The Issue The issue in this case is whether the amendment to the Future Land Use Map of the Clay County Comprehensive Plan, adopted by Ordinance No. 2007-53, is “in compliance” as that term is defined in Section 163.3184(1)(b), Florida Statutes (2007).1
Findings Of Fact The Parties The Department is the state land planning agency and is statutorily charged with the duty of reviewing comprehensive plans and amendments thereto, and determining whether a plan or amendment is “in compliance.” Clay County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time pursuant to Section 163.3167(1)(b), Florida Statutes. The parties stipulated that each Petitioner is an “affected person” as that term is defined in Section 163.3184(1)(a), Florida Statutes. Each Petitioner owns property in Clay County and timely submitted comments and objections regarding the amendment to the Clay County Board of County Commissioners. The parties stipulated that Intervenors are “affected persons.” Intervenors Kingsley Beach, LLC, and Kingsley Ventures Development Co., LLC, are the owners of the subject property. Avery C. Roberts is the managing member of each. The Amendment The amendment changes the FLUM land use designation for two parcels of land totaling 47.06 acres, located between County Road 16A and Kingsley Lake (“the property”) from Rural Residential to Rural Fringe. The Rural Residential category has a base density of 1 dwelling unit per 5 acres, but provides for up to 1 unit per acre through application of a points system established in the Future Land Use Element (FLUE) of the comprehensive plan. The Rural Fringe category has a base density of 1 unit per acre, but points can be used to increase the density to 2 units per acre. With clustering, the density can be further increased to 3 units per acre. The County adopted the amendment designating the property as Rural Fringe and added a notation on the FLUM that the maximum permitted residential units on the property is 70, corresponding to a maximum density of 1.5 units per acre. The result is an amendment that creates a hybrid land use category for the property, with development rights different than those normally applicable to Rural Fringe.2 Existing Uses and Conditions of the Property The property is located on the north side of Kingsley Lake, an Outstanding Florida Water. The eastern parcel is known as the Kingsley Lake Campground and RV Resort, which contains 253 recreational vehicle camping spaces, 13 cabins, a gatehouse, a boat ramp, a restaurant, an office, and a number of other ancillary buildings. The western parcel has been used since the 1950's as a recreational area for swimming, picnicking, and boating. It contains a boat ramp, a three-story frame building and other scattered buildings. The property is not longer in active use. The property is located on a paved road with access to nearby county and state roads which meet or exceed adopted level of service standards. Public water and sewer services are not available to the property. The property is within one mile of fire and emergency medical services. The property is within school bus service. The property is suitable for construction of a stormwater management system which can meet the design criteria for discharging into Kingsley Lake. There are no wetlands on the property. Although only relevant as an example of what development is possible under the amendment, the Intervenors propose to develop a 70-unit, private, gated, residential subdivision to be called Kingsley Cove, which would be served by a community-scale potable water system and septic tanks. The Kingsley Lake Community The property is located in the 560-acre Kingsley Lake “community” or “enclave,” which is unusual in that it is completely surrounded by the 72,000-acre Camp Blanding Military Installation. In addition to the development on the subject property, the Kingsley Lake community includes a convenience store, a church, a cemetery, a county-owned parcel, a community club, and residential properties. Most of the residential properties are located on the lakefront and have docks and private boathouses. Excluding the subject property, the Kingsley Lake community contains about 249 homes. The average density of the residential parcels in the community is two dwelling units per acre (du/a). Approximately 30 percent of the lots in the Kingsley Lake enclave are smaller than half an acre and approximately 60 percent are smaller than one acre. More than half of the residential parcels in the community exceed 1.5 du/a. Petitioners each own property within the Kingsley Lake community. Petitioner Treece's lot is 0.6 acres. Petitioner Murphree's lot is a half acre. Petitioner Leseman's lot is 8.0 acres. The Kingsley Lake community is located 8.75 miles at its closest point from another urban service area. Rural Character Petitioners claim that the amendment would destroy the rural character of the Kingsley Lake community. However, it was disputed at the hearing whether the Kingsley Lake community has much rural character. When Petitioners’ witnesses testified about the rural character of the community, they used the term “rural” as synonymous with “rustic,” “quaint,” “historical,” or “old- Florida.” The County’s 2007 Evaluation and Appraisal Report (EAR) refers to rural character in the County, generally, as a “country lifestyle.” One distraction from the rural character of the Kingsley Lake community is its surrounding by Camp Blanding, an active military installation which creates “uncommon disturbances,” primarily noises that occur at all hours. The County has legislatively determined through its comprehensive plan that there are degrees of rural character, and those degrees are reflected in three rural residential land use categories: Rural Residential, Rural Reserve, and Rural Fringe. The average residential density in the Kingsley Lake community is greater than is allowed under its current Rural Residential land use category. The community has densities associated with the Rural Reserve and Rural Fringe categories. The comprehensive plan does not contain a description of the Rural Fringe land use category or a statement of the County’s specific intent with regard to this category, other than its cap on residential density. The lack of detail in the plan makes the task of determining whether the amendment is in compliance more difficult. Beyond the restriction of land uses and establishment of density limits, the protection of rural character is difficult, because new dwellings generally cannot be required to look the same (e.g., rustic) as older, existing dwellings. With regard to rural vistas, Petitioners presented no evidence to show, for example, that existing lake views would be adversely affected or that incompatible building heights would be allowed as a result of the change to Rural Fringe. Urban Service Areas Under the comprehensive plan, certain land use categories define the County’s urban service areas. These categories are Urban Core, Urban Fringe, Rural Fringe, Rural Reserve, Mixed Use, and Planned Community. By changing the land use designation to Rural Fringe, the amendment automatically places the subject property in an urban service area. The discussion of the issue in this case involved semantic inconsistency between rural land use and urban services. However, that the comprehensive plan clearly contemplates that the Rural Reserve and Rural Fringe land use categories would have both rural characteristics and urban services. The County’s chief planner, Dr. Sun-Man Kim, testified that the provision of urban services is not intended to transform the Rural Fringe land use category into an urban area, but to provide better services. He believes the urban service area designation is appropriate for a compact rural development area like the Kingsley Lake community. There are three other urban service areas in the County. FLUE Policy 2.3 provides the means by which an urban service area may expand: Urban service areas may be expanded to include undeveloped land in or near existing urban areas provided that the Clay County Health Department has determined that connection to a central system is required in the public interest due to public health consideration. Services and facilities must be guaranteed through “agreements to serve” by the Clay County Utility Authority. Expansion of the urban service area shall require a plan amendment. This policy appears to apply only to the expansion of an existing urban service area into adjacent undeveloped areas, and not to the creation of new urban service areas. There are no policies in the comprehensive plan that expressly address the creation of new urban service areas. It is only logical that a newly-designated urban service area would have urban services currently available or planned. The County’s density point system uses several urban services as a basis for assigning density bonus points: fire protection, emergency medical services, paved access to arterial or collector roads, central water and sewer facilities, and proximity to schools. All of these urban services are available to the property except central sewer. Petitioners object to the amendment, in part, because they believe the Rural fringe designation is only permitted in areas where central water and sewer facilities are available. The County granted density bonus points to the proposed Kingsley Cove development for having central water service, based on its proposed community-scale potable water system. Therefore, it is presumed that Petitioners disagree that a community-scale water system qualifies as “central” water service, and/or they believe the Rural fringe designation requires both central water and central sewer services. FLUE Policy 2.4 states that all development within the urban service areas shall be served by central water and wastewater services, “if available.” In addition, FLUE Policy 3.1 grants density points for proposed developments in land use categories (that are also urban service areas) when central water and sewer facilities are available. These policies are acknowledgments that sometimes central water and sewer facilities are not available in urban service areas. Petitioners argued that, in 2003, the County and Department interpreted the urban service area policies of the comprehensive plan differently than they are interpreting them in this case. In 2003, the County and Department were reviewing an application to designate 21 acres of the subject property to Rural Reserve, which, as stated above, also results in an automatic urban service area designation. Following its review of the 2003 amendment, the Department prepared an Objections, Recommendations, and Comments (ORC) Report which opposed the change to Rural Reserve based on insufficient data and analysis. The County staff report regarding the 2003 amendment also recommended denial. Petitioners contend that these prior actions were based on determinations by the Department and the County that, to be placed in an urban service area, lands must be served by central water and sewer facilities. Holly Parrish, the County planner who prepared the 2003 County staff report, testified that central water and sewer services are not mandatory for an urban service area, and that any statement to the contrary in the 2003 staff report was an error. Neither Chapter 163, Florida Statutes, nor Florida Administrative Code Chapter 9J-5 defines urban service areas, nor do they establish guidelines or standards on what or how many urban services are necessary to qualify an area as an urban service area. The comprehensive plan contains some ambiguity with respect to urban service areas. The County might be to able to interpret the comprehensive plan as Petitioners urge, to prohibit the creation of a new urban service area where central water and sewer facilities are unavailable. However, the County’s interpretation and application of its urban service area policies to allow an urban service area to be created in the unique circumstances of a rural compact development area surrounded by a military installation, where central sewer facilities are not available, but several other urban services are available, is not unreasonable. Petitioners assert that the County’s rationale for the amendment would allow urban service areas to be placed anywhere on the FLUM, but there are no other areas on the Clay County FLUM like the Kingsley Lake community. Urban Sprawl Petitioners also contend that the amendment is inconsistent with FLUE Objective 2 which discourages urban sprawl. Florida Administrative Code Rule 9J-5.006(5) contains guidelines for use in determining whether a plan or plan amendment discourages the proliferation of sprawl. Petitioners focused on five of the listed indicators: (5)(g) Primary indicators. The primary indicators that a plan or plan amendment does not discourage the proliferation of urban sprawl are listed below. The evaluation of the presence of these indicators shall consist of an analysis of the plan or plan amendment within the context of features and characteristics unique to each locality in order to determine whether the plan or plan amendment: * * * 4. As a result of premature or poorly planned conversion of rural land to other uses, fails adequately to protect and conserve natural resources . . . * * * Fails to maximize use of existing public facilities and services. Fails to maximize use of future public facilities and services. Allows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government. Fails to provide clear separation between rural and urban areas. However, Petitioners did not prove that the amendment will create an increased threat to natural resources. Nor did they show that the County’s use of existing or future public facilities and services is somehow impaired or made inefficient, or that the cost in time, money and energy, of providing and maintaining facilities and services would be increased as a result of the amendment. The amendment does not prevent a clear separation between rural and urban areas because the property remains rural. Dr. Joseph Addae-Mensa, the Department's planning expert, does not believe the amendment encourages urban sprawl in violation of Florida Administrative Code Rule 9J-5.006(5). When evaluated in the context of the entire comprehensive plan and the features and characteristics unique to the locality, as required by Florida Administrative Code Rule 9J-5.006(5), Petitioners' evidence was insufficient to prove that the amendment fails to discourage urban sprawl. Data and Analysis Petitioners contend that the application and staff report for the subject amendment did not contain sufficient data and analysis to demonstrate that the property could be provided with central water and sewer facilities within the planning horizon. However, for the reasons stated above, such data and analysis are unnecessary because central water and sewer facilities are not mandated. Petitioners also claim there is insufficient data and analysis to demonstrate what effect the designation of the urban service area would have on surrounding properties, which they believe could be a significant increase in the density of Kingsley Lake community because lots might now qualify for density bonus points. However, Dr. Kim analyzed this issue and concluded that only one lot would gain additional density points as a result of the urban service area designation, resulting in potentially two additional residential units. His analysis was not rebutted. Petitioners’ contention that there is insufficient data and analysis to show that the Rural Fringe land use category is consistent with the conditions of the property is contrary to the record which contains ample data and analysis on this point.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the amendment is “in compliance” as defined in Chapter 163, Part II, Florida Statutes. DONE AND ENTERED this 30th day of May, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2008.
The Issue Whether Amendment 95-2 to the Town of Jupiter Comprehensive Plan, as originally adopted by Ordinance 68-93 on October 3, 1995, and amended by Ordinance 13-96 on March 19, 1996, is “in compliance” as defined in Chapter 163, Part II, Florida Statutes (1995).
Findings Of Fact The Parties Petitioners are all political subdivisions of the State of Florida. Petitioner, Board of County Commissioners of Palm Beach County (hereinafter referred to as “Palm Beach County”), is a county located on the southeast coast of Florida. Petitioner, Martin County, is a county located adjacent to, and north of, Palm Beach County. Part of Martin County’s boundary is located adjacent to the Town of Jupiter. Petitioner, the Village of Tequesta (hereinafter referred to as “Tequesta”), is a municipality located in Palm Beach County. Tequesta’s western boundary abuts the eastern boundary of the Town of Jupiter. Respondent, the Town of Jupiter (hereinafter referred to as “Jupiter”) is a municipality located in Palm Beach County. The plan amendment at issue in this proceeding was adopted by Jupiter. Jupiter has a population of approximately 39,000 people. Respondent, the Department of Community Affairs (hereinafter referred to as the “Department”), is the state agency charged with the responsibility of, among other things, implementing Part II, Chapter 163, Florida Statutes, the Local Comprehensive Planning and Land Development Regulation Act (hereinafter referred to as the “Act”). Intervenor, the Shores of Jupiter Homeowners’ Association, Inc., is a not-for-profit Florida corporation. Intervenor represents the interest of the Shores of Jupiter residential development. The Shores of Jupiter is located in Jupiter. The Geographic Area at Issue. The boundary of northeastern Palm Beach County which abuts the southwestern boundary of Martin County extends westerly from the Atlantic ocean for a couple of miles. The boundary then turns south for less than a mile before returning to the west. The area at issue in this proceeding consists of an area within the jurisdiction of four different local governments: Palm Beach County, Martin County, Jupiter and Tequesta. Jupiter and Tequesta are located in the northeast corner of Palm Beach County. See Palm Beach County exhibit 39. Tequesta is located in the extreme northeast corner of Palm Beach County. Part of the northern border of Tequesta abuts the southern boundary of Martin County. Jupiter is located primarily to the south of Tequesta. Most of Jupiter and Tequesta are separated by the Loxahatchee River (hereinafter referred to as the “River”). The River also has two branches separating Jupiter and Tequesta. See Palm Beach County exhibit 39. The northernmost portion of Jupiter abuts the Martin County-Palm Beach County boundary where the boundary turns to the south and then back to west. Most of the area at issue is comprised of residential subdivisions. Jupiter’s current and projected land uses are primarily residential. Land uses in Jupiter in 1995 and projected for 2000 in the Data and Analysis for the Jupiter Comprehensive Plan (hereinafter referred to as the “Plan”), suggest that residential uses and projected residential land uses of vacant land to be developed by the year 2000 will predominate in Jupiter. There is a relatively large tract of undeveloped land, referred to as “Section 28” during the formal hearing, which is not now used for residential purposes. Section 28 is located in the west, north-west portion of Jupiter. Section 28 abuts Martin County where the boundary of Palm Beach County and Martin County turn back to an east-west direction after the north-south turn. Section 28 is located to the east of Interstate 95 and the Sunshine Parkway, west of the River, north of Indiantown Road and south of the Martin County line. Existing Transportation Corridors. The roads that are at issue in this proceeding are depicted on Palm Beach County exhibit 1. The road identified in red as Roosevelt Street is conceptual only. The depicted connection of Island Way and Northfork Drive is also conceptual. To the western boundary of Jupiter and the area at issue in this proceeding is located Interstate 95 and the Sunshine Parkway. Both roads begin a turn from a northerly direction to the northwest. The main corridor along the eastern portion of Jupiter located to the west of the North Fork of the River is Loxahatchee River Road. Loxahatchee River Road runs to the north from the intersection with Center Street and then follows the northwestern route of the North Fork of the River to the boundary of Martin County. The road continues into Martin County and connects with Island Way. Loxahatchee River Road functions as a county collector road. This means that it carries a high volume of traffic and is intended to connect and lead traffic from one set of local street connections to another. Loxahatchee River Road is bordered by unincorporated subdivisions, including Whispering Trails, Imperial Woods, Fox Run and Eagle’s Nest. Loxahatchee River Road is a two-lane road. It has been used for a number of years as a traffic corridor between Palm Beach and Martin Counties. It is poorly designed for this purpose. Its design pre-dates contemporary transportation planning. Houses face onto the road and have direct driveway access to the road. These houses are not protected from the road by a buffer. To the west of Loxahatchee River Road and to the east of I-95, the main north-south road corridor is made up of Longshore Drive and Northfork Drive (hereinafter referred to as the “Northfork/Longshore Corridor”). The Northfork/Longshore Corridor is a two-lane road. Longshore Drive runs in a generally northern direction from Central Boulevard until it connects with Northfork Drive. Northfork Drive continues in a generally northern direction. It parallels a portion of the boundary of Martin and Palm Beach Counties which runs north-south. The Northfork/Longshore Corridor is bordered by residential subdivisions, including the Shores of Jupiter, Northfork, The Preserve and Cypress Cove. All of these subdivisions were annexed by Jupiter in March, 1993. Northfork Drive was designed to accommodate a thoroughfare. Residents are buffered from the road and face away from it. Traffic from residents along Northfork Drive is directed to limited access roads to Northfork Drive. Northfork Drive terminates about a quarter of a mile south of the portion of the boundary of Martin and Palm Beach Counties that runs east to the Atlantic Ocean and where the boundary turns to the south. Approximately a quarter of a mile north of the termination point of Northfork Drive is the southern termination point of Island Way. Island Way is located in Martin County. An unpaved right-of-way separates the southern terminus of Island Way and the northern terminus of the Northfork/Longshore Corridor. In the south, the main east-west corridor is Indiantown Road and Center Street. Indiantown Road is a primary commercial area for residents of the area at issue. Residents in the area use the Northfork/Longshore Corridor and Loxahatchee River Road to access these commercial areas. The road system of the area at issue is dominated by the River and its tributaries. The River creates a physical barrier to travel by the residents of the area. Due to this barrier, Central Boulevard, Church Street and Roebuck Road, which all connect with the Northfork/Longshore Corridor and Loxahactchee River Road, provide the primary routes for residents of the area to access Indiantown Road. Transportation Planning for the Area. A number of factors have caused difficulties in planning for the traffic needs of the area at issue in this proceeding. The area is constricted by the River, the area is under the jurisdiction of four local governments, all of which are involved in this proceeding, and the north-south jog in the boundary of Palm Beach and Martin Counties has the potential to create greater traffic impacts between the two counties. The fact that the area is primarily residential and largely existing development also contributes to the problem. Most motor vehicle trips generated in the area involve travel to and from residents in the area to destinations outside the area. The fact that the development already exists makes it difficult to establish a comprehensive internal grid street system with a continuous and unfragmented regional road network. Future planned developed will only add to this problem. The projected development of Section 28 could significantly add to the traffic problems of the area. Section 28 is bounded on the west by I-95 and the turnpike. Traffic generated in the area will have to travel north into Martin County or south and east through Jupiter. Roads required for travel into Martin County from Section 28 do not exist. Prior to 1993 the Northfork/Longshore Corridor was located in unincorporated Palm Beach County. In 1986 Palm Beach County undertook a transportation study for northern Palm Beach County. Public meetings were conducted and studies were undertaken to evaluate roadway corridors for the area necessary to accommodate existing and future traffic. The evaluation included a consideration of the needs of traffic moving between Palm Beach and Martin Counties. As a result of Palm Beach County’s study, it was ultimately concluded that three intercounty thoroughfares were needed for the area: (a) Loxahatchee River Road; (b) Longshore Drive(connected to Northfork Drive, connected to Island Way); and (c) a new corridor, the “Western Corridor”. Loxahatchee River Road and the Northfork/Longshore Corridor were added to the Palm Beach County Thoroughfare Identification Map. Loxahatchee River Road was already being utilized as an intercounty traffic corridor despite design limitations for such use. Hearings were conducted by Palm Beach County in November, 1987, at which the use of Longshore Drive was considered as a possible second corridor. The Jupiter transportation planner at the time presented a report comparing possible thoroughfare alignments, including the suggestion that Longshore Drive be connected to a thoroughfare to be constructed through the area where Northfork Drive was ultimately constructed and that the thoroughfare be connected with Island Way. Palm Beach County accepted this suggestion. The Western Corridor, if constructed, would run through Section 28 and probably connect Indiantown Road with Island Way. The exact route for such a corridor has not been decided. Nor has right-of-way for the corridor be acquired or funding for the corridor been set aside. The Loxahatchee River Road and the Northfork/Longshore Corridor were added to Palm Beach County’s Thoroughfare Right-of- Way Identification Map (hereinafter referred to as the “TIM”). Although the TIM is not used to identify capital improvements, it is used by Palm Beach County in the Traffic Circulation Element of Palm Beach County’s comprehensive plan as a land use planning tool. Annexation of the Shores of Jupiter. Palm Beach County suggested in 1989 that the various municipalities in the county should look at areas which could be annexed into the municipality while promoting the efficient delivery of urban services. Jupiter looked at unincorporated areas surrounding it as possible areas to annex, consistent with Palm Beach County’s suggestion. Jupiter looked at areas which might be annexed also in order to comply with its own Plan, which was adopted in 1990. As part of its consideration of areas which it considered desirable to annex, Jupiter routinely sent letters to communities explaining the benefits of annexation by Jupiter. Jupiter also addressed concerns expressed about annexation by businesses and residents of areas it was considering. Since 1990, Jupiter annexed approximately 50 different properties. Among the areas considered for annexation by Jupiter were subdivisions located along Northfork Drive, including the Shores of Jupiter. Discussions between Intervenor and Jupiter about annexation of the Shores of Jupiter began in 1992. Intervenor made it clear to Jupiter that it would consider supporting annexation only in Jupiter supported its efforts to avoid the connection of the Northfork/Longshore Corridor to Island Way. Counsel for Jupiter informed the then Town Manager of Intervenor’s position in a memorandum dated July 23, 1992: The Shores does not want a through road or “T” intersection at the northern boundary of the Northfork subdivision . . ., which allows Longshore Drive to be extended into Martin County. The Shores is intractable on this issue. Anything less than the Town’s vigorous support of the Shores in this regard will doom the annexation unless the Town supports to the fullest extent the prevention of Longshore Drive’s extension into Martin County. Consequently, if there is to be another corridor in northern Palm Beach County, The Shores would only support the “western corridor.” . . . See Palm Beach County exhibit 28. As a solution to Intervenor’s concerns, Jupiter’s attorney suggested the following solution: The proper vehicle for the Town to address the concerns of The Shores is through the Town’s comprehensive plan. Of course, the Town’s comprehensive plan can only be applied to The Shores, Northfork, Shorewood and Cypress Cove subdivisions and the Longshore Drive corridor, if these areas are within the municipal jurisdiction of the Town. Nevertheless, the Town Council can publicly describe its intention to adopt appropriate goals, objectives and policies it proposes to adopt as part of amendments to its comprehensive plan to address the concerns of The Shores. It may also be appropriate for the Town to address corridor planning issues, in particular, appropriate alignments, if any, of a “western corridor” in the Transportation Element Plan. Finally, the Town should consider including the alignment of a “western corridor” as part of its western interchange planning study. In a letter dated February 16, 1993, the Mayor of Jupiter, the Honorable Karen J. Golonka, informed residents of the Shores of Jupiter of a special referendum election on the issue of annexation of the Shores of Jupiter into Jupiter. Mayor Golonka suggested that residents vote “Yes” on the referendum and gave the “top three reasons” why Jupiter believed annexation would be in the best interest of residents of the Shores of Jupiter. In addition to the improved law enforcement protection and the protection of property values, Mayor Golonka informed residents that, while members of the Palm Beach County commission were supporting the connection of the Northfork/Longshore Corridor to Island Way, Jupiter was opposed to the connection. Mayor Golonka indicated that Jupiter had adopted Resolution 47-92 expressing the following: the Town’s opposition to making Longshore Drive a major arterial, and the Town’s intention, if the annexation is successful, is to amend our Comprehensive Plan to ensure that Longshore Drive remains the treelined collector street seen today. Palm Beach County exhibit 7. Resolution 47-92 had been adopted by Jupiter in September of 1992 because Intervenor had asked Jupiter to take a formal position on the question of the Northfork/Longshore Corridor connection with Island Way. In March, 1993, a dual referendum was conducted concerning the annexation of certain areas, including the Shores of Jupiter. The Shores of Jupiter was subsequently annexed by Jupiter. While the position taken by Jupiter with the Intervenor prior to the adoption of the amendment at issue in this proceeding does not conclusively prove that the amendment is not “in compliance” with the Act due to the lack of adequate data and analysis to support the amendment, the evidence did prove that Jupiter had already decided to take a position similar to the position established in the amendment without determining whether adequate data and analysis for that position existed. The Challenged Amendment Adopted Through Ordinance 68-93. Subsequent to the annexation of the Shores of Jupiter, Jupiter proposed an amendment to its Plan which included, among other things, a proposed Policy 1.4.4 providing, in part, that “[t]he Town will discourage any connections of Northfork Drive to Island Way or any other road or roadway corridor located in Martin County.” The plan