Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaint, the Respondent, Theodore C. Boldt, was a professional land surveyor registered by the State of Florida under license Number LS002387, granted after examination on July 9, 1976, with an expiration date of January 31, 1989. The Department of Professional Regulation, Board of Professional Land Surveyors, (Board), was and is the state agency charged with the regulation of land surveying in this state. On August 5, 1985, the Board entered a Final Order in which it concluded Respondent had violated various sections of the Florida Statutes and Rules. The Board suspended Respondent's license to practice land surveying for six months and, inter alia, required him to submit twenty-five surveys representative of his land surveying practice, accompanied by field notes and record plats for review by the Board. Respondent has submitted fifteen of the surveys, the first ten of which were accepted by the Board. Survey eleven through fifteen, however, were determined to be unsatisfactory. On the basis of that Board determination, an Administrative Complaint was filed in this case alleging that the five surveys failed to meet minimum acceptable standards and thereby constituted a violation of Florida Statutes. The surveys in question were evaluated by Walter A. Paxton, Jr., a registered land surveyor for fifteen years, who has spent a total of thirty-five years in the surveying field. During the course of his career, he has done several thousand surveys and has never had a complaint filed against him. As a part of his practice, he keeps up with the Rules and Standards of the profession by review of agency bulletins and letters and by taking continuing education seminars. Mr. Paxton graded these surveys utilizing a Minimum Standards Probation Report Checklist which identified numerous items for evaluation and grading. Grades available included violation; acceptable, which means that the answer meets the requirements of the rules; not applicable, which means that the subject matter does not pertain to the case under consideration; and marginally acceptable, which refers to an error of a minor nature, such as a typographical error, which is not a true violation of the Rule setting forth minimum standards. With regard to the first survey evaluated, Survey Exhibit 11, Mr. Paxton found one violation. Under the pertinent rule, each survey must fall into a descriptive category to be designated on the drawing. In this case, Respondent described the survey as a "Boundary" survey when, in fact, it should have been described as "As Built." A "Boundary" survey is generally utilized only for raw acreage and this property had a structure built on it. Mr. Paxton also found one marginally acceptable item in that the survey did not reflect the relevant Rule under which the survey was conducted. As to Survey Exhibit 12, Mr. Paxton found two violations. Again, the type of survey described was wrong and the survey failed to show the lot dimensions on the West side of the final drawing. The field notes reflected 81 feet for the West side of the lot. Of the four marginally acceptable issues, the first dealt with the completeness of the survey and relates to the Respondent's failure to put in the total dimensions as described above. In the second, the drawing failed to show the bearings on the finished product. The third relates to Respondent's failure to indicate the adjoining lot and block number on the South side of the drawing. The fourth pertains to Respondent's failure to reflect the Rule number in his certification. This last was a deficiency in each of the five surveys in question. As to survey Number 13, Mr. Paxton found one violation which again related to Respondent's use of the term "Boundary" survey instead of "As Built" on a survey of a lot on which a structure has been erected. Two marginally acceptable items related to the failure to show the Rule in the certification and Respondent's failure to list both lot and block when identifying lots adjacent to the property under survey. This, too, is a repeat deficiency. In the fourth survey, Number 14, Mr. Paxton found three violations and three marginally acceptables. The violations related to the Respondent's failure to show a Block identification on the survey and his showing only of the lot number. The second was that Respondent's field notes did not indicate a closure on elevation, but instead, showed only the elevation from the benchmark to a point on the ground. Respondent admitted this was a violation. The third related to Respondent's failure to indicate the original benchmark on the drawing but only the site benchmark. In this case, Respondent admits to this but indicates he could not find the original benchmark because of the distance from the site of the survey. He described the search therefor as being "hard" to do. The marginally acceptable items on this survey again relate to Respondent's failure to show the Rule number in the certification portion of the survey; his failure to include the Block number in addition to the Lot number on the sketch; and his failure to identify adjoining property Lot and Block numbers on the drawing. The fifth survey contained two violations and four marginally acceptable items. The violations were, again, the failure to properly describe the survey as "As Built", and the failure to indicate angles on the field notes. The four marginally acceptables relate to the Respondent's failure to refer to the Rule in his certification; his failure to indicate the block number as well as the lot number on the sketch; the failure to maintain acceptable quality field notes (the failure to list the angles as required); and the failure to reflect on the second sketch of this property a revision date indicating the first sketch was changed. Based on the above identified violations and marginally acceptable items, Mr. Paxton concluded that the surveys in question here do not meet the acceptable standards of the State of Florida for surveys and it is so found. Respondent does not deny that the actions alleged as violations or marginally acceptable areas occurred. He objects, however, to the fact that they were described as violations. Mr. Boldt has been in the surveying profession for 49 years, having started with his father at the age of 10. It is his practice not to put the Block number on a survey unless Lots beside or behind the Lot being surveyed are in a different Block. This practice has been accepted by various banks and the county since he has been doing it and certainly since 1983, when the subject was made a matter of Rule. By the same token, banks and the county have also for years accepted without question his use of the descriptive term, "Boundary" for the type of survey. Accepted use is irrelevant, however, if the rules in question prescribe otherwise. From his testimony it can only be gathered that Respondent complies with the Rules "when he can." When Mr. Paxton pointed out that the requirements identified here appear in the Rules of the Board, Respondent pointed out that the Rules were "new Rules". This approach to the profession of land surveying, while satisfactory to him, is not acceptable when measured against the Board rules.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's license as a registered land surveyor in Florida be suspended for 18 months with such suspension to be stayed for a probation period of 18 months under such terms and conditions as the Board of Professional Land Surveyors may specify. RECOMMENDED this 29th day of August, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1988. COPIES FURNISHED: G. W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399 Theodore C. Boldt 5424 Hayden Blvd. Sarasota, Florida 33582 Allen R. Smith, Jr. Executive Director DPR, Board of Professional Land Surveyors 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact At all times relevant hereto, respondent, Narcisco J. Ramirez, held land surveyor license number LS0002779 issued by petitioner, Department of professional Regulation, Board of Professional Land Surveyors. Respondent currently operates a land surveying firm known as South Atlantic Services of Florida, Inc. located at 7350 Southwest 41st Street; Miami, Florida. Respondent received a two year degree in civil engineering from City College of San Francisco in 1969 and has worked for various firms as a land surveyor in the Miami area since 1971. He has been a registered land surveyor in Florida since July, 1975. In March, 1984, respondent was contacted by a real estate salesman and requested to perform a "boundary survey" and "sketch" of a parcel of land owned by one M. P. Smith McNiely. The land in question involved various lots, including Lots 23, 25-30, 34-36 and 38 located in a subdivision known as DeSoto Heights which lies adjacent to Southwest 304th Street, Southwest 105th Terrace, and Southwest 168th Street in Dade County, Florida, just north of the City of Homestead. The property was to be sold, and the survey was intended to assist the seller in determining a sales price on the property. Ramirez interpreted the request to mean that only a "preliminary sketch" would be initially done, and if requested by the owner, a "complete survey" would be performed at a later date. He was paid $650 for the initial work, and expected an additional fee of $2,500 to $3,000 for the complete survey. According to Ramirez, a preliminary sketch is not as accurate as a complete survey, has substantially less information, may contain errors, and does not require a certification by the surveyor that it meets all required professional standards of surveying. Ramirez assigned the field work to an employee named Roberto Collado, who no longer lives in Florida. The field work consisted of determining the property corners, and providing a sketch to the real estate salesman. Ramirez did not certify that minimum technical standards had been met but did sign and seal the drawing on March 22, 1984. At the same time he provided the following certification: I HEREBY CERTIFY: that the attached sketch of survey represents a recent survey made under my direction, and is true and correct to the best of my knowledge and belief. There are no encroachments unless shown thereon. Ramirez also added the following in bold lettering: NOTE: BOUNDARY SURVEY ONLY. No elevations secured or any other featured at the owners representative s request. A short time later, Frank Makowski, also a registered land surveyor and a former professional colleague of Ramirez some ten years earlier was contacted by an attorney (David Liebman) who was handling the sales transaction of McNiely's property. The closing was being held up because Ramirez's survey reflected a house sitting on both lots 36 and 37. Makowski was requested to verify the encroachment onto lot 36, and to ascertain the true location of the property boundaries. Makowski initially contacted Ramirez and requested a copy of his sketch and field notes. These were supplied by Ramirez, who gave no indication to him that the work was only "preliminary" in nature. Makowski then sent out a field team to survey the property. It found that the west boundary on the Ramirez survey was actually thirty-three feet off, which caused the purported encroachment on lot 36. The sketch made by Ramirez was deficient in a number of respects as established by uncontradicted expert testimony. To begin with, the parties have stipulated that the survey did not comply with the minimum technical standards for land surveying as set forth in Chapter 21HH- 6, Florida Administrative Code. These include Rules 21HH- 