Findings Of Fact At all times pertinent to the matters in issue herein, the Respondent, Department of Transportation, was the state agency responsible for the monitoring and control of vehicular access to and traffic control on the state highways of this state. Petitioner, Pablo Sanchez, owns the property in issue. This property is a 24 x 40 foot house located on a 70 x 103.62 foot lot located at the corner of East 8th Avenue (LeJeune Road) and East 7th Street in Hialeah, Florida. LeJeune Road, depending upon the location, both has and does not have a restrictive median. At this location it does not. Mr. Sanchez currently and historically, over the 3 years he has lived in the property in question, enters and exits the property, which has no formal driveway, from LeJeune Road. By the same token, guests who visit him enter and exit the property the same way. During this 3 year period there have been no accidents or traffic problems as a result of this use even though traffic on LeJeune Road, a main thoroughfare, is heavy. There is no obstruction on or near the property to hinder visibility of either an individual exiting the property onto LeJeune Road or a driver on LeJeune Road observing anyone coming off the property. In Mr. Sanchez' opinion, a permitted driveway practically would change nothing from the current situation. The area in which the property is located is rapidly changing from residential to commercial. Mr. Sanchez is trying to have the zoning of his property changed from residential to office use. His efforts in this regard are with the City of Hialeah. If his application for zoning change is approved, it is his intention to use the house as an office for his insurance business which is currently conducted at a different location at 24th Street and LeJeune Road. The current office is located on a corner lot from which Mr. Sanchez has access onto LeJeune Road and it is his contention there have been no traffic problems at that location either. No evidence to rebut this contention was forthcoming. There are currently commercial businesses in operation on both sides of LeJeune Road between the area now being used as a business by Petitioner and the area for which he submitted his application. The majority of these enter onto LeJeune Road. Mr. Sanchez contends that the use of the property in issue as an insurance office would not generate as much traffic as either the neighboring bank or service station in the area, and if he were to receive the driveway permit for this property, he claims, the amount of traffic onto LeJeune Road from it would not be increased by any significant amount. He submitted his application and paid the $1,000.00 fee. Most of Mr. Sanchez' time is spent at his business building because his parents live at that location and when he is not working, he spends a great deal of time with them. His experience has been that he can easily go from his home to his office on LeJeune Road at any time without difficulty, and he goes up and back each day expending 6 or 7 minutes for each trip. Petitioner introduced photographs of several businesses purported to be in the area which, he claims, have commercial entrances onto LeJeune Road. Respondent entered no evidence to contradict the identity or location of the sites reflected in the photos and they are, therefore, accepted as offered. One of them is a bank which, he contends, has been in operation for approximately 10 years. Another is a service station which has been in operation for "a considerable amount of time." This facility was there before Petitioner arrived in the area. Another business depicted, Marina Insurance, opened approximately two years ago. The facility used to be a residence and Mr. Sanchez does not know when or if a driveway permit was issued for that property. Another service station in the area was opened "many years ago" and a store for wedding gowns was opened "seven or eight years ago." The photographs fail to show any traffic, however, either in front of, exiting, or entering the properties. Mr. Sanchez claims they are active businesses and have been contributing to traffic on LeJeune Road for many years. In the absence of evidence to contradict that assertion, it is accepted. Mr. Sanchez' contentions were supported by his son, Joel, who is in business with his father and who used to live in the house in question with his father, his mother, his wife and his two children. With four adults living there, three cars were frequently in use, and all usually entered and exited the property from LeJeune Road. On occasion, they would come in or exit from 7th Street, but between 80 and 85% of the time the LeJeune Road access was utilized, primarily because the property faces on LeJeune Road. Visitors to the property usually park to the right of the front door, and so far there has been no problem getting on or off of LeJeune Road. The younger Sanchez confirms his father's testimony that entrance onto or exit from LeJeune Road from either the current residence or the current business property has not been a problem over the years, and he sees no traffic hazard. According to Joel Sanchez, LeJeune Road is no longer a residential street. He confirms his father's statement that new businesses are constantly going in and all seem to have been able to get driveway access onto LeJeune Road. The older businesses have had access to LeJeune for a long time and there appears to have been no problem with traffic. The property in issue here became a problem only when the Sanchezes tried to rezone it. Notwithstanding the fact that at the