The Issue The issue in this case is whether the comprehensive plan amendment adopted by the City of St. Augustine Beach on April 3, 1995, through enactment of Ordinance Number 95-5 is in compliance pursuant to Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact On April 3, 1995, the City adopted the amendment by Ordinance Number 95-5, and submitted it to the Department for review pursuant to Section 163.3184(7), Florida Statutes. On July 15, 1995, the Department issued a notice of intent to find the amendment in compliance. By August 7, 1995, all Petitioners had timely filed their challenges to the amendment's adoption by the City. On October 3, 1995, Intervenor was granted leave to intervene and its motion to expedite these proceedings was granted. The Department is the state land planning agency charged with responsibility for review of comprehensive plans pursuant to Chapter 163, Part II, Florida Statutes. Petitioners reside in the City of St. Augustine Beach, St. Johns County, Florida. All Petitioners own property adjacent to or within close proximity to the parcel which is the subject of the amendment. The parties stipulate that each Petitioner is an "affected person" as defined by Section 163.3184(1)(a), Florida Statutes, and that each Petitioner presented oral and written objections and comments at the public hearings held on the amendment. The City is a local government required to adopt a comprehensive plan pursuant to Chapter 163, Florida Statutes. The amendment to the City's Future Land Use Map (FLUM) which is the subject of this proceeding involves a parcel of land approximately .11 of an acre in size. Located on the north side of "A" Street which runs between Highway AIA (Beach Boulevard) and the Atlantic Ocean, the parcel adjoins the western boundary of an existing parking lot for a restaurant called the Beachcomber. In the short distance between Highway AIA and the the restaurant are duplexes and apartments, inclusive of a parking lot. There is a residence on the subject parcel at present. The Beachcomber was built before the comprehensive plan's adoption by the City and was designated on the FLUM as commercial in 1993. The amendment would change the designation of the parcel on which the residence is located from Medium Density Residential to Commercial Use, subject to conditions. The purpose for the designation change is to permit Intervenor, owner of the Beachcomber and purchaser of the parcel, to demolish the residence and use the parcel for an additional eight spaces of restaurant parking. The amendment is a small scale amendment pursuant to Section 163.3187, Florida Statutes. It is the position of Petitioners that the amendment is inconsistent with a policy on buffers contained at L.1.3.3, page AB-4 of the City's Comprehensive Plan (Plan). The policy states the following: For future development the City shall include in the land development regulations the require- ment for a 15 foot vegetative buffer between noncompatible uses such as between commercial and residential land uses. The amendment is silent with regard to buffers. The intervenor is required by the amendment to comply with all applicable land development regulations. A proposed site plan of Intervenor reveals buffers of 10 instead of 15 feet, but the Intervenor has not yet sought site plan approval. Petitioners also maintain that the amendment's change in designation of the parcel from medium density residential to commercial property subject to restrictions constitutes an inconsistency with the Plan. Policy L.1.3.5., states "[c]ommercial development shall not be allowed in areas designated as residential on the Future Land Use Map." As established by testimony of the Department's planning expert, Carol Collins, the amendment is a small expansion of "the existing commercial use." The expansion was viewed by Collins as intended to replace a parking area in front of the Beachcomber that was lost through erosion. She opined that "you can make a reasonable case for finding this amendment in compliance." While the amendment may be considered inconsistent with one policy (Policy L.1.3.5.) of the Plan, in the opinion of Collins, the amendment is in compliance with the Plan as a whole. Craig Thompson, certified planner and architect with an established expertise in comprehensive planning, opined at the final hearing that certain aspects of the Plan are furthered by the amendment. Specifically, the amendment supports the goal of encouraging tourism and addressing commercial needs beneficial to residents and tourists alike by providing parking for automobiles of Beachcomber patrons otherwise parked on the street. Further, although the Beachcomber is a grandfathered commercial use in a residential area, the enhanced parking will not be so great as to enlarge the commercial activity at the restaurant. The Plan sets forth a growth management strategy on page L15 which recognizes the potential for future rezoning of parcels from residential to commercial and notes that such rezonings "should be restricted, consolidating areas where possible." As noted by Thompson's testimony, the use of property immediately behind the Beachcomber site for parking is consistent with the Plan's intent that commercial rezonings should be consolidated. The amendment specifically states that the use of the parcel is restricted solely to parking of vehicles "or, if approved by Conditional Use Permit, residential purposes." Although designated as commercial by the amendment, expanded commercial development on the parcel, i.e., an expansion of the restaurant itself, is not authorized or contemplated. Petitioners provided no independent testimony that fears of property devaluation of their nearby residences will be realized as a result of parking activity on the parcel. Other Petitioner concerns of after hours activity in the parking lot should be alleviated by the plans of Intervenor to strictly police the parking area and enforce its use for patron parking only, including closure of the lot when the Beachcomber is not open. Petitioners' claim that the necessity for redesignation of the parcel is mooted in view of the future renourishment of the beach, as contemplated by the U.S. Army Corps of Engineers and documented by a letter dated after adoption of the amendment. However, the contemplation of such future beach renourishment fails to establish that Beachcomber Restaurant parking would be permitted on the renourished beachfront. The Plan, as amended, is in compliance with the regional plan and the state comprehensive plan.
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 the amendment to be in compliance. DONE and ENTERED in Tallahassee, Florida, this 14th day of December, 1995. DON W. DAVIS 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 14th day of December, 1995. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 95-3885GM, 95-3886GM & 95-4027GM. In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioners' Proposed Findings (Petitioners' proposed findings were numbered 13-69.) 13.-14. Accepted. Rejected, unnecessary. Incorporated by reference. Accepted with the addition of "subject to conditions" following the word "commercial" at the end of the 2nd sentence. 18.-21. Rejected as redundant, cumulative and subordinate to HO findings. 22.-23. Incorporated by reference. 24.-29. Rejected, subordinate to HO findings. 30.-33. Incorporated by reference. Rejected, conclusionary, subject to reasonable debate. Rejected, subordinate. Rejected, unnecessary. Incorporated by reference. 38.-39. Rejected, out of context quotation, argumentative, subordinate to HO findings. 40.-42. Rejected, subordinate to HO findings. 43. Adopted. 44.-46. Rejected, not materially dispositive. Rejected, materially, occurred after amendment adoption. Rejected, speculative. Rejected, unnecessary. Rejected, subordinate to HO findings. Incorporated by reference. Rejected, unnecessary. Rejected, credibility. 54.-55. Rejected, relevancy. 56. Incorporated by reference. 57.-58. Rejected, relevancy, subordinate to HO findings. 59. Rejected, conclusion of law. 60.-63. Rejected, relevancy, subordinate to HO findings. 64.-65. Adopted, not verbatim. 66.-67. Rejected, unnecessary. 68.-69. Rejected, argument, subordinate to HO findings. Respondent Department's Proposed Findings (Respondent Department's proposed findings were numbered 5-21.) 5.-12. Adopted, not verbatim. 13.-14. Rejected, relevancy, legal conclusion. 15.-18. Adopted, not verbatim. 19. Rejected, argument, no record citation. 20.-21. Incorporated by reference. Intervenor's Proposed Findings 1.-4. Adopted, not verbatim. 5.-15. Incorporated by reference. Rejected, conclusion. Adopted, not verbatim. Rejected, conclusion. Adopted, not verbatim. Incorporated by reference. 21.-23. Rejected, argument. 24. Adopted, not verbatim. 25.-26. Incorporated by reference. 27.-29. Incorporated by reference. COPIES FURNISHED: Terrell K. Arline, Esquire Dept. of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Geoffrey B. Dobson, Esquire 66 Cuna Street, Suite B St. Augustine Beach, FL 32084 Mr. and Mrs. Joseph F. Peacock 6 "A" Street St. Augustine Beach, FL 32084 Mr. and Mrs. Matthew Braly Three First Lane St. Augustine Beach, FL 32084 Mr. and Mrs. Ralph Morris One First Lane St. Augustine Beach, FL 32084 George M. McClure, Esquire O. Box 3504 St. Augustine, FL 32085-3504 James F. Murley, Secretary Dept. of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Dan Stengle, General Counsel Dept. of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100