6.03(1), (2), (4), (6)-(8), (12), (18)-(20), and 21HH- 6.06(1), Florida Administrative Code, as alleged in the administrative complaint. For example, it contained no certification, did not reflect all bearings and angles, and monumentations were not set. In short, the Ramirez survey technique and procedure was not in conformance with the procedure required by generally accepted and prevailing standards of land surveying. Moreover, even though it was identified as a "boundary survey;" expert testimony established that the project was indeed a survey within the meaning of the term and it had to meet such technical standards or plainly provide a disclaimer to indicate that such standards were not met. In September, 1983, respondent was engaged by an engineering firm to "secure ground elevations along the above property (Southwest 168th Street and Southwest 192nd Avenue, Dade County) and then relate said elevations to a Dade County Bench Mark," and to "prepare a sketch of survey showing said existing ground elevations." For this he was to be paid $150. The property was owned by Alfred and Linda Wilson. Ramirez first obtained by telephone a bench mark on September 30, 1983; from the Dade County Surveying Department and then sent a field crew to complete the task. The bench mark he selected was across a canal and some three-quarters of a mile from the property in question in an area with heavy undergrowth. This made an accurate measurement more difficult to perform. The accuracy of vertical control surveys (elevations) is essential since this determines whether a parcel of land must have fill added in order to install a septic tank and well. It also affects the flood insurability of a home. Such surveys are subject to the minimum technical standards of the profession, as adopted by agency rules, unless the survey is a "specific purpose survey." In that event the same must be clearly stated on the face of the survey. In this case Ramirez, merely noted on the face of the sketch: "preliminary sketch, only elevations are included in this sketch of survey, no horizontal distances were measured nor controls set and distances shown along the sketch are for location purposes only." He also certified that "the elevations shown refer to a National Vertical Geodetic Datum of 1929, Bench Mark, were secured by us under my direction and are true and correct to the best of my knowledge and belief." Ramirez considered the project to be a "special purpose sketch" and therefore did not believe he had to certify that minimum technical standards had been met. Indeed, he conceded that such standards had not been met in preparing the documents. Makowski was requested to perform a survey on the Wilson property on June 12, 1984 to verify the accuracy of Ramirez s survey. He found the actual elevations to be approximately two feet lower than those reflected on Ramirez's sketch. 2/ The accuracy of Makowski's findings was corroborated by a survey previously performed by another surveyor in 1979. That survey, which is a public record on file with the Dade County Subdivision Control Department, indicated that because of the property's low elevation, fill was required to meet flood criteria. Through the testimony of Makowski and another expert land surveyor, James E. Beadman, it was established without contradiction that Ramirez's work failed to comport with minimum technical standards of the land surveying profession. For example, Ramirez had insufficient field notes, he used too few turning points, and did not perform a loop closure. Further, there is no bench mark description or certification by Ramirez on the survey, and Ramirez used a Linker rod to transfer elevations from one bench mark to another in contravention of accepted standards. Had Ramirez desired to qualify his elevation survey in accordance with agency rules, he should have identified his survey as a topographic survey and indicated that improvements were not located. By calling it an elevation survey, Ramirez did not change its true character of being a topographic survey. Rule 21HH-6.06, Florida Administrative Code, requires that when a survey is not performed, a surveyor should "state that such sketch is not a survey" on the face of the sketch. All other surveys must meet minimum technical standards, and by signing and sealing the drawings, a surveyor certifies as such. Ramirez justified his work in the McNiely project as being simply preliminary in nature. If he conducted a complete survey at a later time, he would then obtain more information, and correct any errors present on the initial drawings. Similarly, he viewed the Wilson survey as a special purpose sketch," and one not requiring compliance with minimum technical standards. Ramirez has performed hundreds of surveys in the past fifteen years; and there is no evidence of any formal disciplinary action having been instituted against him for negligence or misconduct. Both surveys were eventually performed in an accurate manner by Makowski. There were no complaints filed against Ramirez by either client. The complaint herein stems from Makowski who reported the alleged violations to petitioner after reviewing Ramirez's work.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as set forth in the conclusions of law portion of this orders and that he be fined $1000 and placed on two years probation. All other charges should be DISMISSED. DONE and ORDERED this 7th day of August, 1985, in Tallahassee, Florida. Hearings Hearings DONALD R. ALEXANDER Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 7th day of August, 1985.
The Issue The issue is whether the proposed site is consistent and in compliance with existing land use plans and zoning ordinances.
Findings Of Fact NOTICE In compliance with Rule 17-17.151(4)(e), Florida Administrative Code, notice of the hearing was published in the Florida Administrative Weekly on October 2, 1992. A news release containing notice of the hearing was given to the media on September 21, 1992, and October 21, 1992. A copy of the public notice was sent by certified mail, return receipt requested, to the chief executives of the local authority responsible for zoning and land use planning in Dade County, in compliance with Rule 17-17.151(4)(b), Florida Administrative Code. A copy of the public notice was posted at the site in compliance with Rule 17-17.151(4)(c), Florida Administrative Code. Additionally, notice was published on September 25, 1992, in the Miami Review, a newspaper of general circulation in Dade County, in compliance with Rule 17-17.151(4)(a), Florida Administrative Code. LAND USE AND ZONING CONPLIANCE The proposed expansion of Dade County's Resource Recovery Facility, as set forth in its Site Certification Application, will be within the confines of the certified site of the existing resource recovery facility. Hence, that existing site carries a presumption that its current use is consistent with land use considerations. The site of the proposed expansion is consistent with the Dade County Comprehensive Development Master Plan (Dade Master Plan) pursuant to the Growth Management Act of 1985. More particularly, the site has a land use designation of "Institutional and Public Facility" on the Future Land Use Plan Map of the Dade Master Plan. The "Institutional and Public Facility" designation permits the construction and operation of a resource recovery facility. Also, the proposed expansion of Dade County's Resource Recovery Facility is consistent with: Objective 5 and Policies 5-A and 5-B as set forth in the interpretive text to the Land Use Element of the Dade Master Plan; Objective 3 and Policies 3-A, 3-B, 3-C, 3-D, 3-E and 3-F of the Conservation Element of the Dade Master Plan; and Policies 1-K and 4-B of the Water, Sewer and Solid Waste Elements of the Dade Master Plan. The existing site is presently within the GU interim district. Resolution R-569-75, which granted county approval for the existing site, satisfies the need to show compliance with the zoning ordinance. The proposed expansion of the Dade County Resource Recovery Facility is consistent with the zoning code found in Chapter 33 of the Code of Metropolitan Dade County as well as Resolution R-569-75.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Final Order determining that the site of the proposed Dade County expansion of its resource recovery facility is consistent and in compliance with existing land use plans and zoning ordinances. DONE and ENTERED this 24th day of November, 1992, at Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 1992. APPENDIX TO RECOMNENDED ORDER IN CASE NO. 92-4672EPP The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Applicant, Dade County Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2-4(1); 5(2); 6(4); and 7(5). Proposed finding of fact 1 is unnecessary. COPIES FURNISHED: Ross McVoy, Attorney at Law Fine Jacobson Schwartz Nash & Block 215 South Monroe, Suite 804 Tallahassee, Florida 32301-1859 Stanley B. Price, Attorney at Law Fine Jacobson Schwartz Nash & Block 100 Southeast 2nd Street Suite 3600 Miami, Florida 33131-2130 Representing the Applicant Richard Donelan Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Representing DER Hamilton S. Oven, Jr. Office of Siting Coordination Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Gail Fels Assistant County Attorney Metro Dade Center, Suite 2800 111 Northwest First Street Miami, Florida 33128 Representing Dade County Lucky T. Osho Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Representing DCA William H. Roberts Assistant General Counsel Department of Transportation 605 Suwanee Street, MS-58 Tallahassee, Florida 32399-0458 Representing DOT Toni M. Leidy Attorney at Law South Florida Water Management District 3301 Gun Club Road Post Office Box 24680 West Palm Beach, Florida 33416-4680 Representing SFWMD Michael Palecki, Chief Bureau of Electric & Gas Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32399-0850 Representing PSC M. B. Adelson IV Assistant General Counsel Department of Natural Resources 3900 Commonwealth Blvd., MS-35 Tallahassee, Florida 32399-3000 Representing DNR James Antista, General Counsel Florida Game and Fresh Water Fish Commission Bryant Building 630 South Meridian Street Tallahassee, Florida 32399-1600 Representing GFWFC Carolyn Dekle, Executive Director Sam Goren, Attorney at Law South Florida Regional Planning Council 3440 Hollywood Boulevard, Suite 140 Hollywood, Florida 33021 Representing South Florida Regional Planning Council David M. DeMaio Attorney at Law One Costa del Sol Boulevard Miami, Florida 33178 Representing West Dade Federation of Homeowner Associations Honorable Lawton Chiles Honorable Jim Smith Governor Secretary of State State of Florida State of Florida The Capitol The Capitol, PL-02 Tallahassee, Florida 32399 Tallahassee, Florida 32399-0250 Honorable Robert A. Butterworth Honorable Tom Gallagher Attorney General Treasurer and Insurance State of Florida Commissioner The Capitol State of Florida Tallahassee, Florida 32399-1050 The Capitol Tallahassee, Florida 32399 Honorable Bob Crawford Commissioner of Agriculture Honorable Gerald A. Lewis State of Florida Comptroller The Capitol State of Florida Tallahassee, Florida 32399-0810 The Capitol, Plaza Level Tallahassee, Florida 32399 Honorable Betty Castor Commissioner of Education State of Florida The Capitol Tallahassee, Florida 32399
The Issue Whether or not Respondent has violated Sections 472.033(1)(a), and (h), and 455.227(1)(b), Florida Statutes, and Rules 21HH-2.001(3) and 21HH-6.003, Florida Administrative Code, by failure to comply with a valid Final Order of the Board of Professional Land Surveyors.
