Findings Of Fact Talbott and Drake, Inc. is and was at all times alleged herein a registered real estate broker corporation. William F. Talbott is now and was at all times alleged herein a registered real estate broker and active firm member of Talbott and Drake, Inc. Paul P. Drake is now and was at all times alleged herein a registered real estate broker and active firm member of Talbott and Drake, Inc. Helen C. Drake is now and was at all times alleged herein a registered real estate broker and active firm member of Talbott and Drake, Inc. On or about January 18, 1977, William F. Talbott, on behalf of Talbott and Drake, Inc., negotiated a contract for sale and purchase between the High Ridge Water Company -- John H. McGeary, Jr., sellers, and William Montaltos and Genevieve L. Montaltos, his wife, buyers, for the purchase of lot in a new housing area known as River Forest in the Boca Raton area, Palm Beach County. A copy of said contract, Petitioner's Exhibit 1, is received into the record pursuant to the Stipulation of the parties. Said contract, Petitioner's Exhibit 1, was subject to the declarations of restrictions filed by High Ridge Water Company as seller on June 28, 1976, wherein, in Paragraph 7, the developer retained the right to approve or disapprove the plans and specifications for the construction of any structure, building, fence, wall or sign in the River Forest area. A copy of said declarations of restrictions is received into the record as Petitioner's Exhibit 2, pursuant to the Stipulation of the parties. As a part of the restrictions and provisions of the contract, the purchasers, Mr. and Mrs. Montaltos, were required to use a builder selected from a list of designated builders, approved and designated by Talbott and Drake, Inc. and the High Ridge Water Company. Mr. and Mrs. Montaltos decided to build on the subject property and contacted numerous builders designated by Talbott and Drake, Inc. to submit the bids for the construction of a home on the property. On or about June 9, 1976, the McGeary partnership, as developer of the River Forest area, entered into a joint venture agreement with Group Six Developers Collaborative, Inc., whereby Group Six Developers Collaborative, Inc. purchased lots in the River Forest area and agreed to pay Talbott and Drake, Inc. a five-percent commission on all homes constructed on said lots by Group Six Developers Collaborative, Inc. in the River Forest area. A copy of said joint venture agreement is received into the record as Petitioner's Exhibit 3 pursuant to the Stipulation of the parties. Petitioner's Exhibit 3 recites on the first page of said agreement as follows: WITNESSETH: WHEREAS, by that certain Purchase Agreement intended to be executed this date, BUILDER (Group Six Collaborative, Inc.) is agreeing to purchase certain real property as set forth herein, a copy of which Purchase Agreement is attached hereto as Exhibit 1; . . . (emphasis added) WHEREAS, the parties hereto are desirous of forming a joint venture for the purpose of finan- cing, constructing and selling single family residences upon the property described in Exhibit 1; NOW THEREFORE, in consideration of the pro- mises and of the mutual covenants of the parties hereto, and for other good and valuable considera- tion, the parties agree as follows: 9. BROKER. The parties agree that TALBOTT AND DRAKE, INC., a Florida real estate brokerage corporation, shall have an exclusive listing agree- ment with BUILDER, as owner and joint venturer, for the sale of residences to be constructed pursuant to this Agreement, a copy of which Agreement is attached hereto as Exhibit 2. As a commission for their services, which shall include but not be limited to, advertising, manning model houses, showing receiving of deposits, qualifying prospects, assisting in obtaining financing for purchasers, they shall receive five percent (5 percent) of the pur- chase price, according to the provisions contained in Exhibit 2. The joint venture agreement, Petitioner's Exhibit 3, is clearly limited to houses to be constructed on the lots purchased from the McGeary partnership. The agreement does not constitute an agreement to pay Talbott and Drake, Inc. a fee of five percent of the construction cost of any custom home built by one of the designated builders on a lot purchased by an individual. When Mr. and Mrs. Montaltos received the bid statement from Group Six Developers Collaborative, Inc. there was noted thereon: "Add Real Estate Commission as per Talbott and Drake contract." A copy of said bid statement is received into the record as Petitioner's Exhibit 4 pursuant to the Stipulation of the parties. Although Mr. and Mrs. Montaltos were informed that Talbott and Drake, Inc. was to be paid a ten-percent commission by the seller on the sale of the property to Mr. and Mrs. Montaltos, they were at no time informed directly by the Respondents that the builders on the "approved list" were required to pay a five-percent commission to Talbott and Drake, Inc., nor that the said five- percent commission would be passed on to Mr. and Mrs. Montaltos when they contracted with an "approved" builder to construct a home on the subject property. On or about February 4, 1977, William F. Talbott, on behalf of Talbott and Drake, Inc., negotiated the contract for sale and purchase between High Ridge Water Company, as seller, and Donald James Kostuch and Mary Louise Kostuch, his wife, buyers, for purchase of a lot in the River Forest area of Palm Beach County. A copy of said contract is received into the record as Petitioner's Exhibit 5 pursuant to the Stipulation of the parties. Mr. and Mrs. Kostuch were required by the contract to select a builder from an approved list of designated builders approved and supplied by Talbott and Drake, Inc. and seller, High Ridge Water Company. Mr. and Mrs. Kostuch selected Snow Realty and Construction, Inc. from the list supplied by Talbott and Drake, Inc. Snow Realty and Construction, Inc. had an agreement with the McGeary partnership and Talbott and Drake, Inc. similar