The Issue The issue is whether appellant's application for a conditional use permit should be approved.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: Appellant, Nostimo, Inc. (appellant, applicant or Nostimo), is the owner of Lots 8, 9, 10 and 11, Block 8, Revised Plat of Clearwater Beach Subdivision, located at 32 Bay Esplanade, Clearwater Beach, Florida. The property is subject to the land use requirements codified in the City of Clearwater Code of Ordinances (code or city code). By application filed on April 25, 1989 appellant sought the issuance of a conditional use permit from appellee, City of Clearwater (City or appellee). If approved, the permit would authorize the sale of beer and wine for off-premises consumption by a Pick Kwik Food Store to be constructed on the property under a lease agreement between appellant and Pick Kwik, Inc. Appellant's property is properly zoned for a retail establishment (CB or Beach Commerical), and it needs no further zoning permits from the City in order to convert the existing structures on the property to a convenience store. Indeed, appellant has already received approval for the construction and operation of the store. However, under subsection 137.024(b) of the city code, appellant is required to obtain a conditional use permit because it intends to engage in the sale of packaged beer and wine for off-premises consumption. In order to obtain such a permit the applicant must satisfy a number of criteria embodied in the code. The parties have stipulated that, with the exception of one standard, all other relevant criteria have been met. The disputed standard requires that "the use shall be compatible with the surrounding area and not impose an excessive burden or have a substantial negative impact on surrounding or adjacent uses or on community facilities or services." It is noted that appellant must secure the necessary land use permit from the City before it can obtain the alcoholic beverage license from the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. The application was considered by the Clearwater Planning and Zoning Board (Board) on June 13, 1989 and denied by a 5-0 vote with one member abstaining. As a basis for the denial, the Board adopted a staff report that concluded that "due to the beach area being saturated with this use (sale of alcoholic beverages), public nuisances requiring police action are taxing community services." It further concluded that the proliferation of this activity "has a substantial negative impact on surrounding or adjacent uses or on community facilities and services, specifically police services in handling nuisances related to alcoholic beverage establishments." Members of the public who testified in opposition to the application expressed concern over increased traffic in the area, the glare of lights from a 24 hours per day establishment, and potential problems arising from customers who will consume the beer and wine during the evening hours. In addition, two letters in opposition to the application were considered by the Board. Finally, besides a presentation by applicant's attorney, two witnesses appeared on behalf of the applicant and established that Pick Wick, Inc. provides security services at its stores, if needed, and training for employees to prevent the sale of alcoholic beverages to minors. The subject property is located on the western side of the intersection of Bay Esplanade and Mandalay Avenue in Clearwater Beach, an elongated strip of land to the west of the mainland portion of the City and separated from the mainland by Clearwater Harbor. Mandalay Avenue runs north and south through the heart of Clearwater Beach and is a principal traffic artery in that part of the community. The avenue narrows from four to two lanes just south of where the store is to be located. Bay Esplanade is a much shorter street and runs in an east-west direction between the Gulf of Mexico and Clearwater Harbor. In general terms, the property is surrounded by mixed uses and include a 7-11 convenience store immediately across the street to the east, motels and rental apartments, a restaurant, retail businesses and resort facilities, residences, public areas and a city fire station. Maps received in evidence more definitively depict the nature of the uses surrounding Nostimo's property. In addition to a number of commercial establishments within the immediate area, there are also tennis courts, a parking area, community boat ramp, soccer field, playground and public park. Finally, the area is replete with apartments, rental units and condominiums, including some directly behind the proposed establishment. Although there are presently no active businesses located on the subject property, the premises were once occupied by a hotel, apartments, hot dog shop and a small lounge that offered both on and off premises consumption of alcohol. The applicant contends that the proposed use is compatible with both the property's former use and the present surrounding area, particularly since a 7-11 convenience store directly across the street has been in business selling beer and wine for the last twenty-five years, and there are several restaurants or motels within a block that sell alcoholic beverages. The applicant added that, in all, there are approximately fifty-three active alcoholic beverage licenses within two miles of the proposed convenience store. At both the Board hearing and final hearing in this cause, the City Police Department offered testimony in opposition to the issuance of the requested permit. According to the uncontradicted testimony of Lt. Frank Palumbo, who is the Clearwater Beach police department district commander, additional noise, vandalism, traffic congestion and congregation of younger people are expected if the permit is issued. This opinion was based upon his law enforcement experience with other convenience stores on the Beach side that sell beer and wine, including another Pick Wick convenience store. Further, Mandalay Avenue is an important north-south traffic artery in Clearwater Beach, and there are no alternative streets for residents and visitors to use to avoid the traffic build-up that will occur around the store. Lieutenant Palumbo disputed the assertion that the lounge that once occupied a portion of the subject property generated substantial numbers of customers and associated traffic and that the new enterprise is actually a downgrade in use. He pointed out that the former lounge was very small, and a congregation of four or five customers at any one time was a "large crowd." In contrast, the police officer distinguished that situation from the proposed store where the sale of beer and wine around the clock is expected to generate larger volumes of traffic and customers, particularly during the evening hours. Finally, it has been Lt. Palumbo's experience that convenience stores that sell beer and wine attract the younger crowd, including minors, during the late hours of the night, and they create noise and sanitation problems for the adjacent property owners. The witness concluded that all of these factors collectively would have a negative impact on "community services" by placing a greater demand on police resources. This testimony was echoed by a city planner who gave deposition testimony in this cause. The nexus between the sale of alcoholic beverages and increased traffic and noise was corroborated by Daniel Baker, the manager of another Pick Wick store and a former employee of the 7-11 store across the street, who recalled that when beer sales stopped at that store at midnight, the noise and traffic also came to a halt. In this regard, it is noted the proposed store will operate twenty-four hours per day. To the above extent, then, the proposed use is incompatible with the requirements of section 137.011(d)(6). Two other witnesses testified at final hearing in opposition to the application. One, who is a member of a church that lies a block from the proposed store, pointed out without contradiction that a playground sits next to the church and is used by area young people, many of whom use bicycles as their means of transportation. She was concerned that if more traffic is generated by the store, it would make access to the playground more hazardous and discourage the children from using the facility. The second member of the public is concerned that the store will be incompatible with the surrounding area. This is because much of the neighboring area is made up of public areas, apartments, rental units or condominiums, and he contended an establishment selling alcoholic beverages would be inconsistent with those uses.
The Issue The issue in this case is whether Amendment 06-19 to the Martin County Comprehensive Plan (the Plan), adopted by Ordinance 757 on August 7, 2007, is "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes (2007)1.
