Findings Of Fact At all times pertinent to the allegations contained herein, Respondent was a licensed Professional land surveyor under registration number LS 0002125, with expiration data of January 31, 1989. Registration was granted by examination on July 14, 1967. The Board of Professional Land Surveyors, (Board), is the state agency charged with the regulation of professional land surveyors in Florida. On January 30, 1987, Respondent's firm, Mandish and Associates, Inc., performed a survey of Lot 62, Fairway Village, a subdivision located in Hillsborough County, Florida. As a result of the field, work performed by a crew employed by Respondent, which prepared field notes indicating the layout of the dwelling located on the property in question, and a second set of field notes which consisted of annotations to the original survey of the lot done by Bay Area Engineering Company, Inc., on August 5, 1977, Respondent prepared a survey drawing of the lot in question for the purpose of mortgage and flood certification on January 30, 1987. The document drawing reflects that the crew performing the survey was headed by an individual named Page. Evaluation of the drawing indicated several defects in the survey process and the matter was referred to Mr. Thomas E. Kaney, a licensed expert surveyor, who reviewed the survey done by Respondent's firm and completed his own field survey of the property. He found that on Respondent's drawing, a railroad spike called for to be on the drawing was not located and that the corner definition was off. He also found that the distances between the structure and the fence were incorrect. In his opinion, the finished drawing could not have been made from the field notes completed by the crew chief. The field notes appeared to be inadequate and did not conform to the survey as finally prepared. In his opinion, the survey drawing conforms to the minimum technical standards in the State of Florida as they pertain to form, but not to accuracy. Even though Respondent did not personally conduct the survey, he is responsible for the activities of the party chief and if Respondent were aware that the party chief had, made false or misleading notes in the past, he would be negligent if he failed to check the accuracy of these field notes accomplished by that individual. Here, the original party chief was Paul Page. Additional field notes were taken by Mr. Lucas, who did the boundary survey and who had some problems in doing so. Because of these problems, Page did a second survey at Respondent's request and upon his return to the office, indicated that everything was OK and he had picked up the information requested that was not available to Lucas. However, the field notes done by both Page and Lucas are not sufficient to give an accurate reflection of the front line of the lot in question. The original field notes fail to show angles, bearings, or distances, but show radial ties to the building. Minimal technical standards require that angles, bearings and distances be shown in the final drawing. In the opinion of Mr. Kaney, the final drawing, with the exception of the misplaced corner, does conform to minimum standards set forth in the Rule since the misplaced corner creates no real problem and the house is well within the property setback lines. Mr. Cole, who also evaluated the survey for the Board, is satisfied that the field notes show corners, but it is difficult to tell whether the angles, bearings, or distances shown are on the original notes or were put there subsequently. In his opinion, the field notes are not sufficient to determine the configuration of Lot 62 and for several reasons, the final survey drawing does not conform to minimum technical standards. First, the type of survey is not indicated. A reference for the bearings shown is not present. There is no comparison on the final drawing with the plat bearings. Second, no distance to the nearest street intersection is identified. The Department's standards allow a showing of a distance to another point of reference when showing the distance to the nearest street is not practical. In the instant case, the Respondent showed the distance to another point of reference even though the lot in question is only two lots removed from the nearest intersection. While Respondent contends this is a reasonable application of the rule, the witness contends it is not. In light of the fact that this is a suburban subdivision and not acreage, and street references are practical, it is found that this is a discrepancy and deviation from minimum standards. Finally, Mr. Cole indicates that the discrepancies between bearings and measurements found on the original plat and those on Respondent's drawings are not shown. The precision shown on the map is too high to be reasonable and this leads to the conclusion that remeasurement was not accomplished in this regard, it should be noted that Mr. Cole's review was based only on a review of the documentation and not on his own survey of the property. The property is described as "suburban" where the error permissibility ratio is one part in 7,500. On a 100 foot line, this would equate to approximately one inch. If the Respondents errors were to fall within the authorized tolerance, it would be appropriate to show the actual measurement as opposed to the original measurement. This is, however, a matter of judgement. The exceptions described by Cole are relatively minor in nature. However, taken as a whole, the Respondent's survey contains errors which, while not the most serious, render the survey less than compatible with minimum technical standards within the community.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent, William H. Mandish, be reprimanded and ordered to pay an administrative fine of $250.00. RECOMMENDED this 7th day of February, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 7th day of February, 1989. COPIES FURNISHED: Elizabeth Alsobrook Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 William H. Mandish 262 South May Avenue Brooksville, FL 33512 Allen R. Smith, Jr. Executive Director Board of Professional Land Surveyors Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750
Findings Of Fact Based upon all of the evidence, including the stipulation of counsel, the following findings of fact are determined: Background The parties Respondent, Franklin County (County), is a local governmental unit subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter authorizes the County, under certain conditions, to adopt what is known as a small scale development amendment to its comprehensive plan. At issue in this case is a small scale development amendment adopted by the County on October 3, 1996. Petitioner, St. George Plantation Owners Association, Inc. (petitioner), is a not-for-profit corporation organized for the protection and management of the Plantation Area of St. George Island. The island lies just south of Apalachicola, Florida in the Gulf of Mexico. The parties have stipulated that petitioner is an affected person within the meaning of the law and thus it has standing to bring this action. Intervenors, Ben Johnson and Coastal Development Consultants, Inc., are the owners of approximately 58 acres on St. George Island known as the Resort Village Property. The property is adjacent to the St. George Island Airport. A portion of intervenors' property, 9.6 acres, is the subject of the plan amendment being challenged. The nature of the dispute Intervenors' property is subject to a 1977 Development of Regional Impact (DRI) order adopted by the County in 1977. The order has been amended from time to time. Among other things, the order provides conceptual approval for the development of "one or more high quality resort hotels or motels, together with such affiliated uses as may be appropriate or desirable, such as gift and tourist shops, restaurants, recreational activities and similar activities." Intervenors desire to develop the Resort Property Village consistent with the 1977 DRI order. The first part of the project consists of approximately 9.6 acres which they have designated as Phase I. The land is located within the Plantation Area of St. George Island and has a land use designation of residential. In June 1995, intervenors submitted detailed site plans for Phase I to the County. On August 1, 1995, the County conducted a public hearing to review the proposed site plans and specifications for Phase I. It adopted a motion which directed its staff "to review and perfect the plans presented, so that the Board can consider the final approval of the plan." It also directed its staff to provide advice concerning the procedure to be followed. After consulting with the Department of Community Affairs (DCA), which recommended that the comprehensive plan be amended to change the land use to accommodate the commercial uses, the staff recommended that the County adopt a small scale development amendment by changing the designation on its Future Land Use Map (FLUM) for 9.6 acres from residential to commercial. By a 3-2 vote, on October 3, 1996, the County adopted Ordinance No. 96- 22 which changed the designation for the 9.6 acres on the FLUM from residential to commercial. Because the amendment affected ten or fewer acres, the County opted to make the change with a small scale development amendment under Section 163.3187(1)(c), Florida Statutes. According to the site plan which accompanied a Notification of Proposed Change filed with the County on May 26, 1996, the Phase I development includes four hotels, 10,250 square feet of commercial space, 300 square feet of retail space, a beach club, a 325 seat conference center, various support and recreational facilities, and a wastewater treatment plant. The Phase I site plan, however, does not include the three subsurface absorption beds which are required to service the effluent from the wastewater treatment plant. If the absorption beds were included, they would increase the size of Phase I from 9.6 to approximately 14.6 acres. In a petition challenging the adoption of the small scale amendment, petitioner contends that, if the absorption beds are properly included in the land use amendment, the land use area would exceed ten acres and thus would require a full-scale land use amendment subject to DCA review. In response, the County and intervenors have contended that, under the current plan, there is no need to change the land use where the wastewater treatment facility will be located since such facilities are allowed in any land use category. As such, they contend there is no requirement to include such property in Ordinance 96- 22. The Wastewater Treatment Facility The proposed development will be served by a wastewater treatment facility. The Department of Environmental Protection (DEP) has issued a permit to Resort Village Utility, Inc., a utility certified by the Florida Public Service Commission to serve the entire 58-acre Resort Village property. The permit provides that the plant can accommodate up to, but not exceeding, 90,000 gallons of treated effluent per day. The facility consists of the wastewater treatment plant, lines to the plant from the development which carry the untreated wastewater to the plant, and lines from the plant to three sub-surface absorption beds where the treated effluent is disbursed. The absorption beds required for the Phase I project wastewater treatment facility will not serve any residential customers. Rather, they will only serve Phase I and any other subsequent phases of Resort Village development, which is a commercial development. Construction must begin on the wastewater treatment plant once the flow of waste effluent reaches 7,500 gallons per day, or if the wastewater from restaurants reaches 5,000 gallons per day. The Phase I project is required to use this facility once the rate of flow of waste effluent exceeds 10,000 gallons per day. Until these thresholds are met, the project will rely temporarily on aerobic systems to handle and treat waste effluent. Under the permit issued by the DEP, the wastewater treatment facility required for Phase I consists of both a wastewater treatment plant and three absorption beds. Through expert testimony of a DEP professional engineer, it was established that the absorption beds were integral to the design and successful operation of the facility. The County and intervenors acknowledge this fact. Therefore, the "use" that is the subject of the amendment is the entire wastewater treatment facility, including the absorption beds, and "involves" some 14.6 acres. Since the plan amendment does not involve "10 or fewer acres," as required by statute, the amendment cannot qualify as a small scale development amendment and is thus not in compliance. In making these findings, the undersigned has considered a contention by the County that Policy 2.3 of the comprehensive plan sanctions its action. That policy reads as follows: Public utilities needed to provide essential service to existing and future land uses in Franklin County shall be permitted in all the land use classifications established by this plan. Public utilities includes all utilities (gas, water, sewer, electrical, telephone, etc.) whether publicly or privately owned. At hearing, the County planner construed the term "public utilities" as being "minor (utility) infrastructure," including wastewater treatment plants not exceeding 100,000 gallons per day. Relying on this provision, the County reasons that the proposed facility is "minor" infrastructure, since it will only have 90,000 gallons per day capacity, and thus it can be placed in a residential land use category. They go on to argue that, since no change in land use classification is needed to permit the facility, it is unnecessary to include the facility in the plan amendment. According to the County, however, the plant (but not the beds) was included only because it was easier to draw a map for the entire 9.6 acres rather than excise that portion of the land where the plant will be located. Under the same theory, the County has placed at least two existing wastewater treatment facilities in the residential land use category. Those facilities, however, predate the adoption of the comprehensive plan in April 1991, and both serve residential, as opposed to commercial, developments. Moreover, the County admitted that it lacks any "clear" policy about the meaning of "public utilities," and it has never adopted a land development regulation to implement the interpretation given at hearing. The County's position is contrary to conventional land use planning practices which define "utilities" as infrastructure such as water or electrical lines that transport a service and would, by their very nature, be required to cross different land uses. Conversely, conventional land use planning practices define "facilities" as infrastructure that performs a service, such as power plants or pumping stations. This infrastructure does not cross different land use categories. In this case, the absorption beds perform a service by further processing and treating waste effluent from Phase I. Therefore, conventional land use planning practices would logically call for the plant and related absorption beds to be classified as "public facilities" under Policy 2.2(i) of the County's comprehensive plan. That policy defines the term as including "water and sewer facilities." The classification would also be compatible with the definition of "public facilities" found in DCA Rule 9J-5.003(105), Florida Administrative Code. Finally, the County and intervenors point out that the facility may not be constructed for many years, depending on the rate and amount of development that occurs in Phase I. Thus, they contend that there is no immediate requirement for the County to change the future land use designation of the property where the absorption beds will be located. But given the fact that the beds and plant are a single, interrelated system, the County cannot choose to change the land use designation for a portion of the facility while ignoring the remainder.