to that outlined in the joint venture agreement between the McGeary partnership in Group Six Developers Collaborative, Inc., Petitioner's Exhibit 3, whereby Snow Realty and Construction, Inc. agreed to pay Talbott and Drake, Inc. a five-percent commission on any residence that Snow Realty and Construction, Inc. built in the River Forest area. The bid supplied by Snow Realty and Construction, Inc. on March 7, 1977, to Talbott and Drake, Inc. contained a listing of real estate commission to Talbott and Drake, Inc. in the amount of $3,652. A copy of said bid statement is received into the record as Petitioner's Exhibit 6 pursuant to the Stipulation of the parties. The Kostuchs were advised of a five-percent fee to be paid by the builder by a salesman working for another broker who first introduced the Kostuchs to the real property in River Forest. The salesman advised the Kostuchs prior to their entry into the contract for the purchase of the lot in River Forest in which they agreed to limit their choice of builder to one approved by the McGeary partnership and Talbott and Drake, Inc. This disclosure would be sufficient to comply with the provisions of Rule 21V-10.13, Florida Administrative Code, because the fee was revealed by a salesperson involved in the transaction prior to the execution of the contract under which the favor, if any, was granted. Talbott and Drake, Inc., in addition to performing services as listing agent for the sale of homes in River Forest, also functioned as the prime developer in this project pursuant to an agreement with High Ridge Water Company and the McGeary partnership. Regarding the Montaltos' transaction, the limitation of the owners to the use of one of the approved builders constitutes the granting or placement of favor, because it narrows the competition to one of five builders out of all the builders available in the Fort Lauderdale area. The affidavits introduced indicate that, notwithstanding the absence of a written agreement, the designated builders had agreed to pay to Talbott and Drake, Inc. a fee of five percent of the cost of construction of any custom home as compensation for the efforts of Talbott and Drake, Inc. in developing the property. While compensation for these services is reasonable, it still constitutes a fee to be paid Talbott and Drake, Inc. from one of the five designated builders who would benefit from the contract. The potential adverse effect of this arrangement was to transfer a cost generally allocated to the cost of the lot to the cost of the house. Therefore, people shopping for a lot could be misled in the comparison of similar lots in different subdivisions in the absence of being advised of the fee to be paid by the builders to Talbott and Drake, Inc. However, the evidence shows no attempt to keep this fee a secret and thereby mislead buyers. The existence of such a fee is referred to in sales literature prepared by Talbott and Drake, Inc. The Kostuchs were advised of the fee by a participating salesman for another real estate company. The builders set out the fee as a separate cost item as opposed to absorbing it in general costs within their bids. While the Respondents could not produce evidence that the Montaltos' had been advised of the existence of the fee, and the Montaltos' testified that they had not been advised, this appears to be an isolated incident as opposed to a course of conduct. Notwithstanding proof of the above, no evidence is presented that the Montaltos' contracted with a designated builder to build their house, and that a designated builder paid a fee to Talbott and Drake, Inc. To the contrary, the testimony of William Talbott was that the Montaltos' had breached the terms of their contract regarding the use of a designated builder.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Florida Real Estate Commission issue a letter of reprimand to Talbott and Drake, Inc. which, in fairness to the Respondents, should set out the specifics of the violation and to further apprise other registrants of the potential dangers of such fee arrangement. DONE and ORDERED this 4th day of June, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Frederick H. Wilsen, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Charles M. Holcomb, Esquire 653 Brevard Avenue Post Office Box 1657 Cocoa, Florida 32922
The Issue The issue in the case is whether the Petitioner should be granted an environmental resource permit and authorization to use sovereign submerged lands for construction of an extension to an existing multi-family residential docking facility.
Findings Of Fact The Petitioner, Bay Oaks Circle Association, Inc., represents the 20 property owners of the Bay Oaks Circle subdivision. Bay Oaks Circle borders on Lemon Bay. Lemon Bay is a Class II Outstanding Florida Water. Lemon Bay is also an aquatic preserve and a designated state "Special Water." The Lemon Bay aquatic preserve is recognized for its water quality and resources. To protect the resources, special standards are applicable to review of permits for aquatic activities. The Petitioner's existing dock was permitted in the 1970's. The dock has four slips and extends approximately 100 to 120 feet from the shoreline into water depths of approximately one to one and a half feet at low tide. The dock attaches to the shoreline from a 45.5-foot wide easement owned by the Petitioner. There is evidence of prop dredging in the existing mooring area. The existing mooring area has little natural value as a water resource. Initially, the proposed dock was to extend another 120 feet (for a total extension of 220-240 feet) into deeper water approximately three to three and a half feet at low tide and would accommodate a mooring area for eight slips. In the area of the proposed dock, most of Lemon Bay is about three and a half feet deep at low tide. The application was subsequently amended to provide an extension of 112 feet for a total length of 199.5 feet, with six boat slips. The final proposal provided for a 104 feet long by three feet wide access