amendment proposed by Jupiter (hereinafter referred to as the “Original Plan Amendment”) was not transmitted to the Department until September of 1994. Following its review of the Original Plan Amendment in October, 1994, the Department issued its Objections, Recommendations and Comment Report (hereinafter referred to as the “First ORC”). The Department raised several objections to the Original Plan Amendment. Among other things, the Department objected on the basis of the lack of supporting data and analysis, lack of specificity of the proposed policies, lack of intergovernmental coordination and the creation of internal inconsistencies in Jupiter’s Plan. Jupiter responded to the First ORC on October 9, 1995. In response to the objections raised by the Department with regard to Policy 1.4.4, Jupiter responded that it intended to change the policy to provide that the policy to discourage the connection of Northfork Drive would only apply in the absence of a “demonstrated need “for the connection. See Palm Beach County exhibit 33. Jupiter also informed the Department that the data and analysis that supported Policy 1.4.4 consisted of a 1994 traffic planning study, the Joint Local Government Traffic Engineering Study (hereinafter referred to as the “Joint Traffic Study”), and Jupiter’s analysis of the Joint Traffic Study. While Jupiter suggested that it relied upon other “data and analysis”, the response to the Department’s First ORC only indicates that Jupiter relied upon the Joint Traffic Study. On October 3, 1995, following a public hearing, Jupiter adopted Ordinance 68-93 and the Original Plan Amendment therein. On December 1, 1995, the Department issued a Notice of Intent to Find Not in Compliance Jupiter’s Original Plan Amendment. A Statement of Intent describing numerous inconsistencies found by the Department between the Original Plan Amendment and the Act was entered with the notice. Petition for Formal Hearing, Settlement Negotiations and Adoption of the Remedial Amendment. On or about December 6, 1995, a petition challenging Jupiter’s Original Plan Amendment was filed by the Department with the Division of Administrative Hearings. The matter was designated case number 95-5930GM and was assigned to the undersigned. Palm Beach County and the Shores of Jupiter Homeowners’ Association, Inc., were allowed to intervene in case number 95- 5930GM by Order entered January 8, 1996. Tequesta was allowed to intervene in case number 95-5930GM by Order entered March 22, 1996. The formal hearing of case number 95-5930GM was abated to give the parties an opportunity to settle their dispute. The Department, Jupiter and the Shores of Jupiter ultimately reached a stipulated settlement. Palm Beach County and Tequesta did not, however, enter into the settlement. Upon the filing of the Stipulated Settlement Agreement, the abeyance of case number 95-5930GM was extended. Pursuant to the Stipulated Settlement Agreement, Jupiter modified Amendment 95-2 by Ordinance 13-96 on March 15 and 19, 1996. On or about April 20, 1996, the Department of Community Affairs caused a Notice of Intent to find Amendment 95-2 (hereinafter referred to as the “Remedial Amendment”), in compliance to be published. On or about May 2, 1996, Martin County filed a petition in response to the April 20, 1996 Notice of Intent to find the Remedial Amendment in compliance. The Petition was filed with the Division of Administrative Hearing on May 23, 1996. Martin County’s petition was designated case number 96-2563GM. Palm Beach County and Tequesta filed amended petitions in response to the Remedial Amendment. The amended petitions were accepted by Order entered June 5, 1996. By Order dated July 9, 1996, the parties in case number 95-5930GM were realigned, the two cases were consolidated, the stay was lifted and Martin County was allowed to intervene in case number 95-5930GM. The Remedial Amendment. The Remedial Amendment adopted by Jupiter and found in compliance by the Department includes an addition to the Traffic Circulation Element of Jupiter’s Plan. The Remedial Amendment adds Goal 4, Objective 4.1 and eight policies to implement the Goal and Objective to the Traffic Circulation Element of the Plan. The Remedial Amendment adopted by Jupiter provides the following, with modifications to the Original Plan Amendment noted: Neighborhood Protection The Town of Jupiter recognizes the need for a traffic circulation system that serves the needs of its residents, provides roadways with the least amount of congestion, promotes business and economic development of the community, and protects existing and proposed residential neighborhoods. The construction of new roads or expansion of existing roads should be accomplished in a manner that minimizes any impacts on the Town’s residential neighborhoods. The Town can minimize the impacts of road construction or expansion through such means as : diverting the flow of through traffic away from streets that serve existing neighborhoods, discouraging future thoroughfare or traffic circulation plans which encourage nonresidential or non- resident use of neighborhood streets, requiring that the functional classification of local roadways may not be changed without amending the Comprehensive Plan, and coordinating/cooperating with all appropriate governmental agencies to ensure new or expanded roadways will not adversely affect the Town’s residential areas. With respect to intergovernmental coordination/cooperation, the Town should work closely with both Palm Beach County and Martin County adjacent local governments and any other appropriate governmental entities to ensure that future transportation planning, roadway construction, and development approvals are supportive of efforts to protect and enhance existing and proposed residential neighborhoods. GOAL 4: To accommodate a variety of regional, intercounty, intracounty, and local travel demands in ways that minimize traffic congestion; encourage pedestrians; reduce the overall amount of travel for daily goods and services; and protect the integrity of existing neighborhoods. Objective 4.1: The Town of Jupiter will continue to study and evaluate whether or not an additional intercounty or intracounty transportation corridor for the area west of Loxahatchee River Road, east of I-95, and north of Indiantown Road is desired or needed in this geographic area; and assuming such a corridor is necessary, shall coordinate/cooperate with adjacent local governments and any other appropriate and governmental entities to identify the appropriate thoroughfare route of that corridor. Policy 4.1.1 The Town of Jupiter, in coordination/cooperation with Palm Beach County, Martin County, the Village of Tequesta, the Metropolitan Planning Organization, and other appropriate governmental agencies, shall encourage and participate in long range transportation planning efforts that protect existing or proposed residential neighborhoods by locating new or expanded roadways in a manner that does not adversely affect such neighborhoods. Policy 4.1.2 The Town of Jupiter, to the extent possible, shall encourage the construction of new roads and the expansion of existing roads in a manner that protects existing or proposed residential neighborhoods by diverting or eliminating the flow of non-resident or through traffic, and requiring that the functional classification of local roadways may not be changed without amending the Comprehensive Plan. Policy 4.1.3 The Town Shall rReview planning and other data generated by the Town’s western interchange study and other appropriate sources to determine whether or not the County’s western corridor should be aligned with Island Way or other right-of- way in Martin County west of The Shores. Policy 4.1.4 The Town shall coordinate/cooperate with adjacent local governments and affected neighborhoods to further the Town’s policy to discourage any connection of Northfork Drive to Island Way or to any other road or roadway corridor located in Martin County that cannot be justified based on demonstrated need. ‘Demonstrated need’ is determined by coordinated analysis of the existing and planned road network with and without the connection, maintenance of level of service standards over the planning timeframe, and consideration of other traffic, roadway and land use alternatives, balanced along with the Town’s policy to protect residential neighborhoods. Coordination/cooperation may include mediation. Policy 4.1.5 In the event an additional intercounty or intracounty roadway serving Palm Beach County and Martin County via Island Way or other right-of- way is necessary, this corridor’s route shall be aligned to a north-south route west of the present Jupiter Community Park. Policy 4.1.6 If an additional intercounty or intracounty corridor is constructed, the Town shall coordinate/cooperate with adjacent local governments to not align the corridor so as to not adversely impact existing residential neighborhoods. Policy 4.1.7 The Town shall coordinate/cooperate with Palm Beach County, Martin County, the Village of Tequesta, and any other affected governmental agencies to establish an overall vehicular circulation plan, including any additional north-south transportation corridors needed to alleviate existing or anticipated traffic congestion. Policy 4.1.8 The Town shall coordinate/cooperate with Martin County, Palm Beach County, the Village of Tequesta, and any other affected governmental agencies to discourage the creation of intercounty or intracounty traffic circulation patterns that provide ingress and egress to residential or nonresidential developments in Martin County solely through the Town of Jupiter and Palm Beach County. [Additions indicated by underlined words and eliminated words struck through]. Pursuant to the Remedial Amendment, Jupiter essentially modified the Original Plan Amendment, found to be not in compliance by the Department, by: Changing the term “cooperate” to “coordinate/cooperate”; Indicating that Jupiter will involve “adjacent local governments and any other appropriate governmental entities” in its efforts; and Modifying Policy 4.1.4 (formerly numbered Policy 1.4.4) as follows: The Town shall coordinate/cooperate with adjacent local governments and affected neighborhoods to further the Town’s policy to discourage any connection of Northfork Drive to Island Way or to any other road or roadway corridor located in Martin County that cannot be justified with respect to based on demonstrated need. ‘Demonstrated need’ is determined by coordinated analysis of the existing and planned road network with and without the connection, maintenance of level of service standards over the planning timeframe, and consideration of other traffic, roadway and land use alternatives, balanced along with the Town’s policy to protect residential neighborhoods. Coordination/cooperation may include mediation. [Additions indicated by underlined words and eliminated words struck through]. The Adequacy of Data and Analysis. The data and analysis submitted by Jupiter in support of the Original Plan Amendment and found to be inadequate by the Department consisted of the Joint Traffic Study and Jupiter’s analysis thereof. No additional data and analysis has been provided by Jupiter. The Department, while disagreeing with Jupiter and Intervenor as to the relevancy and adequacy of the Joint Traffic Study, suggested at hearing that the Remedial Amendment is supported by data contained in the Plan. In particular, the Land Use Intergovernmental Coordination and Traffic Circulation Elements. The stated purpose of the Joint Traffic Study was to: . . . determine existing traffic patterns crossing the Martin/Palm Beach Count Line in the vicinity of Jupiter and Tequesta for todays travel and to make a reasonable projection of probable future traffic patterns when the area reaches build-out that the engineering professionals of the affected jurisdictions could agree upon. Elected officials would then be able to look at regional roadway issues and needs required to meet the projected levels of traffic. Joint Exhibit 7 The Joint Traffic Study was a collaborative effort of the local governments involved in these proceedings. In order to understand whether the Joint Traffic Study provides data and analysis which can be relied upon to support the Remedial Amendment, it must be understood what portion of the Remedial Amendment is at issue. The Remedial Amendment reflects several policy choices of Jupiter. For example, the Remedial Amendment reflects the policy of Jupiter of protecting the character of its neighborhoods. See, e.g., Objective 4.1. The data of the Plan is sufficient to support this broad, general policy. Policy 4.1.4 of the Remedial Amendment also reflects a policy choice of Jupiter that the connection of Northfork Drive and Island Way, or any similar connection, should be discouraged. This policy choice reflects a conclusion that such a connection is not necessary or, if necessary, the detriments to the surrounding neighborhoods of the Northfork/Longshore Corridor will outweigh the need for the connection. Neither the Plan nor the Joint Traffic Study support these conclusions. Policy 4.1.5 and 4.1.8 also go beyond establishing a general policy of protecting neighborhoods. Policy 4.1.5 reflects a policy of Jupiter that if there is a need to connect Island Way with a corridor in Palm Beach County it should be accomplished through construction of a Western Corridor. Policy 4.1.8 reflects a policy that no ingress and egress should be allowed through any neighborhood in Jupiter. While a general policy of protecting neighborhoods may be supported by the Plan, the application of Policies 4.1.4, 4.1.5 and 4.1.8 requires more than a mere assumption that the connection of Northfork Drive to Island Way will result in detriments that outweigh any benefits of the connection, that the Western Corridor is THE method of connection between Martin and County and Palm Beach County which should be pursued, and that under no circumstances should ingress and egress be allowed through any neighborhood. Such conclusions require more. Jupiter has recognized that plan provisions which control land use and development activities and those addressing specified minimum criterion of the law must be supported by the highest level of data and analysis. Jupiter suggests, however, that the Remedial Amendment is merely an “aspirational provision, one which projects more subjective community-desired-outcomes and is not intended to satisfy one of the mandated minimum criteria areas”. Jupiter argues, therefore, that the Remedial Amendment “demands a less rigorous foundation in data and analysis.” While Jupiter may be correct that the policy choice of the Remedial Amendment concerning general neighborhood protection is aspirational, it is not correct as to the other policy choices concerning the need for the connection of Northfork Drive and Island Way, the need for the Western Corridor or the need to prevent all ingress and egress road in Jupiter. Those policy choices directly reflect land use and development activities as they relate to transportation. Simply assuming that the connection of Northfork Drive and Island Way and that ANY road providing ingress and egress through a Jupiter neighborhood will be harmful to the neighborhoods that border the Northfork/Longshore Corridor ignores the possibility that the connection could be beneficial to other areas of Jupiter due to reductions in traffic in those areas. It also ignores the possibility that steps can be taken to minimize any detrimental impacts. It also ignores the possibility that there may be an insignificant increase in traffic as a result of the connection and/or that the impacts of any increase in traffic may be eliminated through design modifications of the Corridor. Likewise, Jupiter’s assumption that the only way of resolving the need for north-south connector roads between Martin and Palm Beach Counties or within north Palm Beach County should only be accomplished by a Western Corridor ignores other solutions that will better serve the residents of the areas involved. Jupiter’s assumption or intuition also fails to take into account the impact of its policy choices on other governments. For example, the impact on the residents surrounding Church Street if the connection is not made is reflected in the Joint Traffic Study. Jupiter’s assumption allows it to ignore this possible impact. The Joint Traffic Study is deficient for a number of reasons. First, the Joint Traffic Study does not reflect current conditions in the area studied. At the time the Original Plan Amendment was submitted, Jupiter also submitted a land use change for a 183 acre tract of land known as the Weiser Tract. The submittal reflected a change of 158 acres from industrial use to residential use. The Joint Traffic Study had been prepared a year and a half prior to this proposed change and, therefore, does not take this significant modification into account. The modification of the land use of the Weiser Tract could have a significant impact on traffic and, therefore, the conclusions and information contained in the Joint Traffic Study. Because of the land use modification not reflected in the Joint Traffic Study, the Joint Traffic Study cannot be said to constitute the best available data to support the Remedial Amendment. The Joint Traffic Study purports to project or forecast traffic volumes in the area as a result of the build-out of land uses reflected in the comprehensive plans of the local governments involved in the study. In fact, however, the data gathered for the study was data on development and zoning, not projected plan build-out. The evidence failed to prove that development and zoning reflects projected plan build-out. Therefore, it cannot be concluded that the data contained in the Joint Traffic Study was collected and applied in a professionally acceptable manner. The methodology utilized for the Joint Traffic Study also does not support its use as data and analysis to support Jupiter’s policy choice concerning the connection of Northfork Drive and Island Way. The Joint Traffic Study was not intended to provide a formal transportation analysis of alternatives from which one of the local governments involved would elect one alternative. While the Joint Traffic Study may utilize a methodology used by traffic planning engineers on an everyday basis, the evidence failed to prove that traffic planning engineers would use it for the purpose that Jupiter has used it. For Jupiter to rely on the Joint Traffic Study to conclude that the connection of Northfork Drive and Island Way is not necessary and that the policies reflected in Policies 4.1.5 and 4.1.8 are necessary, it would be necessary for the Joint Traffic Study to include an alternative analysis or the data to perform such an analysis. It does not. Such an analysis should compare construction costs and environmental impacts of alternative traffic alignments. Such a study should also include short and long-range projections for traffic conditions, land use data, level-of-service standards and functional classifications for area roads, or existing level-of- service standards. Jupiter’s analysis of the Joint Traffic Study is also inadequate. The Joint Traffic Study discusses four different scenarios. Jupiter, however, elected to only utilize two of those scenarios. As to the existing Plan, the portions of the Plan relied upon by Jupiter and the Department, while recognizing the importance of the coordination of issues related to roads and traffic safety, do not support the specific objective of the Remedial Amendment to discourage the connection of specific roads, the location of the Western Corridor or the prevention of roads of ingress and egress in Jupiter. Nor do the provisions of Plan which provide an inventory of pertinent agencies and provide that the agencies should be contacted and worked with on common problems. While data and analysis support the other provisions of the Remedial Amendment, data and analysis does not support Policies 4.1.4, 4.1.5 and 4.1.8. Conditional Policy or Self-Amending Policy. Policy 4.1.4 provides that the general policy of Jupiter is (in cooperation/coordination with other agencies) to discourage the connection of Northfork Drive and Island Way UNLESS there is a “demonstrated need” for the connection. It has been suggested by Petitioners that this provision creates a self- amending policy--a policy that may change without the need to follow the amendment procedures required in the Act. In support of this position Petitioners have argued that if demonstrated need is found by Jupiter to have been shown, the policy to discourage automatically ceases to be the policy of Jupiter even though the amendment process of the Act has not been fulfilled--that the policy of discouragement becomes “inoperative”. A self-amending policy is one which changes as the result of an event that is unknown and unspecified at the time the policy is adopted. Typically, a self-amending policy is one that provides that certain things will occur if some other event, such as the amendment of a law by another jurisdiction, takes place. For example, if the policy is “X” unless law “Z” is modified, then the policy will be whatever law “Z” requires even though law “Z” may be amended in the future. Because it cannot be known how law “Z” may be amended in the future, policy “X’s” reliance on law “Z” is self-amending.. Obviously, that is not the type of policy at issue in this proceedings. A conditional policy, which Jupiter suggests Policy contains, is one which may change if certain clear contingencies or alternatives, described at the time of adoption of the Policy, are provided. For example, a policy that allows a general residential density but provides that, if land is to be used for affordable housing, a different density will be allowed, is an example of a conditional policy. The policy at issue in this proceeding is not a self- amending policy. It sets out a clear general policy: to discourage the connection of Northfork Drive and Island Way. And it sets out specific conditions for changing that policy: the showing of demonstrated need, which is further defined by the policy. The evidence failed to prove that Policy 4.1.4 is a self-amending policy. Unbridled Discretion? Petitioners have suggested that Policy 4.1.4, in particular, the portion of the Policy providing for the determination of whether there is a “demonstrated need” for a connection of Northfork Drive and Island Way, vests unbridled discretion in Jupiter. In support of this position, Petitioners have pointed to the failure of Policy 4.1.4 to specify the following: a) the specific office or person that will make the determination; and (b) the specific time(s) when the determination will be made. Petitioners have also argued that the Policy fails to specify sufficient objective criteria to be considered in determining whether there has been a showing of demonstrated need and argue that Jupiter is not capable of performing the balancing of need against its policy to protect its neighborhoods. As to the lack of specificity as to which office or person will perform the needs analysis, a reading of the Plan, with the Remedial Amendment, makes it clear that the ultimate responsibility rests with Jupiter and its governing body. Whether the alleged need is raised from within or without Jupiter need not be specified. The Act does not require more than that Jupiter be ultimately responsible. As to when the analysis will or may be performed, the lack of specificity would not be fatal in and of itself if the policy to discourage were supported by data and analysis. If the general policy to discourage the connection were supported by data and analysis, then the needs analysis could be performed at any time. Having failed to provide data and analysis to support the general policy, the lack of specificity as to when an initial determination of need will take place is contrary to the Act. The evidence also failed to prove that the definition of “demonstrated need” is inadequate. The “demonstrated needs” analysis specified by the Policy is similar to the type of analysis that would be required for Jupiter to make the policy choices concerning the lack of need for the connection of Northfork Drive and Island Way. Had it performed such an analysis before adopting the Remedial Amendment, there might have been sufficient data and analysis to support its policy choices. Finally, the question of whether Jupiter is capable of carrying out the balancing of demonstrated need and its neighborhood protection policy involves the application of the Policy. This is not an issue of whether the language of the Policy is “in compliance” with the Act. The Use of the Term “Discourage”. Evidence was presented by Petitioners to suggest that the term “discourage” as used in Policy 4.1.4 is vague and, therefore, violative of the Act. The term “discourage” is not a technical term. Therefore, it should be given its plain ordinary dictionary meaning. Whether the term, as defined in its ordinary sense, is so vague as to be violative of the Act must be determined in the context of the policy in which it is used. In this matter, the lack of specificity as to what specific actions Jupiter will take to “discourage” the connection of Northfork Drive and Island Way does not render Policy 4.1.4 so vague as to be violative of the Act. What is violative of the Act is the policy choice of Jupiter to “discourage” the connection without first adequately considering whether this particular connection should be discouraged. Inconsistency with Palm Beach County’s Thoroughfare Identification Map. Palm Beach County’s charter gives it control over the levels of service allowable on certain collector and arterial roads within the county, even if they are within the boundary of municipalities. This provision allows Palm Beach County to comprehensively plan a countywide transportation network. Palm Beach County’s responsibility for a comprehensive countywide transportation network is reflected in its comprehensive plan. In particular the plan includes a concurrency management system and a thoroughfare identification map (hereinafter referred to as the “TIM”). The TIM reflects the collector and arterial roads over which Palm Beach County exercises transportation authority. The purpose of the TIM is to identify right-of-way required to carry out Palm Beach County’s provision of a countywide transportation network. The TIM has reflected the connection of Northfork Drive and Island Way as part of the countywide transportation network since 1989. Jupiter suggests that the use of the word “discourage” rather than the more absolute language contained in the Original Plan Amendment, eliminates any inconsistency with the TIM. Jupiter has also suggested that all the TIM does is identify right-of-way and the Remedial Amendment does nothing to eliminate that right-of-way. Jupiter’s position concerning the TIM is rejected. The use of the term “discourage” does not eliminate the fact that Jupiter is taking the position in its Plan that Northfork Drive and Island Way should not be connected. Until demonstrated otherwise, this is the stated policy of Jupiter. The TIM on the other hand reflects a decision of Palm Beach County that the connection may be necessary for the benefit of the countywide transportation network. The narrow view of the purpose of the TIM, that it only is intended to protect right-of-way, ignores the broader purpose for which right-of-way is being protected: to insure that Palm Beach County can carry out its countywide transportation network plans. Policy 4.1.4 is inconsistent with that purpose. Impact of the Remedial Amendment on Petitioners. The Petitioners are all local governments that adjoin Jupiter. Palm Beach County has responsibility in the area at issue to insure that the road system in Palm Beach County is in place to accommodate growth as it occurs, to have an appropriately planned system that will handle growth and to maintain the system once it is in place. The Remedial Amendment eliminates one of the possible corridors which Palm Beach County has identified as necessary to carry out its responsibility. It also specifies the location of the Western Corridor as a means of solving north-south corridor needs and eliminates alternatives involving ingress and egress to Jupiter. The use of the Northfork/Longshore Corridor connected to Island Way could be accomplished at a cost of approximately $200,000.00 plus the cost of acquiring the right-of-way. The cost of constructing the Western Corridor, which has been suggested as an alternative to the connection with Island Way of Northfork Drive would be 6 to 7 million dollars. There would be other costs that may be incurred to raise the levels of service on other roads if Northfork Drive is connected with Island Way. The impact of the Remedial Amendment on Palm Beach County could result in delays in its ability to meet its responsibility to meet the needs for improvements in the road system of the area due to increased growth. The Remedial Amendment could also eliminate consideration of the connection and cause the need to pursue more costly alternative road corridors necessary to meet growth in the area. The Remedial Amendment could have the same impact on Martin County and Tequesta. Without the connection the area involved will have an additional traffic burden what will fall on the roads of Martin County, Palm Beach County and Tequesta, requiring the improvement of facilities in those jurisdiction. The evidence, while not proving the specific costs, does suggest that there will be a need for the road system of the area to handle greater and greater amounts of traffic due to increased growth in the future. The road system of the area will have to be improved to meet that increased traffic. The Remedial Amendment eliminates an alternative method of handling the increased traffic and, therefore, requires that the increased traffic be handled by infrastructure which will have to be provided by one or more of the Petitioners.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a Final Order finding Policies 4.1.4, 4.1.5 and 4.1.8 not in compliance with the Act. DONE AND ENTERED this 24th day January, 1997, in Tallahassee, Florida. LARRY J. SARTIN 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 24th day of January, 1997. COPIES FURNISHED: Paul R. Bradshaw, Esquire Bryant, Miller & Olive 201 South Monroe Street Tallahassee, Florida 32301 Barbara Alterman Assistant County Attorney Palm Beach County Attorney’s Office Post Office Box 1989 West Palm Beach, Florida 33402 Scott G. Hawkins, Esquire Post Office Box 3475 West Palm Beach, Florida 33402 Gary K. Oldehoff Assistant County Attorney Martin County 2401 S.E. Monterey Road Stuart, Florida 33408 Sherry A. Spiers Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Thomas J. Baird, Esquire 11891 U. S. Highway 1 North Palm Beach, Florida 33408 Thomas G. Pelham, Esquire David Russ, Esquire APGAR & PELHAM 909 East Park Avenue Tallahassee, Florida 32301 Bob Bradley Executive Office of the Governor Administration Commission 1601 The Capitol Tallahassee, Florida 32399 Barbara Leighty, Clerk Growth Management and Strategic Planning Administration Commission 2105 The Capitol Tallahassee, Florida 32399 Gregory Smith, Esquire Administration Commission 209 The Capitol Tallahassee, Florida 32399-0001
The Issue Whether the segment of N.E. 26th Street from Old Dixie Highway to its easternmost point in the City of Wilton Manors should be reclassified as an Urban Collector and reassigned to the City's road system as proposed by the Department of Transportation? Did the Department of Transportation comply with the requirements of Florida Administrative Code Rule 14-12.013(5) in connection with its proposed reclassification and reassignment of this road segment? If not, what remedial action, if any, should be taken?