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administration Commission enter a Final Order determining Ordinance No. 96-22 adopted by Franklin County on October 3, 1996, as not in compliance for failing to meet the criteria of Section 163.3187(1)(c), Florida Statutes. DONE AND ENTERED this 13th day of February, 1997, in Tallahassee, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1997. COPIES FURNISHED: Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Room 2105 Tallahassee, Florida 32399-0001 Richard W. Moore, Esquire Post Office Drawer 1759 Tallahassee, Florida 32302-1759 Alfred O. Shuler, Esquire Post Office Drawer 850 Apalachicola, Florida 32320-850 L. Lee Williams, Esquire Post Office Box 1169 Tallahassee, Florida 32302-1169 Stephanie Gehres Kruer, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325-A Tallahassee, Florida 32399-2100 Gregory C. Smith, Esquire Office of the Governor The Capitol, Room 209 Tallahassee, Florida 32399-0001
Findings Of Fact At all times pertinent to the matters contained herein, Respondent was licensed as a professional land surveyor in Florida and held license No. LS 0002934. On October 9, 1984, the Petitioner, Board of Professional Land Surveyors, after an informal hearing at which Respondent was present, entered a Final Order finding that he had, in several instances in the practice of professional land surveying, failed to perform in accordance with the minimum technical standards for land surveying and ordered his license to be suspended for 6 months; that he pay a $500.00 fine within 30 days of the Order; and that he submit a series of surveys and field notes for the review of the Board over a period of time subsequent to the reinstatement of his license. Respondent contends he agreed to an informal hearing because of recommendations from a representative of the Department of Professional Regulation's, (DPR), local investigative office. However, he was present at the hearing, was afforded an opportunity to present matters in his behalf, and through counsel, filed an appeal to the 4th District Court of Appeals of the Final Order in question which appeal, he subsequently dismissed. Respondent failed to pay the $500.00 fine on time as required. He contends this was because he had appealed the Final Order and was only one month late. Respondent also failed to file the required sets of surveys after the reinstatement of his license. The first was 6 months late and he cannot give a reason for that other than he was in mild shock as he felt he was a victim of "judicial error." His attorney was appealing the Final Order and he didn't pay attention to the dates. The 4th set of surveys was due in February, 1987 and has not been submitted as of this date. He contends it was not his intention to drag his feet in these submissions. After receiving the reviewer's criticisms of his earlier submissions, he felt they were not in keeping with the minimum standards and he requested clarification. He claims this is the reason for the delay but this excuse is not persuasive. His comment that he failed to pay attention to the dates for compliance with the requirements of the Final Order seems to be somewhat indicative of his attitude toward the practice of land surveying as will be seen from the evidence as discussed below. Consistent with the Board's Order, however, Respondent submitted several surveys which were considered to be of poor quality. The first set was returned with numerous negative comments and the third set was returned for further preparation and correction to prevent "further disciplinary action." The second set was considered to be "in substantial compliance with the terms of the [Board's] Final Order." Specifically identified for comment were surveys done by the Respondent for Mark and Betty Sivik, Carolyn Riddle, Eugenio Gonzalez, Teresa and Dane Curry, and Silvia Garcia. As to the individual surveys, the following discrepancies were noted: Sivik field notes showed no measurements made by Respondent. field notes showed no angles turned by Respondent. field notes showed no relationship to fractional corners. Riddle field notes show no E-W measurement by Respondent. field notes show no angles turned by Respondent. no plat was submitted with the survey. Gonzalez field notes do not show complete measurements by Respondent. field notes do not show angles turned by Respondent. field notes do not show relationship to fractional corners. field notes show a fence on three sides but the survey does not. Curry field notes do not show angles turned by Respondent. there is a .9 foot discrepancy as to one line between field notes and the survey with no explanation. as a result of this it cannot be determined if the survey is accurate. Garcia measurements to corners shown in field notes are not shown on survey. Respondent did not submit a plat without which it cannot be determined if the survey is complete or accurate. (Without the appropriate field notes, there is no way to tell if the survey is accurate, complete, or in accord with the legal description of the property.) In respect to all of the above surveys, none states on its face the type of survey it is. Respondent contends, in this regard, that his use of the letters "P.L.S.", (Professional Land Surveyor) after his signature indicates all are land surveys. This is not sufficient identification since professional land surveyors do various different types of surveys including land surveys, topographical surveys, reestablishment surveys, and the like. Respondent takes exception to the Board reviewer's comments about and approach to his surveys. As to the issue of angles, he contends that the minimum standards applied by the Board require only that the minimum angles shall be listed and do not require that all angles be turned in the field. He contends that the angles in question were a matter of record in his office. Mr. Cole, the Boards expert, agrees, stating it is not necessary to turn every angle but enough should be turned to insure an accurate description of the property and to verify the actual angles. There are other ways of verifying angles than turning them, but in Respondent's field notes, there was insufficient evidence to show any type of verification of the angles done by others previously. As to the discrepancies between field measurements and the legal descriptions in some cases, Respondent nonetheless contends they are all within standards. Respondent's approach here is somewhat cavalier. Any discrepancies which exist must be shown. The purpose of a survey is to show the current status of the property and it is improper and ineffective to rely solely on the previous record. To list discrepancies does not clutter up the survey nor is it likely to confuse. A failure to show them could well create major problems for a future user of the survey. The .9 foot discrepancy, described by the Respondent as well within the 1:5,000 error standard, is incorrectly described. It is more like an error of 1:200 and is, therefore, not insignificant. It should have been commented on. The survey done for the Currys can readily be classified as a topographical survey as it describes elevation in at least two places. Therefore, it should have been identified as a topographical survey on the face of it, but this is a minor discrepancy. The fence running across the back of the Gonzalez property should have been identified as such by the use of appropriate x's on the survey. It was not. Respondent has been in the private practice of surveying since he passed the state examination in February, 1976. He feels that the Board's case is based on the use of a hypothetical survey to establish standards against which his work was compared. The minimum standards set out in the statute are what, he feels, should control as they speak for themselves. He has always tried, throughout his years in practice, to protect his clients, and to his knowledge, his work has never cause anyone to lose money. He defines precision as the way that a line or angle is measured and accuracy as the manner in which the finished drawing portrays that there are or are not problems in the subject of the survey. With regard to the attack on his field notes, Respondent contends that the minimum standards merely call for field notes. Their sufficiency is determined by the standards of the practice in the community. He believes his notes contain measurements, calculations and ancillary information sufficient to show the required identifying information. The laws that govern surveyors' performance require many factors to be considered such as encroachment, senior rights, acquiescence and adverse possession, and the Respondent urges that in the interest of simplicity for the benefit of the users of the survey, it is necessary to reduce the quantity of evidence on the survey to the minimum necessary to allow it to be used effectively, not for the convenience of the state examining board. If there are no problems, then there is nothing else to show and his backup office records are adequate. Though Respondent feels the Board's criticisms of his notes are irrelevant, the better weight of the evidence is that they are not. Though Respondent contends his work in all cases exceeds the requirement for error, (1:5,000; 1:7,500; and 1:10,000 as appropriate), the error in the Curry survey shows his possible lack of understanding of the rules. He considers himself to be a mixture of the textbook and practical surveyor applying his extensive practical field experience to the textbook requirements. The evidence indicates, however, he does not always do so with the required degree of accuracy and skill. Respondent agrees with the 20 minimum standards set out in Rule 21HH- 6.003. They relate to all surveys and, he believes, should be followed. They constitute the community standard and a failure to follow them would be a failure to follow the community standards. His quarrel is not with the rule but with the agency's interpretation and alleged expansion of its own rule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's license as a registered land surveyor be suspended for one year and that upon reinstatement his license be placed on probation for five years under such terms and conditions as imposed by the Board as will insure current and continuing review of his activities within the profession. RECOMMENDED this 24th day of August, 1987, at 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 24th day of August, 1987. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings pursuant to Section 120.59(2), Florida Statutes, upon the proposals of the parties. Petitioner's Proposed Findings of Fact (FOF). 1. Accepted in FOF 1. 2. Accepted in FOF 2. 3 - 7. Accepted in FOFs 2 and 4. 8. Accepted. 9 - 11. Incorporated in FOF 4. 12, 13. Accepted. 14, 15. Incorporated in FOF 4. 16. Incorporated in FOF 5. 17, 18. Accepted. 19, 20. Incorporated in FOF 5. 21 - 30. Incorporated in FOF 6. 31 - 33. Accepted. 34. Incorporated in FOF 7. 35 - 37. Incorporated in FOFs 8 and 9. 38, 39. Incorporated in FOF 16. 40. Redundant to Proposed FOF 2. COPIES FURNISHED: ALLEN R. SMITH, JR., EXECUTIVE DIRECTOR DEPARTMENT OF PROFESSIONAL REGULATION DIVISION OF LAND SURVEYORS 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 DAVID R. TERRY, ESQUIRE DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32301 KENNETH O. HART 3198 RIDDLE ROAD WEST PALM BEACH, FLORIDA 33406 VAN POOLE, SECRETARY DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 JOSEPH A. SOLE, GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 ================================================================= AMENDED AGENCY FINAL ORDER ================================================================= BEFORE THE BOARD OF PROFESSIONAL LAND SURVEYORS DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, DOAH CASE NO. 87-2158 vs. DPR CASE NO. 0078982 KENNETH O. HART, Respondent. /
The Issue The general issue for determination in this case is whether Amendment 00-D1 to Sumter County’s comprehensive plan (the “Plan Amendment”) is "in compliance" with the Local Government Comprehensive Planning and Land Development Act, Sections 163.3161 through 163.3217, Florida Statutes. (All statutory references are to the 2000 codification of the Florida Statutes.) The initial Petition to Request Administrative Hearing (Petition) alleged numerous reasons why the Plan Amendment should be found not "in compliance." But from the time of the initial Petition--through the Joint Prehearing Stipulation, opening statement at final hearing, and Proposed Recommended Order (PRO)--Petitioners reduced the number of reasons why they contend that the Plan Amendment is not "in compliance" to the following: simultaneous conversion of Future Land Use (FLU) from Agricultural to PUD allegedly inconsistent with parts of the County's Plan's; alleged lack of demonstrated need for land use allocations contrary to Section 163.3177 and Florida Administrative Code Rules Chapter 9J-5 (all rule citations are to the Florida Administrative Code); conversion of FLU from Agricultural to PUD allegedly inconsistent with the Plan's Policy 4.6.1.1 (the so-called "90% rule"); and alleged failure to discourage urban sprawl contrary to Rule 9J-5.0006(6). These are the only compliance issues that still have to be addressed in this proceeding. In addition, Intervenor contends that Sumter Citizens Against Irresponsible Development (SCAID) does not have standing.