Findings Of Fact Petitioner is the state agency charged, in conjunction with the Board of Professional Land Surveyors, with the responsibility to prosecute administrative complaints pursuant to Chapters 455 and 472, Florida Statutes, and the rules promulgated pursuant thereto. At all times material to the Amended Administrative Complaint, Respondent Bertin C. Tash was licensed as a professional land surveyor in the State of Florida, holding license number LS 0002292. By Final Order entered December 31, 1985, the Board of Professional Land Surveyors issued a Final Order in case number 0049353 (previously DOAH Case No. 85-0285), a prior disciplinary action against Respondent. Among other terms of that Final Order, Respondent was placed on probation for twenty-seven months and further was required during the course of that twenty-seven month probation to: ... submit 25 surveys representative of his land surveying practice which shall be accompanied by field notes and record plats to the board for its review. Additional information regarding the surveys may be requested. Five surveys shall be submitted within three months from the filing of this final order; thereafter, five surveys shall be submitted at six month intervals during the period of probation. Respondent shall attend the first available continuing education seminar in his area on the minimum technical standards within 12 months from the filing of this order or as soon after as possible. Evidence of Respondent's attendance and successful completion of the course shall be furnished to the board through the proctor or instructor of the continuing education course... (Emphasis supplied.) It is noted that although the "certificate of service" for the copy of the Final Order admitted in evidence as part of Petitioner's Exhibit 3 is unsigned, Respondent admitted receipt thereof, that no appeal was taken therefrom, and that he understood the terms of the Final Order. Twenty-seven months from December 31, 1985 would fall on April 1, 1987. Twelve months from December 31, 1985 would fall on January 2, 1986. Respondent initially complied with the Final Order by submitting two sets of five surveys, the second in December, 1986. However, some type of dispute arose between Respondent and the Board's monitor of Respondent's probation about whether the monitor could require corrections to be done by Respondent to those surveys already submitted and about whether or not Respondent could be required to submit his field notes for the surveys. Respondent seems to have resisted the clear language of the Final Order (see emphasized language in Finding of Fact No. 4, supra) upon a personal belief that these requirements were unconstitutional, invaded his privacy, or exposed him to ethical charges by his clients. There is nothing in the record, to support this ideation of Respondent, and eventually, Respondent altered his position. Respondent did not submit any further surveys until November, 1988 after the instant case was already in progress, at which time he had modified some of his views with regard to field notes. He then attempted to comply with the Final Order by submitting corrected surveys. However, in error, he sent these surveys not to the Board, but to the attorney for the Department of Professional Regulation where they were retained. This submittal was considerably beyond the April 1, 1987 probationary period and whether considered corrections of the second five surveys or an additional five surveys would not constitute the twenty-five surveys required by the prior Final Order. The Respondent failed to complete a seminar on minimum technical standards between the entry of the Final Order on December 31, 1985 and the date of formal hearing on December 14, 1988. Petitioner submitted proof that such courses were available in West Palm Beach, Respondent's hometown, on May 20, 1987, and in adjoining Broward County on May 21, 1988. Clearly, neither of these courses was available to Respondent during the probationary time frames set out in the Final Order and Findings of Fact Nos. 4 and 5 supra. Petitioner submitted no proof of the availability of other such courses during the appropriate time frames, but it appears undisputed that these were the only qualifying courses "in his area" and that the Board would have accepted Respondent's late completion of either course as his compliance with the continuing education requirement in the Final Order. The Board even went so far as to reserve space for Respondent at the May 21, 1988 course in Broward County. Respondent's testimony that he was too ill to attend the May 30, 1987 course is unrefuted. Respondent's testimony that he had, no private means of transportation to the May 21, 1988 course is also unrefuted but he did not show unavailability of public transportation. Moreover, Respondent testified that until the date of formal hearing, he had resisted, upon grounds of his personal ethical ideation, the concept of learning from, or submitting himself to critiques by, any local professionals who conducted continuing education seminars in land surveying.
Recommendation That the Board of Professional Land Surveyors enter a Final Order finding Respondent guilty of two counts of violating Section 472.003(1)(h) Florida Statutes, and imposing a three-month suspension of Respondent's license, subject to an extension of such suspension to a maximum of one year or until Respondent completes the continuing education course required by the prior Final Order, whichever comes first, and imposing thereafter three years' probation to follow immediately upon the lifting of the suspension, during which three years' probation Respondent shall be required to submit an appropriate number of surveys to be determined by the Board for review by the Board. DONE and ENTERED this 13th day of February, 1989, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3108 The following constitute specific rulings upon the parties' respective Proposed Findings of Fact (PFOF) pursuant to Section 120.59(2), Florida Statutes. Petitioner's PFOF: 1-5 are all accepted. Respondent's PFOF: PFOF 1 discusses the nature of several exhibits and objections ruled upon in the course of formal hearing, does not constitute a relevant or material proposed fact and is not dispositive of any issue at bar. The same subjects are addressed within the RO at FOF 3-4 and 8 to the degree they impinge on this proceeding. PFOF 2 is rejected in part and accepted in part in FOF 8 to the degree it comports with the greater weight of the credible record evidence as a whole. PFOF 3 is accepted in part in FOF 6. The remainder of the proposal is rejected as irrelevant, immaterial, and not comporting with the greater weight of the credible record evidence as a whole. PFOF 4,5,7 and 8 are rejected as mere argument of position or legal argument. PFOF 6 is accepted in part in FOF 7. The remainder of the proposal is rejected as immaterial or mere argument of position or legal argument. COPIES FURNISHED: George W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bertin C. Tash 5100 Spruce Avenue West Palm Beach, Florida 33407-2846 Allen Smith, Jr. Executive Director Board of Professional Land Surveyors 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32299-0750 =================================================================
The Issue At issue herein is whether or not Petitioner correctly responded to Case VI on Part II of the Land Surveyors Examination, and if so, whether he should have received a passing grade.
Findings Of Fact Based upon my observation of the Petitioner and his demeanor while testifying, depositions and other documentary evidence received, and the entire record compiled herein, the following relevant facts are found: Petitioner, Garland R. Hardwick, was a candidate for the Land Surveyors Examination administered October 29 and 30, 1901. Case VI, a legal description, constituted a portion of the examination given on October 30, 1981. (Testimony of Petitioner) Case VI required the examinee to prepare a legal description of the portion of a road right-of-way which cut across a lot within a platted subdivision for inclusion in a right-of-way deed. (Petitioner's Exhibit 2 and the deposition of David Gibson, page 8) The examinee was further asked to "calculate any quantities needed." The credit given for Case VI was 20 points. As drafted, Case VI called for certain calculations to be performed by the examinee. The type of calculations required depended on the description provided, i.e., metes and bounds or strip conveyances. A strip form of conveyance required description and calculation of the center line. (Gibson deposition, pages 11-12) A portion of the credit given on Case VI was for calculations. If a strip form description were used in Case VI, the minimum calculations required for credit were those of the arc length (center line) and the radius. If these minimum calculations were not performed by an examinee having prepared a strip form or center line description, no credit was given to the examinee. (Deposition of Gibson, pages 14-19) Petitioner's response to Case VI is a strip or center line description. Petitioner did not calculate or describe the distance along the arc of the center line, or the right-of-way as it cut across the lot in question. Petitioner therefore received no credit on Case VI for calculations. (Testimony of Petitioner [TR pp 6-8] and Petitioner's Exhibit No. 2) David Gibson, an examination consultant who was solely responsible for the drafting and grading of Case VI, gave his expert opinion that the required calculations of examinees preparing a strip, or center line description, were consistent with the standards of the profession. (Gibson deposition, page 16) PETITIONER'S POSITION During the hearing, Petitioner related that no calculations or descriptions of the distance along the arc of the center line for Case VI were needed, and in support thereof, referred to examples of strip descriptions filed within Report 4, Metes and Bounds Descriptions by Fant, Freeman and Madson, a book referred to on the suggested book list provided to examinees. petitioner cited Cases 33 and 37 within the above-referred text as being examples similar to Case VI on the examination. The sample description given in Case 33 provides calculations and distances along the center line of the right-of-way. (Testimony of Petitioner, TR pages 6, 8, 15-20, and Petitioner's Exhibit 3) Further, Petitioner points to the fact that in the event of a dispute the boundary line of the adjoining lot would control over the distance of the center line of the right-of-way. Case 33 of the above referred reference book appeared similar to Case VI of the subject examination. (Testimony of Petitioner, TR p. 16) In that example, center line distances are calculated and "would enable the surveyor to locate this strip . . . help him maintain the identity of this parcel or strip." (Petitioner's testimony TR p. 17) Case number 35 and others referred to during the hearing by Petitioner (save Case 33) were, at best, limited in similarity and would not require a different result. (TR p. 20)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent, Board of Land Surveyors, enter a Final Order denying Petitioner's request and the relief sought to the effect that he be awarded a passing grade on the Land Surveyors Examination administered to him on October 29 and 30, 1981. RECOMMENDED this 8th day of February, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 1983.
The Issue The issue in this case is whether the City of Gainesville comprehensive plan amendment adopted by Ordinance No. 4036 on October 24, 1994, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact have been determined: The Parties Respondent, City of Gainesville (City), is a local government subject to the comprehensive land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered and enforced by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive land use plans and amendments made thereto. Petitioners, Mark Barrow, Jane Myers, Wilse Barnard, Mary Webb, and Steven and Mary Reid, own property and reside within the City. Petitioners, Historic Gainesville, Inc. and Duckpond Neighborhood Association, Inc., are organizations made up of persons who reside, own property, or operate businesses within the City. By stipulation of the parties, petitioners are affected persons within the meaning of the law and have standing to bring this action. Intervenors, John and Denise Feiber and Katherine Bodine, are the owners of two parcels of property which are at issue in this case. Intervenors submitted oral and written comments during the plan amendment review and adoption proceeding and thus have standing as affected persons to participate in this proceeding. Background During 1993 and 1994, John Feiber unsuccessfully attempted to sell his 1,800 square foot single-family home for an asking price that was disproportionately high for residential property, and was more in keeping with a commercial asking price. Recognizing that the property would be far more valuable with a commercial classification than its current residential designation, on June 11, 1994, Feiber, his wife, and the owner of the property next door, Katherine Bodine, submitted an application for an amendment to the City's Future Land Use Map (FLUM) to convert a .57 acre parcel from Residential- low Density to Planned Use District (PUD) to change a single family home into a law office, potentially convert an adjacent structure into mixed office and residential uses, and possibly build a third office building. Although the City's Plan Board unanimously recommended that the application be denied, by a 4-1 vote the City approved the application on October 3, 1994. This approval was formally ratified through the adoption of Ordinance No. 4036 on October 24, 1994. After essentially deferring to the City's findings, on January 25, 1995, the DCA completed its review of the amendment and issued a Notice of Intent to find the amendment in compliance. On February 15, 1995, petitioners filed their petition for administrative hearing with the DCA generally contending the amendment was internally inconsistent and violated certain parts of Chapter 163, Florida Statutes, the state comprehensive plan, and Chapter 9J- 5, Florida Administrative Code. In resolving these contentions, on which conflicting evidence was presented, the undersigned has accepted the more credible and persuasive evidence. Finally, by order dated March 30, 1995, intervenors were authorized to participate in this proceeding in support of the amendment. The Affected Neighborhood The parcel in question consists of two lots, one owned by the Feibers, the other by Bodine. Both lots are located within, and on the edge of, the Northeast Gainesville Residential Historic District (Historic District), a 63- acre collection of properties, which by virtue of the historically significant structures and residential land use patterns, qualified for listing on the National Register of Historic Places in 1980. The dominant land use and character within the Historic District is residential, and has been since it was zoned residential in 1932. Land uses on Northeast First Street, which forms the western boundary of the District, were always institutional, but on the east side of Northeast Second Street eastward, the uses were always residential with the exception of the Thomas Center, a 1920's vintage building now serving as a City office building. The Historic District is located in downtown Gainesville, beginning just north of East University Avenue and continuing northward until Northeast Tenth Avenue. Within its boundaries on the FLUM are two distinct land use designations, Residential-Low Density and Office. Northeast Second Street serves as the land use boundary between the two, with residential uses permitted on the east side and nonresidential uses permitted on the west side of the street. There have been no encroachments across the residential land use line since 1976 when a nonconforming parking lot was approved by the City. When the City adopted its comprehensive plan in 1985, and revised it in 1991, it continued the same two land uses, thereby codifying existing residential land use patterns and the conversion of office uses that had already occurred along First Street Northeast in the early 1970s. The Amendment As noted above, the parcel in question consists of two legal lots, one owned by the Feibers, the other by Bodine. The amendment changes the FLUM portion of the City's 1991-2001 comprehensive plan to reflect a PUD overlay for the parcel. The land is presently designated as residential-low density, a category in which office uses are not permitted. According to policy 2.1.1 of the Future Land Use Element (FLUE), this land use category is appropriate "for single family development, particularly the conservation of existing traditional low-density neighborhoods, single-family attached and zero-lot line development, and small scale multi-family development." Conversely, the same policy provides that "office designations shall not encroach in viable residential areas nor expand strip development." By their application, John and Denise Feiber seek to convert their single-family home at 206 N. E. Third Street into a law office. An adjacent two-story structure located at 206 N. E. Second Avenue would possibly be converted to office uses on the first floor and residential uses on the second floor. That building is owned by Katherine Bodine, an absentee landlord who resides in Jacksonville, Florida. The amendment also permits, but does not require, future consideration of a third, multi-story structure to accommodate offices. After the amendment was approved by the City, Bodine immediately listed her parcel for sale, and its future development is uncertain at this time. FLUE policy 2.1.1 describes the PUD designation as follows: This category is an overlay land use district which may be applied on any specific property in the City. The land use regulations pertaining to this overlay district shall be adopted by ordinance in conjunction with an amendment to the Future Land Use Map of this comprehensive plan. The category is created to allow the consideration of unique, inno- vative or narrowly construed land use proposals that because of the specificity of the land use regulations can be found to be compatible with the character of the surrounding land uses and environmental conditions of the subject land. Each adopting PUD overlay land use designation shall address density and intensity, permitted uses, traffic access and trip generation, environmental features and buffering of adjacent uses. Planned Development zoning shall be required to implement any specific development plan. In the event that the overlay district has been applied to a site and no planned development zoning has found approval by action of the City Commission within one year of the land use designation, the overlay land use district shall be deemed null and void and the overlay land use category shall be removed from the Future Land Use Map, leaving the original and underlying land use in place. Therefore, any land use proposal under this category must be "compatible with the character of the surrounding land uses and environmental conditions" and address the "buffering of adjacent uses." It follows that a PUD may not be applied arbitrarily, but rather it must be appropriate for the area and specific site. The amendment applies the following land use regulations to both the Feiber and Bodine parcels: Residential use of up to ten (10) units per acre and all uses permitted by right and by special use permit within the RMF-5 zoning district is authorized; the maximum floor area of all buildings and structures is 7,185 square feet; the Historic Preservation/ Conservation District requirements of Section 30-79, Land Development Code of the City of Gainesville regulate and control the development and design of all buildings, structures, objects and related areas; in addition to the Landscape and Tree management requirements of the Land Development Code, the property is required to be planted and maintained with residential scale landscaping to conform to the surrounding residential neighborhood, as well as act as a buffer for the surrounding uses; the average weekday afternoon peak trip generation rate per 1,000 square feet of gross floor area in office use is not permitted to exceed 1.73; any application for development is required to meet concurrency requirements of Article III of the City of Gainesville Land Development Code for each phase of development; and off-street parking is required to be provided unless on- street parking is created, pursuant to a plan attached to the ordinance as Exhibit "D". The amendment also applies the following land use regulations specifically to the Feiber parcel: An additional land use, Legal Services, as defined in Major Group 81 of the Standard Industrial Classification Manual, 1987 ed. is authorized; the maximum floor area authorized for such Legal Services is one thousand seven hundred eighty five (1,785) square feet; and, if on-street parking is not provided in accordance with the plan provided in Exhibit "D" of the ordinance, then off-street parking must be provided within 300 feet of the Feiber parcel. Finally, the amendment applies the following land use regulations to the Bodine parcel: Non-residential land uses are permitted as specified in Exhibit "E" of the ordinance; the maximum floor area authorized for non-residential uses is three thousand six hundred (3,600) square feet; the second story of the existing building is limited to residential use only; and on-site parking limitations are imposed. In accordance with policy 2.1.1, Planned Development (PD) zoning is required to implement the development plan and the uses permitted in the amendment. The underlying FLUM designation of Residential Low Density, which allows up to 12 units per acre, is neither abandoned nor repealed, but rather remains inapplicable, so long as the property is developed in accordance with a development plan to be approved when the implementing PD zoning is adopted, and such implementing zoning must be adopted within one year of the amendment becoming effective. Data and Analysis Data and Analysis Before the City Basically, the City concluded that the amendment could be justified on the theory that the conversion would provide commercial "infill" of an underutilized parcel with step-down transitions to the inner neighborhood. It further concluded that because of the small size of the parcel involved, the conversion would have a de minimis effect on the neighborhood. When the amendment was adopted, the City had before it the previously adopted comprehensive plan, including the original data and analysis to support that plan, and testimony and exhibits offered both for and against the amendment during a local government hearing conducted on October 4, 1994. Significantly, the City had no studies of any kind regarding marketability, neighborhood stability, availability of land for office and residential uses, or traffic. Indeed, in preparation for final hearing, its expert simply made a walking tour of the neighborhood. Data and Analysis Before the Department On October 28, 1994, the City transmitted the amendment to the DCA for review. The transmittal package contained the following items: The City's Final Order; Ordinance No. 4036, with Exhibits A-E; interoffice communication to the City Commission from the City Plan Board dated July 11, 1994; interoffice communication to the City Plan Board, Planning Division Staff dated June 16, 1994; attachment to Land Use Application (pages 1-5); and excerpts from the City Zoning and Future Land Use Maps showing the zoning and land uses assigned to adjacent properties. However, the transmittal package did not include transcripts of the City Plan Board hearing, the Commission Adoption hearing, or any part of the record of the quasi-judicial hearing of October 4, 1994. The DCA planning staff consulted data contained in the Department of Transportation's ITE Manual in analyzing the traffic and parking impacts of the adopted land use map amendment. It also contacted the Department of State, Division of Historic Resources (Division), for analysis of the amendment's impact on historic resources, and it received comments on the amendment from the the North Central Florida Regional Planning Council (NCFRPC). The DCA planning staff also analyzed the FLUM to determine compatibility of the amendment with surrounding uses. During this review, the DCA planning staff reviewed all pertinent portions of the City's Plan Goals, Objectives and Policies (GOPs) and data and analysis. This review was done in a cursory fashion, however, since the DCA viewed the application as being a very small project with no perceived impact. Given the lack of any studies concerning marketability, neighborhood stability, availability of land for office and residential uses, and traffic, all of which are pertinent to this amendment, it is found that the City and DCA did not use the best available data and analysis. Therefore, the amendment is inconsistent with the requirement in Rule 9J-5.005(2), Florida Administrative Code, and Section 163.3177, Florida Statutes, that the best available (and appropriate) data and analysis be used. Compatibility with Adjacent Uses To the south of the subject parcels is a four-lane loop road (Northeast Second Avenue) which now serves as a buffer from the adjacent uses. Across the street to the south is City Hall, which was constructed more than thirty years ago. To the west of the property is a commercial parking lot with an office building next door to that parking lot. On the east side of the property are multi-family dwellings. To the south and east from the parcels is a commercial lot. An area from the corner of Northeast Second Avenue and Northeast First Street, one block from the subject parcels, and proceeding north along Northeast First Street, contains many non- residential uses, including offices. Areas to the north are predominately multi-family and single-family uses. Transitional uses and buffering are professionally-acceptable planning tools. However, changing a single-family dwelling into an office does not enhance buffering for the residential properties further in the neighborhood because the Feiber house is currently a less intense use than office. Therefore, the amendment conflicts with the plan's requirement that a PUD provide buffering for adjacent uses. The concept of transitional uses entail the practice of providing for a gradation of uses from high-intensity to low-intensity uses. Insertion of another non-residential use at the Feiber property to achieve a chimerical "step-down transitional use" merely moves the "edge" another step inward. Nonresidential uses already exist just outside the Historic District neighborhood that would meet this "step-down" criteria. Retrofitting an existing neighborhood is not appropriate unless it is no longer viable, which is not the case here. Contrary to the proponents' assertion, the Feiber and Bodine parcels will not provide the transitional uses of office and multi-family uses between the high-intensity office (City Hall) uses and lower intensity, multi-family uses to the north of the subject parcels. The four-lane street between the City Hall and the subject property now serves as an adequate buffer. A major goal of the City's plan is to protect viable, stable neighborhoods, and the FLUM, with its residential land use category, provides that protection. This goal cannot be achieved by converting these parcels to office use. Another major goal of the plan is to protect and promote restoration and stablization of historic resources within the City. That goal cannot be achieved by converting these parcels to nonresidential uses. Yet another major goal of the plan is the prohibition of office uses intruding into residential neighborhoods. The amendment contravenes that requirement. Impact on Historic Resources As noted earlier, the Feiber and Bodine properties are located on the southern edge of the Historic District of the City, separated from the City Hall by a one-block long segment of a four-lane street plus the full half-block length of the City Hall parking lot. A major goal of the City's plan is the protection of historic architectural resources and historically significant housing within the City. This goal is found in FLUE objective 1.2, Historic Preservation Element goals 1 and 2, and Housing Element policy 3.1.3. This overall major goal, as embodied in the foregoing objective, policies and goal, cannot be furthered by the amendment. Conversions which intrude across stable boundaries, such as exist in this neighborhood, begin a pattern of disinvestment. As investment subsides, the physical, historic structures will be adversely affected. The conversion contemplated by the amendment would represent a small encroachment of office use into the neighborhood with a cumulative effect. There is nothing to preclude its precedential effect or encouragement of similar applications. Although the Division of Historic Resources stated that it had no objection to the amendment, its acquiesence to the amendment is not controlling. Rather, the more persuasive evidence supports a finding that the amendment will have an adverse impact on the Historic District and will not further applicable goals, policies and objectives. Local Comprehensive Plan Issues One criteria for evaluating a plan amendment is whether it would result in compatibility with adjacent land uses. The overriding goal in the area of compatibility analysis is the protection of viable, stable neighborhoods. There is nothing in the plan amendment itself which provides compatibility or buffering for the residential properties located to the north and east of the subject parcel. Indeed, office development of the land will increase the pressure to convert more structures. Objective 2.1 of the FLUE establishes an objective of providing sufficient acreage for residential, commercial, mixed use, office and professional uses and industrial uses at appropriate locations to meet the needs of the projected population. Those acreages are depicted on the FLUM. When reviewing a FLUM amendment, such as the subject of this proceeding, the City is required to make a need analysis. The amendment is not supported by any analysis of need. Prior to the amendment, the plan contained an overallocation of office space and a shortage of housing for Market Area 4, in which the subject parcel is located. The amendment does not increase available housing or alleviate the overallocation of office space in Market Area 4. Indeed, it has a contrary result. Adaptive reuse is not promoted by the City's plan. Rather, the Housing Element promotes restoration and conservation of historically or architecturally significant housing, which means returning to housing use, not adapting structures to some other use. In this respect, the amendment is contrary to the City's plan. Summary Because the plan amendment is internally inconsistent and not based on the best available data and analysis, it is found that the amendment is not in compliance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Community Affairs enter a final order finding the amendment to be not in compliance. DONE AND ENTERED this 19th day of September, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0749GM Petitioners: Petitioners' proposed findings, while substantially modified and shortened, have been generally adopted in substance. Respondents/Intervenors: 1-8. Partially covered in findings of fact 10-16. 9-37. Partially covered in findings of fact 17-22. 38-53. Partially covered in findings of fact 23-30. 54-71. Partially covered in findings of fact 31-33. 72-106. Partially covered in findings of fact 31-38. Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary for a resolution of the issues, cumulative, irrelevant, not supported by the more credible, persuasive evidence, subordinate, or a conclusion of law. COPIES FURNISHED: Patrice F. Boyes, Esquire W. David Jester, Esquire Post Office Box 1424 Gainesville, Florida 32602-1424 Richard R. Whiddon, Jr., Esquire Post Office Box 1110 Gainesville, Florida 32602 Suzanne H. Schmith, Esquire 2740 Centerview Drive Tallahassee, Florida 32399-2100 C. David Coffey, Esquire 105 S. E. First Avenue, Suite 1 Gainesville, Florida 32601-6215 James F. Murley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
Findings Of Fact At all times pertinent to this proceeding, respondent held a license to practice land surveying in the State of Florida. In March 1984, Joseph L. Abrams a land developer, hired the respondent to perform certain professional services in connection with a proposed development known as Doug's Unit Number One. Mr. Abrams hired the respondent because he had previously performed land surveying services for Mr. Abrams and had done a good job. Doug's Unit Number One involved six acres of land which had been preliminarily subdivided by an engineer into 14 separate lots. The preliminary drawing by the engineer, showing set backs, easements, and other matters, had been approved by the City of Winter Springs, but Mr. Abrams needed a sealed drawing to record. He therefore hired the respondent as a professional surveyor, to describe the lots in surveying terms and prepare a sealed set of drawings. On March 27, 1984, the respondent prepared a bill for the services and itemized the total cost of $756 as follows: drafting of S/D on linen, $250; cost of linen $6; engineering, calculations telephone calls specifications, Winter Springs conference, etc., $500. Mr. Abrams paid the bill the same day. Mr. Abrams was informed that respondent had paid Burl (Mike) Drennen to do the drafting, and, as soon as the drafting was done, either respondent or Mr. Drennen would deliver the drawings, properly sealed, to Mr. Abrams. The drawings were to be delivered in two to three weeks. Respondent also informed Mr. Abrams that respondent was leaving for New Jersey and would be gone for a few weeks. Respondent gave Mr. Abrams his phone number in New Jersey and Mr. Drennen's phone number. After two weeks elapsed and the drawings had not been delivered, Mr. Abrams began calling the respondent and Mr. Drennen. Sometime in April or May, Mr. Abrams was able to contact respondent in New Jersey and the respondent explained that he would be unable to return to Florida for another two to three weeks due to his wife's serious illness. Mr. Abrams also contacted Mr. Drennen, who informed him that he would not deliver the drawings because he had not been fully paid for his drafting services and because he would have to receive authorization from the respondent before the drawings were released since the respondent had hired him. Mr. Drennen told Mr. Abrams that he would try to contact respondent to get the authorization to release the drawings, but Mr. Drennen was unable to contact the respondent. However after several more conversations with Mr. Abrams, Mr. Drennen agreed to deliver the drawings if Mr. Abrams paid him the remaining money he was owed. 1/ On June 6, 1984, Mr. Drennen delivered the drawings and was paid $180 by Mr. Abrams. However, when Mr. Abrams looked over the sheet, he realized that the sheet had not been sealed. He tried to contact the respondent, and when he was unable to do so, he decided to go to another surveyor. The new surveyor could not simply take the drawing and seal it; he had to do the entire project over again. Mr. Mims, the new surveyor, charged $1,250 which was paid in October or November of 1984 and the sealed drawings were delivered and recorded on December 20, 1984. By letter dated June 7, 1984, Mr. Abrams filed a complaint with the Department of Professional Regulation, and on August 15, 1984, Mr. Alvin Lewis Smith, an investigator with the Department, contacted respondent by telephone in New Jersey to inquire about the matter. The respondent admitted that he had not completed the project, but he stated that he had his seal in New Jersey and, if Mr. Abrams had sent the drawings to him, he could have signed and sealed the drawings and sent them back to Mr. Abrams. However, when asked if he had done any field work for the project, respondent said that he had not and that he couldn't seal the drawings because he hadn't done the field work. Nevertheless, on August 16, 1984, respondent wrote to Mr. Abrams stating that he had taken his seal to New Jersey and that he could sign and seal the linen and have it back to Mr. Abrams in two days if Mr. Abrams would send the drawings to him by Federal Express. At the hearing the respondent testified that the $756 payment was for drawing up the plat and performing calculations and engineering work on the project, but it was not for doing the field work. However respondent acknowledged that the field work had to be done before the plat could be sealed and recorded. All the other evidence and testimony presented at the hearing indicates that the respondent agreed to deliver drawings to Mr. Abrams that were properly prepared and sealed for recording. It is therefore apparent that the $756 paid by Mr. Abrams to respondent was to cover all the work necessary, including the field work, for the plat to be recorded. Without being sealed, the drawings were useless. During the time of this incident the respondent had personal problems which required him to stay in New Jersey. His wife was quite ill and his wife's parents' estate had to be settled. Respondent has been a registered surveyor for over 30 years and, until the instant action, had never had a complaint filed against him.
Recommendation Based on the foregoing findings of fact and conclusions of law, and upon due consideration of respondent's personal circumstances at the time of this incident and respondent's previously unblemished record, it is RECOMMENDED that a final order be entered finding respondent guilty of those acts set forth in Sections 472.033(1)(g) and 472.033(1)(h), Florida Statutes, reprimanding the respondent, and placing him on probation for a period of one year with such terms and conditions as may be deemed necessary by the Board of Professional Land Surveyors. DONE and ENTERED this 23rd day of August, 1985, in Tallahassee Leon County Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1985.
The Issue Whether Comprehensive Plan Amendment 96-2 adopted by the County on September 24, 1996, is in compliance.