walkway. Two 16 feet long by two feet wide "finger" piers would extend from the walkway. The end of the walkway would terminate in a dock platform 8 feet by 20 feet wide. The total square footage of proposed structure over water is 536 square feet. The proposed mooring areas are defined by mooring pilings place into the bay bottom. The applicant seeks a sovereign submerged land lease to permit the preemption of 2,219 square feet of submerged bottom land. Because the proposed dock exceeds 500 square feet in an Outstanding Florida Water, a standard environmental resource permit must be obtained before the proposal can be constructed. Two of the proposed mooring slips are over seagrasses. Additionally, two shallow areas located nearby contain seagrasses. Seagrasses provide the basis of the food chain in the waters. Adverse impacts to seagrass beds negatively affect marine productivity, as well as the fishing and recreational values of the waters. The proposed dock expansion poses a threat to the seagrass beds at the mooring slips and in the shallow areas near the shoreline and to the east of the proposed dock. Although the proposed dock extension does not appear to directly impede a marked navigation channel, review of the bay bottom suggests that boats currently navigate in the proposed mooring area to avoid a shallower nearby shoal. It is likely that the proposed dock expansion would result in diversion of boat traffic into the seagrassed area of the shallower waters. Section 373.414(1), Florida Statutes, sets forth the review criteria used in consideration of a permit application when the proposed activity occurs in an Outstanding Florida Water. The Petitioner offered no evidence to establish that the permitting criteria set forth at Section 373.414(1), Florida Statutes, have been met. The proposed multi-family docking facility requires issuance of a sovereign submerged land lease before the facility can be constructed. Sovereign submerged land leases are reviewed according to the size of the proposed facility and the quality of the lands to be impacted by construction and operation. Submerged land is classified according to resource quality into "Resource Protection Areas (RPA)" to permit appropriate application review. An RPA I is an area of fragile, easily-damaged marine resources such as coral beds or seagrasses, that require the highest level of protection. An RPA II is an area or seagrasses or benthic animals which, while not as fragile as an RPA I, still require substantial protection. An RPA III is an area of sand that contains fewer marine resources than an RPA I or II. The seagrassed areas near the proposed docking facility are classified as an RPA I. The areas near the proposed docking facility contain less seagrass, but have substantial evidence of benthic anumals, and are classified as RPA II. According to the parties, the Petitioner must meet a "ten to one" rule to obtain a permit. In the alternative, the Petitioner may qualify for a lease if the proposed facility does not exceed the maximum square footage permitted for a single- family dock. The ten-to-one criteria provides that the total dock structure may not preempt more than ten times the linear footage of the property owner's shoreline, in which case a lease may be issued. In this case, the shoreline is 45.5 feet, resulting in a permissible preemption of 455 square feet. In this case the applicant proposes to preempt 2,219 square feet. According to the credited testimony of the Respondent’s witness, the single-family dock methodology does not qualify the proposed dock for permitting. Although a number of hypothetical dock proposals were discussed at the hearing, the hypothetical proposals are not included in the permit application. There is no evidence that the agency gave any formal consideration to hypothetical proposals prior to the hearing. At the hearing, the Petitioner proposed that the applicable rules be waived to allow the permit and lease to be issued. Specifically, the Petitioner proposed that the permitting criteria be waived as to dock design and minimum square footage. There is no credible evidence to support waiver of applicable statutes and rules in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a final order denying the application for the proposed dock extension filed by the Bay Oaks Circle Association, Inc. DONE AND ENTERED this 16th day of July, 1999, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 1999. COPIES FURNISHED: Barry L. Dasher Bay Oaks Circle Association, Inc. 3075 Bay Oaks Circle Englewood, Florida 34223 Francine M. Ffolkes, Attorney Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Richard G. Perkins 4005 Bay Oaks Circle Englewood, Florida 34223 Kathy Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue is whether a text amendment to the general description of the Commercial land use designations of the Comprehensive Plan (Plan) of Respondent, City of Jacksonville (City), adopted by Ordinance No. 2010-401-E on June 22, 2010, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties The City is a municipal entity and is responsible for enacting and amending its Plan. Since 2007, the City has participated in the Pilot Program for adoption of comprehensive plan amendments. Except for amendments based on the Evaluation and Appraisal Report or amendments based on new statutory requirements that specifically require that they be adopted under the "traditional" procedure described in section 163.3184, and small-scale amendments, all other amendments must be adopted under that process. Under the Pilot Program, municipalities have "reduced state oversight of local comprehensive planning," and plan amendments may be enacted in "an alternative, expedited plan amendment adoption and review process." § 163.32465, Fla. Stat. Although the City must send a transmittal package to the Department of Community Affairs (Department) and other designated agencies for their preliminary review, the Department does not issue an Objections, Recommendations, and Comments Report or a