residence they already use an access onto LeJeune Road, according to the city zoning officials, if the property were to be converted into a business use property, a formal access onto LeJeune, to accommodate 8 parking spaces on the property, would be necessary. The only way 8 parking spaces could be placed onto the existing property would be to place the entrance and exit onto LeJeune Road. From a practical standpoint, the only change would be the actual paving of access ramps out to the highway instead of driving onto and off the property across the lawn as is the current practice. The number of the customers the business would bring to the new site would not be heavy, no more than 6 or 7 per day. This would be a maximum, Petitioner claims, because the nature of the insurance business he is conducting is changing to that which would reduce to an even lesser amount the traffic required. Most of the business customers are now renewals who deal with the company by mail, and the only traffic would be new business. In that regard, they are changing more to commercial lines of insurance, dealing with businesses, which does not have a large office visit rate. Neither of the Sanchez men have any training in traffic management or safety, but both sincerely feel their proposal will not increase traffic or pose a risk to traffic safety in the area. Debora Moran Rivera, a traffic engineer with the Department's Miami District is familiar with the instant permit application and, in fact, reviewed it when it was submitted. When first received by the District, the application was sent to the field for comments. It was determined that a 25 foot radius exit was required. Photographs were received along with the comments and based on the review by both the field office and the District office, it was determined that the application here was not consistent with the rules of the Department governing permits of this nature. As a result, on February 26, 1991, a Notice of Intent to Deny the application was sent to Mr. Sanchez in which the reason for denial was the availability of access to the State Highway from another public road, (East 7th Street). Sometime thereafter, Ms. Rivera was contacted by Joel Sanchez who asked for a formal denial which could be appealed and thereafter, a formal denial letter dated March 19, 1991 was sent. This letter indicated the Department rules limited access to a point at least 115 feet from the nearest connection, East 7th Street. The denial decision was based on information provided by the field operations office to whom the application was sent for verification. The decision to grant or deny is a joint one made by several individuals whose identity is dependant upon where the property in question is located. Mr. Pego, Ms. Rivera's supervisor and Ms. Rivera were the individuals who made this decision based upon the input from the staff in the field. In this case, the field information consisted of a statement based upon his visit to the site and two photographs. Based on this information along with that provided by the applicant, the decision to deny was made. Admittedly no traffic study of the area in question was made by either party. Further, in evaluating the application, however, Ms. Rivera did not look at any other driveway permits for property in the immediate area. She thinks she went out to visit the site before the official denial letter was sent out on March 19, 1991 but she does not recall what the business characteristics of the area were like. While she is generally familiar with the area, she does not recall the specifics. Based on the evidence presented, nothing was put before the undersigned to demonstrate the insufficiency or impropriety of the Department's evaluation and decision making process and it is accepted that the process was sufficient and adequate. There is some indication from the testimony of Petitioner that he had called the District office to request a Spanish speaking representative come out to the property. In response, the District sent out a Mr. Montez. According to Mr. Sanchez, Montez initially told him that the application would probably not be approved because the property fronted on LeJeune Road. However, Sanchez claims Montez later changed his mind and indicated the application would probably be granted because of the small nature of the business. The evidence on this point is unclear as to whether the visit by Mr. Montez is the site visit described by Ms. Rivera. No evidence was presented to clarify this, but in any case, there is no showing that Montez had any authority to commit the Department to a position. His opinions, therefore, are irrelevant.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered in this case denying Petitioner's application for a connection from his property located at 700 East 8th Avenue, Hialeah, onto East 8th Avenue, (Lejeune Road). RECOMMENDED in Tallahassee, Florida this 29th day of January, 1992. ARNOLD H. POLLOCK 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 29th day of January, 1992. COPIES FURNISHED: Juan Carlos Perez, Esquire 4770 Biscayne Blvd. Miami, Florida 33137 Michael A. Bienstock, Esquire 25 SE 3rd Avenue, Suite 1240 Miami, Florida 33134 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Ben G. Watts Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Thornton J. Williams General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450
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 issue in this case is whether the Petitioner is entitled to additional points on the October 1996 Civil Engineering exam.