Findings Of Fact Future Land Use Map (FLUM) Amendment 06-19 to the Plan changes the future land use on 13.7 acres in Jensen Beach, Florida, known as Pitchford's Landing, from Mobile Home to Low Density Residential. The County's Mobile Home future land use designation allows mobile home sites up to a maximum of eight units per acre. The County's Low Density Residential future land use designation allows single family residences--including Class A manufactured single-family mobile homes--up to a maximum of five units per acre. The Plan defines Class A manufactured single-family homes as mobile homes built after June 15, 1976, and meeting certain federal standards. As a result of the FLUM Amendment, the future land use no longer would allow mobile homes built before June 15, 1976, or not meeting the federal standards. The Petitioners' Challenge The Petitioners contend that the FLUM Amendment is not in compliance because it is not based on adequate data and analysis as required by Section, 163.3177(8), Florida Statutes, and Florida Administrative Code Rule2 9J-5.005(2)(a), and because it is not internally consistent with goals, objectives, and policies of the Plan with respect to providing adequate sites for mobile homes and affordable housing for low and moderate income residents as required by Section 163.3177(2), Florida Statutes, and Rule 9J-5.005(5). The Petitioners further contend the amendment is inconsistent with requirements of the Plan, the State Comprehensive Plan, and Rule Chapter 9J-5 related to affordable housing, concurrency, and water supplies. Pertinent Plan Provisions The Housing Element of the Plan acknowledges that the State Comprehensive Plan includes goals and policies "aimed at increasing Florida's affordable housing supply." Plan Section 6.1.A. The following goals, objectives, and policies are set out in the Housing Element: Section 6.4.A. Goal. The provision of a safe, diverse and affordable housing stock which is adequate to serve the needs of current and future populations of Martin County consistent with the desired development character of the County as set forth in Martin County's Comprehensive Growth Management Plan. Section 6.4.A.2.d.(2). Policy. Principles for Conservation and Rehabilitation Activities. The following principles shall guide the development of any housing conservation and/or rehabilitation activities . . . Avoid the closure or abandonment of housing and the displacement of occupants, except where the safety of the occupants would be in question. Section 6.4.A.5. Objective. The County shall continue to provide adequate sites for housing for very low, low and moderate income households which currently reside and are projected to reside in unincorporated Martin County. Section 6.4.A.6. Objective. Martin County shall continue to provide adequate sites for mobile and manufactured housing. Policy: Adequate sites for mobile and manufactured homes. Martin County shall permit the placement of mobile homes in mobile home parks and subdivisions consistent with the criteria and guidelines established in section 4.4.M.1(d)(6) of the Future Land Use Element of the Comprehensive Growth Management Plan.3 Section 6.4.A.9.a. Policy: Plan for a broad mix of housing opportunities. Encourage the provision of varied housing types, sizes and prices consistent with the local need, including very low, low and moderate priced housing. The Future Land Use Element of the County's Plan contains the following goals, objectives, and policies: Section 4.4.A.3. Objective. Martin County shall establish a "concurrency management system" which will establish the procedures and/or process that the county government will utilize to assure that no development orders or permits will be issued which result in a reduction of the adopted level of service standards of this Growth Management Plan at the time that the impact of development occurs. Policy: All requests for amendments to the future land use maps shall include a general analysis of the availability and adequacy of public facilities and the level of services required for public facilities the proposed land uses Compliance with this provision is in addition to, and not in lieu of, compliance with the provisions of Martin County's Concurrency Management System . . . . Policy: The maintenance of internal consistency among all elements of the plan shall be a prime consideration in evaluating all requests for amendments to any elements of the plan . . . Section 4.4.I. Goal (residential land use): Martin County shall provide for appropriate and adequate lands for residential land uses to meet the housing needs of the anticipated population and provide residents with a variety of choices in housing types and living arrangements throughout the county. Section 4.4.I.2.a.(1). Residential zoning classifications shall, at a minimum, be designed for single-family, multifamily, and mobile home and manufactured housing development to meet the housing needs demonstrated in the Housing Element (Chapter 6) of this Growth Management Plan. Section 4.4.M.1.f. Policies (Residential development). The Land Use Map allocates residential density based on population trends; housing needs; past trends in the character, magnitude, and distribution of residential land consumption patterns; and, pursuant to goals, objectives and policies of the Comprehensive Growth Management Plan, including the need to provide and maintain quality residential environments, preserve unique land and water resources and plan for fiscal conservancy. Mobile and Manufactured Single-Family, Class A home development. Mobile homes and manufactured homes, Class A, residential development shall be permitted consistent with State Rules and statutory provisions including F.S. §§ 320.823, 553.38(2). Mobile homes which do not meet the standard for manufactured housing, Class A, as defined in this Element shall be permitted only on sites appropriately zoned for mobile home development. Adequate Mobile Homes Sites The FLUM Amendment reduces the amount of land available for mobile homes that are not Class A manufactured single-family homes. It also reduces the density of Class A manufactured single-family homes allowed on the Pitchford's Landing site to five from eight units per acre. However, the Petitioners failed to prove beyond fair debate that the FLUM Amendment is internally inconsistent with Plan provisions requiring adequate sites for mobile homes, or for affordable housing for very low, low, and moderate income residents. The Petitioners also failed to prove beyond fair debate that, as a result of the FLUM Amendment, the Plan fails to provide adequate sites for mobile homes, or for affordable housing for very low, low, and moderate income residents. Data and Analysis The data and analysis supporting the FLUM Amendment included the existence of 89 acres of land in Martin County that is designated Mobile Home but is vacant. (There also is a large amount of vacant land designated Low Density Residential that can be used for Class A manufactured homes.) There was evidence that the amount of vacant land designated Mobile Home has decreased from the 187 acres reported to exist in January 2003. Some of that decrease was the result of conversions to other future land uses. It is not clear from the evidence what part of the decrease might have been from the use of formerly vacant land. As a result of the real estate boom in 2001-2005, Martin County began to experience the conversions of mobile home parks to more expensive (and more profitable) housing. In addition, the general increase in real estate prices also increased the cost of the more affordable housing that did not convert. As a result of concerns about those developments, Martin County began investigating and developing a strategy to continue to meet its requirements for affordable and workforce housing. One possible strategy under consideration was a "no net loss" of land zoned Mobile Home Park. As part of this effort, on June 5, 2007, Martin County adopted Ordinance 751, which imposed an interim moratorium for the month of September 2007 on private applications to convert Mobile Home to any other future land use categories. Ordinance 751 also imposed an 18-month moratorium on rezoning of land designated for Mobile Home future land use. By its terms, Ordinance 751 does not prohibit the FLUM Amendment in this case. The data and analysis supporting the FLUM Amendment included the proximity of the Pitchford's Landing site to the coastal high hazard area (CHHA). It is to the west and just across Indian River Drive from a narrow strip of land along the Indian River, which is in the CHHA. Although the evidence was that there has not been significant damage to the site itself from recent storms, the eastern half of the site is in the Category 3 and Category 5 "storm surge zones." The data and analysis supporting the FLUM Amendment included the compatibility of Low Density Residential future land use with the surrounding uses. The narrow strip along the Indian River to the east of the Pitchford's Landing site across Indian River Drive is designated Commercial Limited, as is the property to the north of the eastern half of the site. The property to the south of the eastern half of the site is designated Mobile Home but is actually under development as a "mixed use" planned unit development within the Jensen Beach Community Redevelopment Area. The property to the north and west of the western half of the site is designated Low Density Residential, while the property to the south of the western half is designated Mobile but actually is undeveloped and covered with trees and other vegetation. The data and analysis supporting the FLUM Amendment included the opinions of planning experts that Low Density Residential future land use is more appropriate than Mobile Home future land use for the Pitchford's Landing site. The data and analysis supporting the FLUM Amendment included the existence of potable water service with sufficient capacity for the Pitchford's Landing site provided by the Martin County Utilities and Solid Waste Department. The data and analysis supporting the FLUM Amendment included the existence of sanitary sewer lines with sufficient capacity in the public right-of-way immediately adjacent to the Pitchford's Landing site that can be easily accessed for sanitary sewer service provided by the Martin County Utilities and Solid Waste Department. The data and analysis supporting the FLUM Amendment included the existence of other public services with sufficient capacity, such as fire protection, hospitals, parks and recreational facilities, and schools. The data and analysis supporting the FLUM Amendment included the absence of wetlands or other environmentally sensitive areas on it, according to the Martin County Soil Survey and photographs of the site, as well as the absence of any rare, endangered, or threatened species of animals or plants. Several Petitioners expressed a concern about the lack of data and analysis on the impact of the FLUM Amendment on the surficial aquifer they use for potable water. Specifically, their concern is that the FLUM Amendment will decrease aquifer recharge on the Pitchford's Landing site and increase its use of the aquifer for lawn irrigation. However, there was no evidence tending to prove how converting the future land use designation from Mobile Home (at up to eight units per acre) to Low Density Residential (at up to five units per acre) would have such an impact. To the contrary, there was evidence that there are existing permits from the South Florida Water Management District to use a fixed amount of water from the surficial aquifer for lawn irrigation on the Pitchford's Landing site. There was no evidence that more water would be required by a conversion of the future land use from Mobile Home to Low Density Residential. If more water is required, any increase in the use of the water from the surficial aquifer would have to be permitted by SFWMD. The Petitioners failed to prove beyond fair debate that the FLUM Amendment is not supported by data and analysis. State Comprehensive Plan Petitioners contend that the FLUM Amendment is inconsistent with the following parts of the State Comprehensive Plan: WATER RESOURCES Goal.--Florida shall assure the availability of an adequate supply of water for all competing uses deemed reasonable and beneficial and shall maintain the functions of natural systems and the overall present level of surface and ground water quality . . . . Policies Ensure the safety and quality of drinking water supplies and promote the development of reverse osmosis and desalinization technologies for developing water supplies. Identify and protect the functions of water recharge areas and provide incentives for their conservation. * * * 5. Ensure that new development is compatible with existing local and regional water supplies. * * * Protect aquifers from depletion and contamination through appropriate regulatory programs and through incentives. Protect surface and groundwater quality and quantity in this state. * * * § 187.201(7), Fla. Stat. The evidence did not prove that the FLUM Amendment is inconsistent with any of those provisions or that, as a result of the FLUM Amendment, the Plan as a whole is inconsistent with the State Comprehensive Plan. Standing All of the individual Petitioners reside in or own property in Martin County and submitted oral or written comments, recommendations, or objections to the County regarding the FLUM Amendment between the transmittal hearing (April 11, 2007) and the adoption hearing (August 7, 2007). The Jensen Beach Group (JBG) consists of three individuals, two of whom were individual Petitioners. JBG was incorporated not-for-profit in May 2006 for the purposes of preserving and protecting "the quality of life for Jensen Beach, Florida, and Martin County residents through education and awareness" regarding development projects in Jensen Beach and Martin County, and of raising funds for that purpose "as well as any and all lawful business." It also advocates interests related to maintaining the character of Martin County and Jensen Beach and quality of life for Jensen Beach residents before County commissions and boards. There was no evidence that JBG owns property in Martin County. The Intervenors own the property subject to the FLUM Amendment (and other property in Martin County) and have consistently recommended adoption of the FLUM Amendment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that Martin County's FLUM Amendment 06-19 is "in compliance." DONE AND ENTERED this 18th day of July, 2008, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 2008.