Findings Of Fact Based upon the evidence received at hearing, the Hearing Officer makes the following Findings of Fact: N.E. 26th Street is an east-west artery that lies entirely within the incorporated area of Broward County. Its western terminus is North Andrews Avenue. As it runs east from North Andrews Avenue, it intersects with Old Dixie Highway and then North Federal Highway before ending in a cul-de-sac. The length of N.E. 26th Street from North Andrews Avenue to North Federal Highway is approximately two miles. A short distance west of where it intersects with North Federal Highway, N.E. 26th Street crosses over a bridge. The middle of the bridge marks the jurisdictional boundary between the City of Wilton Manors and the City of Fort Lauderdale. To the West of this boundary line, N.E. 26th Street is entirely within the corporate limits of the City of Wilton Manors. The remaining portion of N.E. 26th Street is wholly within the corporate limits of the City of Fort Lauderdale. From North Andrews Avenue to Old Dixie Highway (hereinafter referred to as "Segment 1"), N.E. 26th Street is a two-way, two-lane roadway with a posted speed limit of 30 miles per hour. Since 1978, Segment 1, which travels through a primarily residential area of the City of Wilton Manors, has been functionally classified as an Urban Collector and has been the jurisdictional responsibility of the City of Wilton Manors. The functional classification and jurisdictional assignment of Segment 1 are not in dispute in the instant case. From Old Dixie Highway to North Federal Highway (hereinafter referred to as "Segment 2"), N.E. 26th Street passes through a primarily commercial area and has a posted speed limit of 35 miles per hour. This portion of N.E. 26th Street has two eastbound lanes and two westbound lanes. It also has a turning lane separating eastbound and westbound traffic. The Department has proposed to change the functional classification of Segment 2 from a Minor Arterial to an Urban Collector and to reassign jurisdictional responsibility for Segment 2, to the extent it lies within the corporate limits of the City of Wilton Manors, from Broward County to the City. The instant controversy concerns these proposed actions. In 1987, the Department began the process of reevaluating the functional classification and jurisdictional assignment of all roads and road segments in Broward County, including Segment 2. Evaluation points were awarded to each of these roads and road segments in accordance with the Department's rules. Data collected by the Department reflected that the Average Daily Traffic on Segment 2 was 16,540 vehicles. Accordingly, Segment 2 was given seventeen points for traffic volume. It was also awarded two points for length; fifteen points for number of lanes; five points for speed; and fifteen points for being a divided roadway, for a total of 54 points. Other roads and road segments in Broward County received more evaluation points than did Segment 2. The combined length of these other roads and road segments with a higher point total than Segment 2 was not less than 416 miles. Therefore, the Department determined that Segment 2's functional classification should be changed from a Minor Arterial to an Urban Collector. Because N.E. 26th Street lies entirely within the incorporated area of Broward County, the Department further determined that the jurisdictional responsibility for Segment 2 should be reassigned to the City of Wilton Manors and the City of Fort Lauderdale, with the former exercising responsibility for that portion of the road segment within its corporate limits and the latter doing the same with respect to that portion of Segment 2 within its corporate boundaries. On July 29, 1988, following a public hearing on the matter, the Department sent a letter to the Mayor of the City of Wilton Manors advising him, among other things, of the foregoing conclusions it had reached regarding the appropriate functional classification of Segment 2 and the assignment of jurisdictional responsibility for this road segment. The letter was not sent by certified mail, return receipt requested. The City of Wilton Manors received the letter on August 4, 1988. By letter dated August 23, 1988, it requested that the Department reconsider its determination to functionally reclassify that portion of Segment 2 within the corporate limits of the City and to reassign it to the City's road system. In its letter, the City requested a formal hearing on the matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Transportation enter a final order functionally reclassifying that portion of N.E. 26th Street from Old Dixie Highway to the easternmost point of the City of Wilton Manors as an Urban Collector and assigning jurisdictional responsibility of this road segment to the City. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th of August, 1989. STUART M. LERNER 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 30th day of August, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5068 The following are the Hearing Officer's specific rulings on the Proposed Findings of Fact submitted by the Department of Transportation: Accepted and incorporated in substance in this Recommended Order. Rejected as not supported by competent substantial evidence. It appears from the date stamp on the Department's July 29, 1988, letter to the City that it was received by the City on August 4, 1988, not August 9, 1988. Accepted and incorporated in substance in this Recommended Order, to the extent that it addresses Segment 2 of N.E. 26th Street. Insofar as it asserts that the Department proposes to functionally reclassify other segments of N.E. 26th Street, it is rejected as not supported by competent substantial evidence. Rejected as unnecessary. Rejected as more in the nature of a conclusion of law than a finding of fact. Rejected as more in the nature of a conclusion of law than a finding of fact. Rejected as more in the nature of a conclusion of law than a finding of fact. Accepted and incorporated in substance in this Recommended Order. Accepted and incorporated in substance in this Recommended Order. Accepted and incorporated in substance in this Recommended Order. Accepted and incorporated in substance in this Recommended Order. Accepted and incorporated in substance in this Recommended Order. Rejected as contrary to the greater weight of the evidence. COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Building 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 George Richardson, Jr. City Attorney City of Wilton Manors 524 N.E. 21st Court Wilton, Manors, Florida 33305 Kaye N. Henderson, Secretary Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida" 32399-0450 Thomas H. Bateman III, Esquire General Counsel Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0450
Findings Of Fact Appellant owns the property located at 1430 Palmetto Street, Clearwater, Florida. The area is zoned RS-50, a zoning for single family residents. The house located thereon is a three-bedroom, two-bath home with a garage and carport. Appellant proposes to enclose the garage to provide two additional bedrooms and a bath. The lot on which this house is sited contains 13,000 square feet. The minimum lot size for RS-50 zoning is 5,000 square feet. The structure exceeds all setback requirements of the Code. Most of the homes in this neighborhood have driveways to the garages while Appellant's property has a circular drive in front of the house. The structure meets the City of Clearwater's fire code and to be licensed as an Adult Congregate Living Facility (ACLF) must meet all requirements of the Department of Health and Rehabilitative Services. Appellant has a housekeeper on the premises at all times to prepare the meals and take care of the residents. Appellant's son manages the property and the son's wife visits the premises daily to do the necessary shopping, take the residents to doctor appointments, shopping, or for outings. Only one automobile remains at the premises on a 24-hour basis. Some residents do not have any family locally and visitors average one every two weeks per resident. Use of this property as an ACLF is reasonably compatible with the neighborhood. Excessive traffic will not be generated by use of this property as requested and the requirements for on-site parking is satisfied. Although an ACLF is a business, it is operated similar to a home in that business hours are not such that any disturbance of the neighborhood will occur and insignificant additional traffic will be generated as a result of granting this special exception. Neighbors generally have no complaints regarding the operation of the existing ACLF with a total of five residents but strongly oppose any increase in the number of residents. As grounds for opposing the increase these witnesses cited expected decrease in property values, anticipated increase in traffic and traffic hazards to the elderly residents of the ACLF who may walk along the street, excessive numbers of vehicles at the premises for which off-street parking is not available, a general dislike for any business activity conducted in the neighborhood, their opinion that an ACLF is incompatible with the neighborhood, and that Appellant will reap a financial bonanza if the special exception is granted. No statistical evidence was presented to support any of these contentions.
The Issue The issue is whether Respondent should deny Petitioner's application for a sign permit, because the proposed site is not zoned commercial and, therefore, fails the requirement for commercial zoning in Subsection 479.111(2), Florida Statutes (2007),1 and the location does not qualify as an un-zoned commercial/industrial area within the meaning of Subsection 479.01(23).
Findings Of Fact Respondent is the state agency responsible for regulating outdoor signs at the proposed site. The proposed site is located at 2505 West Bella Vista Street, Lakeland, Florida. Petitioner is a Florida corporation engaged in the business of full-service advertising in the state, including road-side signs or billboards. On March 21, 2008, Petitioner submitted an application for an outdoor advertising permit for two structures with four sign faces identified in the record by application numbers 57095, 57096, 57097, and 57098. On March 31, 2008, Respondent issued a Notice of Denied Application (the Notice). The Notice notified Petitioner of proposed agency action to deny the permit application. The Notice states two grounds for the proposed denial. The first ground alleges the “Location is not permittable under land use designations of site [sic]” within the meaning of Subsection 479.111(2). The second ground alleges the “Location does not qualify as unzoned commercial/industrial area” within the meaning of Subsection 479.01(23). Section 479.111 applies to signs located within the interstate highway system and the federal-aid primary highway system (the regulated highway system). The proposed site is located within the regulated highway system adjacent to Interstate 4 in Polk County, Florida. Subsection 479.111(2), in relevant part, authorizes signs within the regulated highway system which satisfy one of two disjunctive requirements. A sign must be located in either a “commercial-zoned” area or must be located in a “commercial- unzoned” area and satisfy a statutorily required use test.2 The term “commercial-unzoned” is defined in Subsection 479.01(23). However, a determination of whether the proposed site satisfies the statutory use test for a “commercial-unzoned” area is not necessary if the proposed site is found to be in a “commercial-zoned” area. The Legislature has not defined the term “commercial-zoned” area, and Respondent has cited no rule that defines the term. The issue of whether the proposed site is in a “commercial-zoned” area is an issue of fact and is not within the substantive expertise of Respondent. Even if the definition were within the substantive expertise of Respondent, Respondent explicated no reasons in the evidentiary record for deference to agency expertise. The evidentiary record explicates reasons for not deferring to purported agency expertise in this case. Respondent previously approved a sign permit from the same applicant on the same property. Petitioner spent $23,000.00 to move the previously approved sign so that both the proposed and existing signs could be permitted on the same property. It is undisputed that the proposed site is located on property zoned as Leisure Recreational in the Polk County Comprehensive Plan. It is also undisputed that Leisure Recreational “allows for multiple uses including commercial.”3 However, Respondent interprets the Leisure Recreational designation to be an “unzoned-commercial” area, because “The subject parcel is not explicitly zoned commercial. ”4 Respondent apparently has adopted a titular test for determining whether the proposed site is “commercial-zoned.” If the zoning designation does not bear the label “commercial,” Respondent asserts it is not “commercial-zoned” within the meaning of Subsection 479.111(2). The fact-finder rejects that assertion and applies a functional test to determine whether the local zoning label permits commercial use. A preponderance of the evidence supports a finding that the local zoning label of Leisure Recreational means the proposed site is “commercial-zoned” within the meaning of Subsection 479.111(2). Credible and persuasive expert testimony shows that the Leisure Recreational zoning designation specifically designates the proposed site for commercial uses, within the meaning of Subsection 479.01(23),5 including retail structures up to 20,000 square feet, bars, taverns, marinas, and fishing camps. The commercial uses allowed under the Leisure Recreational zoning designation are not discretionary with county planning staff but are permitted as a matter of right. Much of the dispute and evidence in this proceeding focused on two use tests that Respondent performed in accordance with Subsections 479.01(23)(a) and (b). However, the statutory use test applies only to site locations that are “commercial- unzoned.” Findings of fact pertaining to the accuracy of the use tests utilized by Respondent are unnecessary because they are inapposite to “commercial-zoned” property such as the proposed site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting the application for a sign permit. DONE AND ENTERED this 8th day of April, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 8th day of April, 2009.