Findings Of Fact Based upon all of the evidence, including the stipulation of counsel, the following findings of fact have been determined: Background The parties Respondent, Sumter County (County), is a local government subject to the comprehensive land use planning requirements of Chapter 163, Florida Statutes. Respondent, Department of Community Affairs (DCA), is the state land planning agency charged with the responsibility of reviewing comprehensive land use plans and amendments made thereto pursuant to Part II, Chapter 163, Florida Statutes. Petitioners, T. D. Farnsworth, Russell E. Weir, Jack Burchill, Linda Latham, and Terry Forsman, own property and reside within Sumter County. Petitioner, Sumter Citizens Against Irresponsible Development, Inc. (SCAID), is an organization founded by a small group of citizens for the purposes of preserving the "rural lifestyle" of the county, preventing urban sprawl, and ensuring "that development will not be a burden to the taxpayers" of the County. Farnsworth is president of the group. By stipulation of the parties, Petitioners are affected persons within the meaning of the law and have standing to bring this action. Intervenor, Pringle Communities, Inc. (Pringle), is a Florida corporation and the potential developer of the subject property of this proceeding. Pringle submitted oral and written comments during the plan amendment review and adoption proceeding and thus has standing as an affected person to participate in this proceeding. The amendment On May 13, 1996, the County adopted plan amendment 96A01 by Ordinance No. 96-17. On November 7, 1996, the DCA published a Notice of Intent to find the amendment in compliance. Amendment 96A01 amended the Sumter County Comprehensive Plan's (the Plan) Future Land Use Map (FLUM) to revise the land use designations on approximately 510 acres of land. Specifically, the plan amendment converted the land use designation for the Pringle parcel from an Agricultural to a Planned Unit Development (PUD) land use, limited to 499 residential units. The plan amendment also revised the FLUM by extending the Urban Expansion Area to include the Pringle parcel and an adjacent parcel immediately to the north of the Pringle parcel, which had apparently been inadvertently omitted from the Urban Expansion Area in the final draft of the Plan. The data and analysis accompanying the amendment included a compatibility and land use suitability analysis, a soils analysis, an evaluation of urban sprawl related to issues, a preliminary environmental assessment, a population and housing analysis, a concurrency analysis, building permit information and analysis, and an analysis to ensure that the amendment was consistent with the adopted comprehensive plan. The data and analysis submitted up until the time the DCA issued its Notice of Intent to find amendment 96A01 in compliance, and at the final hearing, collectively demonstrate that the amendment is appropriate for the designated area. Is the Plan Amendment in Compliance? Petitioners have alleged the amendment is not in compliance for the following reasons: (a) the amendment fails to protect agricultural lands; (b) the amendment encourages urban sprawl; (c) the future land use map fails to reflect the goals, objectives, and policies of the Plan; (d) there is no demonstrated need for 510 acres of PUD land use; (e) the amendment does not demonstrate compatibility with adjacent agricultural and rural residential land uses; (f) the amendment does not provide for concurrency for adopted levels of services pursuant to the Plan; (g) the amendment does not comply with stormwater and drainage requirements of the Plan; (h) the amendment fails to satisfy the capital improvements element of the Plan; and (i) affordable housing needs are not met. These contentions will be discussed separately below. Protection of agricultural lands Under the amendment, 510 acres of land designated on the FLUM as agricultural land use will be converted to urban type uses. Petitioners contend that the amendment fails to protect agricultural land as required by Plan Objective 7.1.2 and Rule 9J-5.006(5)(g)5., Florida Administrative Code. The cited objective "establishes agriculture as the primary use outside of the urban expansion area" and "insure(s) retention of agricultural activities." If the plan amendment fails to adequately protect adjacent agricultural areas, the cited rule considers this failure to be one of the thirteen primary indicators that the amendment does not discourage the proliferation of urban sprawl. The rule and objective do not prohibit the conversion of agricultural lands to urban uses. Indeed, Plan Objective 7.1.2 and the corresponding policies allow for the conversion of suitable agricultural lands as the need for additional urban land is demonstrated. The policies also require that the conversion be done in a well planned, orderly, and logical fashion based on need and suitability. The agricultural lands being converted to urban land uses as a result of the plan amendment are appropriate for conversion. The Plan designates the Pringle parcel as an area appropriate for urban development. This determination was based on an extensive analysis of various factors including soil suitability, environmental constraints, and other planning criteria such as proximity to existing urbanized areas. In fact, the Plan contains a series of maps which specifically locate agricultural areas appropriate for conversion to urban uses, and the Pringle parcel is located within such designated areas. The evidence establishes that the conversion of agricultural land contemplated by the plan amendment was justifiable because of the extent of urban development already existing in the area and the requirement within the Plan that infrastructure be in place concurrent with development. In addition, future populations will be directed away from the remaining agricultural lands throughout the County and to the development proposed by the plan amendment. The open space required by the PUD will also serve to buffer and ensure compatibility of land covered by the plan amendment and the adjacent agricultural and rural lands. Because Rule 9J-5.006(5)(g)5., Florida Administrative Code, deals exclusively with "adjacent" agricultural land, the conversion of any agricultural uses on the Pringle parcel is not relevant to the cited rule. The Plan requires the County to retain a minimum of ninety percent of its land area in rural (agriculture, timberland, and vacant) and conservation land use. The County has no "mining" zoning or land use designation, but includes mining as an agricultural use. Including the land covered by mining permits in the County, more than ninety percent of the County's land area is maintained in rural (agriculture, timberland, and vacant) and conservation land use, even after the adoption of the amendment. In view of the above, Petitioners have not shown to the exclusion of fair debate that the plan amendment fails to protect agricultural land, either on or adjacent to the Pringle parcel. Urban sprawl In the same vein, Petitioners contend that the amendment fails to discourage urban sprawl because it converts 510 acres of agricultural land to urban uses. In support of this contention, they cite a number of provisions within Chapter 9J-5, Florida Administrative Code, all dealing with urban sprawl, which have allegedly been violated. Petitioners also allege the multiplier for the plan amendment is in excess of 1.25, which is an indicator of urban sprawl, and no future public facilities and services are planned for the lands covered by the amendment prior to its adoption. The plan amendment includes an evaluation of urban sprawl. That evaluation references Plan Policy 7.1.2.5(a), which was adopted by the County specifically as a mechanism for discouraging urban sprawl. A review of that policy indicates that, for a PUD to be allowed in an agricultural land use area, it must score at least 50 points, applying a point system based on factors including, but not limited to, proximity to the urban expansion area, proximity to urban services, including water, sewer, and roads, and proximity to other services such as fire protection and emergency medical services. If a proposed amendment or PUD fails to score 50 points, it is deemed to encourage urban sprawl and would not be approved by the County. Amendment 96A01 scored 100 points, well in excess of the 50-point threshold. While the point system does not apply directly because the amendment alters the Urban Expansion Area to include the Pringle parcel, it is evidence that the amendment does not fail to discourage urban sprawl. In addition to satisfying Plan Policy 7.1.2.5.(a), the plan amendment is consistent with Future Land Use maps VII-18a and VII-18c, which are the future land use constrained area overlay and urban sprawl evaluation overlay, respectively. As the Plan data and analysis indicate, these maps were prepared for the purpose of directing urban development into areas most suitable for such development. Map VII-18a demonstrates that the land included in the plan amendment has only slight limitations in regard to urban sprawl. If the amendment allows a strip development, this is another of the thirteen primary indicators that an amendment may fail to discourage urban sprawl. The evidence shows, however, that the subject property is not a strip development because it is not a linear development that runs parallel to a highway. Finally, the PUD mixed land use category adopted by the plan amendment is a planning method specifically recognized by Rule 9J-5.006(5)(1), Florida Administrative Code, as a method of discouraging urban sprawl. Indeed, the rule provides in part that: mixed use development . . . will be recognized as [a method] of discouraging urban sprawl and will be determined consistent with the provisions of the state comprehensive plan, regional policy plans, Chapter 163, Part II, and this chapter regarding discouraging the proliferation of urban sprawl. Because the PUD adopted by the amendment is designed to provide a mix of land uses, the amendment does not fail to encourage an attractive and functional mix of uses. Given the above, it is found that Petitioners have not shown to the exclusion of fair debate that the plan amendment encourages urban sprawl. Demonstrated need and adequate data Petitioners allege the plan amendment "fails to provide demonstrated need" as required by various provisions within Chapter 9J-5, Florida Administrative Code. They further allege amendment 96A01 "is not based upon adequate surveys, studies, or data regarding the amount of land needed to accommodate anticipated growth." Initially, it is noted that the data and analysis in the plan are not subject to