notice of intent. Instead, the Department "may provide comments regarding the amendment or amendments to the local government." Id. It may also initiate an administrative proceeding to challenge whether an amendment is in compliance. Id. In this case, the Department did not file adverse comments or initiate a challenge to the City's amendment. Clifton Curtis Horton owns real property located at 7175 Blanding Boulevard, Jacksonville, Florida. Horton Enterprises, Inc., is a Florida corporation that owns and operates a "strip club" known as "New Solid Gold" located on Mr. Horton's property. The club is an "adult entertainment establishment" as defined by the Jacksonville Municipal Code (JMC). See §§ 150.103(c) and 656.1101, JMC. History Preceding the Amendment In order to operate an adult entertainment facility within the City, the facility must have both a correct land use and zoning classification. The location must also satisfy certain distance limitations from schools (2,500 feet), other adult entertainment businesses (1,000 feet), churches (1,000 feet), residences (500 feet), and businesses selling alcohol (500 feet). See § 656.1103(a)(1)-(4), JMC; § 847.0134, Fla. Stat. Prior to 2005, adult entertainment facilities were an authorized use in the Heavy Industrial (HI) land use category. In 2005, the City adopted Ordinance No. 2005-1240-E, which approved a text amendment to the Future Land Use Element (FLUE) of the City's 2010 Plan adding the following language to the Community/General Commercial (C/GC) land use category: "Adult entertainment facilities are allowed by right only in Zoning District CCG-2." See Respondent's Exhibit D. That classification is the primary zoning district within the C/GC land use category. The Ordinance also deleted the following language from the HI land use category: "Adult entertainment facilities are allowed by right." Id. The purpose of the amendment was to change the permissible land use designation for adult entertainment facilities from HI to C/GC with a further condition that the property must also have a CCG-2 zoning classification. At the same time, the City enacted Ordinance No. 2005-743-E, which adopted a new zoning requirement that any adult entertainment facility whose location was not in conformity with the revised land use/zoning scheme must close or relocate within five years, or no later than November 10, 2010. See § 656.725(k), JMC. Because New Solid Gold did not conform to these new requirements, it would have to close or relocate within the five-year timeframe. On an undisclosed date, Horton Enterprises, Inc., and two other plaintiffs (one who operated another adult entertainment facility in the City and one who wished to open a new facility) filed suit in federal court challenging the constitutionality of the City's adult zoning scheme and seeking to enjoin the five-year amortization requirement, as applied to them. See Jacksonville Property Rights Ass'n v. City of Jacksonville, Case No. 3:05-cv-1267-J-34JRK (U.S. Dist. Ct., M.D. Fla.). On September 30, 2009, the United States District Court entered a 33-page Order generally determining that, with one exception not relevant here, the City's zoning and land use scheme was permissible. See Petitioners' Exhibit V. On November 3, 2009, that Order was appealed by Petitioners to the United States Court of Appeals for the 11th Circuit where the case remains pending at this time. The parties' Stipulation indicates that oral argument before that Court was scheduled during the week of December 13, 2010. An Order of the lower court memorialized an agreement by the parties that the five- year time period for complying with the new requirements are stayed until the federal litigation is concluded. See Petitioners' Exhibit JJ. The Court's Order also noted that an "ambiguity" in the Plan arose because the City failed to "remove the language in the general description of the Commercial land use designations acknowledging its intention to locate adult entertainment facilities in the HI category." Id. at 19. This occurred because when adopting the new amendments, the City overlooked conflicting language in the general description of the Commercial land use designations in the FLUE. However, the Court resolved the ambiguity in favor of the City on the theory that the conflicting language was contrary to the City's overall legislative intent in adopting the new land use/zoning scheme and could be disregarded. Id. Thereafter, a new amendment process was begun by the City to delete the conflicting language. This culminated in the present dispute. The Transmittal Amendment - 2010-35-E To eliminate the ambiguity, the City proposed to amend the FLUE by deleting the following language from the general description of the Commercial land use designations: "Adult entertainment facilities are allowed by right in the heavy industrial land use category, but not in commercial." This amendment was numbered as Ordinance No. 2010-35-E. A public workshop was conducted by the City's Planning and Development Department on December 14, 2009. Thereafter, public hearings were conducted by the City Planning Commission on February 11, 2010; by the City Council Land Use and Zoning Committee on February 17, 2010; and by the full City Council on February 9 and 23, 2010. It became effective upon the Mayor signing the Ordinance on February 26, 2010. Although the Ordinance inadvertently referenced section 163.3184 as the statutory authority for its adoption, it also stated that the amendment was being transmitted for review "through the State's Pilot Program." See Petitioners' Exhibit E. As required by the Pilot Program, copies of the amendment were then transmitted to the Department and seven other agencies. No adverse comments were received from any agency. It is undisputed that Petitioners did not attend the the workshop or any hearing, and they did not submit written or oral comments concerning the proposed amendment. When the process for adopting Ordinance No. 2010-35-E began, the City's 2030 Plan was still being reviewed by the Department and had not yet become effective. Consequently, at the Department's direction, the Ordinance referenced the City's then-effective 2010 Plan as the Plan being amended. On February 3, 2010, the City's 2030 Comprehensive Plan became effective, replacing the 2010 Plan. However, the 2030 Plan contained the same conflicting language. Notice of the public hearings for Ordinance No. 2010- 35-E (and other plan amendments adopted at the same time) was published in the Daily Record on January 29, 2010, a local newspaper that the City has used for advertising plan amendments since at least 2003. The parties agree that the legal advertisements complied with the size, font, and appearance requirements of section 166.041(3)(c)2.b. Besides the above notice, an additional notice regarding Ordinance No. 2010-35-E was published in the Florida Times Union on January 31, 2010. The parties agree that this advertisement did not meet the size, font, and appearance requirements of section 166.041(3)(c)2.b. but was published by the City for the purpose of providing additional public notice and to broaden the coverage of the plan amendment. The Adoption Amendment - 2010-401-E Because the 2030 Plan contained the same conflicting language in the Commercial land use descriptions, on May 25, 2010, a draft of Ordinance No. 2010-401-E was introduced at City Council for the purpose of deleting this language. Except for referencing the latest Plan, the language in Ordinance Nos. 2010-35-E and 2010-401-E was identical. While somewhat unusual, this procedure was authorized by the Department because the 2030 Plan became effective during the middle of the amendment process. A copy of the draft Ordinance and schedule for the upcoming hearings on that Ordinance was emailed by the City's counsel to Petitioners' counsel on June 4, 2010. See Petitioners' Exhibit FF. Public hearings on Ordinance No. 2010-401-E were conducted by the Planning Commission on June 10, 2010; by the City Council Land Use and Zoning Committee on June 15, 2010; and by the full City Council on June 8 and 22, 2010. All of the meetings occurred after Petitioners' counsel was given a schedule of the hearings. The amendment became effective upon the Mayor signing the Ordinance on June 24, 2010. Notice of the public hearings for Ordinance No. 2010- 401-E was published in the Daily Record on May 28, 2010. The parties agree that the size, font, and appearance requirements of section 166.041(3)(c)2.b. were met. An additional notice of the public hearings was published in the Florida Times Union on May 30, 2010. The parties agree that this legal advertisement did not meet the size, font, and appearance requirements of section 166.041(3)(c)2.b., but was published by the City for the purpose of providing additional public notice and to broaden the coverage of the plan amendment. Ordinance No. 2010-401-E, as originally proposed, incorrectly referenced section 163.3184, rather than the Pilot Program, as the statutory authority for adopting the amendment. During the hearing conducted by the City Council Land Use and Zoning Committee on June 15, 2010, an amendment to Ordinance No. 2010-401-E was proposed changing the statutory authority to section 163.32465. The City proposed the same amendment for 19 other plan amendments being considered at the same hearing. The amendment was minor in nature and had no effect on the substance of the Ordinance. It is undisputed that Petitioners did not appear or submit written or oral comments at any public hearing regarding Ordinance No. 2010-401-E. On July 21, 2010, Petitioners timely filed their Petition with DOAH challenging Ordinance No. 2010-401-E. Their objections, as later refined in the Stipulation, are both procedural and substantive in nature and are discussed separately below. Petitioners' Objections Substantive Objections As stated in the Stipulation, Petitioners contend that the amendment is not in compliance because it "is inconsistent with the balance of the 2030 Comprehensive Plan, and underlying municipal policies, since it forces adult uses into zones which permit residential and educational uses." To support this claim, Petitioners point out that the C/GC land use category permits a wide range of uses, including commercial uses in close proximity to sensitive uses, such as schools, churches, and residential areas. Petitioners characterize the current range of uses in C/GC as "an excellent planning approach to downtown Jacksonville" and one that promotes a well-reasoned, mixed-use development in the urban area. Because Ordinance No. 2010-401-E "forces" adult uses into the C/GC category where, despite the distance limitations, they will have to co-exist with sensitive uses, Petitioners contend the amendment is inconsistent with Policy (15)(b)3. and Goal (16) of the State Comprehensive Plan, which generally encourage orderly, efficient, and functional development in the urban areas of the City. Further, they assert it would contradict the City's "policy" of separating adult uses from residences, businesses, and schools. Petitioners' primary fear is that if they are required to relocate from HI to C/GC where sensitive uses are allowed, this will generate more complaints from schools, churches, and residents, and result in further zoning changes by the City and more forced relocations. As explained by Mr. Killingsworth, Director of the City's Planning and Development Department, Ordinance No. 2010- 401-E does not change the permitted uses in the Commercial or HI land use categories. Those changes in permitted uses were made by Ordinance No. 2005-1240-E in 2005 and are now being litigated in federal court. The purpose of the new amendment is simply "to clear up an inconsistency [noted by the federal court but told that it could be disregarded] that existed in the comprehensive plan." Mr. Killingsworth added that even if the language remained in the Plan, it would have no regulatory weight since the actual language in the C/GC and HI categories, and not the "header" or general description that