Findings Of Fact In October 1996, Jane A. Caldera (Petitioner) took the Principles and Practice of Engineering Examination. By grade report dated February 17, 1997, the Petitioner was notified by the Department of Business and Professional Regulation (Department) that she had received a score of 67 points on the exam. A minimum score of 70 points was required to pass the October 1996 engineering examination. The Petitioner challenges the scoring of her responses on question 121 and question 423 (parts 1, 2 and 4). Question 121 required mathematical calculation of channel flow rates based on a hypothetical set of facts. On question 121, the Petitioner received four points from a total of ten available points. The evidence establishes that the Petitioner should have received a total of six points for her response to question 121. The scoring plan for question 121 provides that six points are awarded for "minimum competence." The scoring plan for question 121 defines minimum competence as follows: Must attempt all parts of part (a) and gives answers for flow depth and flow discharge within [plus or minus] 5 percent but omits flow state. OR Solves flow depth and flow discharge within accuracy of [plus or minus] 10 percent, for both, and provides demonstrated answer for flow state. OR Neglects inlet loss in solution of flow depth and flow discharge, and provides demonstrated answer for flow state. (Emphasis supplied.) The Petitioner asserts that her answer to question 121 meets the level of minimum competence because she provided the correct answer for flow state, depth and discharge, but neglected to allow for the inlet loss in her answer. The greater weight of the evidence supports the Petitioner's assertion. Respondent's Exhibit 4, a re-score result by the National Counsel of Examiners for Engineering and Surveying states that the Petitioner is not entitled to additional points on question 121 because the "examinee's solution does not meet the accuracy criteria set for a score of 6 and did more than required for a score of 2. Therefore, the solution was scored at a level of 4." The re-scoring report is uncorroborated hearsay. The re-scoring report does not appear to follow the specific criteria set forth in the scoring plan for the examination. The scoring of the Petitioner's response to question 121 was arbitrary and capricious. Question 423 requires calculations related to motor vehicle traffic flow. A hypothetical set of facts are included which identifies the percentages of passenger cars, three-axle trucks, four-axle trucks, and five-axle trucks passing a traffic count station. Question 423, part one, states "[t]he annual number of passenger cars (vehicles) passing through this count station is most nearly:" and provides four possible answers. In order to answer question 423, part one, an examinee must determine the total number of vehicles and then calculate the total number of passenger cars as a percentage of the total vehicle count, in order to correctly answer the question. Question 423, part two, states "[t]he annual number of five-axle trucks (vehicles) passing through this count station is most nearly:" and provides four possible answers. In order to answer question 423, part two, an examinee must determine the total number of vehicles and then calculate the total number of five-axle trucks as a percentage of the total vehicle count, in order to correctly answer the question. The word "(vehicles)" in question 423 parts one and two is extraneous. The question can be answered without inclusion of the reference to "(vehicles)." The Petitioner asserts that inclusion of the reference to "(vehicles)" in the question is confusing and prevents an examinee from responding appropriately. The evidence fails to support the Petitioner's assertion. Question 423, part four, states "[t]he 30th highest hourly volume (vehicles) at the count station is most nearly:" and provides four possible answers. In order to respond to question 423, part four, the "K-factor" must be considered. A K-factor is a ratio commonly expressed as a subscript, related to traffic flow computation. In question 423, part four, the hypothetical fact states that the "K-factor is 0.10" but does not state the K- factor in the form of a subscript. The Department asserts that the examinee should have assumed a value of K30. The Petitioner asserts, and the evidence establishes that the appropriate K-factor in an urban setting is K200. The Department's expert witness was asked if there was any basis to assume that the K-factor in the problem was K30 "as opposed to any of the other K's that are used in traffic engineering problems," to which he replied that there was not. The evidence fails to establish that question 423, part four, contains sufficient information which would lead an examinee to reasonably assume a factor of K30 was applicable under the set of hypothetical facts provided in the question. The Department's assertion that a factor of K30 should be assumed by an examinee is arbitrary and capricious.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation enter a Final Order awarding to Jane A. Caldera such additional points as are set forth herein. DONE AND ENTERED this 16th day of June, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1998. COPIES FURNISHED: R. Beth Atchison Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Jane A. Caldera 16810 Stanza Court Tampa, Florida 33624 Mario Romero, Esquire Bull and Associates, P.A. 111 North Orange Avenue, Suite 1700 Orlando, Florida 32801 Lynda L. Goodgame, General Counsel Office of the General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angel Gonzalez, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
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 The issue to be determined in this case is whether the Wellness Way Area Plan Map and Text Amendment to the Lake County Comprehensive Plan (“Remedial Amendment”) adopted through Lake County Ordinance No. 2016-1 is “in compliance,” as defined in section 163.3184(1)(b), Florida Statutes.