the compliance review process. Section 163.3177(10)(e), Florida Statutes, authorizes the DCA in a compliance review to determine only if the plan or plan amendment is based on appropriate data and analysis and whether the data was collected in a professionally acceptable manner. Planning methodologies used in analysis of the data, such as the calculation of a multiplier, must also be prepared in a professionally acceptable manner. Demonstrated need is only a subset of one of the thirteen primary indicators that an amendment or plan may fail to discourage urban sprawl. Rule RJ-5.006(5)(g)1, Florida Administrative Code, lists as one of the thirteen indicators whether the amendment: [p]romotes, allows or designates for development substantial areas of the jurisdiction to develop as low-intensity, low-density, or single-use development or uses in excess of demonstrated need. (Emphasis added) The thirteen primary indicators are evaluated as a whole, not as a "one strike and you're out" list, to determine one aspect of compliance -- whether the amendment fails to discourage the proliferation of urban sprawl. "Multipliers" are a planning tool generally utilized by professional planners to aid in determining the need for additional allowable densities. Multipliers are generally expressed as a percentage or ratio of the estimated population in a given time period compared with the total residential units allowed by the comprehensive plan. For example, a multiplier of 2.0 would mean that, over the particular planning time frame, there existed twice as many residential units allocated as the population projections estimated would be utilized. At hearing, Petitioners raised issues concerning the methodology used in calculating the County's residential land use allocation multiplier and contended (a) seasonal population and planned federal prison expansions contained within the approved Plan were in error and therefore should not be used to support the amendment; (b) the agricultural land use acreage should be included in the multiplier calculation; and (c) the PUD maximum allowable density of eight units per acre should be used to calculate the multiplier rather than the approved density of just under one unit per acre. The preparation of the multiplier in issue came as a result of the DCA's Objections, Recommendations, and Comments (ORC) report and preparation for the hearing in this matter. The ORC report recommended that the County provide data and analysis which demonstrated that the land use change requested in the plan amendment was based on the amount of additional land needed to accommodate the projected population. Based on historic data, the County utilized a multiplier which had been calculated in 1995 in Case No. 94-6974GM, judicial recognition of which was taken in this hearing. In that case, the multiplier depicted the allocation of residential land countywide. The multiplier was 1.87, which means that the County allocated residential land uses approximately eighty-seven percent above its demonstrated need for the planning period. The evidence shows that, in order to allow some degree of development flexibility, a local government will routinely allocate more land than is actually needed. Indeed, a multiplier of 1.87 is low when compared to the other multipliers found in compliance in adjacent local governments as well as in other local governments statewide. In an effort to provide a more accurate multiplier, prior to the hearing, utilizing data available when the amendment was adopted, the County recalculated the multiplier and determined the updated multiplier to be 1.3. The County's calculation of a multiplier excludes agricultural land from consideration, in order to protect agricultural lands as required by the Plan. In some rapidly urbanizing jurisdictions vacant land labeled agricultural or rural on a future land use map may simply be future development land. However, the County has as one of its primary land use goals to protect agricultural land. To include agricultural land use acreage in the multiplier calculation could lead to an under- allocation of density which would jeopardize agricultural land by encouraging development in the very areas the plan is designed to protect. The DCA has utilized multiplier calculations in other counties that do not include agricultural lands. Therefore, because of the unique situation of the County and its land use plan's emphasis on protecting agricultural land, in this case it is professionally acceptable to exclude agricultural land from the multiplier calculation. In the County, PUD is a land use category rather than merely a zoning category as in many other jurisdictions. The effect of that designation is to limit the density of the development by land use designation to 499 units. Any increase in the density or intensity of the development would require a land use plan amendment. Consequently, when calculating the multiplier, the density approved for this PUD (499 units) should be utilized rather than the PUD maximum allowable density of eight units per acre. Petitioners developed a multiplier of their own of 4.1. However, they failed to show that the County's multiplier was not developed in a professionally acceptable manner. Intervenor's marketing scheme for its residential developments is directed at persons moving to Florida from other states. Intervenor plans to use the same marketing scheme for the Pringle parcel, and most residents are not expected to be from the County. The proposed development, along with the Villages development in the northeast section of the County, which is subject to age restrictions which limit its availability to families, is a new type of development for the County. This new population was not taken into account in the original comprehensive plan which also had a low multiplier. Therefore, the need for residential allocation for this new population was not addressed. Between 1992 and 1996, the federal prison facility located near the Pringle property hired new employees, many of whom relocated from outside the area. However, the vast majority of these immigrants located outside of the County because of a lack of available appropriate housing. The federal prison facility is to be expanded in the near future, with the next phase to employ approximately 250 new employees. This expansion has already been funded by the federal government. Although the federal prison and its expansions were contemplated as part of the Plan adoption process, the impact of the federal prison and its expansions were not included in the population projections as calculated in the Plan. The seasonal population of the County was not included in the Plan's population projection. Rule 9J-5.005(2)(e), Florida Administrative Code, requires both resident and seasonal population estimates be used to determine population estimates for plan and plan amendment purposes. Therefore, the seasonal population estimate and the impact of the federal prison should be included in determining need. Given these considerations, Petitioners have not shown to the exclusion of fair debate that the plan amendment was not based on a demonstrated need, or was not adequately supported by data and analysis. Compatibility with adjacent agricultural lands Petitioners have also alleged the County has not demonstrated compatibility with adjacent agricultural and rural residential land uses. The Plan allows for the well planned conversion of agricultural lands in the County. One of the requirements of the Plan's PUD provisions is that PUD development be buffered from adjacent lands and contain open space. The purpose of this provision is to ensure compatibility. A review of the PUD application and Master Development Plan, both incorporated into the plan amendment, shows that the Pringle development will provide approximately 225 acres of open space. Much of this open space, as required by the Plan, will act as a buffer between the development and the adjacent agricultural and rural land uses. The project will also cluster its development, which serves to separate the more urban development from the adjacent agricultural and rural uses. In view of these considerations, it is found that Petitioners have not shown to the exclusion of fair debate that the plan amendment is incompatible with adjacent agricultural land uses. Level of services In their Petition, Petitioners assert that amendment 96A01 violates Plan Objective 7.1.6, Policy 7.1.6.1, Objective 8.1.1, and Policy 8.1.1.1, Rules 9J-5.005(3), 9J-5.011(2)c., and 9J-5.015(3)(b)1., Florida Administrative Code, and Section 187.201(16)(b)6., Florida Statutes, pertaining specifically or generally to levels of service for recreational facilities, schools, fire protection, emergency medical services, stormwater, and flooding. The stated policies and rules require adoption and adherence to specific levels of service prior to development of land. The amount of facilities required is based on population. Under the Plan, the County must take the necessary steps to insure the availability of these facilities. The development order in this case also requires the developer to provide for adequate public facilities. Petitioners offered no testimony, exhibits, or evidence regarding the following: Plan Objective 7.16, as alleged in paragraph 15.F. of their petition; Objectives 4.4.1, 4.5.1, and 4.5.2, and Policies 4.4.1.1, 4.4.1.2, 4.4.1.3, 4.5.1.2, and 4.5.2.1, as alleged in paragraph 15.G of their petition; Objective 8.1.1, as alleged in paragraph 15H of their petition; and Objective 1.3.5, as alleged in paragraph 15.I of their petition. Petitioners also specifically stated they are not contesting any issues regarding flooding. In view of this lack of presentation of evidence, Petitioners have failed to show to the exclusion of reasonable debate that the plan amendment is inconsistent with any of the above Plan Objectives and Policies.
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 Plan Amendment 96-2 adopted by Sumter County by Ordinance Number 96-17 on September 24, 1996, to be in compliance. DONE AND ENTERED this 26th day of February, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 26th day of February, 1998. COPIES FURNISHED: James F. Murley, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Jane M. Gordon Environmental and Land Use Law Center 3305 College Avenue Fort Lauderdale, Florida 33314 T. Daniel Farnsworth 12364 County Road 223 Oxford, Florida 34484 Kathleen R. Fowler, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Felix M. Adams, Esquire 236 North Main Street Bushnell, Florida 33513-5928 Jimmy D. Crawford, Esquire Post Office Box 492460 Leesburg, Florida 34749-2460 Stephanie Gehres Kruer, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