precedes the category, governs the uses allowed in those designations. Assuming arguendo that the new amendment constitutes a change in permitted uses, the City established that from a use standpoint, adult entertainment facilities (like businesses selling alcohol) are more consistent with the C/GC land use category with the appropriate distance limitations from schools, churches, and residential areas. Further, the placement of adult entertainment facilities on property with a C/GC designation will not necessarily result in their being closer to residential property, as the City currently has a "great deal" of HI land directly adjacent to residential properties, as well as grandfathered enclaves of residential areas within the HI category. The City also established that the HI category is set aside for uses that generate physical or environmental impacts, which are significantly different from the "impacts" of a strip club. Finally, while a plan amendment compliance determination does not turn on zoning issues, it is noteworthy that the CCG-2 zoning district is the City's most intensive commercial district, and that very few schools (all grandfathered) remain within that zoning classification. The preponderance of the evidence supports a finding that the amendment is consistent with the State Comprehensive Plan and internally consistent with the "balance of the 2030 Comprehensive Plan." Procedural Objections Petitioners' principal argument is that the City did not publish a notice for either Ordinance in a newspaper of general circulation, as described in section 166.041(3)(c)2.b., or in the proper location of the newspaper; that these deficiencies violate both state law and a Department rule regarding notice for the adoption of this type of plan amendment; and that these procedural errors require a determination that the amendment is not in compliance. They also contend that because the legal notice did not strictly comply with sections 163.3184(15)(e) and 166.041(3)(c)2.b., both Ordinances are void ab initio.2 As noted above, the City has published legal notices for plan amendments in the Daily Record since at least 2003. The newspaper is published daily Monday through Friday; it has been published continuously for 98 years; it is published wholly in English; it is mailed to 37 zip codes throughout the City and around 20 zip codes outside the City; most of its revenue is derived from classified and legal advertisements; it is considered by the United States Postal Service to be a general circulation newspaper; it is available in newsstands throughout the City; and although much of the newspaper is directed to the business, legal, and financial communities, the newspaper also routinely contains articles and editorial content regarding special events, sporting news, political news, educational programs, and other matters of general interest pertaining to the City that would be of interest to the general public and not just one professional or occupational group. Its publisher acknowledges that the newspaper is a "Chapter 50 periodical," referring to chapter 50 and specifically section 50.031, which describes the minimum standards for newspapers that can be utilized for publishing certain legal notices. Also, its website states that it covers political, business, and legal news and developments in the greater Jacksonville area with an emphasis on downtown. Although Petitioners contend that the legal notice was published in a portion of the Daily Record where other legal notices and classified advertisements appear, as proscribed by section 166.041(3)(c)2.b., and is thus defective, this allegation was not raised in the Petition or specifically in the parties' Stipulation. Therefore, the issue has been waived. Both proposed recommended orders are largely devoted to the issue of whether the Daily Record is a newspaper of general paid circulation as defined in section 166.041(3)(c)2.b. For the reasons expressed in the Conclusions of Law, it is unnecessary to decide that question in order to resolve the notice issue. Petitioners received written notice that the City intended to adopt Ordinance No. 2010-401-E prior to the public hearings, along with a copy of the draft Ordinance and "everything" in the City's file. They also received a copy of all scheduled hearings during the adoption process. See Petitioners' Exhibits EE and FF. Therefore, notwithstanding any alleged deficiency in the published legal notice, they were on notice that the City intended to adopt the plan amendment; they were aware of the dates on which public hearings would be conducted; and they had an opportunity to submit oral or written comments in opposition to the amendment and to otherwise participate in the adoption process. Given these facts, even assuming arguendo that the publication of the legal notice in the Daily Record constitutes a procedural error, there is no evidence that Petitioners were substantially prejudiced in any way. Petitioners also contend that reference by the City to section 163.3184, rather than the Pilot Program, in the draft ordinance during the preliminary stages of the amendment process is a procedural error that rises to the level of requiring a determination that the amendment is not in compliance. This argument is rejected as the error was minor in nature, it was corrected shortly after Ordinance No. 2010-401-E was introduced, it did not affect the substance of the amendment, and it would not confuse a member of the public who was tracking the amendment as to the timing and forum in which to file a challenge. In Petitioners' case, they cannot claim to be confused since they timely filed a Petition with DOAH, as required by section 163.32465(6)(a). Finally, intertwined with the procedural arguments is the issue of whether Petitioners are affected persons and thus have standing to challenge the plan amendment. The parties have stipulated that Petitioners (or their representative) did not attend any meeting regarding the adoption of either Ordinance. Petitioners argue, however, that