwelling into an office does not enhance buffering for the residential properties further in the neighborhood because the Feiber house is currently a less intense use than office. Therefore, the amendment conflicts with the plan's requirement that a PUD provide buffering for adjacent uses. The concept of transitional uses entail the practice of providing for a gradation of uses from high-intensity to low-intensity uses. Insertion of another non-residential use at the Feiber property to achieve a chimerical "step-down transitional use" merely moves the "edge" another step inward. Nonresidential uses already exist just outside the Historic District neighborhood that would meet this "step-down" criteria. Retrofitting an existing neighborhood is not appropriate unless it is no longer viable, which is not the case here. Contrary to the proponents' assertion, the Feiber and Bodine parcels will not provide the transitional uses of office and multi-family uses between the high-intensity office (City Hall) uses and lower intensity, multi-family uses to the north of the subject parcels. The four-lane street between the City Hall and the subject property now serves as an adequate buffer. A major goal of the City's plan is to protect viable, stable neighborhoods, and the FLUM, with its residential land use category, provides that protection. This goal cannot be achieved by converting these parcels to office use. Another major goal of the plan is to protect and promote restoration and stablization of historic resources within the City. That goal cannot be achieved by converting these parcels to nonresidential uses. Yet another major goal of the plan is the prohibition of office uses intruding into residential neighborhoods. The amendment contravenes that requirement. Impact on Historic Resources As noted earlier, the Feiber and Bodine properties are located on the southern edge of the Historic District of the City, separated from the City Hall by a one-block long segment of a four-lane street plus the full half-block length of the City Hall parking lot. A major goal of the City's plan is the protection of historic architectural resources and historically significant housing within the City. This goal is found in FLUE objective 1.2, Historic Preservation Element goals 1 and 2, and Housing Element policy 3.1.3. This overall major goal, as embodied in the foregoing objective, policies and goal, cannot be furthered by the amendment. Conversions which intrude across stable boundaries, such as exist in this neighborhood, begin a pattern of disinvestment. As investment subsides, the physical, historic structures will be adversely affected. The conversion contemplated by the amendment would represent a small encroachment of office use into the neighborhood with a cumulative effect. There is nothing to preclude its precedential effect or encouragement of similar applications. Although the Division of Historic Resources stated that it had no objection to the amendment, its acquiesence to the amendment is not controlling. Rather, the more persuasive evidence supports a finding that the amendment will have an adverse impact on the Historic District and will not further applicable goals, policies and objectives. Local Comprehensive Plan Issues One criteria for evaluating a plan amendment is whether it would result in compatibility with adjacent land uses. The overriding goal in the area of compatibility analysis is the protection of viable, stable neighborhoods. There is nothing in the plan amendment itself which provides compatibility or buffering for the residential properties located to the north and east of the subject parcel. Indeed, office development of the land will increase the pressure to convert more structures. Objective 2.1 of the FLUE establishes an objective of providing sufficient acreage for residential, commercial, mixed use, office and professional uses and industrial uses at appropriate locations to meet the needs of the projected population. Those acreages are depicted on the FLUM. When reviewing a FLUM amendment, such as the subject of this proceeding, the City is required to make a need analysis. The amendment is not supported by any analysis of need. Prior to the amendment, the plan contained an overallocation of office space and a shortage of housing for Market Area 4, in which the subject parcel is located. The amendment does not increase available housing or alleviate the overallocation of office space in Market Area 4. Indeed, it has a contrary result. Adaptive reuse is not promoted by the City's plan. Rather, the Housing Element promotes restoration and conservation of historically or architecturally significant housing, which means returning to housing use, not adapting structures to some other use. In this respect, the amendment is contrary to the City's plan. Summary Because the plan amendment is internally inconsistent and not based on the best available data and analysis, it is found that the amendment is not in compliance.

Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Community Affairs enter a final order finding the amendment to be not in compliance. DONE AND ENTERED this 19th day of September, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0749GM Petitioners: Petitioners' proposed findings, while substantially modified and shortened, have been generally adopted in substance. Respondents/Intervenors: 1-8. Partially covered in findings of fact 10-16. 9-37. Partially covered in findings of fact 17-22. 38-53. Partially covered in findings of fact 23-30. 54-71. Partially covered in findings of fact 31-33. 72-106. Partially covered in findings of fact 31-38. Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary for a resolution of the issues, cumulative, irrelevant, not supported by the more credible, persuasive evidence, subordinate, or a conclusion of law. COPIES FURNISHED: Patrice F. Boyes, Esquire W. David Jester, Esquire Post Office Box 1424 Gainesville, Florida 32602-1424 Richard R. Whiddon, Jr., Esquire Post Office Box 1110 Gainesville, Florida 32602 Suzanne H. Schmith, Esquire 2740 Centerview Drive Tallahassee, Florida 32399-2100 C. David Coffey, Esquire 105 S. E. First Avenue, Suite 1 Gainesville, Florida 32601-6215 James F. Murley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100

Florida Laws (4) 120.57120.68163.3177163.3184 Florida Administrative Code (1) 9J-5.005
# 10

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer