The Issue The issue in this case is whether the amendment to the Putnam County Comprehensive Plan adopted by Ordinance 2009-23 is "in compliance," as that term is defined in Section 163.3184(1)(b), Florida Statutes (2008).1/
Findings Of Fact The Parties Petitioner Bonnie Conklin resides and owns property at 600 Stokes Landing Road. She submitted oral comments to the County at the adoption hearing on the amendment. Petitioner Wendy Goodson owns property at 595 Stokes Landing Road in Putnam County. She submitted oral comments to the County at the adoption hearing on the amendment. Putnam County is a political subdivision of the State and has adopted a comprehensive plan which it amends from time to time pursuant to Section 163.3167(1)(b), Florida Statutes. Intervenor Stokes Landing Enterprises, LLC (“Stokes Landing”), is a Florida limited liability company. It owns the Property affected by the amendment and submitted oral comments and evidence during the local hearings on the amendment. The Amendment The amendment changes the future land use designation of the Property from Agriculture II to Industrial. Section One of Ordinance 2009-23 provides that the re-designation of the Property is subject to the terms and conditions of the development agreement between the County and Stokes Landing, which is attached as an exhibit to the ordinance. The Property has approximately 220 feet of frontage on the St. Johns River. The development agreement requires that the Property be developed as a Planned Unit Development (PUD) for a “ship building and repair facility.” Contemporaneous with the adoption of the amendment, the County rezoned the Property to PUD. The development agreement includes the following recitals: Developer and the County wish to enter into this Agreement to set forth the conditions under which development of the facility shall be used. The County has entered into this Agreement in consideration of the commitment by Developer to construct certain improvements as further described in Section 3 below (hereinafter the “Improvements”); and to redevelop the site and utilize the Property as a Planned Unit Development (PUD) only, with the understanding that the Developer shall apply for a PUD to operate a ship building and repair facility. * * * G. The conditions specified within a Planned Unit Development (PUD) zoning district established by Developer pursuant to this Agreement will aid redevelopment of the Property, limit localized impacts of the Property and advance the implementation of the County’s Comprehensive Plan. Section 3 of the development agreement requires that the developer make the following improvements: Access Roadway Improvement: Developer at its sole cost and expense shall design, engineer, permit, construct and install in accordance with all applicable laws, rules and regulations and the County’s approval of the design, the improvement(s) of the Access Roadway from Stokes Landing Road to the subject site via the established access easements. County approvals shall not be unreasonably withheld. Timing: Developer shall complete the Access Roadway Improvements prior to starting redevelopment of the site for the proposed ship building and repair use. Planned Unit Development (PUD) Zoning: Developer shall obtain approval of rezoning the Property to PUD prior to starting redevelopment of the site and shall maintain the approved PUD zoning throughout the duration of the Industrial future land use on the site. This requirement does not preclude any future request for a Comprehensive Plan Amendment to another future land use category and subsequent associated rezoning requests to a compatible zoning district. The Property and Surrounding Land Uses Most land uses contiguous to or adjacent to the Property are residential uses on lands designated Agriculture II. However, 100 feet south of the Property are lands along the St. Johns River designated Conservation. There are other Conservation lands across the river from the Property and north of the Property. The only other land uses in the area are a commercial well-drilling business on land designated Agriculture II, and a shipyard known as St. Johns Ship Building on lands designated Industrial. The St. Johns Ship Building facility is located on 101 acres and is approximately 900 feet north of the Property. The lands abutting the Property on the west, south, and east are currently undeveloped. Across the St. Johns River from the Property is Stokes Island, which is also undeveloped. About 60 percent of the Property lies within the 100- year flood zone. There are wetlands on the Property which are generally of low quality due to invasive vegetation. Historic Uses and Improvements on the Property The staff report for the amendment states that the purpose of the amendment is to “make the land use designation of the property consistent with the existing use of the land,” which “according to the applicant,” has been ship building since the 1960’s. This statement incorrectly characterizes both the existing use and the past use of the Property. Aerial photography shows that much of the Property was cleared in 1943. In the 1940s and early 1950s, the County hauled shell rock from the Property for road building. The Property was used intermittently to build fishing vessels between the 1970's and 1998. The number of vessels that were built on the Property was not established by the record evidence. Some barge demolition activities also occurred on the Property in 2006 and 2007. Intervenor started to build a barge on the Property in 2008, but was almost immediately stopped by a County code enforcement officer because such activities are not allowed under the Property’s agricultural zoning. The evidence shows that the barge building and barge demolition activities, and probably the earlier boat building activities, were conducted in violation of the agricultural zoning of the Property. Two steel mooring pilings and remnants of a dock or platform are still located on the Property. There was some dispute about whether there still exist on the Property the rails or “ways” used in the past for hauling vessels out of the water and for launching vessels. Although a 2008 survey of the Property (Joint Exhibit 12) shows the rails, they do not appear in recent photographs of the Property (Respondent/Intervenor’s Exhibits 3.1 through 3.4 and Petitioners’ Exhibits 13.1 through 13.3). The shoreline along the east boundary of the Property is not bulkheaded and, except for the clearing that has occurred on the Property, remains in a relatively natural condition. Whether the Subject Property is a Port The parties disputed whether the Property is an existing water port, which is relevant to the Comprehensive Plan policies regarding the location of industrial uses, as will be discussed below. The term “port” is not defined in the Comprehensive Plan. “Port facility” is defined in Florida Administrative Code Rule 9J-5.003(92) as: [H]arbor or shipping improvements used predominantly for commercial purposes including channels, turning basins, jetties, breakwaters, landings, wharves, docks, markets, structures, buildings, piers, storage facilities, plazas, anchorages, utilities, bridges, tunnels, roads, causeways, and all other property or facilities necessary or useful in connection with commercial shipping. This definition is not particularly helpful in resolving the dispute in this case, because it is a list of facilities (e.g., buildings) that can be associated with a port, rather than an identification of the elements that are essential to being a port. In the traffic circulation section of the Putnam County Comprehensive Plan Data, Inventory, and Analysis, under the heading “Port Facilities,” there is one water port identified: Putnam County is currently served by a small barge port on the St Johns River, which is located between downtown Palatka and Rice Creek. . . . This barge facility is incorporated into a larger industrial park setting and provides an alternative method of moving certain types of goods and material into and out of the County. The word “port” is defined in Webster’s Dictionary as “a place where ships may ride secure from storms” and “a harbor town or city where ships may take on or discharge cargo.” Webster’s New Collegiate Dictionary 889 (1979 ed.) The latter definition indicates that the transport of cargo by water between land sites (ports) is the core of the meaning. When deep harbors, channels, and turning basins occur naturally or are created and used by ships, there is little cause to dispute that a port exists. Here, there are no such natural or man-made features. The shoreline at the subject Property was not shown to differ from much of the shoreline along the St. Johns River.2/ As indicated above, a port is a transportation facility where waterborne goods are loaded and unloaded. A port is distinct from a “boatyard,” which is defined as “a yard where boats are built, repaired, and stored and often sold or rented.” Merriam-Webster’s On-Line Dictionary (2009) The remnant boat building facilities on the Property do not make a port. It is found that the Property was used intermittently in the past as a boatyard, but it was never a water port. Road Access to the Property The Property’s connection to the nearest public, paved road, is currently by easements over an unpaved drive. A 50- foot-wide easement extends north from the Property approximately 240 feet over an unpaved drive, then makes a 90-degree turn to the west along a 25-foot-wide, unpaved easement that runs about 325 feet to the beginning of a paved portion of the easement, then continues 545 feet further west to the publicly owned and paved Stokes Landing Road. Petitioners Conklin and Goodson own property and reside along the 25-foot easement. There are about a dozen other residences along the easements. There are many other residences along the public portion of Stokes Landing Road to its connection with U.S. 19. Petitioners attempted to show that Intervenor’s access to the Property from the public portion of Stokes Landing Road is legally insufficient because a small strip of land at the intersection of the 50-foot easement and the 25-foot easement is not included in the easements held by Intervenor. However, because Intervenor showed colorable easement rights over the entire private roadway, the Administrative Law Judge declined to take evidence on or determine the merits of the adverse real property claim. Stokes Landing Road is classified as a “local road” by Putnam County. It is not an arterial or collector road. Although the properties along the unpaved road have a mailing address of Stokes Landing Road, some of the official documents that describe or depict Stokes Landing Road do not include the private easement segments. It was estimated that the proposed boatyard would generate about 30 daily employee vehicle trips and one trip for pickup or delivery. Intervenor presented evidence that a truck with a wheel base of 50 feet (typical of a truck and semi-trailer) could make the 90-degree right turn from a 25-foot-wide roadway onto a 50-foot-wide roadway. However, to do so, the truck would have to use the left side of the 25-foot easement and the left side of the 50-foot easement (from the driver’s perspective). In other words, the truck would have to enter the lanes used by oncoming traffic. Internal Consistency Petitioners contend that the amendment is inconsistent with Policy A.1.9.3.A.6.d of the Future Land Use Element (FLUE) of the Comprehensive Plan. That policy states: Industrial Uses shall be located on sites that “use existing utilities or resources; utilize one or more transportation facilities such as air ports, water ports, collector roads, arterial roads, and railroads; do not require significant non- residential vehicular traffic to pass through established neighborhoods; and are sufficiently separated and/or buffered when necessary from residential and other urban uses to minimize adverse impacts of noise, glare, dust, smoke, odor or fumes. The Property is not located on a collector road or arterial road. It is not a water port. The amendment would require significant non- residential vehicular traffic to pass through an established neighborhood. The non-residential traffic is significant because it more than doubles the existing traffic in the most rural portion of Stokes Landing Road and would create an unsafe condition for every trip to and from the Property by a large truck. It is not sound planning to locate an industrial use on property that is served only by a narrow residential driveway. It is not sound planning to locate an industrial use on a road where access by large trucks will require that the trucks travel in the oncoming traffic lanes. The Property is not sufficiently separated or buffered from residential uses to minimize the adverse impacts of noise, glare, dust, smoke, odor, and fumes. Currently, there are vacant, wooded parcels adjacent to the Property, but the Intervenor has no control over these parcels and they will not always be vacant. The proposed industrial use is incompatible with the dominant pattern of development surrounding the Property, which is rural residential. Intervenor argues that the Agriculture II land use designation allows “intensive” agricultural land uses, such as slaughter houses, suggesting that the residents are already subject to the possibility of adverse impacts from noise, glare, dust, smoke, odor, and fumes. However, there are no intensive agricultural uses in the area and no evidence to suggest that such development is likely to occur in the future. The dominant land use is likely to remain rural residential. Petitioners contend that the amendment is inconsistent with Goal 1 of the FLUE, which is to maintain the quality of life by “establishing a pattern of development that is harmonious with the County’s natural environment and provides a desired lifestyle for County residents.” The proposed boat building and repair operation in this rural residential neighborhood would significantly degrade the desired lifestyle of the residents in the area. Petitioners contend that the amendment is inconsistent with FLUE Policy A.1.1.1.A.3., which prohibits land uses that generate, store, or dispose of hazardous waste in “areas of special flood hazard”. However, Policy A.1.1.1.A.2.b. expressly allows water-dependent components of a development to be located in areas of special flood hazard. When FLUE Objective A.1.1 and its accompanying policies are read in pari materia, they indicate that a water-dependent land use can be allowed in the floodplain as long as any generation, storage, or disposal of hazardous waste will occur outside of the floodplain. Petitioners did not show that the proposed boatyard cannot be operated in conformance with these policies. For similar reasons, Petitioners’ contention that the amendment is inconsistent with FLUE Policy A.1.1.E. is unpersuasive. That policy encourages the clustering of development away from flood-prone areas. However, in the case of water-dependent land uses, the water-dependent components of the land use must be located near the water. Petitioners contend that the amendment is inconsistent with FLUE Objective A.1.3 and FLUE Policy A.1.3.1, which encourage the elimination or reduction of non-conforming uses. Petitioners argue that past boat building and boat repair operations at the Property were non-conforming uses under the Agriculture II land use category and should be eliminated. Petitioners’ arguments are not persuasive because, if the amendment is approved, the boatyard uses would not be inconsistent with the FLUM. Furthermore, Petitioners showed that there is no existing, non-conforming use of the Property, so there is no non-conforming use that needs to be reduced or eliminated. Petitioners contend that the amendment is inconsistent with FLUE Policy A.1.3.2, which states: Adequate buffering and separation between land uses of different densities and intensities shall be provided in accordance with the Land Development Code to minimize compatibility issues. This policy directs that the Land Development Code (“Code”) shall establish buffering requirements to minimize incompatibility. Compatibility is also a comprehensive planning issue that can cause an amendment to be “not in compliance,” regardless of the buffering regulations contained in the Code, but this particular policy is only directed to the Code. Petitioners did not show that the Code does not contain buffering requirements. Petitioners contend that the amendment is inconsistent with FLUE Policy A.1.4.9, which requires a vegetated upland buffer for any waterfront development. The Petitioners’ evidence on this issue was insufficient to establish that the required buffer could not be provided. Furthermore, the policy directs the County to adopt regulations to establish the buffer requirements. Petitioners did not show that such regulations were not adopted by the County. Petitioners contend that the amendment is inconsistent with FLUE Policy A.1.6.1, which encourages infill within the designated urban service areas of the County. Water-dependent uses must be located where the water is located. Therefore, infill policies cannot be applied to water-dependent uses in the same manner as with other land uses. Although the availability of necessary urban services is still a relevant inquiry, Petitioners did not present evidence on this point. Consistency with Rule 9J-5 Petitioners contend that the amendment is inconsistent with Florida Administrative Code Rule 9J-5.003(23), which defines the term “compatibility”; Rule 9J-5.006(3)(b)3., which encourages the reduction or elimination of inconsistent uses; Rule 9J-5.006(3)(c)2., which requires that comprehensive plans provide for “compatibility of adjacent land uses”; and Rules 9J- 5.006(5)(h)6. and 8., which require that amendments be reviewed for compatibility and “functional relationship” with adjacent land uses. The term “compatibility” is defined in Florida Administrative Code Rule 9J-5.003(23) as: [A] condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition. A definition is not a regulation that requires compliance. A definition simply shows the intended meaning for a term used in a regulation. Therefore, a comprehensive plan amendment cannot be inconsistent with a definition. Florida Administrative Code Rule 9J-5.006(3)(b)3. requires the future land use elements of comprehensive plans to contain one or more objectives that encourages the elimination or reduction of uses inconsistent with the community’s character and future land uses. This rule addresses existing non- conforming uses. The Property is no longer being used in a manner that is inconsistent with the community’s character. Therefore, there is no inconsistent use of the Property that needs to be reduced or eliminated. Florida Administrative Code Rule 9J-5.006(3)(c)2. requires the future land use element of a comprehensive plan to contain one or more policies that provide for compatibility of adjacent land uses. It was found, above, that the rural residential neighborhood adjacent to the Property would be negatively impacted by boat building and boat repair uses of the Property. The amendment is incompatible with the surrounding rural residential neighborhood. Florida Administrative Code Rules 9J-5.006(5)(h)6. and relate specifically to the analysis of whether an amendment fails to discourage the proliferation of urban sprawl. Because Petitioners did not raise urban sprawl as an issue, they cannot claim inconsistency with these rules. Petitioners contend that the amendment is inconsistent with Section 163.3177(8), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(2), which require that an amendment be based on relevant and appropriate data and analysis. Petitioners believe that there is no demonstrated need for additional industrial uses in the County. Petitioners’ argument and evidence on the issue of need failed to take into account the water-dependent use that is proposed. Petitioners’ computations to show that there are substantial acres of unused industrial lands in the County fails to address the question of whether there is a need for additional water-dependent land uses.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a Final Order determining that the amendment adopted by Putnam County through Ordinance 2009-23 is not in compliance. DONE AND ENTERED this 24th day of December, 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 24th day of December, 2009.
Findings Of Fact Union Trucking is a Florida corporation engaged in the business of trucking. Its net worth is less than $2,000,000.00 In DOAH Case NO. 87-4007, the Department sent Petitioner a letter dated August 6, 1987, denying Petitioner's request for certification as a minority business enterprise pursuant to the Department's Rule 14-78.005, Florida Administrative Code. The reason stated in the letter was that Petitioner was not actually under the control of a minority person. On August 25, 1987, Petitioner timely requested a hearing and the case was sent to the Division Of Administrative Hearings on September 11, 1987. By Notice of Hearing dated September 23, 1987, hearing was scheduled for November 16, 1987 and later continued until February 10, 1988. Rule 14-78.002, Florida Administrative Code, was amended on September 21, 1987. The amendment effectively removed DOT's reason-for denial of Petitioner's certification. However, on February 11, 1988, well after the rule change came into effect, DOT formally decided to certify Petitioner. Petitioner was therefore forced to proceed for several months in preparation for an action which Respondent admits it had no basis for after the rule change took effect. Respondent's initial decision occurred on August 6, 1987, when Respondent notified Petitioner of its denial of minority business status. At some point in time, Respondent had filed its proposed rule change. Petitioner failed to demonstrate the time of the proposed change. Depending on the facts surrounding the rule change as to its likelihood of adoption at the time Respondent initiated this action, no findings regarding substantial justification can be made at the time of the agency's initial action on August Most certainly after September 21, 1987, the date the MBE rule was amended, Respondent lacked any substantial justification to continue to litigate this matter. The Final Order of the Department recognized the earlier certification of Petitioner and dismissed the action. However, the Final Order of Respondent did not dispose of the attorney's fees issue which had also been raised during the principal action. The order, therefore, did not dispose of substantially all the issues raised in the principal action. Additionally, there was no settlement of this case since a written settlement agreement was drafted and signed by Petitioner, but refused by Respondent. Respondent's unilateral certification is not enough to force a settlement on Petitioner, especially since Respondent elected to enter a Final Order in this case. Petitioner, therefore, became a prevailing party when Respondent entered its Final Order on April 18, 1988. Section 57.111(4)(b)(2) , Florida Statutes. The application and affidavit which initiated this action were filed on May 23, 1988. The application substantially meets the requirements of Section 57.111, Florida Statutes, and Rule 22I-6.035, Florida Administrative Code, in that it fairly put Respondent on notice of Petitioner's claim. The application and affidavit were timely, having been filed within 60 days after the date on which Petitioner became a prevailing small business party. According to the affidavit of Frank M. Gafford, Petitioner incurred legal fees of $3,572.86. These fees and costs are found to be reasonable. The Department does not dispute the reasonableness of the fees in this case.
Findings Of Fact The Respondent, Jack M. Wainwright was issued permit numbers AF091-10 and AF092-10 on August 20, 1981. Permit numbers AF241-10 and AF242-10 were issued on September 15, 1981. These permits authorized the erection of two stacked back-to-back signs at a location approximately 1.6 miles west of SR 267 in Gadsden County, Florida. This location is in an unzoned area and the permits were granted because of their proximity to a nearby commercial activity known as Imperial Nurseries. The area in question is rural in nature and generally suitable for agricultural activities. Therefore, prior to the Department's issuance of the subject permits, one of its inspectors whose duty is to observe a proposed sign site and determine if it is as represented in the application and if it meets the requirements of the statutes and rules, field inspected the proposed site of these signs. Based on this inspection he recommended the issuance of the permits upon his determination that this area was unzoned commercial, that the sign site was within 800 feet of a commercial activity known as Imperial Nurseries, and that this commercial activity was within 660 feet of the right of way of I-10, and visible from the main-traveled way of I-10. There is sufficient credible evidence in the record of this proceeding to support a finding of fact that the subject area was as the field inspector found it to be, and from this evidence it is so found. The field inspector's recommendation to approve the site as a permittable location was joined in by his supervisor after the supervisor had conferred with the Department's central office relative to whether Imperial Nurseries qualified as a commercial activity. The site where the Respondent proposed to erect his signs was within 800 feet of the various locations on the Imperial Nurseries property where its loading, unloading, or other activities of its employees took place. This is the testimony of the field inspector, his supervisor and the operator of Imperial Nurseries. The business being conducted by Imperial Nurseries in 1981 was the growing of nursery stock for wholesale distribution in Northern markets. This nursery stock was grown in pots on top of the ground, and shipped by truck. There were 130 employees engaged in the various activities conducted over the entire nursery property. The business was very labor intensive, and trucks bringing in supplies and taking out loads numbered approximately 400 per year. There was much moving around. Each container had to be handled, cuttings taken and placed in the pots, and these cuttings might be repotted into larger containers, and each had to be placed at the growing locations. When mature, these plants were all loaded onto trucks and shipped out. The Department's approval of this location as an unzoned commercial area was based upon the labor intensity of the activities being conducted at Imperial Nurseries. The assertion of the Respondent on his sign permit applications that the proposed location was within 800 feet of a business was not false or misleading. The Department's inspectors and his superiors concurred with this characterization of the area. Neither has the Respondent violated any of the provisions of Chapter 479, Florida Statutes. All of the facts were set forth on his permit applications, and these facts were verified by the Department after the area was inspected to determine their accuracy. The policy of the Department leaves the determination of what is and what is not an unzoned commercial area to the field inspector, with the approval of his supervisors. In this case, the determination was made that the activities of Imperial Nurseries were commercial in nature, and the permits were granted on the basis of this determination, not on the representation of the Respondent. In 1984, after a change had occurred in the Department's interpretation of the statutes and rules relative to what is and what is not a commercial activity, and after the Department had adopted a more strict interpretation of the applicable statutes and rules, it initiated these proceedings to revoke the Respondent's permits as having been issued in error. The activities of Imperial Nurseries have not changed substantially since 1981. However, the Department's interpretation of the applicable statutes and rules has changed. The Department has adopted a stricter, more conservative interpretation of these statutes since 1981, and it seeks to re- evaluate the Respondent's permits based on its newly-adopted interpretation, and to apply this strict construction to the Respondent's permits ex post facto. In August of 1984, the Respondents entered into a new three-year lease for the site where his signs stand under which he is obligated to pay the lessor $1,000 each year. At this time the Respondent also renovated the subject signs at the cost of $12,000.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department's violation notices seeking removal of the Respondent's signs on the north side of I-10, approximately 1.6 miles west of S.R. 267 in Gadsden County, Florida be dismissed; and that permit numbers AF091- 10, AF241-10, AF092-10, and AF242-10 remain in effect as permits for nonconforming signs. THIS RECOMMENDED ORDER entered this 4th day of June, 1985 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS 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 4th day of June, 1985. COPIES FURNISHED: Maxine F. Ferguson, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 W. Kirk Brown, Esquire P.O. Box 4075 Tallahassee, Florida 32315-4075 Hon. Paul A. Pappas Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact Peck Plaza Condominium was developed by Edwin W. Peck, Inc. The management of this condominium has been turned over to 2625 Management Corporation, Inc. (Association) a nonprofit corporation charged with the assessment of charges and fees for the maintenance and operation of the common elements and other duties not material to this determination. The Respondents retained ownership of the 29th floor which is leased to King Arthur's Roundtable, Inc., a Kentucky corporation which operates a restaurant and cocktail lounge in this space. The limited common element is an express elevator from the garage and lobby to the restaurant on the 29th floor. Electricity for the operation of this elevator is currently charged to the Association. Respondents retained control of the roof of the condominium which is leased to Motorola Corporation, apparently for installation of broadcasting equipment. The structure comprising the condominium "flares" out at the 28th floor, thus making the 28th and 29th floors approximately 40 percent larger than the lower 27 floors. A limited number of parking spaces are reserved for the lessee of the 29th floor and an additional 55 parking spaces are reserved for the patrons of the restaurant. The parking spaces are part of the common elements operated by the Association. The Declaration of Restrictions, Reservations, Covenants, Conditions and Easements of Peck Plaza (contained in Exhibit 1)(hereafter referred to as Declarations) provided that the regular assessment for units would be as follows: Unit 2 SW $ 25.00 monthly Unit 3 SW (Resident Manager's apartment) -0- 29th floor Unit 400.00 monthly All other units 75.00 monthly Unit 2 SW is the second floor lobby which provides access to the express elevator and is owned by Respondents. It occupies about the same space as a one-bedroom living unit. Assessments are levied to cover common expenses such as insurance for fire and extended coverage, vandalism and malicious mischief for units, common elements and limited common elements, public liability insurance for common elements, operating expenses, maintenance expense, repairs, utilities, replacement reserve and reasonable operating reserve for common elements. The developer reserved the right to subdivide the 29th floor into 4 apartments and until so modified the Declarations provide that its owner be assessed 533.32 percent of the regular assessments assessed against standard living units. ($75 x 5.3332 which is approximately equal to $400) The Declaration of Condominium (Exhibit 1) Schedule B establishes the percentage of undivided interest in common elements and common surplus. There the 29th floor is awarded 5.621 percent, the 28th floor is awarded 5.12 percent divided equally between the four units, and the remaining floors receive 3.72 percent divided between the four units on that floor. Unit 2 SW is awarded .202 percentage. Assessments have subsequently been raised to $90 for the standard living unit and a corresponding increase for the 29th floor and Unit 2 SW. At the Association board meeting on April 12, 1975 (Minutes thereof Exhibit 5) the issue of the electricity for the express elevator being charged to the Association was raised and the board approved a motion that, since the tenant of the 29th floor was keeping the top of the building lighted, they would consider this a "swap out" and continue to pay for the electricity for the express elevator. At the board meeting on April 10, 1976 the issue of the charge for electricity for the express elevator was again raised and after Mr. Peck advised that he would not comply with the Association's prior request to install a meter and relieve the Association of the expense of the express elevator, the board voted to refer the issue to Petitioner herein for resolution. The estimated cost of the electricity for the elevator is approximately $110 per month (Exhibit 4). The Declaration provides in part: "In connection with the operation of a restaurant or other business/commercial enterprise or the operation of apartments in the twenty-ninth (29th) floor Unit there will be constructed as a Limited Common Element (as same is hereinafter defined) an express elevator which will run from the garage and lobby (which are common areas on the second floor) directly to the twenty-ninth floor Unit, nonstop, and this elevator will be for the sole use and purposes of the owner of the twenty-ninth floor Unit except as otherwise provided herein. There is a LIMITED COMMON ELEMENT appurtenant to the twenty-ninth (29th) floor Unit in this condo- minium as shown and reflected by the floor and plot plans, known as the express elevator whether the use of the twenty-ninth (29th) floor is for the purpose of access to condominium Units or to a restaurant or other business/commercial use. This Limited Common Element is reserved for the use of the Unit appurtenant thereto to the exclusion of other units, and there shall pass with the said Unit as appurtenant thereto, the exclusive right to use the Limited Common Element so appurtenant. Expenses of maintenance, repair or replacement [sic] relation to the said Limited Common Element shall be paid for by the owner of the twenty-ninth floor Unit. In the event the Developer elects to subdivide the said twenty- ninth floor Unit, then the Limited Common Element appurtenant to the said twenty-ninth floor Unit known as the express elevator shall be reapportioned among the twenty-ninth floor Unit as so subdivided." Nowhere in the Articles, By-Laws or Declarations is specific provision made for the operating expenses of the limited common element. As noted above Respondent, at the hearing, contended that, following the April 12, 1975 meeting of the board, where the motion to accept the use of the exterior lights on the top of the building for the elevator electricity as a "swap out" was carried, he took action upon this "swap out". The action he took was to continue to pay the expenses of maintenance, repair or replacement of the express elevator, to continue to pay the assessment for the 29th floor and Unit 2 SW, to repair defects in the pool and air conditioning, and to correct the odor in the hall. Also his claim for $11,500 against the Association was not pressed. However when asked if that claim had been satisfied Mr. Peck replied, no. Clause 44 of Lease Agreement (Exhibit 6) for occupancy of the 29th floor provides: "Lessor agrees to use its best efforts to have separate meters installed at its expense for all public utilities used in relation to the demised premises. In the event it is unsuccessful, submeters will be installed for gas, water and other public utilities and the cost of utilities shall be prorated on a monthly basis." The above Findings of Fact are substantially in agreement with the Proposed Findings submitted by Petitioner and Respondent. Petitioner proposed findings that: The ownership of 2 SW is irrelevant to the proceedings does not comport to the evidence that 2 SW comprises the lobby from where there is access to the express elevator; and Each residential owner is assigned one parking space per unit is not supported by any evidence regarding the number of parking spaces assigned unit owners. However neither of these findings is material to the result reached. Respondent's proposed finding that the 29th floor is presently assessed $510 per month is not in agreement with the evidence that the owner of the 29th floor, who also owns Unit 2 SW pays an assessment of $480 per month for the 29th floor and $30 per month for Unit 2 SW. Other proposed findings inconsistent with the above findings have been fully considered and are neither relevant nor material to the conclusions below.
Findings Of Fact On or about August 5, 1980, the Department issued permits numbered AB991-10, AB992-10 and AB993-10 to the Respondent, Food `N' Fun, Inc., authorizing the erection of a stacked back-to-back sign on the south side of I- 10, .8 mile east of U.S. 231 in Jackson County, Florida. Permit number AE481-10 was issued on or about May 21, 1981, for the fourth face of this sign. Prior to the issuance of these permits the site was field inspected and approved by Department personnel. Subsequently, the site was inspected by the Department's Right-of-Way Administrator who determined that the permits had been issued in error because there was no visible commercial activity within 800 feet of the sign. In October of 1984, the Department issued Notices of Violation advising the Respondent that the subject permits were being revoked because the sign was not erected in a zoned or unzoned commercial area. The Respondent's representative who submitted the permit applications designated on these applications that the sign location was in an unzoned area within 800 feet of a business. This representative also certified on the applications that the sign to be erected would meet all of the requirements of Chapter 479, Florida Statutes. Prior to conducting his field inspection, the Department's inspector had been informed that a commercial activity (Southern Dairy Supply Company) was being conducted in a building within 800 feet of the sign location. When he made his inspection he found that the building where Southern Dairy Supply Company was located was a metal building situated behind a house in an agricultural area. However, there was nothing visible from I-10 to tell him that a business was located there. The inspector's supervisor also visited the site of the proposed sign. He saw a building that was similar to other farm buildings at this location, but there was nothing that could be seen from the interstate to indicate to traffic that there was any commercial activity being conducted in the area. Since 1981, Southern Dairy Supply Company has relocated, and is no longer in business there. The area where the subject sign is located is agricultural and rural in nature. No other commercial activity was located in the area. Although the metal building in which the dairy supply business was being conducted could be seen from the interstate, as viewed from the main-traveled way of I-10, there was nothing to indicate that any commercial activity was being conducted at this location.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permit numbers AB991-10, AB992-10, AB993- 10, and AE481-10 held by the Respondent, Food `N' Fun, Inc., authorizing a stacked, back-to-back, sign located on the south side of I-10, .8 mile east of U.S. 231 in Jackson County, Florida, be revoked, and the subject sign removed. THIS RECOMMENDED ORDER entered this 9th day of August, 1985, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS 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 9th day of August, 1985.
The Issue The issue in this proceeding is whether Section 2.01.03M. as amended, of the Walton County Land Development Code is consistent with Policy L-1.1.1(B)(5), of the Walton County Comprehensive Plan.
Findings Of Fact The Walton County Comprehensive Plan was adopted on November 7, 1996. The Future Land Use Element (FLUE) of the Plan provides in pertinent part: Policy L-1.1.1: Development within the various land use categories depicted on the Future Land Use Map shall be governed by the following permitted uses and densities and intensities of use. These land use categories are grouped and identified below as (A) Land Use Categories Exclusive to North Walton County; (B) Land Use Categories Exclusive to South Walton County; and (c) Land Use Categories Common to Both North and South Walton County. * * * COASTAL CENTER (CC): This land use category is primarily residential, allowing medium densities and support uses . . . (a) Uses in the Coastal Center include: Public uses are squares, parks and playgrounds. Civic uses include libraries, post offices, churches, and similar facilities. Workplaces shall be limited to offices and artisanal uses. Commercial shall be for retail, entertainment, restaurant, services and lodging. Residential uses have a maximum density of eight (8) units per acre. The entire Land Development Code of Walton County was readopted on July 24, 1997, by Ordinance 97-28. At the time Petitioners initiated their challenge, Section 2.01.03M of the Land Development Code provided n pertinent part: Section 2.01.03M COASTAL CENTER (CC): The areas within this mixed use land use district are primarily residential, allowing medium density residential densities and supporting uses. . . Uses Allowed: The uses allowed in this district include: Public uses Civic uses Workplace, limited to offices and artisanal uses General Commercial Residential Multifamily Residential Residential Density Allowed: The maximum allowable density for residential development in this district is eight (8) units per acre (8 units/1 acre). Commercial Intensity Allowed: Commercial and industrial development within this district shall have a maximum floor area ration of 1.5 and an impervious surface ratio of .75. Section 2.01.04A of the Land Development Code provides in pertinent part: General Commercial - A wide variety of general commercial, commercial recreational, entertainment, and related activities is included in this group of uses: department stores; hospitals; hotels or motels; LP gas storage and distribution facilities below 1,000 gallons; marinas; miniature golf, driving ranges; outdoor arenas, rodeo grounds, livestock auction facilities, racetracks (auto, dog, go-cart, horse, motorcycle), shooting and firing ranges, and similar activities; miniwarehouses; plant nurseries; recreation vehicle and travel trailer parks; shopping centers; taverns, bars, lounges, nightclubs, and dance halls; theaters and auditoriums; vehicle sales, rental, service, and repair, including carwash facilities, and the sales, rental, repair and service of new or used automobiles, boats, buses, farm equipment, motorcycles, trucks, recreational vehicles, and mobile homes; veterinary offices and animal hospitals; mobile home parks; indoor recreational uses; all neighborhoods serving commercial/retail uses; mini storage; and inventory storage as part of a business. Petitioners reside at 139 North Holiday Road, Destin, Florida 32541 in Walton County, Florida, which is designated in the Coastal Center category on the Future Land Use Map of Walton County's Comprehensive Plan. In the County's Response to Petition I dated March 31, 1998, the County acknowledged that "industrial" land uses are not allowed within the Coastal Center category under the Comprehensive Plan, and that, therefore, this provision of the Land Development Code is inconsistent with the Comprehensive Plan. The County also responded that, "Retail, entertainment, restaurants, services, and lodging are general commercial uses." The Comprehensive Plan limits the commercial uses in the Coastal Center category to those uses. The County intended that any use listed in the Land Development Code under general commercial which is not retail, entertainment, restaurant, services, or lodging is not allowed in Coastal Center. On May 18, 1998, an informal hearing was conducted by the Department at the Walton County Courthouse Board Room. Each Petitioner and the County were provided opportunities to present written or oral evidence to the Department to aid it in reaching a determination about consistency. After the informal hearing the Department determined that Section 2.01.03M of the Code was inconsistent with the Walton County Comprehensive Plan. In its Determination of Inconsistency, the Department found that, because Section 2.01.03M.3. of the Code allows industrial uses in the Coastal Center, when such land uses are not permitted in the Coastal Center under the Comprehensive Plan, Section 2.01.03M.3 of the Land Development Code is inconsistent with Policy L-1.1.1(B)(5) of the Plan. The Department also found that because Section 2.01.03M, when read together with Section 2.01.04A of the Land Development Code, expands on the type of commercial uses permitted within the Coastal Center land use district under Policy L-1.1.1(B)(5) of the Comprehensive Plan, Section 2.01.03M of the Code is inconsistent with the Plan. On November 16, 1998, the County adopted the following amendments to its Land Development Code by Ordinance No. 98-21: Section 2.01.03M. COASTAL CENTER(CC): The areas within this mixed use land use district are primarily residential densities and supporting uses . . . Uses Allowed: The uses allowed in this district include: Public uses Civic uses Workplace, limited to offices and artisanal uses Commercial shall be for retail, entertainment, restaurant, services and lodging Residential Multifamily Residential Residential Density Allowed: The maximum allowable density for residential development in this district is eight units per acre (8 units/1 acre). Commercial Intensity Allowed: Commercial development within this district shall have a maximum floor area ration of 1.5 and an impervious surface ratio of .75. The amendment to Section 2.01.03M of Walton County's Land Development Code is virtually identical in language to the language of Policy L-1.1.(B)(5) of Walton County's Comprehensive Plan. Section 2.01.03M of the Land Development Code as amended clearly is consistent with the Walton County Comprehensive Plan.
Findings Of Fact The Respondent, T & L Management, Inc., was issued permits numbered AG800-10 and AG798-10 on or about April 9, 1982. These permits were for the erection of signs on the south side of I-10, approximately one mile east of SR 291 (Davis Highway), in Escambia County, Florida. They were issued because of the existence of a business known as Gail's Beauty Shop within 660 feet of the interstate and within 800 feet of tide proposed sign location. The Respondent submitted the applications for these permits, and designated on the applications that the sign location would be in a commercial or industrial unzoned area within 800 feet of a business. On each of these applications the Respondent certified that the signs to be erected would meet all requirements of Chapter 479 of the Florida Statutes. Prior to the issuance of these permits, the subject site was inspected by the Department's outdoor advertising inspector and by her supervisor, who approved the applications because of the existence of a beauty shop nearby the proposed sign location. The Department's inspector had visited this site previously when the Respondent had applied for a permit at this location, and had disapproved the application because no commercial activity could be seen from the interstate. Subsequently, foliage was cut, and the site was reinspected pursuant to the Respondent's subject applications. With the shrubbery trimmed and the vegetation cleared out, the rear side of the building housing Gail's Beauty Shop was visible from I- The inspector and her supervisor concurred in the approval of the permits. Gail Wilcox and her family have lived on the property nearby the site of the Respondent's signs for 19 years. This property is within 660 feet of I-10, facing away from the interstate. It is within 800 feet of the Respondent's signs. In April of 1982 when the subject applications were submitted, Gail Wilcox operated a beauty shop in the building where she and her husband and daughter made their residence. This house had been constructed with an attached double garage on one side of it. It had been remodeled so that the side with this double garage was converted to a one-car garage with the remainder of the garage made into a business area. This business area on the far end of the house is where Gail's Beauty Shop was located. It had its own separate entrance in the front, with no entrance into the remaining garage or into the house itself. The entire building was under one roof, as it had been before the double garage was converted. This building is otherwise used as the Wilcox residence. There is no question that Gail Wilcox operated a beauty shop at this location. She had an occupational license, a business telephone, and there was a sign on the window in front "Gail's Beauty Shop." Nevertheless the photographs in evidence show this area to be residential in nature. It was visible to traffic on the interstate when the applications were submitted and when they were approved. Sometime prior to February of 1985, the site was inspected by the Department's Right-of-Way Administrator who determined that the permits had been issued in error because the business activity used to qualify the site as unzoned commercial was being conducted in a building used principally as a residence. As a result, the Department issued its notice of violation advising the Respondent that the subject sign permits were being revoked.
The Issue The issue in this case is whether the comprehensive plan amendment adopted by Suwannee County ordinance number 94-02, on June 9, 1994, (the Amendment) is "in compliance" pursuant to Section 163.3184(1)(b), Fla. Stat. (Supp. 1994). (It must be found to be "in compliance" if the County's determination that it is "in compliance" is at least "fairly debatable.")
Findings Of Fact The Parties The Department is the state land planning agency charged with the responsibility of reviewing comprehensive plans pursuant to Chapter 163, Part II, Fla. Stat. (1993). Petitioners reside in Suwannee County, Florida. Many own property adjacent to the parcel, which is the subject of the Amendment. Although, Petitioners put on no evidence that any of the Petitioners attended either the transmittal or the adoption hearing and made either written or oral objection to the Amendment, counsel for the Department and the County have stipulated that the Petitioners did attend these hearings and objected to the Amendment. Therefore each of the Petitioners is an "affected person" as defined by Section 163.3184(1)(a), Fla. Stat. (Supp. 1994). Suwannee County is a local government required to adopt a comprehensive plan pursuant to Chapter 163, Part II, Fla. Stat. (1993). General Description of the County Suwannee County is a rural county located in the north central Florida. Live Oak is the County seat. The Suwannee County Comprehensive Plan (Plan) was originally adopted and found to be in compliance in 1992. The Future Land Use Map (FLUM) of the Plan at that time designated the parcel which is the subject of the Amendment in the Agricultural-1 land use category, (less than or equal to 1 dwelling unit per 5 acres). The Proposed Amendment This case involves a parcel of land approximately 320 acres in size, which is located on SR 90, approximately 6.5 miles east of Live Oak (the Parcel). On February 1, 1994, Suwannee County (County) held a public hearing for the purpose of amending the FLUM to change the designation of the Parcel on the FLUM from Agriculture-1 to Public use. The purpose of the amendment was to authorize the construction of a prison by the State Department of Corrections on the Parcel. Pursuant to Section 163.3184, Fla. Stat. (Supp. 1994), the proposed amendment was transmitted to the Department for review. The Department's Initial Review On April 14, 1994, the Department issued an Objections, Recommendations and Comments report (ORC report). The Department set out three objections to the Amendment in the ORC. The first, related to Policy I.2.2 of the Plan, which set forth the types of public uses that were permitted under the Plan's existing public use category in rural lands. The text of the Plan would allow a community college and other "urban type uses" on the site. Department staff felt this might encourage the conversion of adjacent lands, and at the hearing, characterized the proposed Amendment as promoting "urban sprawl." The second issue raised in the ORC dealt with wetlands. The Department was concerned that under Policy V.2.4 of the Plan, public uses were not included among those uses which had to "set back" 35 feet from wetlands. The Department was concerned that the proposal to amend the FLUM to allow public use on the site would adversely affect wetlands, because under the existing Plan, the setback restriction from wetlands would not apply to public uses. The third concern raised in the ORC report involved the "public facilities analysis." The Department staff testified that the County had not taken into account the most intense use authorized by the Amendment in doing the analysis of impacts on public facilities and services. The County's Response to the ORC and Adoption of the Amendment The County held a public hearing to consider the ORC objections, and on June 9, 1994, it adopted the Amendment with changes to address the Department's ORC report. To respond to the concerns about urban sprawl, the County amended Policy I.1.6 dealing with Public Land Use Classification (in urban development areas). This portion of the Amendment reads as follows: Lands classified as public consist of public buildings and grounds and other public facil- ities, (including sewer facilities, solid waste facilities, drainage facilities and potable water facilities), public health facilities (to include hospitals, which shall be allowed in urban development areas), and educational uses (to include universities and community colleges, which shall be allowed in urban development areas); and Public uses shall be limited to an intensity of less than or equal to 1.0 floor area ratio. (Underlined portions were added.) That portion of Policy I.2.2 dealing with the Public Land Use Classification (in rural areas) was amended as follows: Lands classified as public consist of public buildings and grounds and other public facil- ities, (including sewer facilities, solid waste facilities, drainage facilities and potable water facilities), public health facilities (do not include hospitals, which shall be allowed in urban development areas only), and educational uses (not to include univer- sities and community colleges, which shall be allowed in urban development areas only); (Underlined portions were added.) This amendment mitigates against urban sprawl. Policy I.2.2 dealing with the Public Land Use Classification (in rural areas) was also amended to state as follows: Public uses shall be limited to an intensity as follows: less than 5 acres- 1.00 floor area ratio greater than or equal to 5 acres, but less than 10 acres- .75 floor area ratio greater than or equal to 10 acres, but less than 20 acres- .50 floor area ratio greater than or equal to 20 acres, but less than 40 acres- .25 floor area ratio greater than or equal to 40 acres, but less than 80 acres- .10 floor area ratio greater than or equal to 80 acres, but less than 160 acres- .075 floor area ratio greater than or equal to 160 acres, but less than 320 acres- .050 floor area ratio greater than or equal to 320 acres- .025 floor area ratio The above mentioned floor area ratios for public uses in rural areas addressed the Department's concerns about the inadequate public facilities analysis. Under this amendment, the effect of the reduced floor area ratios on a 320 acre site would be to limit the maximum lot coverage of a one floor building to 348,500 square feet. This also mitigates against urban sprawl. To respond to the Department's concerns about wetlands, the County amended Policy V.2.4, to make the 35 foot natural buffer apply to all public uses. After the adoption hearing, the County forwarded the amendment to the Department for a compliance review pursuant to Section 163.3184, Fla. Stat. (Supp. 1994). Final Department Review The Department decided that the Amendment, as adopted with the above mentioned text changes, satisfied the objections set forth in the ORC. On July 30, 1994, the Department issued a notice of intent finding the amendment in compliance. Prisons and Urban Sprawl It is at least fairly debatable whether the use of land for a prison (correctional institution) should be characterized as being either an urban use or a rural use. Prisons are qualitatively different from other typical urban or rural uses. Depending on the circumstances, prisons can be compatible in either rural or urban settings. It obviously can be expected that, if there is a prison on the Amendment Parcel, there will be a prison population and a prison staff. But it is at least fairly debatable whether prisons typically create much pressure for residential or commercial or any other kind of development outside the prison itself. Prisons generally do not attract a residential development. Most people had rather live elsewhere (as evidenced by the opposition of the Petitioners in this case.) Some of the prison staff will reside in residential facilities at the prison. Since the Amendment Parcel is only two and a half miles from Wellborn and only about six miles east of the city limits of Live Oak, it is at least fairly debatable whether any prison staff who do not reside in the prison's residential facilities would create pressure for additional residential housing adjacent to the prison rather than choosing to live in Wellborn or Live Oak. If any would prefer to live closer to the prison, there is no evidence from which it could be concluded that they would create pressure for new housing construction rather than buy existing homes as they become available. If any did choose to seek to build new residences nearer the prison than Wellborn or Live Oak, there is no evidence from which it could be concluded that they would choose to build homes different in character from the rural homes now existing in the area. It is at least fairly debatable whether the prison would result in any significant pressure for new development. It is at least fairly debatable whether a prison in a rural setting such as the Amendment Parcel should be expected to attract anything in the way of ancillary development more than perhaps a convenience store with gasoline pump and maybe a small food service facility. At least in rural settings, it is not unusual for prisons to be self- contained, i.e., to have their own water supply and on-site waste water treatment system and disposal. The prison planned for the Amendment Parcel is planned to be self-contained. As such, it is at least fairly debatable whether, in terms of "urban sprawl" considerations, the existence of a functional relationship between a prison in a rural setting and any rural uses in the vicinity should even be an issue. It is at least fairly debatable whether, requiring a prison in a rural county like Suwannee County to be located so as to be able to take maximum advantage of existing public facilities (such as water, sewer and fire), in order to minimize "urban sprawl," in effect would require all prisons to be located within or contiguous to urban population centers. In addition to the development controls in the Amendment itself which mitigate against urban sprawl (excluding hospitals, universities, and community colleges from, and limiting permissible floor area ratios in, Public Land in rural areas), the Suwannee County Comprehensive Plan discourages urban sprawl by establishing just four urban centers (the City of Live Oak, Wellborn, Branford, and Dowling Park) for urban development and urban land uses, while designating the rest of the County for rural uses.
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 dismissing the petition challenging the Amendment and determining that the Amendment is "in compliance." RECOMMENDED this 7th day of June, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 7th day of June, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4704GM To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Proposed Findings of Fact 5-30. Proposed findings of fact 5-30 in the proposed recommended orders filed by both the Petitioners and by the Respondents are identical. (Paragraphs 1-4 of the proposed recommended orders are devoted to preliminary statement.) Proposed findings of fact 26-30 are rejected as being conclusions of law. The rest are accepted and incorporated to the extent not subordinate or unnecessary. Petitioners' Proposed Findings of Fact 31-44. Rejected as being conclusions of law. Accepted. First sentence, subordinate to facts not proven or facts contrary to those found. Second sentence, subordinate to facts found. Accepted. Subordinate to facts not proven or facts contrary to those found. Rejected as not proven and as contrary to the greater weight of the evidence that only Dahlstrom testified that the Amendment discouraged urban sprawl. Last sentence, rejected as not proven and as contrary to facts found, or as conclusion of law. Otherwise, to the extent not conclusions of law, accepted and subordinate to facts found. Accepted and subordinate to facts found. Accepted. (But he also testified that the only public sewer and water facilities he knew of were in the City of Live Oak.) Subordinate to facts found. Rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence that he "refused" or "would only"; also, he was being questioned about the proposed amendment, not the Amendment. Otherwise, accepted and subordinate to facts found. Rejected as contrary to the greater weight of the evidence that he "refused" or "would only." He testified about many other things as well, some of which are subordinate to facts found. Accepted but subordinate to facts not proven or facts contrary to those found. Cumulative and argument. Rejected that Kronenburger refuted other testimony that the proposed prison "would not create economic pressure for growth and thus would not promote urban sprawl." It was not proven that "tremendous economic impact" from a prison necessarily equates with or will lead to urban sprawl. Rejected as not proven and as contrary to facts found. Respondents' Proposed Findings of Fact 31-46. 31.-32. Rejected as being conclusions of law. Accepted. First sentence, subordinate to facts not proven or facts contrary to those found. Second sentence, subordinate to facts found. Accepted. Subordinate to facts not proven or facts contrary to those found. 35.-43. To the extent not conclusions of law, accepted. Subordinate to facts found. Accepted but subordinate and unnecessary. Accepted. Subordinate to facts found. Accepted and incorporated. COPIES FURNISHED: Edwin B. Browning, Jr., Esquire George T. Reeves, Esquire Davis, Browning & Schnitker, P.A. Post Office Drawer 652 Madison, Florida 32341 Terrell K. Arline, Esquire Department of Community 2740 Centerview Drive Tallahassee, Florida 32399-2100 C. Dean Lewis, Esquire Post Office Drawer 8 Live Oak, Florida 32060 Linda Loomis Shelley Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
Findings Of Fact Petitioner proposes to erect outdoor advertising signs along the south side of I-10, 0.2 miles and 0.4 miles, respectively, east of U.S. 41. The Petitioner has acquired a lease on the sites proposed for these signs. The sites in issue are in Columbia County and Columbia County is unzoned. These sites are outside any incorporated town or city and the area is rural in nature. A radio transmitting or relay tower is located between the proposed sites and a small concrete block building is located near the base of the tower. These are the only structures in the area. Each of the two sites for which a permit is sought is within 800 feet of this small building. The building is unoccupied and is reported to contain materials used in the maintenance of the tower. The tower is owned by B & B Communications located in Lake City, Florida. Opinion testimony was offered by Petitioner that the highest and best use of small tracts of this land would be for outdoor advertising signs. Exhibit 10, Building and Zoning Code for the City of Jacksonville, Florida, which is coterminous with Duval County, establishes a category of Open Rural Districts (OR) in which permissible uses by exception include radio or television transmitters, antenna and line-of-site relay devices. The zoning code for Tallahassee shows one of the principal uses for land zoned A-1 Agricultural District is for "(8) Broadcasting towers, radio and television transmission stations and studios." There are six or seven signs located in the general area along the I-10 between U.S. 41 and U.S. 441, most on the north side of I-10. Those permitted signs were "grandfathered in" and no permit has been issued for any sign erected in this area since 1979.
The Issue The issues are (1) whether the City of Lake Worth (City) followed required statutory and rule procedures in adopting the height restrictions on pages 22 and 23 of the Future Land Use Element (FLUE) of the Evaluation and Appraisal Report (EAR) amendments, and (2) whether the adoption of the EAR-based amendments by the City more than 120 days after receiving the Department of Community Affairs' (Department's) Objections, Recommendations, and Comments (ORC) report renders them not in compliance.
Findings Of Fact The Parties Sunset is a Florida limited liability company whose principal address is 5601 Corporate Way, Suite 111, West Palm Beach, Florida. It owns property located at 826 Sunset Drive South within the City. See Sunset Exhibit 3. The property is currently classified on the FLUM as County Medium Residential 5.1 There is no factual dispute that Sunset is an affected person and has standing to participate in this proceeding. Ms. Hayes-Tomanek owns property within the City. She submitted comments regarding the height restrictions during the public hearing on October 20, 2009, adopting the EAR amendments. See City Exhibit 6, Minutes, p. 7. The City is a local government that administers the City's Plan. The City adopted the EAR-based amendments which are being contested here. The Department is the state land planning agency charged with the responsibility of reviewing plan amendments of local governments, such as the City. The Amendments On October 1, 2008, the City's EAR-based amendments were passed on first reading and transmitted to the Department. See Joint Exhibit 2. These amendments did not include any height-based restrictions on the three categories of residential property in the Plan: Single-Family, Medium-Density, and High- Density. These three categories make up around 75 percent of the City's total land area. According to Sunset's expert, height restrictions for those categories (which are less stringent than those later adopted and being challenged here) were then in the City's zoning ordinances. On January 14, 2009, the Department issued its ORC report regarding the EAR-based amendments. See Joint Exhibit 3. Objection 4 in the report stated in part that the "City has not adequately established its mixed use districts . . . because the mixed used categories do not establish the types of non- residential uses or the appropriate percentage distribution among the mix of uses, or other objective measurement. In addition, the General Commercial, Industrial, Public, Public Recreation and Open Space Future Land Use categories do not include the densities and intensities of use for these categories." Id. Sunset's expert points out that the ORC report, and in particular Objection 4, did not recommend any changes to the residential categories of property. Accompanying the ORC report was a document styled "Transmittal Procedures," which stated, among other things, that "[u]pon receipt of this letter, the City of Lake Worth has 120 days in which to adopt, adopt with changes, or determine that the City will not adopt the proposed EAR-based amendments." Id. The 120-day period expired on May 14, 2009. See Sunset Exhibit 15. The City initially scheduled an adoption hearing on May 5, 2009. See Sunset Exhibit 8. For reasons not of record, the EAR amendments were not considered that day. On June 25, 2009, then City Commissioner Jennings wrote Bob Dennis, Department Regional Planning Administrator, and asked whether the City could incorporate certain substantive changes into its EAR amendments between the first (transmittal) and second (adoption) readings. Among others, she asked if the following change to the EAR amendments could be made: Establish or change the maximum building heights in various land use classifications. During the master plan process, the city received public input regarding maximum building heights . . . . The height changes vary from a 10' reduction to a 25' reduction in different land use categories. The letter included an outline of the proposed changes in seven land use categories, including the three residential categories. See City Exhibit 2. In her deposition, Commissioner Jennings stated that around the time of the transmittal hearing in January 2008 she had requested that new height restrictions be incorporated into the EAR amendments, but based on conversations with City staff, she was under the impression that these changes could not be made at that time. See City Exhibit 9. By letter dated July 29, 2009, the Department, through its Chief of Office of Comprehensive Planning, responded to Commissioner Jennings' inquiry as follows: The proposed maximum building height changes identified in your letter are for the Single Family Residential, Medium Density Multi-family Residential, High Density Multi-family Residential, Mixed