Findings Of Fact Broward County requests that three segments of A1A be designated urban principal arterial roads: A1A from Miramar Parkway (or Hallandale Beach Boulevard) north to Sheridan Street, A1A from Seventeenth Street Causeway north to Oakland Park Boulevard, and A1A from Commercial Boulevard to Atlantic Boulevard. Petitioner also requests that the following streets connecting A1A to US 1 be designated urban principal arterial roads: Hallandale Boulevard, Pembroke Rode, Sheridan Street, Seventeenth Street, Sunrise Boulevard, Oakland Park Boulevard, Commercial Boulevard, and Atlantic Boulevard. The roads listed above serve major centers of activity in an urban area and have high traffic volumes. The major centers of activity are such that they attract long-distance travelers. The three portions of A1A and their connecting links would be integrated with the urban principal arterial road network within Broward County. Although the main portions of A1A and its connecting links are heavily traveled, the geographic location of A1A indicates that it is an alternative route of travel north and south. In Broward County, A1A is interrupted approximately one-third of the way through the County by Port Everglades, the eastern terminus of State Road 84. This interruption in the road's continuity, together with the type of activity located along the route, mitigate against its use as a major north/south route for persons desiring to go long distances, and it does not serve the longest trip purpose. The segments of A1A and its connecting links named in the petition are already designated urban minor arterial roads. Atlantic Boulevard from State Road 7 to University Drive and Broward Boulevard from University Drive to State Road 84 are not constructed. These two roads referenced in the petition are proposed links planned to be constructed in the future. The nature of the traffic on these proposed links is at this time conjectural. The remaining roads presented in the petition are east/west roads located south of State Road 84 in Broward County. This portion of the County contains approximately 40 percent of the County's population and is rapidly growing. The contiguous cities of Miramar, Hollywood, Pembroke Park, Pembroke Pines, and Hallandale constitute the major population area in South Broward County. The following figures show the population broken down by major population centers in South Broward County: CITY POPULATION Hollywood 122,750 Hallandale 36,400 Miramar 30,400 Pembroke Park 5,100 Pembroke Pines 29,800 TOTAL 224,450 Hollywood Boulevard is the only east/west road currently designated as an urban principal arterial road in South Broward County. The traffic corridor between Hollywood Boulevard and State Road 84, the next urban principal arterial road to the north, is approximately five miles wide and has an east/west traffic count of 93,200 cars per day. The traffic corridor between Hollywood Boulevard and the southern boundary of the County is approximately three miles wide and has an east/west traffic count of 65,300 cars per day. These two corridors in South Broward County are considered by the Department of Transportation's expert to be in the gray area between minor arterial and principal arterial roads (See Transcript, Page 543). There are major centers of activity located in South Broward County on the eastern edge of the County which attract vehicular traffic from inside and outside Broward County. Considerable traffic is generated between residential communities in the western portion of the County and the business district located in the southwestern portion of the County. Reference to Exhibit R-11, a map of the existing urban principal arterial road network, shows a disparity between east/west urban principal arterial roads north of State Road 84 and south of State Road 84. With 60 percent of the County's population, the northern portion of the County has eight east/west urban principal arterial roads, while the southern portion of the County which has 40 percent of the County's population has only one east/west urban principal arterial road. No clear differences exist between the types of activities located in the southern portion of Broward County and those located in the northern portion of the County. While Fort Lauderdale is the major business district in the County, the County's International Airport and Gulfstream Race Track are located in South Broward County. In addition, there are the normal business, commercial and industrial developments one would expect in a community of more than 200,000 people. Further, South Broward County has become a residential community for persons working in Dade County. The existence of such residential communities in southern Broward County generates long-distance trips north and south. The high traffic counts in the most southerly traffic corridor in Broward County indicate substantial traffic flow east and west to access the north/south urban principal arterial road. In heavily built-up metropolitan areas, urban principal arterial roads should be located from five to one miles apart. The denser the population, the closer together the arterial roads should be. Currently, there are no urban principal arterial roads located between State Road 84 and Hollywood Boulevard, a distance of approximately five miles, and no urban principal arterial roads located between Hollywood Boulevard and the southern boundary of the County, a distance of approximately three miles. The traffic data in South Broward County meets the superlative levels necessary to designate a road an urban principal arterial road. The most northerly proposed east/west route in southern Broward County is Griffin Road. Its proximity to the International Airport and its extension westward to State Road 25 (US 27) are positive factors in its consideration as an urban principal arterial route. Griffin Road is located at the very north of the traffic corridor which it would serve, almost four miles from Hollywood Boulevard and one mile south of State Road 84. Traffic in the vicinity of the International Airport will be changed by the modifications in the airport and the extension of State Road 84. Sterling Road is the next most northerly proposed route in southern Broward County. Sterling Road is located almost exactly midway between State Road 84 and Hollywood Boulevard, the middle of the traffic corridor which it would serve. Sterling Road is not an improved facility from US 1 west to the Florida Turnpike, the portion passing through the area of highest population density and carrying the heaviest traffic load. Sheridan Street is the next proposed route north of Hollywood Boulevard. It is located one and a quarter miles north of Hollywood Boulevard and is multi-laned from A1A to west of the Florida Turnpike; however, it does not connect with University Boulevard, although plans exist for its extension one mile to University Boulevard. There is substantial commercial build-up along Sheridan Street; however, means exist for limiting the effect of this type of build-up on traffic flow. Commercial build-up along an urban arterial road is a major problem which can only be resolved through close coordination by zoning and traffic planning authorities. If Sheridan Street were extended west to State Road 25, it would run between the communities of Pembroke Pines and Cooper City and not penetrate any communities. Pembroke Road runs east/west from US 1 to University Boulevard. It is approximately midway between Hollywood Boulevard and the southern boundary of Broward County. This road runs on the northern borders of Hallandale and Miramar. Hallandale Boulevard (or Miramar Parkway) runs east/west from US 1 to University Boulevard. Miramar Parkway carries slightly heavier traffic flow than Pembroke Road; however, it is the main business route through Pembroke Park and Hallandale.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer makes the following recommendations: Atlantic Boulevard from State Road 7 to University Drive and Broward Boulevard from University Drive to State Road 84 not be designated as urban principal arterial roads. The proposed portions of A1A and its connecting links not be approved as urban principal arterial roads. Designation of one urban principal arterial road in the traffic corridor between State Road 84 and Hollywood Boulevard, and designation of Sheridan Street as that urban principal arterial road. Designation of one urban principal arterial road in the traffic corridor between Hollywood Boulevard and the southern boundary of Broward County, and designation of Pembroke Road as that urban principal arterial road. As agreed to by the parties, these recommendations form a partial Recommended Order on the petition filed by Broward County. By further agreement of the parties this Recommended Order is not submitted for entry of a final order until presentation of the evidence concerning urban minor arterial roads which should be added to the State Highway System. DONE and ORDERED this 22nd day of April, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 John Franklin Wade, Esquire Broward County Courthouse 210 South East Sixth Street Fort Lauderdale, Florida 33301
The Issue The issue to be determined is whether Respondent violated section 475.25(1)(b) & (c), Florida Statutes (2007), as alleged in the Administrative Complaint and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with regulating the practice of real estate pursuant to section 20.165 and chapters 455 and 475, Florida Statutes. At all times material to this Administrative Complaint, Respondent was licensed as a real estate broker associate in the State of Florida, having been issued license number 3057283. At all times material to this Administrative Complaint, Respondent was licensed with Re/Max Professionals, Inc., a real estate corporation. At the time of hearing, Respondent was licensed with Access Realty of North Florida, Inc., a licensed real estate corporation. Respondent's address of record is 757 West Duval Street, Lake City, Florida 32055. At all times material to the Administrative Complaint, Respondent was the listing agent for a property known as 831 South West 5th Street, Live Oak, Florida (5th Street property). On March 4, 2008, Respondent listed the property as having a Commercial Intensive (CI) zoning. At the time of the listing, zoning classifications for property in Live Oak were not available on line, and could only be obtained by calling for the information. At the present time, George Curtis is employed by the City of Live Oak and handles inquiries regarding zoning for properties in the City of Live Oak. He does not recall receiving a telephone call from Respondent regarding the zoning classification for the 5th Street property. However, at the time of Respondent's inquiry, Mr. Curtis was just starting his employment with the city, and did not yet have an office. Inquiries were at that time directed to the City Clerk's office. Mr. Curtis could not state that no call was received by that office, or, if received, what information was given. The listing for the property states at the bottom, "[t]his information is deemed reliable, but is not guaranteed." Respondent listed the property zoning as CI after calling to inquire regarding the appropriate zoning for the property. While she testified that her call was to the Suwannee County office as opposed to the City of Live Oak, it is found that the call must have been made to the City, given the telephone call described below. The property described in the listing is not zoned CI, but rather Commercial Neighborhood (CN). In Live Oak, CI zoning is the most intense zoning district, and is limited to major arterial roads in the city. It is intended to meet the needs of a regional population. CN zoning is intended to provide for commercial use on a more limited scale, in terms of the size of the building that can be placed and the types of uses. It is intended to meet the needs of a neighborhood area. A funeral home would not be a permitted use for property zoned CN. It would require a zoning change. A funeral home would be permitted on a property zoned as commercial general (CG). The CG category is between CI and CN. In September 2008, Respondent contacted the City of Live Oak and was referred to George Curtis about the possible use of the property on SE 5th Street as a daycare. During their telephone conversation, he told her that in order to operate a daycare on the property, the owner would need to receive a special exception to the zoning requirements. He obtained her e- mail address and sent her an e-mail with attachments regarding obtaining special exceptions. Respondent believed, based upon their conversation, that the same would be true for any business to be located on the property. Mr. Curtis does not recall telling Respondent at that time that the property was not zoned as CI. On October 16, 2008, Respondent sent the following e- mail to Mr. Curtis: Hi George, the contract for a day care on 831 SW 5th Street, Live Oak (lots 14, 15, 16, Block E, Hildreth) fell through. I now have a pending contract but the buyers want to use the property for a funeral home. Do you see any problem with this? Anne The e-mail was sent at 5:01 p.m. At 5:22 p.m., Mr. Curtis sent the following reply: Hello Anne: I believe this property was Neighborhood Commercial between Green and Ammons on the south side of 5th. C-N does not have any allowances for a Funeral Home, even as a Special Exception. A petition could be proposed to the City Council for Residential- Office or Office Zoning that does allow for the Funeral Home (with also a Special Exception) but other criteria would have to be evaluated to be sure that parting and buffering requirements could be met after any zoning change took place--which is also a process that is not guaranteed but a possibility--there is no way to predict whether the rezoning and the special exception would be approved. This would probably be a 4-6 month process start to finish plus the associated fees to try. Funeral Homes are allowed by right in General Commercial Zoning but you have to front a major street (129/90/51, etc. to get considered for that zoning…) Hope this helps -- wish I had better news… Respondent claims that she never received this e-mail, and that she never deleted it from her computer. She testified that when she did not receive a response, she called the zoning office and was told that a special exception would be required for a funeral home. She passed this information on to Mr. Wright. On October 17, 2008, Russell Wright made an offer to purchase the property on S.W. 5th Street for $45,000. The contract (Petitioner's Exhibit 3) has been reduced and copied several times, and as a result, is illegible in most respects. However, it can be ascertained that the contract was made on October 17, 2008, and signed by the sellers on October 22, 2008. The contract specified that closing was to take place October 31, 2008, which it did. The contract also specified that the Buyers would pay $5,000 down, and the Sellers would finance the remainder at 8 percent, with payments of $485.31. As part of the closing, the Buyers and Sellers signed an Affidavit of Buyer and Seller Regarding Contract Compliance, which stated "all of the contingencies and conditions set forth in the contract (and all addendums thereto) between the Seller and Buyer have been satisfied, performed or waived by the Buyer and the Seller " Because of the condition of Petitioner's Exhibit 3, it cannot be determined whether the form contract made any representations regarding zoning and who was responsible for determining the appropriate zoning for the property. On October 23, 2008, Respondent sent an e-mail to Russell Wright with attachments labeled "Petition for Special Exemption," "How the Future Land Use Plan Map - Brochure," and "Sec. 12.2 Special Exceptions." The message in the e-mail reads: Hi Russ, here's the contact person who deals with the zoning in Live Oak, and the forms for filing. I received 1 of the forms back from you, the As Is Rider but I still need the corrected Lead based paint disclosure that I sent with the AS Rider in yesterday's fax. Please complete this form and fact back to me. The Seller's [sic] are going to close at 9:00 am on Friday 31st, please let me know as soon as possible a time that would be convient [sic] for you and your wife to attend. Regards, Anne. Mr. Wright acknowledged receiving an e-mail, but not the documents. He sent Respondent the other documents required for closing. After the closing, he called her and stated that he could not locate the paperwork related to special exceptions, and on November 3, 2008, she mailed it to him. With the paperwork was the following note: Dear Russell and Marcus: I have enclosed the paperwork for the Special exception. If you have any questions you may call George Curtis at 386-362-2276. Mr. Curtis is the development manager for the City of Live Oak. Regards, Anne Mr. Wright began making renovations on the property in order to open a funeral home. In July 2009, he began the process of getting his city occupational license. He could not obtain the license because the property was not zoned for his intended use. At that point, Mr. Wright contacted city officials, including George Curtis and the Mayor of Live Oak. Mr. Curtis advised Mr. Wright that he had sent an e-mail to Respondent advising her that a funeral home could not be operated on the property with its present zoning. Mr. Wright wrote to Respondent, demanding that she compensate him for the fact that he could not open the funeral home without a zoning change. The letter stated in pertinent part: The Mayor of Live Oak and Mr. George Curtis has informed me that I can apply for a zoning change so that My Wife and I can open our business. But it will cost $750.00 to file the initial papers. And that is NOT a guarantee. To date with the down payment and monthly payments and renovation cost, your dealings have cost us $25,000 plus pain and suffering and embarrassment. And we have property that we can't use for the intention it was purchased. Ms. Hurst, we are allowing you and your firm to settle this matter out of court. Ms. Hurst we will settle this matter for the amount of $50,000.00 which is damages plus pain and suffering. If you and ReMax Professionals, Inc., are not willing to settle with us out of Court, we will retain the Attorney with whom my Wife and I have consulted. . . . It is clear from the evidence that Mr. Wright chose to believe that he could open a funeral home on the property without any further administrative action either to change the zoning or to obtain a Special Exception for its intended use. Neither belief is consistent with the credible evidence that Respondent sent him information regarding Special Exemptions and the process to obtain them. All of the information given to him is consistent with his need to follow up with the City's zoning department, which he did not do. Based on the more persuasive evidence presented in this classic, "he-said, she-said" case, it is found that Respondent did not receive the October 17, 2008 e-mail from George Curtis, but believed that a Special Exemption would be required to operate a funeral home on the property, and that she supplied information to Mr. Wright to that effect. Mr. Wright's claim that Respondent represented that the property could be used as a funeral home with no further action is rejected.