emails between the parties in May and June 2010, and a telephone conference call on June 3, 2010, involving Petitioners' counsel and the City's then Deputy General Counsel, equate to the submission of written and oral comments regarding the amendment. The parties have stipulated that the following written communications between Petitioners and the City occurred in May and June 2010: Petitioners made a public records request regarding the amendment on May 21, 2010, to Cheryl Brown, Council Secretary/Director, seeking various public documents relating to Ordinance No. 2010-35-E, transmitted by electronic mail and facsimile. On May 27, 2010, counsel for Petitioners exchanged emails with Assistant General Counsel Dylan Reingold regarding pending document requests relating to Ordinance No. 2010-35-E, and Mr. Reingold provided a number of responsive documents. On June 3, 2010, Cindy A. Laquidara, then Deputy General Counsel (but now General Counsel), sent an email to Petitioners' counsel stating: "Below please find the schedule for the passage of the comp plan changes. Call me with questions or to discuss. Take care." On June 4, 2010, counsel for Petitioners exchanged a series of emails with Assistant General Counsel Reingold regarding the status of Ordinance Nos. 2010-35-E and 2010-401-E, as well as the review of the proposed plan amendment by the Department of Community Affairs. On June 4, 2010, Jessica Aponte, a legal assistant with counsel for Petitioners' office, exchanged emails with Jessica Stephens, legislative assistant, regarding the proofs of publication for the legal advertisements relating to Ordinance No. 2010- 35-E. The affidavits of Petitioners' counsel (Petitioners' Exhibits KK and LL) regarding a conversation with the City's then Deputy General Counsel would normally be treated as hearsay and could not, by themselves, be used as a basis for a finding of fact. See § 120.57(1)(c), Fla. Stat. However, the parties have stipulated that they may be used in lieu of live testimony by Petitioners' counsel. See Stipulation, p. 17. The affidavits indicate that the reason for the conference call was "that [Petitioners] were trying to reach a mutually acceptable approach with the City by which enforcement of the City of Jacksonville's amortization ordinance against [them] . . . would be deferred pending the outcome of the appeal to the Eleventh Circuit." Petitioners' Exhibits KK and LL. During that call, counsel also advised the City's counsel that "there were [procedural] problems with the enactment of the subject Comprehensive Plan Amendment and that they would likely be filing challenges to its enactment." Id.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the plan amendment adopted by Ordinance No. 2010-401-E is in compliance. DONE AND ENTERED this 11th day of January, 2011, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 2011.
The Issue The issue is whether the plan amendments adopted by the City of St. Pete Beach (City) by Ordinance No. 2008-15 on August 26, 2008, are in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties The City is a municipality in southwestern Pinellas County. Following an Evaluation and Appraisal Report (EAR) process, the City adopted its current Plan in 1998 (also known as the 2010 Plan), which has been found to be in compliance. Since 2007, municipalities within Pinellas County have participated in the Pilot Program for adoption of comprehensive plan amendments. The statutory process is described in Section 163.32465, Florida Statutes. Under the Pilot Program, municipalities have "reduced state oversight of local comprehensive planning," and plan amendments may be enacted in "an alternative, expedited plan amendment adoption and review process." Id. Although the City must send a transmittal package to the Department (and other designated agencies and entities) for its preliminary review, the Department does not issue an Objections, Recommendations, and Comments Report or a notice of intent. Instead, the Department "may provide comments regarding the amendment or amendments to the local government." Id. It may also initiate an administrative proceeding to challenge whether such amendments are in compliance, but it chose not to do so here. The amendments in dispute were adopted under the Pilot Program. Petitioner is a resident of, and owns property in, the City, and he submitted oral and written comments and objections concerning the proposed amendments. As such, he is an affected person and has standing to participate in this proceeding. The parties have stipulated that Lorraine Huhn and Deborah Nicklaus reside and own property within the City, and that both individuals submitted comments to the City during the transmittal public hearing on June 16, 2008, and/or the adoption public hearing on August 26, 2008. Therefore, they are affected persons and have standing to participate. According to the parties' Pre-Hearing Stipulation, SOLV is a Florida non-profit corporation with a principal address of 6370 Gulf Boulevard, St. Pete Beach, Florida. The parties have also stipulated that SOLV operates a business within the City. Whether it submitted comments to the City between the transmittal hearing on June 24, 2008, and the adoption hearing on August 26, 2008, is in dispute. SOLV's President, Lorraine Huhn, presented comments at the City's adoption hearing on August 26, 2008. See Petitioner's Exhibit 15, pages 63-64. During her brief oral presentation to the City Commission in support of the amendments, she did not state that she was speaking on behalf of SOLV, and at no time did she refer to that organization. However, on August 2, 2008, Ms. Huhn sent an email on behalf of SOLV to the City Clerk, which arguably can be interpreted as written support for the Ordinance being challenged. See Intervenors' Exhibit 9. Also, an email authored by the City Manager on August 1, 2008, indicates that SOLV representatives met with City representatives on July 31, 2008, to discuss the proposed amendments. See Intervenors' Exhibit 10. Since these