Use, Downtown Mixed Use, Transit Oriented Development, and the General Commercial land use categories. Contrary to the [FLUM] revisions discussed above, the City did transmit proposed amendments to Future Land [Use] Policy 1.1.3, including new and revised Sub-policies 1.1.3.1 through 1.1.3.11 concerning these land use classifications. Height limitations were proposed for the Mixed Use and Downtown Mixed Use land use categories. In addition, the Department's ORC Report includes an objection that the Mixed Use, Downtown Mixed Use, Transit Oriented Development, General Commercial, Industrial, Public, Recreation and Open Space land use classifications do not establish adequate densities and intensities of use for these categories. In preparing this letter, the Department notes that an intensity standard of 0.1 F.A.R. (floor area ratio) was proposed for the Recreation and Open Space category. To address the Department's objection, the Department recommended the City include densities and intensities for the listed land use categories and specify the percentage distribution among the mix of uses in the mixed use categories. Appropriate intensity standards for non-residential uses include a height limit and maximum square footage or a floor area ratio. Because the City transmitted amendments that included revisions to the residential and several non- residential land use categories and because the Department's ORC Report identified the need to include density and intensity standards for the mixed use categories and several non-residential land use categories, it would be acceptable for the City to revise the proposed height limitations previously submitted or to include height limitations for the other land use categories. As noted above, height alone is not a density or intensity standard. (Emphasis added) City Exhibit 3. This determination by the Department was just as reasonable, or even more so, than the contrary view expressed by Sunset's expert. After receiving this advice, the City conducted a number of meetings regarding the adoption of the EAR-based amendments, including a change in the height restrictions. On September 2, 2009, a Board meeting was conducted regarding the proposed new height restrictions. The Board voted unanimously to adopt the changes. The Minutes of that meeting reflect that a "special workshop" would be conducted by the Commission at 6:00 p.m., September 14, 2009, "to address height and intensity" changes to the EAR amendments. See City Exhibit 4, Minutes, p. On October 11, 2009, a "special meeting" of the Commission was conducted. Finally, on October 20, 2009, the City conducted the adoption hearing. There is no dispute that Petitioners appeared and presented comments in opposition to the proposed changes. By a 3-2 vote, Ordinance No. 2008-25 was adopted with the new height restrictions described on Table 1, pages 22 and 23 of the FLUE.2 See Joint Exhibit 4; Sunset Exhibit 6. This was 279 days after the City received the ORC report. The adopted amendments were then submitted to the Department for its review. Notices for each hearing (but not the special workshop) were published in a local newspaper. See City Exhibits 4, 5, and 6. Each advertisement indicated that one of the purposes of the meetings was to consider the "City's EAR- Based Amendments." No further detail regarding the EAR amendments was given. Sunset's expert acknowledged that local governments do not always provide more specificity than this in their plan amendment notices but stated he considers it to be a good planning practice to provide more information. On December 30, 2009, the Department issued its Notice of Intent to find the amendments in compliance. See City Exhibit 5. The following day, a copy of the Notice of Intent was published in The Lake Worth Herald. On January 19, 2010, Sunset timely filed a petition contending that certain procedural errors were committed by the City during the adoption process. This petition was twice amended prior to hearing. A petition was filed by Ms. Hayes-Tomanek on April 5, 2010. Petitioners' Objections Petitioners first point out that the City did not follow the requirement in section 163.3184(7)(a) that it "shall" adopt the amendments no more than 120 days after receipt of the ORC report. They contend that because the City failed to do so, this requires a determination that the EAR-based amendments are not in compliance. At hearing, Sunset also relied upon (for the first time) Florida Administrative Code Rule 9J-11.009(8)(e), which provides that "[p]ursuant to Section 163.3191(10), no amendment may be adopted if the local government has failed to timely adopt and transmit the evaluation and appraisal report- based amendments." The parties agree that the City did not adopt the EAR- based amendments until 279 days after receipt of the ORC report. According to the Department's Regional Planning Administrator, Bob Dennis, the Department took no action after the 120 days had run because the statute "gives no guidance as to what happens when a local government does take more than the prescribed time in the statute." See City Exhibit 8. He also indicated that the Department has no policy relative to this situation. Sunset's expert agreed that there is no penalty in the statute in the event a local government takes more than the prescribed time. Richard Post, a Department Planning Analyst, noted that local governments sometimes take longer than the statutory time periods to "send in adopted amendments, and the Department has taken no particular posture regarding their tardiness." See City Exhibit 7. He further noted that if a filing is late, as it was here, it does not affect the Department's review. As a safeguard, if an adopted amendment is transmitted to the Department after the statutory time period, it is reviewed by a planner to determine whether the information is still relevant and appropriate or has become "stale" and out-of-date. In this case, the Department reviewed the adopted amendments and, notwithstanding the passage of 279 days since the ORC report was received by the City, the amendments were found to be in compliance. For the reasons expressed in Endnote 3, infra, rule 9J-11.009(8)(e) does not prohibit the City from adopting the challenged amendments.3 While Petitioners stated that they have suffered prejudice because the new height restrictions will adversely impact the use of their property, there was no evidence that the delay in adopting the amendments affected their ability to participate in the planning process. Petitioners also contend that the City failed to follow statutory and rule procedures when it added the height restrictions between the first and second readings of the amendments. By the City doing so, Petitioners argue that rule 9J-5.004 was violated, which requires that the City "adopt procedures to provide for and encourage public participation in the planning process, including consideration of amendments to the . . . evaluation and appraisal reports[,]" and procedures to assure that the public is noticed regarding such changes and has the opportunity to submit written comments. Petitioners further argue that subsections 163.3191(4) and (10) were violated by this action. The first subsection requires the local planning agency (the Planning & Zoning Board) to prepare the EAR report (as opposed to the amendments) in conformity with "its public participation procedures adopted as required by s. 163.3181[,]" while the second subsection requires that the City adopt the EAR-based amendments in conformity with sections 163.3184, 163.3187, and 163.3189. They also argue that the notice of the adoption hearing violated section 163.3184(15) because it failed to describe the changes being made to the original EAR-based amendments. Finally, they contend the new height restrictions were not responsive to the ORC report.4 Petitioners do not contend that the City has failed to adopt adequate public participation procedures, as required by rule 9J-5.004. Rather, they contend that the participation procedures were violated, and that members of the public and other reviewing agencies, such as the Treasure Coast Regional Planning Council, were not given an opportunity to provide input on the new height restrictions. The record shows that, notwithstanding the content of the notice in the newspaper, both Petitioners were aware of new height restrictions being considered by the City prior to their adoption, and both were given the opportunity to participate at the adoption hearing. There is no dispute that Sunset submitted written or oral comments to the Commission prior to the adoption of the new height restrictions. Likewise, Ms. Hayes-Tomanek has closely followed the planning process for years (mainly because she wants the density/intensity standards on her property increased) and became aware of the new height restrictions well before they were adopted. The record further shows that the new height limitations were discussed by City officials before June 2009, when Commissioner Jennings authored her letter to the Department, and that written input on that issue was received from 239 residents. See Sunset Exhibit 9; City Exhibit 9. It is fair to construe these comments from numerous citizens as "public input." Even if there was an error in procedure, there is no evidence that either Petitioner was substantially prejudiced in the planning process. Finally, Petitioners' assertion that the new height restrictions are not responsive to the ORC report has been considered and rejected. See Finding of Fact 9, supra; City Exhibits 7 and 8.5
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 determining that the EAR-based amendments adopted by Ordinance No. 2008-25 are in compliance. DONE AND ENTERED this 24th day of March, 2011, in Tallahassee, Leon County, Florida. S R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 2011.