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing Count One in the Administrative Complaint; finding a violation of section 475.25(1)(c), as alleged in Count Two; imposing a reprimand and fining Respondent $250.00. DONE AND ENTERED this 8th day of June, 2011, in Tallahassee, Leon County, Florida. S 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 8th day of June, 2011. COPIES FURNISHED: William Haley, Esquire Brannon, Brown, Haley, Robinson & Bullock, P.A. Post Office Box 1029 Lake City, Florida 32056-1029 Joseph A. Solla, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801-1757 Thomas W. O’Bryant, Jr., Director Division of Real Estate 400 West Robinson Street, Suite 801N Orlando, Florida 32801-1757 Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The segment of road in question is located entirely within the City of Leesburg, Florida. The segment in question, Main Street, begins at a junction of CR 468 and SR 44 and heads in an easterly direction, is intersected about midpoint by SR 25 (US 27), then continues easterly to a junction with SR 44 on the east edge of the city, a distance of 3.670 miles. SR 25 in the urban limits of the city and where it is intersected by Main Street is classified as an urban principal arterial. SR 44 at the western and eastern terminus of Main Street is classified as an urban minor arterial. The Respondent evaluated the entire length of Main Street (3.670 miles) as one segment rather than two segments, one east of SR 25 and one west of SR 25. Main Street is bounded by SR 44, a road of higher classification than the present classification of Main Street, an urban collector, and of equal classification to the proposed classification of Main Street, a minor arterial. The traffic flow on Main Street is a continuous flow and is not significantly interrupted by the intersection of SR 25. Before evaluating Main Street under the criteria of a minor arterial the Respondent, using a method similar to the method for minor arterial classification but designed for urban collector classification, evaluated Main Street as an urban collector and calculated a System Attribute Score (SAS) of 90 which indicated a higher classification. This calculation resulted in Main Street being evaluated as a minor arterial. Respondent, in determining the functional classification of Main Street, utilized the criteria set out in Rule 14-12.015, Florida Administrative Code and scored Main Street on 5 attributes: (1) Average Daily Traffic (ADT), minimum 4,000; (2) Speed (lowest posted), minimum 35 mph; (3) Traffic Signals, minimum 3; (4) Street Length, minimum 3.5 miles; and (5) Lanes, minimum 3, with each attribute receiving a score of 1 if it met the minimum level set forth in Rule 14-12.015, Table Number 3, Florida Administrative Code. For the ADT attribute, Respondent utilized an ADT figure of 8,581, an average of 3 figures furnished verbally to the Respondent by the City Engineer. These ADT figures were not collected in accordance with Rule 14-12.017, Florida Administrative Code, as required by Rule 14-12.015(1)(b), Florida Administrative Code nor certified as required by that same rule. The Respondent was not certain of when, where or how the ADT figures furnished by the City Engineer were obtained, but the Respondent was of the opinion that the figures were obtained from a segment of Main Street east of SR 25, mainly in the heart of the City of Leesburg, Florida. The Respondent did not collect Average Daily Traffic (ADT) figures for Main Street. The Respondent used 40 miles per hour (mph) for speed attribute, but the lowest posted speed on Main Street was less than 35 mph. For the traffic signal attribute, the Respondent used 4 but there was credible evidence that 6 traffic signals were located on the 3.670 miles of Main Street. The Respondent used 2 lanes for the lanes attribute and there was no dispute as to the number of lanes. For the length attribute, the Respondent used 3.670 miles and there was no dispute as to the length. The Respondent assigned a score of 1 to each of the attributes, with the exception of lanes which was assigned a score of zero, for a total score of 4 which when multiplied by the system element coefficient of 15, found in Part II-Small Urban Area System Elements and Coefficients, Table 4, Arterial to Arterial, as required by Rule 14-12.015(3), Florida Administrative Code, equals a SAS of 60. However, since the Respondent relied on invalid ADT figures and on incorrect speed limit the correct SAS would be 30 which required the Respondent to classify Main Street as a minor arterial. In 1982, the City of Leesburg, Florida contemplated an urban renewal project which would involve Main Street and therefore requested the Respondent to reroute that segment of SR 44 within the city (what is currently known as Main Street was then SR 44) so that Main Street could become a city street. Public hearings were held on the rerouting of SR 44 and there were no objections. However, before rerouting SR 44 the Respondent required the Petitioner to pass a resolution stating that it did not object to the rerouting or to removing those segments of CR 468 and CR 33 involved in the rerouting from the County Road System and transferring those segments of CR 468 and CR 33 to the State Road System. The resolution was adopted by the county, but there was no indication, other than that Main Street would become a city street, that the County was acting on a representation by the Respondent that Main Street would always remain classified as a city street and under the jurisdiction of the City of Leesburg. Although the Petitioner expended funds on CR 468 and CR 33 prior to transferring them to the State Road System, there was no evidence that the Respondent required this expenditure prior to the transfer of the roads or that because of this expenditure, or for any other reason, the Respondent represented to the Petitioner that Main Street would always remain classified a city street and under the jurisdiction of the City of Leesburg. There was no evidence that the Petitioner relied on Main Street being transferred to the jurisdiction of the City of Leesburg to make any expenditure of funds for the improvement of CR 468 and CR 33 or for the expenditure any other funds. Main Street does not meet the minimum attribute level for classifications as an urban principal arterial in a small urban area.
Recommendation Based upon the Findings of Fact, Conclusions of Law, the evidence in the record and the candor and demeanor of the witnesses, it is, RECOMMENDED that Respondent, Florida Department of Transportation enter a Final Order assigning jurisdiction over Main Street in Leesburg, Florida beginning at a junction of CR 468 and SR 44 and moving in an easterly direction to a junction with SR 44 on the east edge of the City of Leesburg, Florida to Petitioner. Respectfully submitted and entered this 25th day July, 1988, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 25th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4388 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact l. Adopted in Finding of Fact 4. 3-6. Adopted in Finding of Fact 9. 7. Adopted in Finding of Fact 7 but clarified. 8-9. Adopted in Findings of Fact 12 and 13 respectively. 10-11. Rejected as immaterial or irrelevant to any determination in this case. 12-14. Adopted in Finding of Fact 17. Rejected as immaterial or irrelevant to any determination in this case. Adopted in Finding of Fact 19 but clarified. Adopted in Finding of Fact 18 except that reclassification of Main Street was not the subject of the resolution. Rulings on Proposed Findings of Fact Submitted by the Respondent The first 2 sentences are rejected as immaterial or irrelevant to any determination in this case. The third sentence is rejected as not being supported by substantial competent evidence in the record in that Main Street was located entirely within the city limits of Leesburg. The fourth, sixth, and seventh sentence are adopted in Findings of Fact 1, 8, and 12, respectively. The fifth sentence is adopted in Findings of Fact 6. The eighth and ninth sentence is adopted in Finding of Fact 13. The tenth sentence is adopted in Findings of Fact 14 and 15. The first 2 sentences are rejected as not being material or relevant to any determination in this case. The third sentence is adopted in Finding of Fact 5. The fourth and fifth sentences are adopted in Finding of Fact 16. The first 6 sentences are rejected as not being material or relevant to any determination in this case. The balance of paragraph 3 is adopted in Findings of Fact 17, 18, 19, 20 and 21 but clarified. COPIES FURNISHED: Sanford A. Minkoff, Esquire 1150 East Highway 441 Tavares, Florida 32778 Vernon L. Whittier, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458
The Issue The issues here concern the transfer of a portion of State Road 211 in Duval County, Florida, referred to as Grand Avenue. This transfer would be made upon Respondent's contention that the road is functionally classified as a collector and properly the subject for maintenance and control by Petitioner. The City of Jacksonville has opposed this transfer based upon its belief that Respondent's classification of the road as a collector was inappropriate and that the aspect of the road, constituted of the Ortega River Bridge, is in a substandard physical condition when contrasted with contemporary roads of like age and existing functional classification within Duval County and Jacksonville, Florida. See Subsection 335.04(1), Florida Statutes. WITNESSES AND EXHIBITS Petitioner presented the witnesses Stanley K. Nodland, City Engineer, Jacksonville, Florida; Charles E. Ison, Sr., Junior Engineer, Bridge Inspections Section, City of Jacksonville; Morris M. Napier, Associate Engineer, Bridge Inspections Section, City of Jacksonville, and Robert Lee Hill, Jr., City Highway Engineer, City of Jacksonville. Petitioner offered five (5) exhibits which were received. Respondent called as its witnesses James H. Pittman, District Planning Engineer, Department of Transportation; James A. Moss, District Maintenance Engineer, Department of Transportation, and Stephan Fregger, Chief of Bureau of Transportation Systems Statistics, Department of Transportation. Respondent offered Exhibits 1, 1A and 2-12, which were admitted.
Findings Of Fact Following a series of workshops and meetings between the parties in this cause, allowing public comment in these sessions, Respondent determined to transfer approximately 3.1 miles of road to Petitioner for maintenance purposes. In formulating this policy decision, Respondent functionally classified the road as a collector. The road is referred to as Grand Avenue and includes the Ortega River Bridge. It is located in the City of Jacksonville, Duval County, Florida. The purpose of functional classification of the roadway in question was part of the classification exercise mandated by Subsection 335.0A(1), Florida Statute which began in late 1977 or early 1978. The overall classification requirement related to the entire state of Florida and it was to be concluded effective July 1, 1982. In addition to the sessions held between the parties and the general public, related to the road classification in question, other sessions were held in-house between the central office, Department of Transportation and its District Offices, to include District II. District II is the locale in which Duval County is found. This consultation by staff was designed to insure uniformity in the endeavor. To conclude the process of the state-wide classification, Respondent acted in accordance with Chapter 14-12, Florida Administrative Code, and relied on those definitional statements set forth in Subsection 334.03(14), (15), (16) and (17), Florida Statutes 1/, in establishing qualitative criteria for the statewide functional classification activity. In effect, definitions in the provisions form the basis of the criteria. In the case of the subject road, particular emphasis was placed upon traffic volume, trip length, speed and access or mobility. Following the qualitative or subjective examination, Respondent decided that the Grand Avenue section should be classified as a collector road, as opposed to an arterial road or local road. Petitioner does not agree that the read should be classified as a collector, based upon the belief that the Department has failed to promulgate and apply necessary criteria to functionally classify the road in question. Moreover, Petitioner is concerned that the bridge feature of the road is substandard. Therefore, on June 2A, 1982, steps were taken leading to the present Subsection 120.57(1), Florida Statutes, hearing. See Petitioner's Exhibit No. 4, admitted into evidence. Respondent's Exhibit No. 1-A, admitted into evidence, is a traffic count map showing a substantial number of roads in Jacksonville. It depicts the average of four (4) traffic counts taken in 1977, at northwestern and southern ends of the road sought for transfer. At the southern end, 3,415 trips a day were averaged and in the northwestern area, 5,135 trips per day were averaged. This is a close approximation of the traffic circumstance on the road at the time of hearing. The map also features traffic counts for other collector roads in Duval County. Those counts are roughly comparable to the counts on the road in question. Speed limit on Grand Avenue in the subject area varies from 25 miles per hour on the lower end of the street, to 15 miles per hour on some of the curves and in the northern area of the road, the speed limit is 35 miles per hour. The road has two (2) traffic lanes and the Ortega bridge is a two-lane bridge. The road is primarily designed to give access to surrounding property as opposed to granting mobility for through-traffic. There is a high number of local streets adjacent to the road and a number of driveways giving access to the road. The road is located in a predominantly residential area, constituted primarily of single family dwellings, with some apartments in the area of the bridge and small commercial complexes, referred to as neighborhood family stores. Respondent's Exhibit No. 2, admitted into evidence, is a map depicting the proposed system under functional classification. It shows state highways, county roads, collectors, minor arterials, city streets, and the urban boundaries of the area where the Grand Avenue section is found. With the exception of the state highway system tape, all other roads would be part of the city system for maintenance purposes. At the northwest corner of the road in question, at the junction with Herschel Street and San Juan Avenue, the traffic count changes as you proceed north on Herschel Street. It increases to approximately 9,200 trips per day. Proceeding west on San Juan Avenue from the junction at Herschel, Grand and San Juan, the traffic counts increase to some 16,000 as measured in 1977. See Respondent's Exhibit No. 1A. For this reason and based upon other classification criteria, those sections of San Juan and Herschel are arterials and part of the state system. As an example of other criteria differences, San Juan Avenue is basically a commercial area with longer trip lengths than in the case in the area of the subject road. Respondent's Exhibit No. 3, admitted into evidence, is a map depicting the roads by functional classification in the greater part of Duval County, Florida, with a second sheet which more particularly indicates functional classification in the area where the transfer would be made. Respondent's Exhibit No. 4, admitted into evidence, contains a map depicting select collectors and arterial roads in Duval County. This map, in conjunction with other maps, demonstrates the similarity between the subject road and other collectors in Duval