Findings Of Fact The Parties Petitioner Cemex is a Florida limited liability company doing business in Lake County. Cemex made timely objections and comments to Lake County on the Remedial Amendment. Petitioner Lake Louisa is a limited liability company that owns property in Lake County. Lake Louisa made timely objections and comments to Lake County on the Remedial Amendment. Cemex leases 1,200 acres of land in Lake County from Lake Louisa. The leased property is located within the area affected by the Remedial Amendment. Cemex proposes sand mining on the leased property and obtained all the required state permits. Prior to adoption of the Remedial Amendment, Cemex sought a conditional use permit from Lake County for its proposed sand mining. Respondent Lake County is a political subdivision of the State of Florida and adopted the Lake County Comprehensive Plan, which it amends from time to time pursuant to section 163.3184, Florida Statutes. Intervenors South Lake Crossings I, LLC; South Lake Crossings II, LLC; South Lake Crossings III, LLC; Clonts Groves, Inc.; Catherine Ross Groves, Inc.; and Cra-Mar Groves, Inc., (referred to collectively as “South Lake”) own 2,500 acres in Lake County which are subject to the Remedial Amendment. Intervenors made timely comments to Lake County on the Remedial Amendment.1/ The Wellness Way Area The Wellness Way Area comprises 15,471 acres in southeastern Lake County. It is bordered by U.S. Highway 27 to the west, the City of Clermont to the north, and Orange County to the east. Currently, the Wellness Way Area is mostly designated as agricultural with some small areas of residential and industrial uses. However, there is only one active agricultural operation. The majority of properties within the Wellness Way Area are large tracts of unused land. Directly east of the Wellness Way Area, in Orange County, is the Horizon West Sector Plan which consists of 23,000 acres and is one of the fastest growing areas in the United States. The Remedial Amendment To address DEO’s objections to the Lake County Wellness Way Sector Plan, the County adopted the Remedial Amendment which converted the Sector Plan into the Wellness Way Urban Service Area. Based on the terms of the settlement agreement, the ordinance adopting the Remedial Amendment, and Lake County’s stipulation on the record, the Wellness Way Sector Plan no longer has force or effect. The Remedial Amendment creates five future land use categories within the Wellness Way Area: Town Center and Wellness Way 1 through Wellness Way 4. Each future land use category allows a mix of uses, but with different density and intensity limits in each category. The highest density and intensity limits are in the Town Center category, located along U.S. Highway 27. The lowest limits are in the Wellness Way 4 category. The Town Center and Wellness Way 1-3 categories have identical permitted and conditional land uses. Wellness Way 4 allows fewer types of land uses and no residential land use because the land is publicly owned and contains a large wastewater reclamation facility. The new land use categories provides for a distribution of land uses by percentage of total land area within the category. In Town Center, the distribution is 25 percent non- residential, 45 percent residential, and 30 percent open space. In Wellness Way 1-3, the distribution is 10 percent non- residential, 60 percent residential, and 30 percent open space. The allowable residential density for each category differs. The Town Center has a minimum density of 6.0 dwelling units per net buildable acre (“du/ac”) and a maximum density of 25 du/ac. Net buildable acre is defined as gross acres minus wetlands, waterbodies, and open spaces. Wellness Way 1 has a minimum density of 3 du/ac and a maximum density of 20 du/ac. Wellness Way 2 has a minimum density of 2.5 du/ac and a maximum density of 15 du/ac. Wellness Way 3 has a minimum density of 2 du/ac and a maximum density of 10 du/ac. Wellness Way 4 has no density criteria because residential uses are not allowed. The allowable intensity for non-residential uses in each category also differs. The Town Center has a minimum average Floor Area Ratio (“FAR”) of 30 percent and a maximum average FAR of 200 percent. Wellness Way 1 has a minimum average FAR of 25 percent and a maximum average FAR of 200 percent. Wellness Way 2 has a minimum average FAR of 20 percent and a maximum average FAR of 200 percent. Wellness Way 3 has a minimum average FAR of 15 percent and a maximum average FAR of 200 percent. Wellness Way 4 has no intensity criteria. Implementation of the Remedial Amendment goals, objectives, and policies is to be accomplished through the review and approval of planned unit developments (“PUDs”). Despite the density allowances stated above, the total number of dwelling units that can be included in a PUD are further controlled by Policy I-8.2.1.1, which ties residential development to job creation. For each dwelling unit proposed in a PUD, a certain number of jobs must be created through the setting aside of areas for non-residential uses. The jobs-to- housing ratio assumes that one job is created for every 450 square feet of non-residential development. Each land use category has a different jobs-to-housing ratio applicable to approved PUDs. In Town Center, the jobs-to- housing ratio is 2.0 to 1.0, meaning 900 square feet of non- residential development must accompany every proposed dwelling unit. In Wellness Way 1, the jobs-to-housing ratio is 1.75 to 1.0. In Wellness Way 2, the ratio is 1.50 to 1.0. In Wellness Way 3, the ratio is 1.35 to 1.0. In the Remedial Amendment, the information and criteria for a PUD application are more detailed and extensive than under the Comprehensive Plan provisions for PUDs outside the Wellness Way Area. For example, a PUD application under the Remedial Amendment must include a report on the PUD’s impact on transportation facilities and the need for additional transportation improvements, and a detailed plan for public facilities, such as potable water, sanitary sewer, and schools. The Remedial Amendment requires each PUD to establish Wellness Way Corridors, which serve as buffers around the border to connect job hubs and neighborhoods through trails and other pedestrian facilities. Meaningful and Predictable Standards Sand Mining Approval Petitioners contend the Remedial Amendment fails to provide meaningful and predictable standards governing sand mining within the Wellness Way Area. Sand mining is listed as a conditional use in all land use categories. Comprehensive Plan Objective III-3.5 and its policies, which address sand mining, were not changed by the Remedial Amendment. They prohibit mining in environmentally sensitive areas which cannot be reclaimed, require mining within aquifer protection zones to be performed in a manner that would not negatively impact water quality, and require mining operators to demonstrate a practical and environmentally sound reclamation plan. Under the Remedial Amendment, an application for a conditional use in the Wellness Way Area must be combined with a PUD application and must comply with the detailed PUD criteria of new Policy I-8.7. By combining a conditional use application with a PUD application, Lake County can impose additional conditions designed to assure the conditional use will be compatible with the surrounding land uses. The Remedial Amendment adds more criteria and greater detail than exists currently in the Comprehensive Plan for reviewing a proposal for sand mining. Adding these review criteria is not a failure to provide meaningful and predictable standards. PUD Densities and Intensities Petitioners contend that the densities and intensities within the Wellness Way Area cannot be reasonably predicted because Policy I-8.2.1.2 permits the density and intensity of developments to exceed or fall below the required maximum and minimum densities and intensities of use so long as a PUD as a whole fits within the limits. Petitioners’ evidence on this point was not persuasive. Applying density and intensity limits to the entire area of a PUD is not unreasonable and does not fail to provide meaningful and predictable standards. Location of Future Land Uses A more persuasive argument made by Petitioners is that the land use planning flexibility in the Remedial Amendment goes too far because the location of particular land uses will not be known until PUDs are approved. Lake County’s arguments in this regard do not overcome the fact that, under the Remedial Amendment, the determination where land uses will be located in the Wellness Way Area is deferred to the PUD process. The Remedial Amendment itself does not establish the location of future land uses in the Wellness Way Area. A landowner or citizen cannot predict where future land uses will be located in the Wellness Way Area. Lake County did not present evidence to show that any other local government comprehensive plan in Florida uses a similar planning approach. There appears to be no other comprehensive plan amendment that was the subject of a DOAH proceeding which left the location of future land uses unspecified in this way. Potential PUDs Petitioners contend that the Remedial Amendment fails to provide meaningful and predictable standards because applications for development approvals in the Wellness Way Area are reviewed on a case-by-case basis for their effect on approved and “potential PUDs.” Policy I-8.7.1 provides: Until and unless a PUD is approved by the Lake County Board of County Commissioners, the property in the WWUSA area shall maintain the existing zoning (e.g. A, R-1, CFD, PUD). All applications for development approvals (i.e. lot splits, conditional use permits, variances, etc.) on any property within the WWUSA area shall be reviewed on a case-by- case basis for the effect of such development approval on adopted or potential PUDs and compliance with the general principles of the Urban Service Area. The Remedial Amendment’s requirement that development approvals account for potential PUDs makes it impossible to predict how Lake County will make a land use decision because it is impossible to know or account for an unapproved, potential PUD. This standard lacks meaning and predictability for guiding land development. Case-by-Case Approvals Petitioners assert that Policy I-8.7.1 also creates internal inconsistency because it requires all development to be approved through the PUD process, but then appears to also provide for non-PUD development approvals on a case-by-case basis. The testimony presented by Lake County seemed to support Petitioners’ claims. Exceptions can be stated in a comprehensive plan without constituting an internal inconsistency. However, the ambiguity of Policy I-8.7.1 causes it to lack meaning and predictability for guiding land development. Urban Form Guiding Principles Policy I-8.2.2 of the Remedial Amendment sets forth guiding principles for development derived from the goals, objectives, and policies for the Wellness Way Area and establishes principles to guide development. Petitioners argue that the principles are not meaningful and predictable standards for the use and development of land because they were described by a Lake County witness at the final hearing as “aspirational.” The policy itself states that, “These guiding principles shall be specifically demonstrated in the PUDs.” The plain meaning of this statement is that application of the principles is mandatory. A witness’ testimony cannot alter the plain meaning of a policy for purposes of an “in compliance” determination. Data and Analysis Planning Timeframes Petitioners contend that the Remedial Amendment is not supported by appropriate data and an analysis because they address only infrastructure needs at the time of the Wellness Way Area’s buildout in 2040; no intermediate timeframes were used. Although section 163.3177(5)(a) requires comprehensive plans to “include at least two planning periods, one covering at least the first 5-year period occurring after the plan’s adoption and one covering at least a 10-year period,” the statute is less clear on the requirements applicable to a comprehensive plan amendment. Petitioners’ evidence and argument on this claim was insufficient to meet their burden of proof. Potable Water Supply Petitioners claim the Remedial Amendment is not supported by appropriate data and an analysis to show that the demand for potable water will be met at buildout. Petitioners’ evidence was insufficient to prove this claim. Internal Consistency Goal I-8 Petitioners argue that Goal I-8 of the Remedial Amendment contains an impermissible waiver of any Comprehensive Plan goals, objectives, or policies that conflict with the Remedial Amendment. Goal I-8 provides: The following Objectives and Policies shall govern the WWUSA as depicted on the Future Land Use Map. In the event that these Goals, Objectives or Policies present either an express (direct) or implied (indirect) conflict with the Goals, Objectives and Policies that appear elsewhere in the comprehensive plan, the provision elsewhere in the comprehensive plan that is in direct or indirect conflict with a Wellness Way Goal, Objective or Policy shall not apply to the WWUSA area. All Goals, Objectives and Policies in the Lake County Comprehensive Plan that do not directly or indirectly conflict with this Goal and associated Objectives and Policies shall apply to the WWUSA area depicted in the Future Land Use Map. Goal I-8 gives no hint as to the nature or the number of potential direct or indirect conflicts that could arise. As explained in the Conclusions of Law, the goal creates an unlawful waiver of unidentified inconsistencies. Urban Service Area The Wellness Way Area is intended to be an urban service area. “Urban service area” is defined in section 163.3164(50): “Urban Service Area” means areas identified in the comprehensive plan where public facilities and services, including, but not limited to, central water and sewer capacity and roads, are already in place or are identified in the capital improvements element. The term includes any areas identified in the comprehensive plan as urban services areas, regardless of local government limitations.” Petitioners contend the Capital Improvements Element of the Comprehensive Plan is inconsistent with the Remedial Amendment because Lake County did not amend the Capital Improvements Element to address public facilities and services in the Wellness Way Area. Lake County responds that it does not own or operate the utility companies that would provide the services, but who owns and operates the utilities has no effect on the statutory requirement to do public utility planning. Lake County argues that it was sufficient for the County to simply identify the utility providers. Section 163.3164(50) requires more. It requires the identification of public facilities and services. Furthermore, section 163.3177(3)(a) requires a capital improvement element “to consider the need for and location of public facilities.” The Remedial Amendment creates an internal inconsistency in the Comprehensive Plan by providing for greater growth and a new urban service area in the Wellness Way Area without amending the Capital Improvements Element to address the greater growth or the urban service area. The Capital Improvements Element should have been amended to include some of the data and analysis that was used to support the Remedial Amendment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission issue a final order determining that the Remedial Amendment adopted by Lake County Ordinance No. 2016-1 is not in compliance. DONE AND ENTERED this 21st day of November, 2016, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 2016.
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 Petitioner is the general partner of Marstof, Ltd., which owns certain property located at Section 24, Township 28, Range 17, Hillsborough County, Florida, and consisting of approximately thirty acres. Its specific location is on the west side of Twelve Oaks Boulevard, and 400 feet north of Heatherfield Drive. Respondent is an expressway authority created under Chapter 348, Florida Statutes, with eminent domain authority pursuant to Chapter 74, Florida Statutes. The property in question is surrounded on the north by a railroad, vacant land, and a strip of commercial property. To the east and west is vacant land, while to the south are single family residences, with some environmentally sensitive areas. There are some trees on the site, but there is no significant vegetation. Petitioner signed a contract to purchase the subject property for $953,000 on September 27, 1985. The property was zoned "Agricultural" at that time, and since Petitioner intended to develop this property for residential uses, he immediately began preliminary lot layout for marketing, and preliminary layout of a proposed waste water treatment facility. These preliminary layouts were submitted to the Hillsborough County Department of Development Coordination in December, 1985. In early 1986, surveys were ordered, a well as soils and environmental studies, and final subdivision design began. By mid-1986, side and environmental plans, as well as plans for a temporary waste water treatment plant were submitted to state and local permitting agencies. In the fall of 1986, revised plans were prepared and submitted, as required. Petitioner began discussions in December, 1986, with General Homes Corporation for their purchase of all residential lots on the subject property. On December 22, 1986, Petitioner received a letter of intent from General Homes, and on March 4, 1987, General Homes executed a contract to purchase all lots in Petitioner's proposed subdivision for a total of approximately $2.5 million. On March 9, 1987, Petitioner filed an application for rezoning of the subject property from "Agricultural" to "Planned Development, Housing" This rezoning was approved on June 23, 1987. However, General Homes had canceled their contract with Petitioner on or about March 25, 1987. Other developers did express an interest in purchasing Petitioner's lots, but no subsequent purchase contract was executed. As part of the rezoning approval, Petitioner conveyed a portion of the subject property, without monetary consideration, to the County for an extension of Twelve Oaks Boulevard, as well as an additional portion used for environmental mitigation. Following approval of his rezoning application, Petitioner filed his revised site plan and request to use an interim waste water treatment plant, to which there was no objection. By October 10, 1987, Petitioner had obtained all necessary approvals and permits, as well as the rezoning of the subject property, to begin pulling permits for development of this residential subdivision consisting of 128 approved lots with a wholesale value of approximately $2.68 million, or $21,000 per lot. He did not begin development, however, because of concerns about the possible impact of the Northwest Expressway on his development. Although no map reservation had been filed, it appeared to Petitioner that it was likely that the proposed route of the Expressway would be through his property. He did not proceed because he was concerned about the marketability of homes next to, or near, the eventual site of the Expressway, the possibility of default on any development loan he would have to obtain if the Expressway was located through his property, and he also wanted to avoid inflating the eventual cost of the property if it had to be taken through eminent domain. The map of reservation filed on July 8, 1988 by Respondent shows that the Expressway right of way crosses directly through the subject property in an east-west direction. The right of way varies from approximately 250 to 290 feet in width. To the south of the Expressway right of way is a portion of the subject property owned by Petitioner of approximately 10 acres on which 34 residential lots could be located. To the north of the right of way is an area that the parties agree is not developable because the Expressway will cut off all access to this northern parcel. The developable southern parcel of approximately 10 acres cannot be profitably developed with only 34 lots. Petitioner testified that no more than 34 lots can be developed on this parcel, and this testimony is supported by a revised site prepared by his consulting engineer and land surveyor. There is no evidence to the contrary. It is not economically feasible to develop this southern parcel due to the original land cost, and the deflating impact which the location of the Expressway next to this parcel will have. Petitioner has invested a total of approximately $1.15 million in the acquisition of the subject property, including its rezoning, site plans, and obtaining all necessary permits and approvals to commence development. He estimates that he could reasonably receive $2.75 million through the bulk sell- out of 128 finished lots at current market conditions, if it were not for the proposed location of the Expressway through his property. Due to the filing of the map of reservation by Respondent for the Northwest Expressway, Petitioner cannot proceed with any portion of the development of residential lots on the subject property. The only evidence in the record is that Petitioner has been deprived of a substantial portion of the beneficial use of the subject property.
Recommendation Based upon the foregoing, it is recommended that the Respondent enter a Final Order granting Petitioner the relief sought, and within 180 days either acquire Petitioner's property, amend the map, withdraw the map, or file appropriate proceedings. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of December, 1988. DONALD D. CONN 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 21st day of December, 1988. COPIES FURNISHED: A. Broaddus Livingston, Esquire One Harbour Place Post Office Box 3239 Tampa, Florida 33601 William C. McLean, Esquire 707 Florida Avenue Tampa, Florida 33602 Ray Speer, Executive Director Tampa-Hillsborough County Expressway Authority 412 East Madison, Suite 802 Tampa, Florida 33602
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 issues to be decided in this case are those associated with the question of whether the Respondent is required to have a permit for the connection of his business property to State Road 206 or is exempt from that requirement. See Section 335.187, Florida Statutes. If he is required to have a permit the issue becomes the acceptability of his current drive, i.e., does it comply with the commercial use design criteria contemplated by Chapter 335, Florida Statutes, and further described in the Florida Department of Transportation "Policy and Guidelines for Vehicular Connections to Roads on the State Highway System," February, 1985, which was recognized and incorporated by reference through Rule 14- 15.013, Florida Administrative Code. These issues are raised through an alleged violation of the Florida Statutes and Florida Administrative Code set out in the Notice to Show Cause which was forwarded to Respondent from Petitioner leading to the formal hearing. The date of that Notice to Show Cause was July 18, 1989. Within the statement of violations there were also allegations concerning irregular signs as alleged under Section 479.11(8), Florida Statutes, associated with the commercial activities by Respondent and the unauthorized parking on the right-of-way at State Road 206 in violation of Section 337.406, Florida Statutes. These latter allegations were conceded by the Respondent at hearing and are resolved through those concessions.
Findings Of Fact At the time of the hearing Respondent operated a roadside fruit and vegetable stand at property adjacent to State Road 206 in St. Johns County, Florida. In addition to fruits and vegetables, by local ordinance of St. Johns County, Florida, he is allowed to sell poultry and fish. There is no indication that he has taken advantage of that opportunity other than to sell fresh shrimp from a cooler during 1989. In addition to these products he sells honeys, jellies, and jams. He also sells soft drinks from a dispensing machine. A mainstay in his business is peanuts which he sells fresh. Another product sold is pork skins. The drink machine that is described was added in March, 1989. Before that time he sold fountain drinks and cold drinks that were dispensed from a cooler. He has always had soft drinks available from the inception of his operation of the roadside stand. That began in March, 1985. At the time the Respondent purchased the property there was an operation ongoing whereby fruit was being sold on two tables. Respondent replaced those structures with a portable trailer which was anchored to the lot, and display and sell of fruit on a 16-foot table and use of an 8-foot table upon which tomatoes were displayed and sold. The trailer was used to store his products over night. The trailer described was a pop-up camper trailer. The principal products being dispensed at that time were peanuts, vegetables, and tomatoes. Through Ordinance No. 86-68, passed by St. Johns County, a copy of which may be seen as Respondent's exhibit No. 1, the property was recognized as C1, commercial intensive, with the conditions that the property would be limited to outdoor sale of produce, vegetables, fruit, poultry, and fish. It was also stated that there would be no access/egress to United States Highway 1, which is also known as State Road 5. This property is located at the intersection of State Road 5 and State Road 206. Present access/egress to the property is from State Road 206 and that has been the situation since Respondent purchased the property. The ordinance described dates from August 12, 1986. Over time Respondent has taken a number of steps to improve his business. In March, 1988, Respondent obtained permission from St. Johns County to place a storage shed on his property. In August of that year he obtained permission to install a metal awning or carport of dimension 18 feet by 45 feet which is anchored to the ground. At that same time he placed the body from an old milk truck on the property for purposes of cold storage. In March, 1988, he had received an electrical permit from St. Johns County. Prior to that time he did not have electricity. In the spring of 1989, a well was drilled to provide running water. Prior to that time Respondent used bottled water. Respondent's composite exhibit No. 2 admitted into evidence describes various permits obtained from St. Johns County. If Respondent was required to remove the structures on his property it could be done in three days. This goes to identify the nature of the structures and to demonstrate