Findings Of Fact On or about June 10, 1986 Petitioners submitted a conditional use application to Respondent for the package sale of beer and wine at 601 Bayway Boulevard, Bayside Subdivision No. 5, Lot 1, Black B, in Clearwater Beach, Florida. The property in question is zoned SC (beach commercial), and the alcoholic beverage designation being sought is 2 APS. Respondent has identified this conditional use application as C.U. 86-49. The Planning and Zoning Board denied Petitioners' application on August 5, 1986 by a vote of 4 to 2, and Petitioners timely filed this appeal. The subject property is the site of a convenience store which is surrounded by motels and commercial establishments such as a bank, restaurant and lounge, car rental agency and a miniature golf course. Another convenience store which sells alcoholic beverages for off-premises consumption is located within three blocks of the property in question. Robert E. Davis operated the convenience store on the subject property from 1977 to July, 1986 at which time Petitioners acquired their interest in the property and the convenience store. While Davis was operating the convenience store the package sale of beer and wine was allowed under a previously approved conditional use. However in accordance with Section 136.024(b), City of Clearwater Land Development Code, Petitioners were required to reapply for conditional use approval upon the change of business ownership of the subject property. Under Davis' management, the convenience store regularly closed at 11:00 P.M., but beginning approximately one month prior to Petitioners acquiring their interest in the store and the property, Davis began to keep the convenience store open twenty four hours a day. Petitioners have operated the store twenty four hours a day since it has been under their management. Public testimony was offered in opposition to Petitioners' application due to concerns about increases in noise, lights, traffic, loitering, trash and debris, and consumption of alcohol on the premises since Petitioners have acquired their interest. Petitioners concede that there was a problem with rowdyism and trash when they initially took over the convenience store, but state that these problems have been corrected. By letter dated August 5, 1986, Chief of Police Sid Klein confirmed a problem with young people gathering on the premises and stated that he did not feel approval of this conditional use would be compatible with the need of the neighborhood. However, little weight can be given to this exhibit since it is clearly hearsay, and relates solely to conditions existing several months ago when Petitioners had just acquired their interest in the subject property and convenience store. Petitioners are seeking to continue the package sale of beer and wine on the subject premises during authorized hours, as had been allowed for previous owners. This activity will clearly be compatible with other commercial businesses in the neighborhood, and with prior business conducted at this specific location. Although there were problems with trash and rowdyism on the premises in July and August, 1986, Petitioners have taken corrective action, and have committed to continued management improvements. The use in question is compatible with surrounding uses and complies with Respondent's land use plan. Acceptable ingress and egress is provided, and noise from the site will not diminish the use, enjoyment or value of the surrounding property. Petitioners are taking steps to reduce the glare to surrounding properties from motor vehicle lights. Sufficient parking area is provided on site, and the evidence does not establish that the sale of beer and wine at this location increases traffic in the area. This is an existing use which was allowed when Petitioners acquired their interest in the subject property. There was no evidence that Petitioners have sold, or will sell, beer and wine at the store beyond the legal hours for such sale, or that they have or will sell to minors.
Findings Of Fact At all times relevant hereto, respondent, Bertin C. Tash, held land surveyor license number LS0002292 issued by petitioner, Department of Professional Regulation, Board of Professional Land Surveyors. Respondent currently resides at 1127 Broadway, Riviera Beach, Florida. Tash has held a license with the state since July 2, 1970, and has been in the surveying profession for some twenty-eight years. On or about November 11, 1983, respondent was contacted by a local mortgage broker and requested to perform a survey on a residence located at 2814 Saginaw Avenue, West Palm Beach, Florida. A survey was needed since the owner of the residence intended to refinance his property. Tash performed the survey, turned the same over to the broker, and was paid $125 for his services. The drawing was signed and sealed by Tash, and contained the following notation above the certification: "No Corner's Set-All Rights Reserved." There was no mention as to whether the minimum technical standards had been met. On at least three places on the document, Tash referred to the drawing as a "survey." On June 7, 1984, Craig L. Wallace, a land surveyor in Lake Park, Florida, sent a copy of Tash's drawing to the Board's Executive Director and asked if the notation above the certification was permissible, and whether Tash's failure to refer to minimum technical standards was correct. This inquiry prompted the instant proceeding and resulted in the issuance of an administrative complaint. It is undisputed that the document prepared by respondent is a survey and subject to the minimum technical standards set forth in Chapter 21HH-6, Florida Administrative Code. Expert testimony by witness George M. Cole, Jr. Established that the drawing did not conform with the minimum technical standards in various respects. It did not contain a certification that the minimum technical standards had been met or a description of the type of survey being depicted. It did not reflect the measured distance to the nearest intersection of a street or right-of-way nor did it depict the entire lot being surveyed. Additionally, only one angle was shown on the drawing although agency rules require that all angles and bearings be shown. Finally, there was no boundary monument set as required by the standards. These are required unless monuments already exist at such corners. Although Tash pointed out that fence posts embedded in concrete were already on the corners of the property, agency rules still require that alternative monumentation be set. All of the foregoing deficiencies are violations of the minimum technical standards required for surveys. However, none were intentionally violated. Respondent readily acknowledged that he performed the survey in question. However, he considered the survey to be "minor" since two had previously been performed on the same lot, and his was only for the purpose of refinancing the property. He attributed any deficiencies to poor judgment rather than an intentional violation of the law. Tash has been a professional land surveyor for some twenty-eight years, and there is no evidence that he has been subjected to disciplinary action on any prior occasion. The complaint herein was initiated by another licensed surveyor and not by the consumer who used the survey. The survey was apparently satisfactory as far as the mortgage broker was concerned, and no problems arose at closing.
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 order. The remaining charges be DISMISSED. Respondent's license should be placed on probation for ninety days and he should be required to pay a $500 administrative fine. DONE and ORDERED this 18th day of September, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1985.
The Issue Whether Respondent Pierson should be granted variances to permit construction of a triplex on a lot 95 feet wide and 87 feet deep. To do so the three variances required are (1) of 5 feet in width, (2) of 13 feet in depth, and (3) 753 square feet in area (10,000 square feet required).
Findings Of Fact Don Curtis Pierson owns the north one-half of Lot 2 and all of Lot 3, Block 6, Revised Map of Clearwater Beach, and has owned this property for some 28 years. The property is zoned RM-20 and is high density residential developed. Pierson's lot is approximately 95 feet by 87 feet (approximately 82,500 square feet). The property is currently occupied by a duplex which was constructed according to Code, except for variances of zero setback from the coastal construction control zone and a 6 foot height variance to permit the construction of a building 31 feet in height. Appellant is the owner of a multifamily building adjacent to Pierson's property which was constructed before various code provisions became effective and was constructed to the lot lines without any setbacks. When Pierson applied for variances in 1983 to construct a triplex on his property, the Board of Adjustment Appeal granted setback variances of 10 feet in rear and front setback lines to permit the construction of a triplex on this property. Vasilaros appealed that grant, and on July 12, 1983 the undersigned heard that appeal. On August 31, 1983, an order was entered denying the setbacks, but approving the construction of a triplex on the lot less than 10,000 square feet in area. That approval was predicated upon then Section 131.020 of the Land Development Code which waived the area requirement for a lot of record. This Section was removed in the 1985 rewrite of the Land Development Code. Specific code provisions respecting the size of the lot on which a three family structure may be erected are in Section 135.044 which requires a minimum lot area of 10,000 square feet, and minimum lot width and depth of 100 feet each. The applicant's only hardship upon which the requested variance can be granted is the uniqueness of the property becoming nonconforming solely by reason of zoning changes.
The Issue The issue in this case is whether the land development regulations (LDRs) adopted by Respondent, City of Sunny Isles Beach (City), by Ordinance No. 2002-165 on December 10, 2002, as amended, are in compliance.
Findings Of Fact Based upon the record presented by the parties, the following undisputed findings of fact are determined: The City sits between the Intracoastal Waterway and the Atlantic Ocean in northern Dade County just south of the Town of Golden Beach (Town) and just north of the City of Bal Harbour. It was incorporated in 1997. As required by Section 163.3161, Florida Statutes, on October 5, 2000, the City adopted its first Comprehensive Plan. See Exhibit E. The Plan was amended by Ordinance No. 2002-147 on January 17, 2002. See Exhibit B. The Plan's Future Land Use Map contains a land use category known as Mixed Use-Resort/High Density (MU-R), which is "designed to encourage development and redevelopment within the area east of Collins Avenue for resort style developments catering to tourists and seasonal residents (hotel, hotel/ apartments, vacation resorts and resort style apartments) as well as high quality residential apartments." The category also allows associated retail uses such as restaurants and conference facilities that are internal and accessory to hotel/resort development. Pertinent to this dispute is Policy 15B of the Future Land Use Element (FLUE), which establishes density and intensity standards for the MU-R land use category. More specifically, the policy provides the following standards: This category allows an as-of-right density of a maximum one hundred (100) hotel- apartment units per acre and fifty (50) dwelling units per acre for apartments and a floor area ratio (FAR) intensity of 2.5. The allowable number of hotel rooms is controlled by floor area ratio. Additional residential density and FAR intensity may be permitted for developments that comply with bonus program requirements. Residential densities with bonuses may not exceed eighty (80) units per acre for solely apartments and one hundred twenty five (125) units per acre for hotel- apartments, exclusive of lockout units. (Emphasis added) Under the foregoing policy, a maximum density of 100 units per acre is allowed for hotel-apartment units, a maximum density of 50 units per acre is allowed for apartments, and a floor area ratio (FAR) intensity of 2.5 has been established. However, the underscored portion of the policy authorizes a bonus density and intensity program which allows a developer to exceed the prescribed density and intensity standards for developments "that comply with bonus program requirements." If the bonus density program requirements are satisfied, the policy establishes a cap for the density bonus at 125 hotel-apartment units per acre and 80 residential units per acre. While the policy does not establish a similar cap for the intensity bonus, it essentially defers the amount of the intensity cap and the details of the bonus program to the LDRs, which are to be adopted at a later time. Objective 8 of the Plan provides that the City "shall adopt, maintain, update and enhance development regulations and procedures to ensure that future land use and development in the City of Sunny Isles Beach is consistent with the Comprehensive Plan." Objective 15 of the Plan provides that the "land use densities, intensities and approaches [contained in Policy 15B] shall be incorporated in the Land Development Regulations." Finally, Section 163.3202(1), Florida Statutes, requires that local governments, within one year after submission of their comprehensive plans, "adopt or amend and enforce land development regulations that are consistent with and implement their comprehensive plan." On December 10, 2002, the City approved Ordinance No. 2002-165, which adopted a comprehensive set of LDRs to implement the Plan. See Exhibit C. In 2003, the LDRs were further amended in minor respects by Ordinance Nos. 2003-167, 2003-171, 2003-173, and 2003-178. See Exhibit D. In sum, the LDRs consist of more than one hundred pages of regulations, and except for one of these, Section 703.8.4(i)3, none of the other LDRs directly relates to this dispute. Section 703.8.4(i)3 implements Policy 15B by outlining the criteria and requirements necessary to qualify for additional intensity or FAR through the bonus program. It also establishes a cap on FAR intensity. If the bonus program requirements are satisfied,3 the regulation allows a maximum intensity bonus of 1.5 FAR, or a potential total FAR of 4.0, which exceeds the 2.5 FAR contained in Policy 15B. (Intensity bonuses to increase the FAR can also be obtained through the transfer of development rights under Section 515 of the LDRs. However, those bonuses are not in issue here.) Petitioners include a group of twelve City residents; the Town, which lies adjacent to, and just north of, the City; and two Town residents. There is no dispute that Petitioners will be substantially affected by the LDRs and thus they have standing to bring this challenge. In their Cross-Motion, which essentially tracks the allegations in their Amended Request for Hearing, Petitioners assert that they, and not the City, are entitled to a summary final order in their favor for three reasons. First, they argue that it is beyond fair debate that all of the LDRs, including Section 703.8.4(i)3, are inconsistent with Policies 4A and 4C of the Intergovernmental Coordination Element of the Plan because the City failed to solicit comments from the Town prior to the adoption of the LDRs. Second, they argue that it is beyond fair debate that the City violated Florida Administrative Code Rule 9J-5.005(2)(g) when it adopted Section 703.8.4(i)3. Finally, they contend that it is beyond fair debate that in order to achieve consistency with the Plan, the LDR must not establish a FAR that is beyond the intensity standard (2.5) established in the Plan. Policies 4A and 4C of the Intergovernmental Coordination Element provide as follows: 4A. The City will notify and solicit comments from adjacent jurisdictions and the School Board of any requests for land use amendments, variances, conditional uses or site plan approvals which impact property within 500 feet of a public school or within 500 feet of the boundaries of an adjacent jurisdiction. 4C. The City will notify and solicit comments from adjacent jurisdictions and the School Board of its existing standards or proposed regulations being considered for problematic or incompatible land uses. Nothing in the two policies requires that the City solicit comments from adjacent jurisdictions when adopting the LDRs being challenged here. Rather, these policies specifically address notice and comments as to "land use" changes, not the adoption of LDRs, or to "regulations being considered for problematic or incompatible land uses." Even assuming arguendo that the two policies require some type of prior notice, Petitioners do not dispute the fact (as set forth in the Department's Determination) that prior to the adoption of the LDRs, "the City notified the Town both in writing and orally". (Determination, Finding of Fact 6). Florida Administrative Code Rule 9J-5.005(2) contains general data and analyses requirements for comprehensive plans. Paragraph (2)(g), which Petitioners assert was violated by the City when it adopted Section 703.8.4(i)3, provides as follows: (g) A local government may include, as part of its adopted plan, documents adopted by reference but not incorporated verbatim into the plan. The adoption by reference must identify the title and author of the document and indicate clearly what provisions and edition of the document is being adopted. The adoption by reference may not include future amendments to the document because this would violate the statutory procedure for plan amendments and frustrate public participation on those amendments. A local government may include a provision in its plan stating that all documents adopted by reference are as they existed on a date certain. Documents adopted by reference that are revised subsequent to plan adoption will need to have their reference updated within the plan through the amendment process. Unless documents adopted by reference comply with paragraph 9J-5.005(2)(g), F.A.C., or are in the F.S., the F.A.C., or the Code of Federal Regulations, copies or summaries of the documents shall be submitted as support documents for the adopted portions of the plan amendment. This rule sets forth the manner in which local governments may adopt and incorporate by reference documents into their comprehensive plans. If they choose to do so, they must identify the title and author of the document being incorporated by reference, the edition of the document, and the specific portion of the document relied upon. Whenever an amendment or change to the incorporated document occurs at a future time, the local government must readopt those changes in order for them to be valid and effective. On its face, the rule applies exclusively to the use of incorporated documents in comprehensive plans, or plan amendments, and has no application to LDRs. In the case of Town of Golden Beach et al. v. City of Sunny Isles Beach et al., No. 03-472AP (Fla. 11th Cir.Ct., Appellate Division, June 15, 2004), a copy of which has been submitted as Exhibit G, Petitioners unsuccessfully sought by petitions for writ of certiorari to quash a City Resolution which granted Intervenor's application to construct a condominium at 19505 Collins Avenue, Sunny Isles Beach. The application sought approval of a site plan for the condominium and approval of the use of the property as a receiver site for the transfer of 38,847 square feet of transfer development rights in accordance with the City's LDRs. In that proceeding, Petitioners contended that they were denied due process because the City failed to provide proper notice to neighboring property owners under Section 515.7 of the LDRs; and that the City violated the essential requirements of the law by improperly transferring development rights and additional floor area ratio through bonuses to the developer, in excess of the 2.5 FAR expressly permitted by the City's Plan and LDRs. The court ruled in favor of the City on both issues. The parties agree, however, that a motion for rehearing of that decision has been filed by Petitioners, and the decision is not yet final. Further, the decision does not clearly indicate whether the same consistency arguments raised here were adjudicated in that matter. The notice issue is not the same.