County in terms of traffic count, length of roadway and access or mobility. This map also identifies state, national and interstate roads. Respondent's Exhibit No. 4 also has an element constituted of two (2) paces of charts comparing select collectors as to length, average daily trips, number of lanes, nested speed and land use. These charts establish the overall similarity between the collectors and the overall similarity between the arterials. These two (2) groups, i.e. the Duval collectors and arterials, bear strong resemblance respectively to the definitions set forth in Subsections 334.03(15) and (16), Florida Statutes, supra. With the exception of the bridge surface, the roadway in question was resurfaced in April, 1982. In comparison with roadways of other collectors in Duval County, with the exception of the bridge, the condition of the road surface in the subject area is good. The bridge surface is fair. In summary, the facts as reported herein evidence the propriety of functionally classifying the 3.1 miles of State Road 211, known as Grand Avenue, to include the Ortega River Bridge, as a collector. One of the major sections of the road to be conveyed is constituted of the Ortega Bridge. The bridge was built in 1926 and opened to traffic in 1927. It has a bascule span referred to as a walking or rolling bascule. This is the span that moves to allow boat traffic under the bridge. The draw span is operated by two (2) electric motors, activated by a bridge tender. The fixed portion of the structure is an arched type beam construction. The construction composition is made of concrete with reinforcing material. The bridge allows a load rating of H-20. The bridge is depicted in Petitioner's Composite Exhibit No. 2, a series of photographs, admitted into evidence. While forty (40) years is the average life of a bridge, this bridge has lasted fifty-seven (57) years. The present condition of the bridge is spoken to through a series of inspection reports and ratings given the structure. Respondent, through its bridge inspection section examined the fixed spans of the bridge on August 10, 1981. A copy of the report that ensued may be found as Respondent's Exhibit No. 10, admitted into evidence. In speaking to the major elements of the fixed spans, the report has a numerical rating of the various elements. The ratings range from adequate in describing the fender system in the canal to excellent when describing the drainage system. On August 19, 1981, Respondent also made an inspection of the movable spans. Respondent's Exhibit No. 10, supra. These numerical ratings range from fair, in describing such things as rack gears, curve tracks and flat tracks of the bascule span machinery, to excellent in describing the gear assemblies in the movable span elements. The gears had been subject to major overhaul in the years 1978 and 1979. Notwithstanding the basically sound condition of the bridge as borne out by the 1901 inspection, a number of deficiencies were noted related to cracks in bridge columns, caps, webb walls and abutments/indents. Cavities were found in the rip-rap bags at abuttment 1. Cracks were noted in the beams and diaphragms. The asphalt surface of the deck was cracked and spalled and had bulges at certain areas of the joints throughout the structure, related to faulty expansion. (The approach slabs were improved with the resurfacing in April, 1982.) Spalled areas were found in the deck underside. The fender system had deteriorated substantially due to marine borers. The top track and walking pinion gear on the north side of the east leaf was found to not mesh properly when the bridge is being opened and closed. There was some deterioration found in beams/stringers/girders related to the movable span. All these matters and other deficiencies are more particularly described in Respondent's Exhibit No. 10, to include photographs. The report is found to be an accurate depiction of the bridge condition. Respondent conducted a further inspection of the movable span in August, 1982, above water and underwater. A copy of the inspection report may be found as Respondent's Exhibit No. 9, admitted into evidence. These observations are substantially the same as was the case in the 1981 inspection of the movable spans. The observations in this report and the photographs with the report are found to be accurate. A sufficiency rating through structure and inventory appraisal is reflected in a computer printout prepared on December 6, 1982. The rating is 71.5. It relates to all the major elements of the bridge. This information is basically comparable to the inspection reports alluded to before and is accepted as being substantially accurate. See Respondent's Exhibit No. 8, admitted into evidence. The ratings setting forth the principle elements of the bridge are taken from the Recording and Coding Guide for the Structure Inventory and Appraisal of the Nation's Bridges, a copy of which is Respondent's Exhibit No. 12, admitted into evidence. This is a publication of U.S. Department of Transportation/Federal Highway Administration. By utilization of the code system set forth in Respondent's Exhibit No. 12, the rating which is established through the structure inventory and appraisal printout ranges from marginal condition in appraising the deck geometry, to fair condition in describing the substructure, to generally good condition in describing the deck surface, as examples. An estimate of the cost of improvements, as set forth in the Exhibit No. 12, would be $80,000. The $80,000 improvements cost relates to the suggested improvements set forth on page 29 of the Respondent's Exhibit No. 10 and would cover such matters as sealing cracks, repair to rip-rap, etc. Some of those improvements are constituted of periodic maintenance, a prioritized item by the Department of Transportation. The state had not reached the place of making the periodic maintenance improvements to the bridge at the time of the final hearing in this cause. For planning purposes, the Department of Transportation feels that the bridge would last at least five (5) years, from the date of the preparation of the structure inventory and appraisal information set forth in Respondent's Exhibit No. 12. In October, 1982, Petitioner, through its bridge inspection section, examined the Ortega River Bridge. This inspection did not entail examination below the waterline. The results of the inspection are set forth in the Petitioner's Exhibit No. 1, admitted into evidence. Petitioner's Exhibit No. 2, which has been described, are photographs taken during the course of the inspection. Some of the highlights of this report indicate substantial deterioration at the ends of the bascule span, exposing the wire mesh used to bond the asphalt surfaces which are adjacent to the bascule span. It depicts the difference in elevation between the bascule span and the adjacent asphalt spans. Nonetheless, automobiles are able to safely utilize that portion of the bridge where the asphalt span and bascule span are joined. It points out the deterioration of the tender system which is made of timber and has been decimated by marine borer infestation. It specifically points out the disarray of electrical wiring in the area where the electrical motors are found, which constitutes a safety hazard. Per the report, the deflection of the ends of bascule leaves, when in operation, is causing impact loading and vibration in the movable sections, especially when used by heavier vehicles. Essentially, the Petitioner' a inspection is commensurate with the observations of the Respondent in its inspection reports, Respondent's Exhibits 9 and 10. The City's reported observations on the bridge condition are accurate. One of the support pillars for the bridge structure has rotated. The significance of this rotation was not established at the hearing; however, the rotation could reach a point where the pillar was no longer capable of bearing the load. Likewise, the significance of the numerous cracks in the bridge members was not clearly established, other than the common agreement by both parties that those items need attention. Neither the Respondent nor petitioner has done extensive testing such as core sampling of the concrete material, sonigrams or x-rays to determine the relative strength and condition of the bridge structural members. After considering the presentation of both parties on the subject of the bridge, and remainder of the road being transferred, as compared to other roads which are functionally classified in Duval County as collectors, the subject road is found to be physically comparable in its condition and appropriate for transfer. This determination relies on the fact that the road is being transferred as a unit. The bridge is not regarded as an item which warrants its own comparison to other bridges, when considering the transfer of the Grand Avenue section of State Road 211. Therefore, no factual discussion is made of a comparison of the Ortega River Bridge to other bridges in Duval County or out of the county.
The Issue The issue is whether Petitioners are entitled to an award of attorneys’ fees and costs pursuant to section 57.111, Florida Statutes (2017).1/ Petitioners are entitled to such an award if: Petitioners were the prevailing parties in a previous administrative proceeding initiated by the Department of Transportation (“the Department”); (b) the Department’s actions were not substantially justified; and (c) no special circumstances exist that would make an award of fees and costs unjust.
Findings Of Fact The following Findings of Fact are based on the oral and documentary evidence adduced at the final hearing, matters subject to official recognition, and the entire record in this proceeding: The Parties The Department is the state agency responsible for coordinating the planning of a safe, viable, and balanced state transportation system that serves all regions of Florida. § 334.044(1), Fla. Stat. As part of its duties, the Department regulates “[v]ehicular access and connections to or from the State Highway System . . . in order to protect the public health, safety, and welfare.” § 335.182(1), Fla. Stat. Crum’s Service is owned by Ronald Crum and has been in operation for over 50 years. It is located in Panacea, Florida, adjacent to State Road 30/61 (“Highway 98”). Crum’s Service has less than 10 employees, and Mr. Crum’s net worth is less than two million dollars. Coastal Restaurant is owned by Rita Sadler and has been in her family since the 1950s. It is next to Crum’s Service and is also adjacent to Highway 98. Coastal Restaurant has approximately seven full-time employees, and Ms. Sadler’s net worth does not exceed two million dollars. Kelli Boxberger operates The Funky Fiddler located on Highway 98 in Panacea. The Funky Fiddler has been in operation since the 1950s. Driveway connections on state roads must be permitted or grandfathered. § 335.1825, Fla. Stat.; Fla. Admin. Code R. 14-96.011(3)(a). Because Petitioners’ driveways were in place before 1988, they are grandfathered. § 335.187(1), Fla. Stat. Facts Specific to the Instant Case On April 7, 2014, the Wakulla County Board of Commissioners voted unanimously to support the design and construction of sidewalks and multiuse paved paths. In order to further that effort, Wakulla County requested that the Department fund sidewalk construction from Piney Street to Jer Be Lou Boulevard in Panacea. The proposed sidewalk was intended to address safety concerns associated with people walking along Highway 98. The Department funded the sidewalk project and incorporated it into a separate project to resurface a seven mile portion of Highway 98 running through Wakulla County. The sidewalk project required the Department to evaluate whether existing driveways along Highway 98 needed to be modified for pedestrian safety. If the Department determined that particular driveways needed to be modified, then it sent written notification to the property owners. On August 4, 2017, the Department issued letters to Mr. Crum, Ms. Sadler, and the Boxbergers referencing work on the portion of Highway 98 running from the Franklin County line to Boykin Road in Wakulla County. The letters stated the following: While developing the above-referenced project, [the Department] is required to evaluate existing driveway access connections and modify those which will create a traffic operations or safety problem. As part of this project, sidewalk will be constructed between Piney Street and Dickson Bay Road. The existing driveways adjacent to the proposed construction work for this project also required evaluation for safety of pedestrians. The Department has completed this evaluation and is notifying you of its proposed action with this Notice of Intent to Modify Driveway Connection(s). The letters then state that “[p]ursuant to Sections 334.044(14) and 335.182, Florida Statutes, the Department is initiating action to alter the existing connection of your property to [Highway 98] as identified on the enclosed “DRIVEWAY DETAIL.” In other words, the Department was providing notice that it intended to install a sidewalk in front of Crum’s Service and Coastal Restaurant. The proposed sidewalks would have modified the driveways onto the properties, but would not have closed them. The Department’s proposed modification to the Boxberger property involved a 39-foot wide driveway connection and a sidewalk on either side of the driveway. All of the Department’s proposed modifications pertained to land completely within the Department’s right-of- way. The Department’s August 4, 2017, letters closed by advising Mr. Crum, Ms. Sadler, and the Boxbergers that they had 21 days to request a formal administrative hearing if they disagreed with the Department’s proposed action. Mr. Crum was concerned that the proposed sidewalk would “totally annihilate” his business. Many of his customers use cars or trucks to tow boats. According to Mr. Crum, the Department’s proposal would have resulted in there being insufficient space in his parking lot for vehicles towing boats. Ms. Sadler was concerned that the proposed sidewalk would destroy the parking spaces in front of her restaurant. On August 17, 2017, staff members from the Florida House and Senate organized a constituent meeting at a local restaurant to hear concerns about the resurfacing project. Mr. Crum, Ms. Sadler, a handful of constituents, two legislative staff members, and Reid Carter Johnson, a government affairs liaison from the Department, attended the meeting. Business owners told Mr. Johnson that the proposed sidewalk would impair access between their property and Highway 98. Mr. Johnson told those present that the Department’s engineers would confer with anyone who had concerns about the proposed sidewalk.2/ On approximately August 18, 2017, Mr. Crum and Ms. Sadler hired Ronald A. Mowrey, Esquire, to represent them in this matter. On August 23, 2017, Crum’s Service and Coastal Restaurant filed petitions seeking to challenge the Department’s proposed action through formal administrative hearings. Engineers from the Department conducted a site visit with Mr. Crum, Ms. Sadler, and their attorney on August 29, 2017, at Crum’s Service and Coastal Restaurant. After listening to Mr. Crum and Ms. Sadler’s concerns, the engineers stated that they would review all of the information. Engineers from the Department also met with Ms. Boxberger on August 29, 2017, in order to conduct a site visit pertaining to the location of The Funky Fiddler. At that time, Ms. Boxberger had not retained counsel. Ms. Boxberger was concerned that the Department’s proposed modification would prevent her from displaying merchandise in front of her store on the Department’s right-of- way. She was also concerned that the Department’s proposal would deprive her business of three parking spaces. On September 18, 2017, Ms. Boxberger filed a petition to challenge the Department’s proposed action through a formal administrative hearing. Petitioners did not hear from the Department again until the Department issued each of them an “Amended Notice of Intent to Modify Driveway Connections(s)” (“the Amended Notice(s)”), on November 20, 2017. The Amended Notices stated that: [P]ursuant to Sections 334.044(14), 335.182 and 335.187, Florida Statutes, as well as Rules 14-96.011 and 14-96.015 Florida Administrative Code, the Department has reviewed the existing connection of your property to [Highway 98]. Subsequent to the initial Notice of Intent to Modify Driveway Connections, the Department met with you on- site on August 29, 2017 and engaged in other coordination efforts with your representative to consider information, documents, reports and alternative solutions. After taking into consideration the concerns expressed in these discussions, the Department has amended its plans as detailed in “EXHIBIT A”. The Amended Notices indicated that the Department decided against placing a sidewalk in front of Crum’s Service and Coastal Restaurant.3/ The Department’s Amended Notice to Ms. Boxberger clarified the substance of the Department’s proposed action but set forth no material changes. The Amended Notices to all three Petitioners stated that they could request a formal administrative hearing if they disagreed with the proposed action set forth in the Amended Notices. Mr. Crum and Ms. Sadler were satisfied and did not challenge the Department’s proposed action. As a result, the Department issued Final Orders dismissing the petitions filed by Mr. Crum and Ms. Sadler. As of August 31, 2017, the Department had not disposed of the petition filed by Ms. Boxberger.