Findings Of Fact Intervenor, the Villages of Lake-Sumter, Inc., owns land in the northeast part of Sumter County on which Intervenor plans to construct a mixed-use development of regional impact (DRI) known as the Villages of Sumter. The proposed DRI will encompass approximately 4,679 acres and is anticipated to contain: 11,097 residential dwelling units; 1,250,000 square feet of commercial area; 250,000 square feet of office area; 157,000 square feet of institutional area; 120,000 square feet of hotel (300 rooms); 100,000 square feet convention center; 23,500 square feet of movie theater (8 screens); 512 acres of golf courses (126 holes); 8 marina slips; 602 acres of wildlife management and Kestrel foraging areas; 162 acres of lakes, 162 acres of roads, 31 acres of parks and buffers; and 227 acres of stormwater and open space. The proposed DRI will feature neighborhood and town centers and will extensively utilize clustering, open spaces, and buffering as part of its design. It is anticipated that the Villages of Sumter DRI will have an internal vehicle capture rate of over 60%--i.e., over 60% of vehicle trips starting in the DRI will not go outside the DRI. The DRI will provide water, sanitary sewer, stormwater management, aquifer recharge areas, and other governmental services as part of its development. Eighty percent of the residents in the Villages of Sumter DRI will have to be occupied by persons 55 of age or older, and no one under 19 will be permitted to reside within this DRI. When Intervenor filed its Application for Development Approval (ADA) for the Villages of Sumter DRI, Intervenor also requested the subject Plan Amendment to accommodate the DRI, including a change in the Future Land Use Element (FLUE) and FLUM from Agricultural use to UEA and PUD. The ADA itself served as a major part of the data and analysis supporting the Plan Amendment. (Another major part of the data and analysis was the Evaluation and Appraisal Report (EAR) prepared by the County in 1995.) The western part of the northern boundary of the Plan Amendment parcel (i.e., the Villages of Sumter DRI) will be the western part of the southern boundary of a related DRI developed by Intervenor known as the Tri-County Villages. From there, the Tri-County Villages DRI extends north to the southern border of Marion County and east to the western border of Lake County. (Towards the east, the northern boundary of the DRI drops just a little south of the southern border of Marion County.) Tri- County Villages is a large mixed-use DRI. It includes residential, commercial, recreational, and open space land uses. Prior to the Tri-County Villages DRI, Intervenor or its predecessor also developed other related mixed-use DRIs to the east in Lake County. SCAID was formed in 1993 or 1994 to oppose the Tri- County Villages DRI and 1994 comprehensive plan amendments adopted to accommodate the Tri-County Villages DRI. SCAID, T. Daniel Farnsworth, and James E. Boyd filed a petition initiating Sumter Citizens Against Irresponsible Development, T. D. Farnsworth, and James E. Boyd vs. Department of Community Affairs and Sumter County, DOAH Case No. 94-6974GM, to oppose DCA's determination that the County's 1994 amendments were "in compliance." SCAID, Farnsworth, and Weir are collaterally estopped to deny facts established in DOAH Case No. 94-6974GM (SCAID I). (Latham and Roop are not estopped.) See Conclusions of Law 63-64, infra. In any event, all Petitioners agreed to official recognition of the Final Order entered in DOAH Case No. 94-6974GM. Among the facts established by adoption of the Recommended Order by the Final Order in SCAID I was the history of the earlier DRIs, the Tri-County Villages DRI, and the comprehensive plan amendments required by the Tri-County Villages DRI: [¶4] [I]ntervenor [Villages] is the owner and developer of the Tri- County Villages development located in unincorporated Sumter County. Development which predated the existing Tri-County Villages development commenced in approximately 1968 with Orange Blossom Garden North (OBGN). OBGN was an approximately 1,000-acre project owned and operated by Orange Blossom Hills, Inc. as a mobile home retirement community located mostly in the Town of Lady Lake, Florida. That community lies in the northwestern corner of Lake County, which adjoins the northeastern corner of Sumter County. Because the development of OBGN commenced prior to July of 1973, it is vested for purposes of development of regional impact (DRI) review pursuant to Section 380.06(20), Florida Statutes. [¶5] In 1987, Orange Blossom Hills, Inc. submitted an Application for Development Approval (ADA) with the Town of Lady Lake which requested authorization to develop Orange Blossom Gardens South (OBGS). The OBGS development was an approximately 595-acre extension of the vested OBGN retirement community and was determined by the DCA and Town of Lady Lake to be a DRI. On January 18, 1988, the Town of Lady Lake approved the proposed OBGS development. [¶6] In 1989, Orange Blossom Hills, Inc. submitted to the Town of Lady Lake and the County an ADA requesting a substantial deviation from the OBGS DRI. The substantial deviation request sought authorization to develop Orange Blossom Gardens West (OBGW). OBGW was planned as an approximately 1,700-acre extension to the OBGS DRI. The Town of Lady Lake approved the substantial deviation request through the issuance of an Amended Development Order on May 7, 1990. The County approved the development within its jurisdiction on May 29, 1990. [¶7] In September 1993, intervenor, as successor to Orange Blossom Hills, Inc., submitted an ADA to the County which requested a substantial deviation from the OBGS and OBGW DRI's. By submitting this latest development, intervenor sought to add approximately 1,960 acres to the existing OBGS and OBGW DRI's and modify the development already approved by adding a total of 6,250 residential units and 910,000 square feet of commercial square footage. The overall development was renamed Tri-County Villages. The development order approving the substantial deviation for Tri-County Villages was adopted by the County on September 20, 1994. [¶8] On September 20, 1994, or prior to approval of the Tri-County Villages development substantial deviation, but in conjunction with it, the County adopted plan amendment 94D1 by Ordinance No. 94-6. On November 10, 1994, the DCA determined the amendment to be in compliance. That amendment amended the plan's Future Land Use Map (FLUM) to revise the land use designations on approximately 1,960 acres of land. Specifically, the plan amendment designated as Planned Unit Development (PUD) all areas of the approved OBGW DRI and the additional 1,960 acres referred to in Exhibit 1 of 94D1 as parcels 5 and 8. Prior to the amendment, parcels 5 and 8 had been designated predominantly as agricultural, with small pockets of rural residential. [¶9] The plan amendment also revised the FLUM by extending the urban expansion area to include all of parcels 5 and 8. Prior to the amendment, only a small section of parcel 8 was included in the urban expansion area. [¶10] The plan amendment further included several textual revisions to the Future Land Use Element (FLUE), including a revision to FLUE Policy 1.5.7 concerning the ratio of commercial square footage to residential units and the addition of FLUE Objective 1.14 and Policies 1.14.1 - 1.14.6, which essentially incorporated the concept of sector planning into the plan. [¶11] Finally, the plan amendment revised Policy 2.1.5 of the Sanitary Sewer Element which, subject to submission of appropriate data and analysis, and Department of Environmental Protection approval, reduced the established level of service for sanitary sewer throughout the Tri-County Villages development. SCAID I, 17 F.A.L.R. 4527, 4531-32 (Dept. Community Affairs Aug. 1995). (The Recommended Order may also be found on WESTLAW at 1995 WL 1052949.) At its inception, the Tri-County Villages DRI was projected to build-out in approximately 2015. When the Tri- County Villages DRI first began construction in late 1992, the developer pulled 24 building permits. In 1993, the County issued 406 residential building permits, 365 of which were pulled for the Tri-County Villages DRI. In 1997, the developer pulled 1,052 building permits for the Tri-County Villages DRI. To date, approximately 13,000 homes have been built in the Tri- County Villages DRI. Based upon present projections, the Tri- County Villages DRI is anticipated to be substantially built-out in 2003-04, 12 years ahead of its initially projected build-out date of 2015. Presently, there are numerous cultural and recreational activities, shopping options, medical and governmental services available to residents within the Tri-County Villages DRI. While still designated as a UEA and PUD on the County's FLUM, the Tri-County Villages DRI in fact is a self-contained urban area, especially in the context of Sumter County. Sumter County is mostly rural. According to the 1995 EAR, the County's permanent (non-seasonal) population was projected to be: 38,961 for 1998; 56,000 for 2005; and 64,200 for 2010. The unincorporated portion of the County contains 334,903 acres, approximately 99,436 acres of which are state- owned conservation lands, and approximately 202,000 acres of which are agricultural lands. There are five municipalities in the County--Wildwood, Bushnell (also the County seat), Center Hill, Coleman and Webster. None are as urbanized as the Tri- County Villages DRI. Simultaneous Conversion Objective 7.1.2 of the County's comprehensive plan provides in pertinent part: Upon adoption of this plan, Sumter County shall . . . provide for a compatible and coordinated land use pattern which establishes agriculture as the primary use outside of the urban expansion area boundary and insures retention of agricultural activities, preserves natural resources and discourages urban sprawl. In pertinent part, the County Plan's Policy 7.1.1.2(e) provides that the County's land development regulations governing PUDs should be based on and consistent with the following standards for densities and intensities: Within the Urban Expansion Area, a base density of up to 8 residential units per gross acre in residential areas and 6 units per gross acre in commercial areas are allowed. . . . . Outside of an Urban Expansion Area, a base density of up to 4 residential units per gross acre in residential, commercial and agricultural areas are allowed. Policy 7.1.5.1 allows PUDs "in the following land use districts and at the following densities/intensities of use": 8 dwellings per gross acre in "Residential Areas Inside UEA"; 6 dwellings per gross acre in "Commercial Areas Inside UEA"; and 4 dwellings per gross acre in "Res./Comm. Uses Outside UEA." Petitioners contend that the foregoing objective and policies somehow combine to preclude the simultaneous conversion of Agricultural FLU to UEA and PUD; they appear to contend that these policies necessitated an intermediate conversion to UEA. (Protection of agricultural lands was raised in a more general sense, but this precise issue was not raised prior to final hearing.) But Petitioners argument not only is not persuasive, it is not even easily understood. It is at least fairly debatable that the objective and policies do not combine to preclude simultaneous conversion of Agricultural FLU to UEA and PUD. Even without prior notice of this precise issue, one of the County's expert witnesses in land planning persuasively testified that the cited objective and policies do not combine to preclude simultaneous conversion of Agricultural FLU to UEA and PUD. Even Petitioners' expert land planner ultimately agreed that there is nothing in the Florida Statutes or Florida Administrative Code Rules Chapter 9J-5 to prevent conversion of agricultural uses to more urban uses. Demonstrated Need As reflected in previous Findings of Fact, the subject Plan Amendment is for a highly mixed-use PUD. Of the many mixed uses involved, Petitioners focus on the allocation of land for residential use in their challenge to the demonstration of need for the Plan Amendment. In this context, demonstrated need refers to the existence of adequate data and analysis to demonstrate the need for additional allocation of residential dwelling units on the FLUM. Petitioners assert that the methodology utilized by the County to project need is flawed. Determination of the need for a certain allocation of residential densities starts with a projection of population on the planning horizon (2020). In doing so, all available data and analysis must be considered. (Petitioners also assert that Policy 7.1.2.5(b)1. of the County's comprehensive plan requires such an analysis "utilizing professionally accepted methods," but that policy speaks to additional densities and allocations of land use for developments proposed in agricultural areas, while the Plan Amendment in this case converts the agricultural land to UEA and PUD.) For the purpose of analyzing whether there is a demonstrated need for this Plan Amendment, the County's planner, Roberta Rogers, relied upon need projections made in conjunction with the preparation of the County's EAR. The EAR, prepared in 1999, included a projection of the County's population for the 2020 planning horizon. The EAR projected that the permanent population of unincorporated Sumter County, by the year 2020, will be 79,475. (The total County permanent population is projected to be 94,205.) One of the purposes of an EAR is to provide data and analysis for comprehensive plan amendments. In preparing the population projections reflected in the EAR, Rogers began her analysis by referring to the projections for Sumter County formulated by the Bureau of Economic and Business Research ("BEBR"), as reported in 1996. The 1996 BEBR Report actually reflected projections made in 1995. BEBR publishes yearly reports that state both the estimated current and the projected