that they are not permanent fixtures to the realty. According to Respondent, whose testimony is accepted, the business that he is experiencing at present has remained fairly constant in dollar amounts. He does not sell as many peanuts as he did before. Concerning traffic, Respondent indicates, and his testimony is accepted, that the number of cars that are located at his business would be a maximum of 12 on a busy Sunday afternoon and that at most times there are one or two cars. The hours of the business are from 8:00 a.m. until 6:00 p.m. in the winter time and somewhat longer in the summer time. The business is open seven days a week. A rough description of the nature of the property by design may be found in the documents contained in Respondent's exhibit No. 2 admitted into evidence. The property is approximately 280 front feet and 280 feet at the rear with 41 feet on each side. The frontage runs approximately east-west on State Road 206 and one of the sides abuts State Road 5. The basic design of the driveway entrance from State Road 206 is also set out in those drawings. As Marshall W. Sander, engineer in the permit department for Petitioner in its St. Augustine, Florida, maintenance office, explains the driveway is an unimproved dirt shell connection. This is the same driveway that was there at the time that Respondent purchased the property and has remained in that state since that time. Notwithstanding Mr. Sanders' concern that the driveway is not up to current commercial business criteria for access/egress, there have been no accidents as a result of access/egress from the business. There are two turnouts or turn- ins into the property. Mr. Sander believes that at least one paved driveway is needed leading into the property. The dimensions of that drive would be 24-foot wide which allows a 12-foot wide lane in and a 12-foot wide lane out. This impression of Mr. Sander is drawn in the face of the Respondent's presenting himself at the office of Petitioner in St. Augustine, Florida, with an application and plan showing the intention to improve the property to include restrooms, a beer and wine cooler with parking on site. Under those circumstances Mr. Sander felt it necessary to improve the drive connection. At hearing there was no suggestion that restrooms are available on the premises or will be in the near future, nor was there any indication that a beer and wine cooler would be installed. Therefore it cannot be said that the basic nature of the business has changed from its inception to the present. Mr. Sander concedes that within the records of the Petitioner there are no indications that the business has increased by way of records concerning traffic flow or otherwise. His remarks about increased traffic at Dupont Center is not specific enough to gain a useful impression of that circumstance. Mr. Sander relies upon the observations of the State of Florida, Department of Health and Rehabilitative Services and the St. Johns County Public Health Unit as were testified to by George L. Sigman, Environmental Health Director II for that organization. He also spoke to certain records of the health unit which may be found as Petitioner's composite exhibit 1 admitted into evidence. Nothing about his testimony or that exhibit identifies a noteworthy change in the basic nature of the business from Respondent's establishment of the roadside stand in March, 1985 until the present. Throughout the existence of his business Respondent has operated without the benefit of a driveway permit issued by Petitioner.
Recommendation Based upon the consideration of the facts found and in view of the conclusions of law reached, it is, RECOMMENDED: By way of disposition of the Notice to Show Cause, that a Final Order be entered which recognizes the concessions made by the Respondent concerning the sign in question, calling for its removal if still in existence and his acknowledgment of the problem of parking on the right-of-way and which absolves the Respondent of any necessity to obtain a driveway permit. DONE and ENTERED this 9th day of March, 1990, in Tallahassee, Florida. CHARLES C. ADAMS 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 9th day of March, 1990. APPENDIX The following discussion is given concerning proposed facts. Petitioner' s Facts Paragraphs 1 and 2 are subordinate to facts found. The first sentence in Paragraph 3 is subordinate to facts found. The second sentence is contrary to facts found. The third sentence is subordinate to facts found. Sentences 4 and 5 depict testimony as opposed to suggesting fact finding. However, the last sentence in that paragraph is one upon which facts were found in the Recommended Order. Respondent' s Facts Paragraphs one and two pertain to withdrawal of the request for hearing concerning signs and parking and are not part of fact finding. The first sentence in paragraph 3 is subordinate to facts found. The remaining sentence is legal argument, as are paragraphs 4 and 5. Paragraphs 6-11 are subordinate to facts found. Paragraph 12 is not relevant. Paragraphs 13 and 14 are subordinate to facts found. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, FL 32399-0458 Leo O. Myers, Esquire Post Office Box 1621 Jacksonville, FL 32201 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, FL 32399-0458