Findings Of Fact W. B. Johnson Properties, Inc., Petitioner, is the owner of the 428- room Holiday Inn Surfside located on Clearwater Beach. This hotel was constructed in 1981 on land zoned CTF-28 for commercial tourist facilities. The tract of land on which the hotel is situated is approximately ten acres and the maximum density of 42 rooms per acre is utilized. This hotel is currently in conformity with all building and zoning regulations. Holiday Inn Surfside has decking around its swimming pool which is capable of accommodating only 120 to 150 deck chairs for the guests of the hotel. Additional chair space, if needed, must be obtained by using the undecked area of the beach in front of the hotel. The occupancy rate for this hotel from the beginning of 1983 to date has been 80 percent. Petitioner owns the entire beach fronting its property, a distance of some 340 feet. Prior to the passage of Clearwater Ordinance No. 3075-83, the western setback line for this property was 50 feet from-mean highwater (MHW). Ordinance 3075-83 made the Coastal Construction Control Line (CCCL), as established by Section 161.063, Florida Statutes, as the western setback line for property located on Clearwater Beach. This is now the Coastal Control setback line. The Coastal Construction setback line as it crosses Petitioner's property is 338 feet from MHW of the Gulf of Mexico. Prior to the passage of Ordinance No. 3075-83, Petitioner could have constructed decking up to the then setback line, 50 feet from MHW. Petitioner is one of the few property owners on Clearwater Beach that has undisputed ownership of the beach fronting its property seaward of the CCCL. This area of Clearwater Beach in the vicinity of Holiday Inn Surfside is the widest part of the beach between the CCCL and MHW. Exhibit 7, which was submitted as a late-filed exhibit, clearly shows the beach north of Petitioner's property is not as wide as is the beach fronting Petitioner's property, and much of the property on the beach south of Petitioner's property is owned by the City. Solely by having ownership of more beachfront property seaward of the CCCL, Petitioner is more adversely affected by Ordinance No. 3075-83 than are other property owners. Petitioner has signs restricting the use of the decking around the pool to hotel guests. Petitioner also has a patio bar in the vicinity of the pool which is accessible from the beach and from the hotel. Drinks are served to the public at this patio bar. By extending the deck 28 feet seaward of the OCCL, Petitioner would be able to provide decking for an additional 150 to 170 chairs for the use of hotel guests. With an 80 percent occupancy rate there is insufficient deck space to accommodate all of the hotel guests who desire to use these facilities. Currently the excess place their deck chairs in the sand seaward of the CCCL. Those who testified in opposition to the variance requested did so on the grounds that the increased deck facilities would bring more people to the patio bar, thereby increasing the traffic and parking problems on the beach, that the hotel did not adequately restrict the use of the existing deck to guests of the hotel, and that if this application is granted it will open the doors to others who would like to construct a deck seaward of the CCCL. None of these grounds is deemed particularly meritorious. Many factors could increase the patronage of the patio bar and more adequate decking would not be a significant one, particularly in view of Petitioner's contention that the deck was reserved for guests of the hotel, albeit not strictly enforced during periods of low occupancy.
The Issue The issues in this case are whether two City of Palm Bay Comprehensive Plan Amendments, one of which was "small scale development amendment" under Section 163.3187(1)(c), Florida Statutes, are "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact Brevard County (County) is a political subdivision of the State of Florida. See Section 7.05, Florida Statutes. The County is bordered on the north by Volusia County, on the west by Volusia, Orange, and Osceola Counties, on the south by Indian River County, and on the east by the Atlantic Ocean. The City of Palm Bay (City) is a municipality in southeast Brevard County, just to the southwest of the City of Melbourne. In its extreme northeast, the City borders on the Intracoastal Waterway. From there, it fans out to the southeast, surrounded on all sides by the County. The Department of Community Affairs (DCA) is the state land planning agency and has the authority to administer and enforce the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes. The Small-Scale Amendment: Review and Adoption On June 3, 1999, William Wilson submitted an application to amend the City's Future Land Use Map (FLUM) for a 1.1558-acre (small-scale) parcel of land in the unincorporated County at the southeast corner of the intersection of Valkaria Road (an east/west thoroughfare) and Babcock Street (a north/south thoroughfare), in anticipation of annexation by the City. In this vicinity, the unincorporated County lay to the east, across Babcock Street, between the City and the Intracoastal Waterway. The unincorporated County land to the north, east, and south of the parcel had a future land use designation of "Residential" on the County's FLUM; the City land to the west had a residential future land use designation on the City's FLUM. The requested amendment was from the existing County "Residential" designation to City "Commercial." A zoning change also was requested from County AU (Agricultural Residential) to City CC (Community Commercial). The parcel subject to the small-scale amendment request has a single-family home and free-standing residential garage located onsite. Projected impacts from commercial development on the parcel met all relevant City level of service (LOS) standards. (The County has not put environmental suitability at issue with respect to the parcel.) The City planning staff recommended approval of the requested plan amendment; staff recommended approval of the zoning change but to City NC (Neighborhood Commerical). These requests were heard by the City Planning and Zoning Board, sitting as the local planning agency (LPA), on October 20, 1999. The LPA voted to recommend to the City Council that the plan amendment be approved and that the zoning change to City NC also be approved. By Ordinance 2000-08, adopted on March 2, 2000, the City annexed the small-scale parcel, effective immediately upon enactment of the Ordinance. By Ordinance No. 2000-09, also adopted on March 2, 2000, the City Council granted the request to change the future land use designation of the parcel on the City's FLUM to City "Commercial." By Ordinance No. 2000-10, zoning on the parcel was changed to City NC. The Large-Scale Amendment: Review and Adoption On July 6, 1999, Brian West submitted an application to amend the City's FLUM for a 19.57-acre parcel on the northeast corner of the intersection of Valkaria Road and Babcock Street (immediately north of the small-scale parcel, across Valkaria), in anticipation of annexation by the City. The requested amendment was from the existing Brevard County "Residential" designation to City "Commercial" future land use. A zoning change from County AU (Agricultural Residential) to City CC (Community Commercial) also was requested. This 19.57-acre (large-scale) parcel is vacant. The County has not put environmental suitability at issue with respect to the large-scale parcel. The City's planning staff recommended approval of the requested plan amendment, which was heard by the City's Planning and Zoning Board, sitting as the LPA, on October 20, 1999, along with the small-scale request. The LPA voted to recommend to the City Council that the large-scale amendment be denied. On February 15, 2000, the City Council conducted a special meeting to consider the requested large-scale annexation, plan amendment, and zoning change and voted to approve the requests. However, at the time, the City also was in the process of developing plan amendments in response to its Evaluation and Appraisal Report (EAR); as a result, transmittal to DCA was deferred until transmittal of the EAR-based amendments. On January 18, 2001, the City Council met in regular session and voted to transmit the requested large-scale amendment to DCA, along with the other EAR-based amendments. On May 17, 2001, DCA issued its Objections, Recommendations, and Comments (ORC) Report regarding the transmitted comprehensive plan amendments. DCA raised several objections and made comments regarding the amendment. The ORC Report was received by the City on May 21, 2001. (The greater weight of the evidence was contrary to testimony of the City's Planning Manager that the ORC Report received on that date was incomplete.) On October 2, 2001, the City Council adopted Ordinance No. 2001-65, which adopted the requested amendment for the large-scale parcel from County Residential to City Commercial future land use. The EAR-based amendments also were adopted on the same date by Ordinance 2001-66. By Ordinance 2001-86 adopted on November 1, 2001, the City annexed the large-scale parcel, effective immediately. Re-Adoption of Plan Amendments at Issue At some unspecified time after October 2, 2001, the City became aware of concerns voiced by DCA regarding the sequence and timing of the large-scale annexation and FLUM amendment. To address these concerns, the City adopted Ordinance No. 2001-105 on December 20, 2001. This Ordinance repealed and re-adopted Ordinance No. 2000-65. At some unspecified time after March 2, 2000, the City became aware of concerns raised by DCA that adoption of the small- scale FLUM amendment took place before the City adopted plan amendments to comply with new school siting requirements, contrary to a statutory prohibition. In order to address these concerns, the City adopted Ordinance No. 2000-79 on January 4, 2001, to repeal and re-adopt Ordinance No. 2000-09, re-designating the small-scale parcel for "Commercial" future land use. DCA Notice of Intent and City's EAR-Based Amendments On January 21, 2002, DCA published a Notice of Intent to find the readopted large-scale amendment "in compliance." DCA subsequently caused to be published a Notice of Intent to find this readopted amendment "in compliance." The EAR-based amendments adopted on October 2, 2001, included certain text amendments, but these amendments had no direct bearing on the plan amendments at issue in this case. All plan text provisions relating to the plan amendments at issue in this case remained "substantially the same" after the EAR-based amendments. Need for Additional Commercial Future Land Use and Internal Consistency The County contends that analysis of the data in existence at the time of adoption of the plan amendments at issue in this case does not support a need to change the future land use on these parcels from County Agricultural Residential to City Commercial. But the following Findings are based on these data and analysis. City data and analysis dated January 2001 indicated in pertinent part: In 2011 the City will need 719 acres of commercial land and at buildout, will need approximately 1,725 acres. The Future Land Use Map currently allocated approximately 1,612 acres for commercial and office development. This is slightly below the needs identified over the long term time periods. The expansion of existing Activity Centers and the development of new Activity Centers should easily accommodate this minor increase. Between now and the next required Plan update in 2007, the City should analyze the available commercial land to determine if existing designated lands are appropriately located or whether new areas should be established and existing designations converted to other land use types. Of particular interest in that regard would be the large amount of neighborhood commercial presently designated but which is primarily vacant. It was not clear from the evidence how the acreage figures in the data and analysis were calculated. It does not appear from the evidence that the figure for commercial acreage "needed" included any "cushion" or "margin of error." If the City has more land allocated for commercial future land use than is expected to be "needed" within the planning horizon of its Comprehensive Plan (the year 2011), it may be the result of pre-platting of the City by General Development Corporation. If so, the City also has an even greater excess of acreage allocated for residential future land use since approximately 90 percent of the City was pre-platted for small, quarter-acre residential lots. As a result of pre-platting, it now appears that, at build-out (expected in about 20-30 years), the City will have an excess of allocated for residential land use and a shortage of acreage allocated for commercial land use (among other non-residential uses.) As a result, there is a current need to begin to reduce the amount of acreage allocated for residential future land use and add commercial acreage (as well as other non-residential uses.) A disproportion of City land allocated to commercial future land use is in the northern part of the City, between Malabar Road and Palm Bay Road, a considerable distance from the intersection of Babcock Street and Valkaria Road. Before the plan amendments at issue in this case, there was hardly any commercial future land use in the City in the vicinity of the Babcock/Valkaria intersection. Almost all of what little commercial future land use could be found in the vicinity was in small parcels--the single exception being a 15-acre parcel at the intersection of Eldron and Grant approximately two miles to the south. There also was very little land allocated to commercial future land uses in the unincorporated County anywhere near the Babcock/Valkaria intersection. Almost all of the unincorporated County in the vicinity had Rural Residential future land use. There was some County Neighborhood Commercial across Babcock from the 15- acre parcel of City Commercial two miles to the south of the intersection. There also was some County Neighborhood Commercial and a small amount of County Community Commercial future land use east of Babcock about a mile to the north of the intersection. A 40-acre parcel approximately 650 feet to the east of the intersection was changed from County rural residential to general commercial zoning in 1988. But at around the time the City began to process the plan amendments at issue in this case, the County purchased the land and re-designated it for Public future land use and GML (Government-Managed Land) zoning. Most of the City's population growth in the last 20 years has been in the southern and western part of the City, to the west of the Babcock/Valkaria intersection. Between 1986 and 1999, residential development within 2-3 miles of the amendment sites increased approximately 160 percent. As a result, whereas 17 years ago most of the City's population was east of Interstate 95, now approximately half the population resides west of Interstate 95 (although 60 percent still resides north of Malabar Road.) Due to the sparse commercial use in the vicinity, either in the City or the unincorporated County, there is a need for more land designated for commercial future land uses in the southern part of the City to serve the rapidly growing population in that area. The applicant for the large-scale amendment submitted a letter projecting a need for 1.5 million square feet of retail space in the City based on a comparison of "current space" with average retail space per capita in Florida. The County criticized the professional acceptability of this submission as data and analysis to demonstrate need for additional commercial acreage in the City. Standing alone, the submission may be fairly subject to the County's criticism; but considered along with the other data and analysis, the submission adds to the demonstration of need for the plan amendments. It was estimated that commercial uses at the intersection of Babcock and Valkaria will generate an additional 12,000 vehicle trips on Babcock in the vicinity of its intersection with Valkaria. This estimate further demonstrates a need for additional commercial future land use in the vicinity. At least some of the vehicle trips expected to be generated in the vicinity of the Babcock/Valkaria intersection as a result of adding commercial future land use there would correspond to a reduction in vehicular traffic from the southern part of the City to and from commercial areas in the northern part of the City. For that reason, by helping balance the amount of commercial land use available in the northern and southern parts of the City, adding commercial future land use in the southern part of the City could be reasonably expected to reduce traffic overall. Commercial land uses generally generate higher tax revenue and demand fewer government services than residential land uses. Meanwhile, the City provides most of the government services in the Babcock/Valkaria vicinity and has a backlog of infrastructure projects. For that reason, an economic benefit reasonably is expected to accrue to the City from adding commercial in the southern part of the City.2 Future Land Use Element FLU Objective 3.1 in the City's Comprehensive Plan is to: "Provide additional commercial areas by type, size and distribution, based upon area need. . . ." FLU Policy 3.1A states: "The acreage of commercial land permitted by the Future Land Use Map shall not exceed projected needs." The County did not prove that the proposed FLUM amendments are inconsistent with either this Objective or this Policy. The plan amendments at issue are based upon area need and do not exceed projected needs, as reflected in the data and analysis. Compatibility and Internal Consistency The County contended that City Commercial future land use for the amendment parcels is incompatible with surrounding land uses and internally inconsistent with provisions the City's FLU Objective 2.3, to: "Prevent incompatible land uses from locating in residential areas in order to promote neighborhood stability and prevent deterioration." In the unincorporated County to the east of Babcock Street, there are primarily large-lot, rural residential land uses with some agricultural uses such as horses and tree-farming. But, as indicated, there are platted residential lots in the City to the west of Babcock Street that are urban (or suburban) in character. During the course of these proceedings, the County abandoned its contentions as to incompatibility of the small-scale amendment except for the existence of a residential structure on the property. In arguing that the existence of the residential structure on the property makes commercial future land use incompatible, the County relied on the City's zoning LDRs. But zoning and consistency of zoning with the requirements of zoning LDRs are not at issue in this comprehensive plan amendment case. See Conclusion 52, infra. Even if zoning and consistency with zoning LDRs were at issue, the applicant's residential structure would not defeat the applicant's proposed future land use change; rather, granting the application would mean that use of the residential structure would have to be discontinued after the future land use change. As to the large-scale amendment, the County also relies in part on alleged inconsistency with an LDR--in this instance, the City's LDR for Community Commercial zoning that these areas are "to be primarily located in or near the intersection of arterial roadways." But, again, zoning and consistency of zoning with the requirements of zoning LDRs are not issues for determination in this comprehensive plan amendment case. Id. Even if zoning and consistency of zoning with the requirements of zoning LDRs were at issue, consistency and compatibility still would be fairly debatable. The evidence was that Valkaria was designated as a collector road at the time of adoption of the proposed large-scale amendment and that Babcock was designated as an arterial roadway to the north of Valkaria and as a collector to the south of Valkaria. The City characterized Babcock as a minor arterial. By its terms, the LDR in question does not prohibit Community Commercial zoning except in or near the intersection of arterial roadways; it only provides that these areas are to be located primarily in or near these intersections. Even if City Community Commercial zoning were clearly inconsistent with the City's LDR for Community Commercial zoning, City Neighborhood Commercial zoning has no similar provision