future populations for each Florida county. The population projections reflected in BEBR Reports are based upon historical trends of 10-15 years' duration. Because the development in the Tri-County Villages DRI is a relatively recent phenomenon, Rogers believed that reliance upon the BEBR projections alone would have resulted in a significant under-projection of the County's future population. As a consequence, Rogers added an annual rate of growth of 1000 building permits per year through 2005 and 500 permits per year through the remaining portion of the planning period for the Tri-County Villages and the Villages of Sumter. Her approach was a conservative approach, since the actual number of building permits issued for the Tri-County Villages DRI in the past two years has significantly exceeded 1000 per year. Rogers conferred with BEBR, prior to completing her analysis, and was assured that her approach was appropriate. Such an adjustment for the Villages is particularly appropriate since the Villages cater to a very specific segment of the population, i.e., persons 55 and above. Over the twenty- year planning horizon relevant to the Plan Amendment, the population of persons in Florida aged 55 and above will increase dramatically as the "baby boomer" population ages. The demand for residential housing for these senior citizens will show a similar dramatic increase. Henry Iler, the Petitioners' land planning expert, took the contrary position, opining that no additional growth factor should be added to the 1996 BEBR projections. However, Dr. Henry Fishkind, an expert in demography who was involved in the original development of the BEBR population projection methodologies, directly contradicted Iler's opinion, concluding instead that Ms. Rogers' methodology was appropriate. As Dr. Fishkind stated that [Sumter] county has experienced a dramatic structural change to its population growth and development because of the Villages, and that has altered the characteristics of its population growth. In light of that, the use of past trends, which is what the bureau [BEBR] does, is simply extrapolate past trends, would not be appropriate, for it would not have taken into account that major structural change. Ms. Rogers identified the structural change, she measured its amount, and then she added on to the bureau's projections, which were extrapolations of the past trends. That's a very appropriate adjustment, and it's the kind of adjustment that econometricians and economists make on a regular basis. DCA's analysis concurred that the high absorption rates in the Tri-County Villages DRI had to be taken into account. To have ignored the explosion of growth in the Tri- County Villages DRI, particularly in view of the generally accepted expectation that the population to be served by the Tri-County Villages and by the Villages of Sumter will experience tremendous growth, would have resulted in an inaccurate population forecast. Even Iler had to concede that he was aware of building permit data being used to project population figures. It is simply not his preferred methodology to use such information. Thus, Rogers' projection of the County's total population for the year 2020 appropriately incorporated all available and relevant data and was formulated using an accepted methodology. While not part of their PRO, Petitioners previously attacked the County's population projections by questioning the continued success of the Villages to attract out-of-state retirees. Primarily through Weir's testimony, they attempted to raise the specter of a reduction of sales and Intervenor's subsequent financial ruin. But there was no credible evidence to support Petitioners' prophecy of doom. On the evidence presented in this case, it would be more rational from a planning standpoint to expect the Villages to continue to be a marketing and financial success. Having reasonably projected future population, it was then incumbent upon the County to determine how many dwelling units would be needed to accommodate anticipated housing needs. This determination was made by Gail Easley, an independent planner retained by the County to assist Rogers in preparation of the EAR. Easley performed this calculation for the County. Easley used 2.46 as the average number of persons per dwelling unit in the County, a figure taken from the BEBR reports (not from 1990 census information, as Iler incorrectly surmised.) There was no evidence that a number other than 2.46 was appropriate. It would not be appropriate for the number of dwelling units needed in the future to be calculated simply by the division of the anticipated population by the average household size. Rather, it is appropriate to apply a "market factor" (or multiplier) in order to ensure that there is a choice of types of housing and to accommodate lands that are not actually useable for residential construction. Even Petitioner's expert, Henry Iler, agreed that the use of a market factor was appropriate in order to ensure sufficient housing supply and to avoid an increase in housing prices. Easley furnished Rogers with the market factor for the EAR. The market factor chosen by Easley was 1.5, a factor she viewed as conservative and as appropriate for a jurisdiction that is beginning to urbanize. In more rural counties, a higher market factor, such as 2.0, should be used. While Iler implied that a lower marker factor would be more suitable, the record clearly established that the market factor used by Easley fell within the range of reasonable choices. (In SCAID I, the ALJ expressly found, in paragraph 31 of the Recommended Order, that the 1.87 market factor used by the County on that occasion was reasonable and actually low compared to factors used for other comprehensive plans that had been found to be "in compliance." As reflected by this Finding of Fact, facts and circumstances bearing on the choice of a market factor for Sumter County have not changed significantly to date. Cf. Conclusion of Law 64, infra.) Applying the 1.5 market factor to the projected population and average household size, the County determined that 62,274 dwelling units will have to be accommodated during the twenty-year planning horizon. (This includes 48,461 units in permanent housing, 9,113 in seasonal housing, and 4,700 in transient housing.) The County then allocated those dwelling units in various land use categories. Much of Petitioners' PRO on this point was devoted to criticizing parts of the evidence in support of the demonstration of need. They state the obvious that Easley did not perform a demonstration of needs analysis for the Plan Amendment in the EAR, but that was not the purpose of the EAR; nonetheless, the EAR contained valuable data and analysis for use in the demonstration of need analysis for the Plan Amendment. Petitioners also questioned DCA's reliance on the DRI ADA in conducting its demonstration of need analysis, based on the timing of the ADA and Plan Amendment submissions and decisions; but it is not clear what it was about the timing that supposedly detracted from DCA's demonstration of need analysis, and nothing about the timing made it inappropriate for DCA to rely on the data and analysis in the ADA. Petitioners criticized Rogers' reference to up-to-date building permit information that was not offered in evidence; but this information only further supported Rogers' demonstration of need analysis. Petitioners asserted that one of Intervenor's witnesses may have overstated residential sales in the Tri- County Villages DRI (1,750 sales a year versus evidence of 1,431 building permits for 1999); but the witness's statement was not used in any of the demonstration of need analyses. Finally, Petitioners attacked one of Intervenor's witnesses for an alleged "conflict of interest, a lack of professional integrity and an indication of bias"; but the basis for this allegation supposedly was evidence that the witness worked for the County while also working for Intervenor or its predecessor for a few years in the late 1980's, not enough to seriously undermine the credibility of the witness's testimony in this case (which in any event had little or nothing to do with the demonstration of need analyses.) It is at least fairly debatable that the County's demonstration of need was based on relevant and appropriate data, and professionally acceptable methodologies and analyses. Likewise, it at least fairly debatable that the County's projections regarding housing needs, the growth in the retirement population, and the absorption rates achieved in the existing Tri-County Villages DRI adequately support the allocation of 11,000 dwelling units permitted by the Plan Amendment. So-called "90% Rule" The County's Plan Policy 4.6.1.1 provides: The County shall maintain approximately 90% of its land area in land uses such as agricultural (including timberland, mining and vacant), conservation, and open (recreation, open space etc.) land uses for this planning period. (Emphasis added.) This policy is found in the Utilities Element of the County's comprehensive plan under a goal to protect and maintain the functions of the natural groundwater aquifer recharge areas in the County and under an objective to protect the quantity of aquifer recharge. Although couched as an approximation, the policy has been referred to as the "90% rule." Based on the evidence presented in this case, it is at least fairly debatable that the subject Plan Amendment is not inconsistent with Policy 4.6.1.1. The primary debate had to do with the proper treatment of certain "open space" provided in the Tri-County Villages DRI and the Villages of Sumter DRI-- 1,032 acres in the former and 2,135 acres in the latter. This "open space" consists of golf courses, preserves, wetlands, parks/buffers, and some stormwater/open spaces. Petitioners' expert refused to count any of this acreage for purposes of the so-called "90% rule" because, while the FLUE and FLUM have Agricultural, Conservation, and Recreation land use categories, there is no category designated "Open Space." (Meanwhile, there is an entire element of the plan entitled "Recreation and Open Space.") The witnesses for the County and DCA counted those 3,167 acres. They reasoned persuasively that the policy's express mention of "open space" (as opposed to a specific land use category designated "Open Space") supports their position. They also argued persuasively for the logic of including "open space," which serves the objective of the policy to "protect quantity aquifer recharge quantity," even if there is no specific land use category designated "Open Space." Counting the 3,167 acres of "open space" in the two DRIs, the percentage calculated under Policy 4.6.1.1 exceeds 90% for existing land uses. Omitting that land, as well as another 500 acres that should have been counted, Petitioners' expert calculated 88.96%. Petitioners' expert also calculated a lower percentage (85.34%) by using land uses he projected for the end of the planning period. However, Petitioners' expert conceded that it was not clear that Policy 4.6.1.1 should be interpreted in that manner. If so interpreted, it would be possible for all plan amendments reducing agricultural, conservation, and open FLUs to be prohibited even if existing land uses in those categories did not fall below "approximately 90%" for another 20 years. It is at least fairly debatable whether such a result is logical, or whether it is more logical to wait until existing land uses in those categories did not fall below "approximately 90%" before prohibiting further FLUE and FLUM amendments. Urban Sprawl Petitioners contend that the Plan Amendment fails to discourage urban sprawl. They attempted to prove seven urban sprawl indicators. But their evidence was far from sufficient to establish any beyond fair debate. Petitioners did not prove that the Plan Amendment promotes, allows or designates 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. To the contrary, while gross residential density may be relatively low (2.4-2.6 units per gross acre), the Plan Amendment PUD provides for highly mixed-use development, not single-use development, and densities in residential areas within the PUD are significantly higher (up to 5.6 units per acre), especially for Sumter County. Petitioners also did not prove that the Plan Amendment promotes, allows or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development, or that the Plan Amendment promotes, allows or designates urban development in radial, strip, isolated or ribbon patterns generally emanating from existing urban developments. To the contrary, the evidence was that part of the northern boundary of the Plan Amendment parcel coincides with the western part of the southern boundary of the Tri-County Villages DRI, and the Villages of Sumter PUD will be an extension of the Tri-County Villages DRI, which already has all the characteristics of an existing urban area. The reason why the eastern part of the northern boundary of the Plan Amendment parcel does not coincide with the southern boundary of the Tri-County Villages DRI is the existence of land in between which is already in use and not available to become part of the Plan Amendment PUD. Development will not be in a radial or ribbon pattern like (usually) commercial development along main roadways; nor will development be isolated. Petitioners did not prove that the Plan Amendment fails to protect adjacent agricultural areas and activities, including silviculture, and including active agricultural and silvicultural activities as well as passive agricultural activities, and dormant, unique and prime farmlands and soils. Obviously, conversion of agricultural land eliminates such land from agricultural use. But the Plan Amendment protects adjacent agricultural land by phasing development starting from existing urban areas in the Tri-County Villages DRI by mixing in open and recreational uses throughout the Villages of Sumter PUD and by providing some additional buffer between the periphery of the PUD and adjacent agricultural lands. Petitioners did not prove that the Plan Amendment fails to maximize the use of existing public facilities and services. Indeed, Petitioners' land use planning expert admitted at the hearing that he "didn’t have the time or expertise, really, to try to evaluate this particular question." To the contrary, the evidence was that the Plan Amendment PUD will include water, sanitary sewer, stormwater management, aquifer recharge areas, and other governmental services as part of its development. In addition, impact to schools will be minimal or non-existent due to the character of the PUD as a retirement community. Petitioners did not prove that the Plan Amendment fails to provide a clear separation between rural and urban uses. To the contrary, the evidence was that clustering, open spaces and buffering in the Villages of Sumter PUD will provide a clear enough separation between rural and urban uses. Petitioners did not prove that the Plan Amendment discourages or inhibits in-fill development or the redevelopment of existing neighborhoods and communities. Specifically, Petitioners argued that in-fill in the City of Wildwood will be discouraged. But the evidence was to the contrary. Not only would development of the kind envisioned in the Plan Amendment PUD be unlikely to occur in Wildwood, sufficient land is not available for such a development there. Actually, the Plan Amendment might encourage in-fill in Wildwood, where service providers for the Villages of Sumter might be expected to reside. SCAID SCAID was formed in 1993 or 1994 by a small group of Sumter County citizens for the purposes of preserving the "rural lifestyle" of Sumter County, preventing urban sprawl, and ensuring "that development will not be a burden to the taxpayers" of the County. SCAID has about 80 members, who are not required to pay dues. The majority of SCAID's members live in Sumter County, including all of the individual Petitioners in this case. SCAID is not incorporated but has by-laws drafted in 1995 or 1996. The by-laws provide for election of officers for one-year terms, but SCAID has not had an election of officers since 1994. Petitioner, T. Daniel Farnsworth, is and always has been SCAID's president. The evidence was that, when former SCAID member James Boyd resigned, Petitioner Linda Latham was appointed to replace him as secretary. SCAID has held just two meetings since its inception. Approximately 15-20 persons attended each meeting. Most communication with members is by regular and internet mail. Financial contributions are solicited from time to time for litigation efforts initiated by SCAID. Farnsworth, on behalf of SCAID, submitted comments on the Plan Amendment to the County between the transmittal hearing and the adoption hearing. Farnsworth and Weir also testified on behalf of Petitioners at final hearing. The other individual Petitioners did not.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that, under Section 163.3184(9)(b), the Department of Community Affairs enter a final order that Sumter County's Amendment 00-D1 is "in compliance." DONE AND ENTERED this 20th day of February, 2001, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 2001. COPIES FURNISHED: Martha Harrell Chumbler, Esquire Nancy G. Linnan, Esquire Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A. Post Office Box 190 Tallahassee, Florida 32302-0190 Jane M. Gordon, Esquire Jonas & LaSorte Mellon United National Bank Tower Palm Beach Lakes Boulevard, Suite 1000 West Palm Beach, Florida 33401-2204 Terry T. Neal, Esquire Post Office Box 490327 Leesburg, Florida 34749-0327 Colin M. Roopnarine, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Cari L. Roth, General Council Department of Community Affairs 2555 Shumard Oak Boulevard Suite 325 Tallahassee, Florida 32399-2100
The Issue Whether an amendment to the Broward County Comprehensive Plan, PC-93-12, adopted by Ordinance 93-42, renders the Broward County Comprehensive Plan not "in compliance" within the meaning of Section 163.3184(1)(b), Florida Statutes (1993)
Findings Of Fact The Parties. Petitioner, Francis C. Nipe, is an individual who resides and owns real property located in Broward County, Florida. Ms. Nipe presented oral and written comments to Broward County concerning the plan amendment which is the subject of this proceeding. Respondent, Broward County (hereinafter referred to as the "County"), is a political subdivision of the State of Florida. The County is a local government charged with responsibility by Part II of Chapter 163, Florida Statutes, the "Local Government Comprehensive Planning and Land Development Regulation Act" (hereinafter referred to as the "Act"), and the Broward County Charter for developing a comprehensive plan for future development in the unincorporated areas of the County. The County is also responsible for amendments to the comprehensive plan. Respondent, Department of Community Affairs (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged by the Act with responsibility for, among other things, the review of comprehensive growth management plans and amendments thereto. Intervenor, Michael Swerdlow Companies, Inc., is a corporation with its principal place of business located in the County. Intervenor, Michael Swerdlow, Trustee, also has his principal place of business located in the County and is the contract purchaser of the property which is the subject of the amendment at issue. Michael Swerdlow Companies, Inc., submitted oral and written comments to the County concerning the subject amendment during the amendment process. (Michael Swerdlow Companies, Inc., and Michael Swerdlow, Trustee, will hereinafter be jointly referred to as "Swerdlow"). Intervenor, VST/VMIF Oakridge Partnership (hereinafter referred to as "VST"), owns the real property which is the subject of the amendment at issue in this proceeding. VST submitted written comments during the amendment process. Michael Swerdlow Companies, Inc., as agent for Michael Swerdlow, Trustee, and VST, was the applicant for the amendment at issue in this proceeding. General Description of the County. The County is generally a rectangular-shaped geographic area located in southeastern Florida. The County is bounded on the east by the Atlantic Ocean, on the south by Dade County, on the west by Collier and Hendry Counties and on the north by Palm Beach County. The County's Comprehensive Plan. The County adopted a comprehensive plan in compliance with the Act on March 1, 1989 (hereinafter referred to as the "County Plan"). Volume 1 of the County Plan consists of the Broward County Land Use Plan (hereinafter referred to as the "Land Use Plan"). The Land Use Plan applies throughout the County. Broward County composite exhibit 1. Volume 2 of the County Plan contains the other elements required by the Act. Some of the elements of Volume 2 apply throughout the County and some apply only to unincorporated areas or areas in which the County provides services. Volume 3 of the County Plan consists of supporting documents for the Land Use Plan. Broward County composite exhibit 1. The County Plan includes a 1989 Future Broward County Land Use Plan Map Series (hereinafter referred to as the "FLUM"), which is a part of the Land Use Plan. Broward County exhibit 6. The Land Use Plan establishes several categories of land uses. The future land use categories established are: Residential: A number of uses are allowed within areas designated "residential." The following subcategories, based upon dwelling densities, are established: Estate (1) Residential. Low (2) Residential. Low (3) Residential. Low (5) Residential. Low-Medium (10) Residential. Medium (16) Residential. Medium-High (25) Residential. High (50) Residential. Other subcategories of residential property include: Rural Estates. Rural Rances. Commercial. Office Park. Commercial Recreation. Industrial. Employment Center. Recreation and Open Space. Conservation. Agricultural. Community Facilities. Transportation. Utilities. Regional Activity Centers. Mining. The FLUM depicts the proposed distribution, extent and location of land use designations for the County. The County Plan creates the Broward County Planning Council (hereinafter referred to as the "Planning Council"), as an advisory body to the County Commission. Initial Consideration of the Subject Amendment. The County received a request to amend the County Plan by changing the land use designation of approximately 143 acres of real property from Low-Medium (10), Commercial Recreation and Irregular (6) Residential to primarily Low (5) Residential. In June of 1993 the area included in the application was reduced from 143 acres to 109 acres. The 109 acres are classified as Commercial Recreation. On July 7, 1993, it was requested that the land use designation of the 109 acres being sought by the applicant be reduced to Low (3) Residential. The County approved the request to change the land use designation of the 109 acres of Commercial Recreation to Low (3) Residential (hereinafter referred to as the "Amendment"), and transmitted the Amendment to the Department for review. The Department's Initial Review of the Subject Amendment. The Department reviewed the Amendment and prepared its Objections, Recommendations and Comments report (hereinafter referred to as the "ORC"), dated September 24, 1993. Comments of various entities were considered by the Department during its review. The Department raised two objections to the Amendment in the ORC. One objection was that the County had not provided peak hour analysis of traffic conditions impacted by the Amendment both before and after the Amendment. The Department's objection concerning traffic conditions was based upon comments from the Florida Department of Transportation (hereinafter referred to as "DOT"). DOT had requested that a P.M. peak-hour traffic analysis be provided for roads serving the property which is the subject of the Amendment. The Department also objected to the Amendment because the County had failed to provide adequate data and analysis demonstrating a need for increased residential density to accommodate the projected population. The County's Response to the ORC and Approval of the Amendment. On October 28, 1993, the Planning Council recommended approval and adoption of the Amendment, as modified. On November 10, 1993, the Board of County Commissioners of the County adopted Ordinance 93-42. Included in Ordinance 93-42 were a number of amendments to the County Plan, including the Amendment, PC-93-12. Pursuant to the Amendment, the land use designation of approximately 109 acres of real property, was amended from Commercial Recreation to Low (3) Residential. In response to the ORC, the County informed the Department that a P.M. peak-hour traffic analysis was not required for the Amendment because the Traffic Circulation Element of the County Plan is based upon an analysis of average daily trips. The method utilized in the County Plan utilizes average daily traffic in the calculation of levels of service for affected roadways. In response to the Department's objection concerning the need for additional residential property, the County reported that the Amendment property is located in the southeast sector of the County and that the southeast sector is generally built out. The Department was also informed that facilities and services in the Southeast sector are in place. The County also took the position that the Amendment constitutes "infill" development. Finally, the County pointed out to the Department that the number of dwelling units permitted by the Land Use Plan for the southeast sector have been reduced by over 2,124 units through amendments to the County Plan. The County also informed the Department that revised population figures suggest an additional increase in population for the southeast sector of 1, 327. Therefore, there will be no increase in total projected residential units in the southeast sector as a result of the Amendment. Final Department Review. The Department discussed the County's response concerning traffic projections with DOT. DOT withdrew its objection and the Department accepted the County's explanation. The Department considered and accepted the County's response to the objections contained in the ORC concerning the adequacy of data and analysis to support an increase in residential property. The Department determined that the additional data and analysis were adequate. The suggestion that the Amendment constitutes "in fill" was not part of the reason the Department accepted the County's explanation for why an increase in residential property was being approved. On January 4, 1994 the Department entered a Notice of Intent to find the Amendment in compliance. Ms. Nipe's Challenge to the Amendment. On or about March 11, 1994, Ms. Nipe filed a Petition for Formal Administrative Hearing of Frances Nipe with the Department challenging the Amendment. In the petition, Ms. Nipe alleged that the Amendment is not "in compliance" for essentially the following reasons: The "residential density has not sufficiently been supported by data and analysis that the increase in residential density is necessary to accommodate the projected population." In support of this argument, Ms. Nipe cited Rules 9J-5.006(2)(a) and (c), Florida Administrative Code, and Rules 9J- 11.006(1)(b)4. and (3) [incorrectly cited as 9J-11.00.006(1)(b)4. and (3)], Florida Administrative Code. The Amendment is inconsistent with Broward County Land Use Plan - Chapter 5, Section B, Commercial Recreation Use, 2., . . ." and will have a detrimental impact upon tourism development in the County. The Amendment will further degrade the level of educational services. The Amendment will "place additional trips on existing over capacity roads." The rationale of the applicant for the Amendment is inadequate in that the subject property "contains sufficient acreage that a redesigned golf course would meet USGA Standards as well as accommodate some residential development" and "[n]eighbors and Patrons are not Golf Professionals and don't care if the course meets USGA Standards to the Letter." The Amendment is "highly insensitive to the natural oak hammock areas on the subject property " The Amendment is inconsistent with Objective 02.03.00, Goal 03.00.00, Objective 03.03.00 and Policy 03.03.00 "in that it contradicts the Tourism development policies and undermines the Commercial Recreation Land Use designation." Ms. Nipe also suggested in her petition that the Amendment is inconsistent with the City of Hollywood Comprehensive Plan. I. The Subject Property. The property which is the subject of the Amendment (hereinafter referred to as the "Property"), consists of 109 acres of real property located in the City of Hollywood, a city located in the County. The Property is located in the southeast section of the County. The Property is located east of Southwest 35th Terrace, south of Griffin Road, west of Southwest 31st Avenue and north of Stirling Road. The Property, and the property of which it is a part, is currently being used as a golf course. The golf course is named Oakridge Golf Course. Oakridge Golf Course is an eighteen hole course. Most, but not all, of the eighteen holes are located on the Property. The land use designation of twenty-nine acres of the parcel of property of which the Property is a part has been changed from Commercial Recreation to Commercial. The amendment changing the designation was adopted September 14, 1992 and has become final. The twenty-nine acres of commercial property include portions of four of the holes of Oakridge Golf Course. Oakridge Golf Course is the closest golf course to downtown Fort Lauderdale, a city located in the County; the Fort Lauderdale/Hollywood International Airport; the Broward County Convention Center; Port Everglades, a port used by cruise ships; and several large hotels located in the eastern part of the County. Compliance with the City of Hollywood Comprehensive Plan. The City of Hollywood approved a Land Use Plan Amendment for the Property changing the land use designation of the Property to Low (3) Residential. The City's amendment has become final. The evidence failed to prove that the Amendment is inconsistent with the City of Hollywood Comprehensive Plan. Data and Analysis to Support an Increase in Residential Property. The Land Use Plan includes the following Goal and Objective concerning residential use of property in the County: GOAL 01.00.00 PROVIDE RESIDENTIAL AREAS WITH A VARIETY OF HOUSING TYPES AND DENSITIES OFFERING CONVENIENT AND AFFORDABLE HOUSING OPPORTUNITIES TO ALL SEGMENTS OF BROWARD COUNTY'S POPULATION WHILE MAINTAINING A DESIRED QUALITY OF LIFE AND ADEQUATE PUBLIC SERVICES AND FACILITIES. OBJECTIVE 01.01.00 RESIDENTIAL DENSITIES AND PERMITTED USES IN RESIDENTIAL AREAS. Accommodate the projected population of Broward County by providing adequate areas on the Future Broward County Land Use Plan Map (Series) intended primarily for residential development, but which also permit those non-residential uses that are compatible with and necessary to support residential neighborhoods. The Low (3) Residential land use designation is defined by the County Plan as permitting "up to three (3) dwelling units per gross acre." Page IV-23, Volume one, BC exhibit 1. There has been a decrease of 2,214 dwelling units in the southeast sector of the County while the County's projected population increase has been increased by 1,327 people. The evidence failed to prove that consideration of population needs of the southeast sector of the County is unreasonable or inappropriate. The evidence also failed to prove that consideration of the need for residential property by sectors is inconsistent with the County Plan or otherwise is unreasonable. The City of Hollywood currently has sufficient land for approximately six thousand housing units. The evidence, however, failed to prove that all of the land can be utilized to meet future housing needs. As stated by Robert L. Davis, the Director of Community Planning and Development of the City of Hollywood, "[i]t really to be perfectly understood you need to explore the locational aspects of where that area is, how large an area it is and what inducement it would have to really encourage the kind of investment we think is necessary." Pages 276-277 of the transcript of the final hearing. Ms. Nipe failed to present evidence to prove that the information submitted to the Department in response to the ORC as Attachment 8 to the Staff Report was inadequate to support the County's suggestion that the increase in residential property is necessary to accommodate projected population for the County. Ms. Nipe also failed to present evidence to refute the methodologies used by the County and accepted by the Department. Commercial Recreation Requirements of the Plan. The "Plan Implementation Requirements" of the Land Use Plan provides the following concerning the Commercial Recreation land use designation: Commercial Recreation areas are designated on the Future Broward County Land Plan Map (Series), consistent with Objective 02.03.00, to accommodate major public and private commercial recreation facilities which offer recreational opportunities to the residents and tourists of Broward County. Although some of these facilities operate as an adjunct to or an integral part of other types of development, most of these facilities were conceived as profit-making enterprises. Commercial recreation ventures in Broward County can be divided into two categories; golf courses and commercial recreation associated with structures and/or indoor facilities. Those uses permitted in areas designated commercial recreation are as follows: Outdoor and indoor recreation facilities such as active recreation complexes, marinas, stadiums, jai-alai frontons, bowling alleys, golf courses, and dog and horse racing facilities. Accessory facilities, including outdoor and indoor recreation facilities, that are determined by the local government entity to be an integral part of and supportive to the primary recreation facility (excluding residential uses). Hotels, motels and similar lodging ancillary to the primary commercial recreation use. Other active and passive recreation uses. Recreational vehicle sites at a maximum density of ten (10) sites per gross acre if permanent location of recreational vehicles on the site is permitted by the local land development regulations, or twenty (20) sites per gross acre if such location is prohibited by the local land development regulations; subject to the allocation by the local government entity of available flexibility or reserve units. The following Objective and Policy relating to the Commercial Recreation land use designation is provided in the Land Use Plan: OBJECTIVE 02.03.00 COMMERCIAL RECREATION USE CATEGORY Establish within the Future Broward County Land Use Plan Map (Series) a commercial recreation category which would encompass those public and private recreational facilities necessary within a resort area such as Broward County. POLICY 02.03.01 Permit those uses within designated commercial recreation areas which are identified in the Commercial Recreation Permitted Uses subsection of the Plan Implementation Requirements section of the Broward County Land Use Plan. Objective 02.03.00 merely requires the establishment of a "commercial recreation" category in the County Plan. It does not require that any specific amount of land be designated as commercial recreation or that, once so designated, the designation of a parcel of real property as commercial recreation should not be changed. Policy 02.03.01 merely requires that any parcel of real property classified as commercial recreation may be utilized for the purposes identified in the Commercial Recreation Permitted Uses subsection of the Plan Implementation Requirements section of the County Plan. This policy does not require that any specific amount of land be designated as commercial recreation or that, once so designated, the designation of a parcel of real property as commercial recreation should not be changed. The "Plan Implementation Requirements" of the Land Use Plan concerning the Commercial Recreation land use designation merely explain the purpose of the designation and identify the permitted uses within areas designated commercial recreation. There is no requirement contained in the Plan Implementation Requirements that a certain amount of land be designated commercial recreation or that, once so-designated, real property cannot be placed in a different category. The evidence failed to prove that the County Plan prohibits the reclassification of real property from commercial recreation to other categories. No provision of the County Plan has been referred to that establishes a minimum requirement for commercial recreation. The Property is not considered part of the parks and recreation property on the County. Therefore, the Amendment will not result in a decrease in the level of parks and recreation services available. Ms. Nipe failed to prove that the Amendment is inconsistent with the County Plan as alleged in her petition. Degradation of School Services. The County Plan does not establish "levels of service" for schools or a methodology for determining schools that are "affected" by an amendment. Although the County has adopted goals, objectives and policies pertaining to educational facilities, those goals, objective and policies were not in effect at the time the Amendment was adopted. The evidence failed to prove that any school services will be degraded as a result of the Amendment or that the impact of the Amendment on school services was not considered by the County in adopting the Amendment. Ms. Nipe failed to prove that the Amendment is inconsistent with any portion of the County Plan dealing with school services. Degradation of Roads. There are a number of goals, objectives and policies contained in the County Plan which address the issue of traffic facilities and circulation. Ms. Nipe has failed to cite any of those provisions in support of her argument that the Amendment "would place additional trips on existing over capacity roads. The County and Swerdlow have cited a number of provisions of the County Plan that deal with transportation. Those findings (County 37 and 38) are hereby incorporated into this Recommended Order. An analysis of the traffic impact of the Amendment was prepared by the Planning Council and presented to the County for consideration. That analysis addressed: the net difference between vehicular trips from the golf course and those expected from the new classification of the Property; the distribution of the projected increase in traffic to affected roads (Griffin Road in the north and Stirling Road in the south); the average daily traffic on affected roads after the increase in traffic; and the anticipated level of service of the affected roads in the years 1997 and 2010. The County's analysis indicated that the Amendment would not cause the affected roads to exceed the level of service contained in the County Plan in the short-term or long-term. The method used in the County Plan and utilized in conjunction with the Amendment is consistent with plan amendment data and analysis requirements of Rule 9J-5 and Rule 9J-11, Florida Administrative Code. The only evidence offered by Ms. Nipe in support of her challenge concerning traffic impact is a memorandum from "Roy Groves" of the County Office of Planning. Mr. Groves did not testify in this proceeding. The comments made by Mr. Groves, therefore, cannot be relied upon to support Ms. Nipe's contention. Additionally, Mr. Groves' comments deal with a "compact deferral area" resulting from an over-capacity road segment of State Road 7 and U.S. 441. The evidence failed to prove that the roads impacted by the Amendment are part of a compact deferral area or that State Road 7 and/or U.S. 441 will be impacted. Ms. Nipe failed to prove that the impact on traffic of the Amendment is inconsistent with the Act, Chapter 9J-5, Florida Administrative Code or the County Plan. The Applicant's Rationale for the Amendment. The Planning Council informed the County of the reasons advanced by the applicant for the Amendment. It was suggested that the proposed classification of the Property is consistent with the surrounding area and that the continued operation of the golf course is not longer financially feasible. The evidence failed to prove that the Act and the rules promulgated thereunder, state and regional plans, or the County Plan require that applicants for County Plan amendments include a rationale or justification for the requested amendment. The evidence also failed to prove that the applicant's rationale provided formed the basis for the County's decision to adopt the Amendment. The Impact on Oak Hammocks. The Property does not include any oak hammocks. The evidence failed to prove that there will be any impact on oak hammocks as a result of approval of the Amendment. Enhancement to the County's Tourist Industry. The County Plan contains the following Goal, Objective and Policy relating to the tourist industry in the County: GOAL 03.00.00 ACHIEVE A MORE DIVERSIFIED LOCAL ECONOMY BY PROMOTING TOURISM AND INDUSTRIAL GROWTH AND PROVIDING OPTIMUM PROTECTION OF THE COUNTY'S ENVIRONMENT AND MAINTAINING A DESIRED QUALITY OF LIFE. . . . . OBJECTIVE 03.03.00 ENHANCE BROWARD COUNTY'S TOURIST INDUSTRY Increase Broward County's attractiveness to tourists through the establishment of a land use pattern and development regulations aimed at enhancing the area's natural and man-made environments such as beaches, shorelines and marine facilities. . . . . POLICY 03.03.03 Activities intended to diversify Broward County's economy should not adversely impact the quality of life of the County's permanent, seasonal, or tourist populations. The evidence failed to prove that the Amendment is inconsistent with the requirements of the Goal, Objective or Policy quoted in finding of fact 78. There will still be three golf courses owned by the City of Hollywood and three privately owned golf courses open to the public in the City of Hollywood after the closure of Oakridge Golf Course. Although there was testimony concerning the proximity of the Property to various areas of the County, the evidence failed to prove that tourist are attracted to the Property or that the loss of the golf course on the Property will adversely impact the tourist industry in Broward County. There was also evidence that there are a limited number of commercial recreation uses of property such as golf courses in the County and that the establishment of additional commercial recreation golf courses is unlikely in urban areas. That evidence, however, failed to prove that the limited number of such uses is inadequate or that there is a need for additional golf courses.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a Final Order finding that the Broward County Comprehensive Plan, as amended by Ordinance 93- 42, is "in compliance" within the meaning of Section 163.3184(1)(b), Florida Administrative Code (1993). DONE AND ENTERED this 28th day of July, 1994, in Tallahassee, Florida. LARRY J. SARTIN 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 28th day of July, 1994. APPENDIX Case Number 94-1610GM The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Ms. Nipe's Proposed Findings of Fact Accepted in 35 and 36. Statement of law. 3 Accepted in 10, 20, 27 and 41-42. 4 Accepted in 20 and 27. 5-6 Accepted in 56. 7-9 Accepted in 55. 10-11 Accepted in 43. 12-13 Although true, Ms. Nipe failed to explain the relevancy of these findings. See 57-60. 14-18 Accepted in 45. Although true, Ms. Nipe failed to explain the relevancy of these findings. See 57-60. Not supported by the weight of the evidence. 21-23 Accepted in 78. 24 Not relevant. 25-26 Not relevant. These proposed findings pertain to arguments not raised in Ms. Nipe's petition. 27 Accepted in 27. 28-29 Not relevant. 30-31 Accepted in 82. 32 Not relevant. These proposed findings pertain to arguments not raised in Ms. Nipe's petition. 33-34 Hereby accepted. See 52. Not supported by the weight of the evidence. The County's Proposed Findings of Fact Accepted in 1. Accepted in 4. Accepted in 3. Accepted in 5 and 7. Accepted in 6. Accepted in 10. Accepted in 11-12. Accepted in 13. Accepted in 17. Accepted in 14. Accepted in 15. Accepted in 26. Accepted in 20 and 27. Accepted in 41-42. Not relevant. Accepted in 18. Accepted in 19. 18-19 Accepted in 20. 20 Accepted in 25. 21-22 Hereby accepted. Accepted in 26. Accepted in 34. Accepted in 78. Hereby accepted. Accepted in 79. Accepted in 55. Accepted in 56. Accepted in 55. 31-32 Not relevant. Accepted in 49. Hereby accepted. Accepted in 49. Not relevant. Accepted in 67. To the extent relevant, accepted in 67. Not relevant. See 64. Accepted in 63. 41-45 Not relevant. The issue that these proposed findings relate to was not sufficiently raised in Ms. Nipe's petition. 46 Accepted in 57-60. 47-48 See 65. 49 Not relevant. 50 See 65. 51 Not relevant. See 64. 52 Accepted in 76. 53-54 Not relevant. 55 Hereby accepted and see 36. 56-61 Not relevant. 62-63 Accepted in 74. 64 Accepted in 73. 65-66 Accepted in 21. Accepted in 24 and hereby accepted. Hereby accepted. Accepted in 29 and 51. Accepted in 31. Accepted in 33. Accepted in 53-54. Accepted in 36. Accepted in 23 and hereby accepted. Accepted in 28. Accepted in 23. Accepted in 32. Accepted in 68. 79-84 Hereby Accepted. Accepted in 68. Accepted in 70. Accepted in 71. 88-91 Hereby accepted. 92 Accepted in 72. 93-94 Not relevant. The Department's Proposed Findings of Fact 1 Accepted in 1-2. 2 Accepted in 4. 3 Accepted in 3. 4 Accepted in 5. 4 Accepted in 6. 5 Accepted in 8. 6 Accepted in 9. 7 Accepted in 10. 8 Accepted in 11. 9-10 Volume 2 was not offered into evidence. 11-12 Accepted in 15. 13-14 Accepted in 56 and 78. Accepted in 57-58 and 79 Accepted in 26. Accepted in 35-36. Accepted in 20 and 27. Accepted in 38 and 40-41. The Property is not, however, in the unincorporated area. Accepted in 21-22. Accepted in 23-24. Accepted in 23. Accepted in 29 and 31. Accepted in 28, 70 and 72. Accepted in 33. Accepted in 32. Hereby accepted. Accepted in 53-54. The last sentence is not supported by the weight of the evidence. Accepted in 65-66. Swerdlow's Proposed Findings of Fact Accepted in 1. Accepted in 2. Accepted in 4. Accepted in 3. Accepted in 5 and 7. Accepted in 6. Accepted in 8. Accepted in 9. Accepted in 10. Accepted in 11-12. Accepted in 13. Accepted in 17. Accepted in 14. Accepted in 16. Accepted in 55. See 15. Accepted in 15 and 49. Accepted in 48. Accepted in 26. Accepted in 35-36. Accepted in 20 and 27. Accepted in 38-40. Accepted in 41. Accepted in 43. Accepted in 46. Accepted in 18. Accepted in 19. Accepted in 20. Accepted in 20. 30-32 Hereby accepted. Accepted in 26. Accepted in 21 Accepted in 21 and 23. Accepted in 23. Accepted in 228 and 32. Accepted in 32. Accepted in 24. Accepted in 29 and 31. Accepted in 33. Accepted in 33 and hereby accepted. Accepted in 34. Accepted in 53. Accepted in 50. Accepted in 51. Accepted in 36. Accepted in 36 and 55. 49-50 Accepted in 57-60. 51-56 Not relevant. Accepted in 36. Accepted in 63. See 64. Accepted in 65. See 65. Not relevant. Accepted in 65. Not relevant. Accepted in 36. 66-67 Accepted in 71 68-69 Hereby accepted. 70 Accepted in 68. 71-73 Hereby accepted. Accepted in 67. Hereby accepted. Accepted in 68-69. Hereby accepted. Accepted in 68. Hereby accepted. 80-81 Hereby accepted. Accepted in 68-69. Accepted in 67. 84-85 Hereby accepted. Accepted in 23. Accepted in 32. Accepted in 36. 89-90 Accepted in 74. Accepted in 36. Accepted in 76-77. Accepted in 79. Accepted in 81. Accepted in 80. COPIES FURNISHED: Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan Stengle, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Chris Mancino, Esquire 1215 Southeast Second Avenue, Suite 102 Fort Lauderdale, Florida 33316 Brigette A. Ffolkes Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Tracy H. Lautenschlager Assistant County Attorney 115 South Andrews Avenue Room 423 Ft. Lauderdale, Florida 33301 Barbara A. Hall, Esquire 515 East Las Olas Boulevard Suite 1500 Ft. Lauderdale, Florida 33301 William S. Spencer, Esquire Post Office Box 6 Hollywood, Florida 33022 Edwin J. Stacker, Esquire Post Office Box 1900 Ft. Lauderdale, Florida 33302 John H. Pelzer, Esquire Post Office Box 1900 Ft. Lauderdale, Florida 33302
The Issue The issue for determination is whether Respondent committed the offenses set forth in the administrative complaint, and, if so, what action should be taken.
Findings Of Fact At all times material hereto, John William Renner (Respondent) was licensed as a land surveyor in the State of Florida, having been issued license number LS 0004739. Respondent has been a licensed land surveyor since July 13, 1989. The minimum technical standards for surveys are set forth in Rule 21HH- 6, Florida Administrative Code, (Rule) of the Board of Professional Surveyors and Mappers (Petitioner). The Rule sets forth minimum standards which are expected and required of all surveyors. No deviation from the required minimum standards are permitted. A surveyor must first satisfy the minimum technical standards before applying community standards of local custom to a survey. On or about March 30, 1992, Respondent performed a survey of a lot described as: Lot 13, Block 1, Plat I of Sky Lake, according to the plat recorded in Plat Book 39, Pages 133-134, as recorded in the public records of Palm Beach County, Florida. Different surveyors, examining Respondent's survey, would have differing opinions regarding his survey. However, no deviation from the required minimum technical standards is permitted. As part of Petitioner's investigation of Respondent's alleged violations of the Rule, Petitioner requested a copy of the original survey. Respondent had misplaced the original and never complied with Petitioner's request. Petitioner obtained the original survey from the title company. The survey was certified by Respondent with his signature and seal. It is undisputed that Respondent's product is a boundary survey. However, he failed to state on the survey the type of survey that the certified drawing represents. The subdivision in which the Lot is located is platted. The boundary survey plats the Lot. Since the filing of the administrative complaint against him, Respondent has become aware that his surveys must identify the type of survey that his certified drawings represent. Respondent made field notes during the preparation of the survey. Field notes are records of observations and measurements made in the field and support the survey. Also, as part of its investigation, Petitioner requested a copy of Respondent's field notes which contained the measurements that he had made in the field. Respondent could not locate his field notes and was, therefore, unable to produce them; but agreed to produce the field notes when he located them. Respondent failed to maintain his field notes. Prior to hearing, through discovery, Respondent informed Petitioner that he had located his field notes but again failed to produce them to Petitioner. Finally, at hearing, approximately two years after Petitioner's investigative request, Respondent produced his field notes. Respondent's boundary survey provides, among other things, that the "Bearings Are Based On Plat." The plat is not a line; it is a document. Respondent failed to provide the well-established line upon which the bearings are based. Groups of lots within a platted subdivision are controlled by permanent control points (PCP) and permanent reference markers (PRM). The PRMs define the boundaries of a subdivision. The distance between the PCPs is referred to as a record distance which is shown on the subdivision plat of record. After a surveyor locates the PCPs and the PRMs, the surveyor measures the distance from PCP to PCP and from PRM to PRM. The measured distance in the field is compared with the recorded distance. Rarely are the recorded distance and the measured distance the same. In a discrepancy, with the acceptable margin of error, each lot between the PCPs receives its proportionate share of the measurement. Respondent's field notes indicate that he measured from PCP to PCP. However, there is no indication on the survey that he made the measurement. Respondent failed to show on the survey drawing the discrepancy between the recorded distance and the measured distance in the field. The discrepancy is four-hundreths of a foot, which is not significant in and of itself, but is important because the discrepancy adds more that 600 feet to the PCP. The plat of the subdivision indicates a 180 foot wide canal right of way along the west property line of the Lot. It is undisputed that Respondent failed to show the canal right of way on his survey drawing. Respondent's survey drawing indicates a fence along the north property line of the Lot. Nevertheless, it is undisputed that Respondent's dimensions are inadequate and insufficient to show the distance from the fence to the property line, i.e., the proximity of the fence to the property line. Also, Respondent's survey drawing shows three squares drawn along the south side of the residence on the Lot, showing concrete improvements. Even though Respondent's field notes indicate measurements for the squares, his survey drawing fails to identify the squares, as to what they represent, and fails to show their dimensions. As a result, no determination can be made as to whether the concrete improvements may affect property value. A surveyor is given some latitude as to whether a concrete improvement is fixed and pertinent to the survey, and, therefore, deference is given to the surveyor's judgment. Respondent's survey drawing indicates that the concrete improvements are not fixed and not pertinent to the survey. Appearing on Respondent's survey drawing are the three abbreviations BM, C. B. S., and CL, with the C and L intersecting. These abbreviations are not generally used by the public. BM and C. B. S. are not shown in the legend. Even though the abbreviation CL is in the legend, the C and L are not intersecting. A finding is made that the abbreviation CL, with the C and L intersecting, is not included in the survey's legend. Respondent's survey indicates the basis for elevations, referencing that "Elevations Based on County BM CL Old Boynton", with the C and L intersecting. BM is the abbreviation for benchmark. The survey did not describe the benchmark, identify the county or provide the published elevation. Referenced elevations must be based on an established benchmark. If a benchmark is referenced, its description should be sufficient to locate the benchmark and use it. Respondent's benchmark description fails to provide a basis for locating the benchmark or determining its elevation. In June 1992, after attending a minimum technical standards seminar, Respondent responded to allegations made by a Mr. Dennis Painter regarding the survey. 1/ In his response, Respondent agreed with some of the allegations, and, as a result, Respondent indicated that he made the appropriate revisions to the survey. No evidence was presented at hearing regarding the nature of Mr. Painter's allegations, so there was no opportunity to examine Respondent's responses as they relate to the allegations made.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Professional Surveyors and Mappers enter a final order: Reprimanding Respondent; Imposing a $500 administrative fine; and Placing Respondent on probation for one (1) year under terms and conditions deemed appropriate by the Board. DONE AND ENTERED this 7th day of February, 1997, in Tallahassee, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 1997.
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.
Findings Of Fact Respondent has been licensed to practice land surveying in Florida at all times relevant to this proceeding. However, between January 31, 1983 and August 27, 1983, his license was inactive due to his failure to renew. His license was reinstated automatically upon payment of the $80 biannual renewal fee in August, 1983, along with payment of a $20 late fee levied by Petitioner. On May 12, 1983, while his license was inactive, Respondent signed a boundary survey in his capacity as a registered land surveyor which included the following certification: "I hereby certify that the plat shown hereon is a true and correct representation of a survey of the property described in the caption thereof, made under my direction, and is accurate to the best of my knowledge and belief, and there are no encroachments unless shown." The property at issue was surveyed by Mr. Teddy O. Potter, who has a surveying business in West Palm Beach, but is not licensed as a land surveyor. Respondent is a former business associate of Potter's and certified the drawing as a favor to Potter. Respondent had not visited the property or participated in the boundary survey in any way. His certification was based on his inspection of the drawing and faith in Potter whom he had earlier trained. The property is owned by Mr. Thomas Burdsall who originally retained Potter to survey the property for mortgage purposes in 1979. The survey at issue here was required for the construction of a warehouse. Burdsall again contacted Potter who updated his 1979 drawing without resurveying the property. It should be noted that Respondent was not involved in the earlier survey, which was certified by another Potter associate. Utilizing Potter's boundary markers and the drawing certified by Respondent, Burdsall's contractor laid out the building and began construction. Potter then did a third (tie- in) survey revising the May 12, 1983 survey to show actual building placement. This tie-in survey revealed no encroachment. Subsequent to the tie-in survey, City inspectors observed what they believed was encroachment by the partially completed structure. A meeting was held and Potter agreed to call in a registered land surveyor to conduct a resurvey. Potter retained Mr. Robert Turso, a registered land surveyor, who conducted the resurvey and confirmed the suspected encroachment. As a result, it was necessary to remove and rebuild portions of the newly constructed building at considerable expense to the owner, Thomas Burdsall. The testimony of Petitioner's expert witness established that the survey certified by Respondent failed to meet certain minimum technical standards recognized in the land surveyors' profession which are set forth in Rule 21HH-6.03, Florida Administrative Code (F.A.C). Specifically, the following deficiencies were identified: 21HH-6.03(4), F.A.C., requires that reference to all bearings be shown and clearly stated. In the subject survey drawing, no bearings were shown. 21HH-6.03(6), F.A.C., requires the survey to comply with the real property description and all discrepancies with the boundary corners from the boundary lines shown by the survey are to be indicated. Here, the corners were not shown nor were the discrepancies between those corners and plat dimensions shown. 21HH-6.03(7), F.A.C., requires all angles to be shown directly on the drawing or by bearings or azimuths. In this survey, no angles were shown. 21HH-6.03(8), F.A.C., requires that the intersection and the distance to the nearest intersection be shown. These requirements were not met. 21HH-6.02(10), F.A.C., requires adjoining lots and blocks be shown in surveys of lots in recorded subdivisions. This requirement was not met. 21HH-6.03(18), F.A.C., requires monuments to be found or set. This was not accomplished, and no corners were shown on the drawing to be found or set. 21HH-6.03(19), F.A.C., requires boundary monuments be appropriately constructed, identified and set. This was not accomplished here.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order suspending Respondent's license as a land surveyor for a period of four months. DONE and ENTERED this 14th day of November, 1984 in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 FILED with the Clerk of the Division of Administrative Hearings this 14th day of November, 1984. COPIES FURNISHED: Joseph Shields, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Allen R. Smith, Esquire Executive Director Board of Land Surveyors 130 North Monroe Street Tallahassee, Florida 32301 Ralph G. Purvis Post Office Box 16084 West Palm Beach, Florida 33406 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Joseph W. Lawrence, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
The Issue The issue is whether the proposed site is consistent and in compliance with existing land use plans and zoning ordinances.
Findings Of Fact NOTICE In compliance with Rule 17-17.151(4)(e), Florida Administrative Code, notice of the hearing was published in the Florida Administrative Weekly on October 2, 1992. A news release containing notice of the hearing was given to the media on September 21, 1992, and October 21, 1992. A copy of the public notice was sent by certified mail, return receipt requested, to the chief executives of the local authority responsible for zoning and land use planning in Dade County, in compliance with Rule 17-17.151(4)(b), Florida Administrative Code. A copy of the public notice was posted at the site in compliance with Rule 17-17.151(4)(c), Florida Administrative Code. Additionally, notice was published on September 25, 1992, in the Miami Review, a newspaper of general circulation in Dade County, in compliance with Rule 17-17.151(4)(a), Florida Administrative Code. LAND USE AND ZONING CONPLIANCE The proposed expansion of Dade County's Resource Recovery Facility, as set forth in its Site Certification Application, will be within the confines of the certified site of the existing resource recovery facility. Hence, that existing site carries a presumption that its current use is consistent with land use considerations. The site of the proposed expansion is consistent with the Dade County Comprehensive Development Master Plan (Dade Master Plan) pursuant to the Growth Management Act of 1985. More particularly, the site has a land use designation of "Institutional and Public Facility" on the Future Land Use Plan Map of the Dade Master Plan. The "Institutional and Public Facility" designation permits the construction and operation of a resource recovery facility. Also, the proposed expansion of Dade County's Resource Recovery Facility is consistent with: Objective 5 and Policies 5-A and 5-B as set forth in the interpretive text to the Land Use Element of the Dade Master Plan; Objective 3 and Policies 3-A, 3-B, 3-C, 3-D, 3-E and 3-F of the Conservation Element of the Dade Master Plan; and Policies 1-K and 4-B of the Water, Sewer and Solid Waste Elements of the Dade Master Plan. The existing site is presently within the GU interim district. Resolution R-569-75, which granted county approval for the existing site, satisfies the need to show compliance with the zoning ordinance. The proposed expansion of the Dade County Resource Recovery Facility is consistent with the zoning code found in Chapter 33 of the Code of Metropolitan Dade County as well as Resolution R-569-75.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Final Order determining that the site of the proposed Dade County expansion of its resource recovery facility is consistent and in compliance with existing land use plans and zoning ordinances. DONE and ENTERED this 24th day of November, 1992, at Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 1992. APPENDIX TO RECOMNENDED ORDER IN CASE NO. 92-4672EPP The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Applicant, Dade County Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2-4(1); 5(2); 6(4); and 7(5). Proposed finding of fact 1 is unnecessary. COPIES FURNISHED: Ross McVoy, Attorney at Law Fine Jacobson Schwartz Nash & Block 215 South Monroe, Suite 804 Tallahassee, Florida 32301-1859 Stanley B. Price, Attorney at Law Fine Jacobson Schwartz Nash & Block 100 Southeast 2nd Street Suite 3600 Miami, Florida 33131-2130 Representing the Applicant Richard Donelan Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Representing DER Hamilton S. Oven, Jr. Office of Siting Coordination Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Gail Fels Assistant County Attorney Metro Dade Center, Suite 2800 111 Northwest First Street Miami, Florida 33128 Representing Dade County Lucky T. Osho Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Representing DCA William H. Roberts Assistant General Counsel Department of Transportation 605 Suwanee Street, MS-58 Tallahassee, Florida 32399-0458 Representing DOT Toni M. Leidy Attorney at Law South Florida Water Management District 3301 Gun Club Road Post Office Box 24680 West Palm Beach, Florida 33416-4680 Representing SFWMD Michael Palecki, Chief Bureau of Electric & Gas Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32399-0850 Representing PSC M. B. Adelson IV Assistant General Counsel Department of Natural Resources 3900 Commonwealth Blvd., MS-35 Tallahassee, Florida 32399-3000 Representing DNR James Antista, General Counsel Florida Game and Fresh Water Fish Commission Bryant Building 630 South Meridian Street Tallahassee, Florida 32399-1600 Representing GFWFC Carolyn Dekle, Executive Director Sam Goren, Attorney at Law South Florida Regional Planning Council 3440 Hollywood Boulevard, Suite 140 Hollywood, Florida 33021 Representing South Florida Regional Planning Council David M. DeMaio Attorney at Law One Costa del Sol Boulevard Miami, Florida 33178 Representing West Dade Federation of Homeowner Associations Honorable Lawton Chiles Honorable Jim Smith Governor Secretary of State State of Florida State of Florida The Capitol The Capitol, PL-02 Tallahassee, Florida 32399 Tallahassee, Florida 32399-0250 Honorable Robert A. Butterworth Honorable Tom Gallagher Attorney General Treasurer and Insurance State of Florida Commissioner The Capitol State of Florida Tallahassee, Florida 32399-1050 The Capitol Tallahassee, Florida 32399 Honorable Bob Crawford Commissioner of Agriculture Honorable Gerald A. Lewis State of Florida Comptroller The Capitol State of Florida Tallahassee, Florida 32399-0810 The Capitol, Plaza Level Tallahassee, Florida 32399 Honorable Betty Castor Commissioner of Education State of Florida The Capitol Tallahassee, Florida 32399
The Issue The matters in dispute in this cause concern the attempts by Petitioner to achieve licensure in the State of Florida as a registered land surveyor, pursuant to Chapter 472, Florida Statutes, and through Rule 21HH-3.01, Florida Administrative Code. In particular, Respondent asserts that Petitioner has not met the necessary prerequisites in Section 472.013, Florida Statutes, to allow him to stand the licensing examination. Moreover, Respondent has not allowed Petitioner to gain licensure by endorsement as defined in Subsection 472.015 (3) , Florida Statutes. Petitioner contends that he is entitled to licensure by endorsement or in the alternative, to stand the examination, leading to his licensure by testing. WITNESSES AND EXHIBITS Petitioner testified in this cause and offered two exhibits which were received. Respondent presented a composite exhibit which is constituted of file materials related to the Petitioner's application for licensure and responses to the application request.
Findings Of Fact Petitioner is a retiree from the United States Army, having served 22 years, commencing in 1955. During his service, he obtained military occupational specialties related to the field of surveying in the artillery branch. This experience included occupational training given to Petitioner and examinations of his skills following that training; practical surveying work, and instructional work by Petitioner performed for the benefit of other trainees. This work experience included surveying activities in Florida while in the military. Those surveying duties were military assignments. Material related to Petitioner's training and job performance is generally set forth in Respondent's Exhibit No. 1. Petitioner's Exhibits Nos. 1 and 2 are further statements related to the Petitioner's military occupational specialties. Petitioner has made application to be licensed as a land surveyor in Florida in keeping with the provisions of Chapter 472, Florida Statutes. Through this process, it is Petitioner's desire to be accepted for licensure through the endorsement process or be given the opportunity to sit for the examination. Respondent is unwilling to accent Petitioner as a candidate for licensure by endorsement. In this connection, he did not establish his successful completion of an examination identified in Subsection 472.015(3)(a), Florida Statutes, or that he holds a valid license from another jurisdiction within the meaning of Subsection 472.015(3)(b) , Florida Statutes. After reviewing Petitioner's application, Respondent through correspondence dated September 10, 1982, denied Petitioner's reguest for licensure by examination premised upon the fact that Petitioner's land surveying experience was not verified by a registered land surveyor who had employed or supervised Petitioner's work. In addition, the letter of denial of licensure indicated that the applicant's file was not complete in that it failed to account for work experience following Petitioner's retirement from the armed services in 1976. (In the course of the hearing, it was established that Petitioner has not practiced land surveying following his retirement.) Notwithstanding his considerable experience, Petitioner has failed to submit by application and/or in the course of the final hearing, documentation which would verify that Petitioner has gained his experience in the field of surveying as a sub- ordinate to a land surveyor as defined in Subsection 472.005(3), Florida Statutes. His documentation did not identify that Petitioner's supervisors or commanders were land surveyors as previously defined and Petitioner did not establish in the hearing that his superiors were land surveyors, as defined. As a consequence, Petitioner failed to provide references from land surveyors setting forth the quality and character of his duties and responsibilities while under the land surveyor's supervision. After receiving the letter of denial of the application, Petitioner made a timely request for a formal Subsection 120.57(1), Florida Statutes, hearing. This matter was transmitted to the Division of Administrative Hearings and received by that Division on October 18, 1982. An initial hearing date was established for December 8, 1982, and was continued to allow for the negotiations between the parties. The case was subsequently reset for final hearing on March 16, 1983, the date the final hearing was conducted.