for location vis-a-vis arterial roads. Since the City only has one commercial future land use category, City Commercial would be the appropriate City future land use designation for City Neighborhood Commercial zoning. The County's contentions as to the large-scale amendment also are seriously undermined by the existence of both County Community Commercial and County Neighborhood Commercial future land use east of Babcock. In addition, a County-sponsored Small Area Study (SAS) of approximately 11,500 acres of land east of the intersection along Valkaria Road recommended County Neighborhood Commercial future land use for the northeast and southeast corners of the intersection of Babcock and Valkaria (as well as County Restricted Neighborhood Commercial zoning). As indicated, the City's Comprehensive Plan does not distinguish between the two categories of commercial future land use and, if any commercial future land use is compatible with surrounding land uses, City Commercial future land use is appropriate. Contrary to the County's argument, it makes no difference to the appropriateness of City Commercial future land use that County Neighborhood Commercial future land is more limited than City Commercial future land use (or that County Restricted Neighborhood Commercial zoning is more limited than City Community Commercial zoning). The County argued that the large-scale future land use amendment was inconsistent with City FLUE Policy 2.3A, which states that LDRs must "continue to contain provisions to ensure that land uses surrounded by and/or abutting residential areas are not in conflict with the scale, intensity, density and character of the residential area." There is nothing about the proposed FLUM changes that is inconsistent with this Policy. Consistency of LDRs with this Policy is not at issue in this proceeding. See Conclusion 53, infra. The County also questioned the adequacy of buffer between commercial uses on the large-scale parcel and nearby residential uses. Precise questions as to the adequacy of buffer are decided under the LDRs, during site development review and permitting. However, it is noted that there is a 50-foot wide "paper street" (i.e., a platted right-of-way that never was developed as a street) to the west of the large-scale parcel. In addition, zoning as City Community Commercial was conditioned upon additional buffer to the east (25 feet wide) and to the north (50 feet wide). Consideration also is being given to a Habitat Conservation Plan of an undetermined size in the northern portion of the site for use as a "fly-over" for scrub jays. In addition, actual use of the residential land in the unincorporated County to the north of the large-scale parcel includes a car repair business with garage and approximately 15 cars in various states of disrepair.3 For all of the foregoing reasons, the evidence did not establish either internal inconsistency or incompatibility of commercial uses on the large-scale parcel with existing residential uses. Infrastructure and Internal Consistency At the time of adoption of the plan amendments at issue, central water and sewer services had not yet been extended to the two parcels. However, it was clear from the evidence that adequate central water and sewer capacity existed to accommodate commercial development on these parcels and that central water and sewer was being extended to the parcels. The Capital Improvements Element of the City's Comprehensive Plan listed $1.7 million being budgeted for water and sewer improvements in fiscal year 2001/2002, and in excess of $15.3 million budgeted in fiscal year 2002/2003. FLU Objective 3.1 in the City's Comprehensive Plan is to: "Provide additional commercial areas by type, size and distribution, based upon . . . the availability of supporting infrastructure." The County did not prove that the proposed plan amendments are inconsistent with this Objective. Urban Sprawl and Internal Consistency The County maintains that the proposed plan amendments exacerbate urban sprawl. But the County provided no detailed analysis of the indicators of urban sprawl in Rule 9J-5, Florida Administrative Code, to support its contention. In arguing urban sprawl, the County relied on its contentions that there was no demonstrated need to convert County rural residential land use to City commercial land use. This argument has been rejected. See Findings 20-31, supra. The County's urban sprawl argument also focused on uses in the unincorporated County east of Babcock and characterizes the plan amendments as placing commercial land use in a rural area. This focus and characterization ignores the existence of urban residential uses in the City west of Babcock. Seen in proper perspective, the proposed plan amendments allow commercial land use that would tend to mitigate and discourage the kind of urban sprawl promoted by the pre-platting of the City. Instead of having to travel to access commercial uses in distant parts of the City, City residents in the vicinity would have a much closer option under the proposed amendments (as would County residents in the vicinity). FLU Objective 1.4 in the City's Comprehensive Plan is to: "Establish a Growth Management Area to control urban sprawl." FLU Policy 1.4B states: "City funds shall not be utilized to expand public facilities and services for future growth outside of the established Growth Management Area." The small-scale parcel was outside the established Growth Management Area (GMA) at the time of adoption of the small-scale amendment. But it does not follow that the small-scale amendment constitutes urban sprawl. Nor does it follow that the small-scale amendment is inconsistent with either the Objective or the Policy. The small-scale amendment can be made a GMA before any City funds are used to expand public facilities and services for future commercial use of the small-scale parcel.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order finding both the small-scale amendment and the large- scale amendment of the City of Palm Bay (adopted by Ordinance 2000- 79 and by Ordinance 2001-105, respectively) "in compliance." DONE AND ENTERED this 16th day of December, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 2002.
The Issue The issue framed by the Notice to Show Cause is whether Allison on the Ocean, Inc., violated Section 718.502(2)(a), Florida Statutes (1984 Supp.) by accepting a deposit of $85,000 and executing a "Memorandum of Agreement" with Hildagard Waltraud Bitton when that Memorandum of Agreement had not been approved for use as a reservation agreement form by the Division of Land Sales Condominium and Mobile Homes?
Findings Of Fact Allison on the Ocean, Inc., is an active, for profit Florida Corporation (PX 4). 1/ Ms. Chantal Fianson is the owner of all five hundred shares of authorized stock in Respondent (PX 4; testimony of Ms. Fianson). The Allison Hotel in Miami Beach, consisting of studio apartments, was leased by Ms. Fianson. She intended to convert it to condominium ownership. Apparently the lease was held in the name of Allison on the ocean, Inc. An attorney was retained by Ms. Fianson to prepare the necessary papers for the condominium conversion. In connection with that conversion application, a reservation deposit agreement had been submitted to the Department of Business Regulation, copy of which was entered into evidence as PX 2. After those conversion papers were submitted to the Division in Tallahassee, Ms. Fianson was informed in April 1954 that the condominium conversion would not be approved because although she had a long-term lease, a condominium project required ownership of the land on which the building stood (testimony of Ms. Fianson). Before the Department of Business Regulation declined to approve the condominium project as originally proposed by Ms. Fianson, on March 2, 1984, an agreement entitled "Memorandum of Agreement" was executed between Allison on the ocean, Inc., and Hildagard Waltraud Bitton by their respective representatives stating Ms. Bitton's intent to purchase or sublease three units in the property (PX 1). That memorandum shows by its terms that it was not intended to be the contract for the purchase and sale of the units. It provided for the cancellation of the agreement within ninety days, at the buyer's option, and stated that the validity and the interpretation of the agreement would be governed by Florida law (PX 1 paragraph 7). Ms. Bitton paid $85,000 to Allison on the Ocean, Inc., in connection with this Memorandum of Agreement, which money was then used for expenses related to the conversion of the building to a condominium (testimony of Ms. Fianson). Significantly, the prefatory "whereas" clauses in the agreement stated that "Developer is in the process of converting the Allison Hotel, located at 6261 Collins Avenue, Miami Beach, Florida to a Condominium . . ." after which by hand interlineation was written "or SUB LEASE" and the initials of the representatives of both parties appear. The memorandum expressed the intention of the parties that if the proposed condominium conversion were not approved, Ms. Bitten would receive not a fee ownership in condominium units, but a sublease of an unspecified term from the lessee-developer, under the long-term lease which the Respondent did have on the Allison Hotel. The attorney for the purchaser/lessee Ms. Bitten drew up the Memorandum of Agreement (PX 1), and it was not submitted to the Division for review before it was executed. After learning in April 1984 that the condominium project would not be approved, Ms. Fianson did arrange to purchase the land from its owner, and another lawyer was obtained to file condominium documents reflecting the fee ownership by the developer. In the interim, the condominium market became very bad, and ultimately the bank which had provided the Respondent the purchase money mortgage for the property foreclosed on the Allison Hotel. The evidence does not show whether the $85,000 which was used in the conversion process was ever returned to Ms. Bitton.
Recommendation It is recommended that the notice to show case issued in this case be dismissed. DONE AND ORDERED this 5th day of September 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY 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 5th day of September 1986.