written and oral comments were submitted between the transmittal and adoption hearings, SOLV meets the definition of an affected person and has standing to participate in this proceeding. Background By way of background, the City was initially incorporated in 1957 as St. Petersburg Beach by consolidating the towns of Pass-a-Grille, Don CeSar, Belle Vista, St. Petersburg Beach, and certain unincorporated areas of Pinellas County. It occupies a six-mile long barrier island (known as Long Key), which lies between the Gulf of Mexico and Boca Ciega Bay, with a maximum width of three-quarters of a mile and an area of approximately 2.25 square miles or 1,286.14 acres. The name was shortened to St. Pete Beach in 1994 to lessen the confusion with the City of St. Petersburg, which lies to the east. The City has about 4.5 miles of beaches and is very densely populated. Most of the City has been developed with only 13.40 acres, or around one percent of the land, vacant and undeveloped. The entire City is within the flood plain, and much of the City is within the Coastal High Hazard Area (CHHA). The current population is around 10,000. To place the current dispute in proper perspective, a history of events that began in 2002 is necessary. With the assistance of a consulting firm, beginning in April 2002 the City initiated redevelopment planning efforts for various areas within the City including Corey Avenue/Blind Pass Road, Pass-a- Grille, Gulf Boulevard, and residential neighborhoods. The intention of this effort was to define the starting point for subsequent master planning efforts by the City. A Final Report (also known as the Visioning Statement or Plan) was issued by the consulting firm in July 2002. See Respondent's Exhibit 1. This was followed by a master planning process by another consulting firm, which was intended, among other things, to develop a strategy for dealing with the redevelopment of older and outdated properties within the resort area of the City (along the Gulf of Mexico), rather than having them converted into residential condominiums because of existing regulatory restrictions. The final Master Plan was presented to the City Commission in August 2003. See Respondent's Exhibit 3. In response to the Master Plan, on June 28, 2005, the City enacted Ordinance 2004-24, known as the City's Community Redevelopment Plan (Redevelopment Plan), which implemented many of the recommendations in the Master Plan. See Respondent's Exhibit 8. Among other things, the Redevelopment Plan created a new land use category, the Community Redevelopment District, which included two sub-districts, the Gulf Boulevard Redevelopment District, depicted on Map 10 of Exhibit 8, and the Downtown Redevelopment District, depicted on Map 11 of the same exhibit. The amendment was intended to establish standards for redevelopment in the so-called "resort" area of the City, which runs north-south along Gulf Boulevard adjacent to the beach on the western side of Long Key, while the same thing was intended for the core downtown area. Although Petitioner is correct that Ordinance No. 2008-15 differs from Ordinance No. 2004-24 in some respects, there are many similarities between the two, including the creation of the two Redevelopment Districts, additional character districts within the two main Districts, and the maps of the Districts. Also, both Ordinances have many of the same Goals, Objectives, and Policies, and both include unnumbered narrative text setting out allowable uses as density and intensity standards. On August 19, 2005, Petitioner and a non-profit association filed a challenge to Ordinance No. 2004-24 under Section 163.3184, Florida Statutes. See Citizens for Responsible Growth and William C. Pyle v. Department of Community Affairs and City of St. Pete Beach, DOAH Case No. 05- 3159GM. The challengers later voluntarily dismissed their petition, the case was closed on October 17, 2005, and the Department found the amendments to be in compliance. Under the City's Charter, however, citizens may petition to require reconsideration by the City Commission of any adopted ordinance and, if the City Commission fails to repeal an ordinance so reconsidered, to approve or reject it at a City election. See Petitioner's Exhibit 26; § 7.02, City Charter. (Ten percent of the qualified registered voters in the City must sign a petition in order to have an ordinance placed on the ballot for approval or disapproval.) Petitioners in DOAH Case No. 05-3159GM were instrumental, at least in part, in securing the necessary number of voters to sign a petition, and a majority of the registered voters in the City later voted to repeal the Ordinance in 2006. Pursuant to that vote, the City Commission repealed Ordinance No. 2004-24 and it never took effect. In 2008, six ordinances (Ordinance Nos. 2008-09 through 2008-14) were proposed as citizen initiatives. After the City refused to act on the six initiatives, SOLV and others filed suit against City officials seeking a vote on the six ordinances. See Save Our Little Village, Inc., et al. v. Commissioner Linda Chaney, et al., Case No. 08-2408-CI-8 (6th Circuit, Pinellas County). On March 31, 2008, the City adopted Resolution 2008-09 approving a Settlement Agreement in the law suit. See Joint Exhibit 1, Appendix C. The Settlement Agreement required the City to transmit and adopt the Ordinance being challenged here subject to various conditions and limitations, if the voters approved Ordinance No. 2008-10, which was a Petition by SOVL proposing an ordinance to amend the Countywide Future Land Use Plan. (The City is required by the Countywide Plan Rules to transmit the countywide plan map amendment to the Pinellas County Planning Council for its review in order to adopt the City plan amendment. This process is described in Petitioner's Exhibit 33.) Notably, the City's staff did not prepare the text or the accompanying supporting data for Ordinance No. 2008-15; rather, the text and all supporting data were prepared by SOLV. The voters approved Ordinance No. 2008-10 on June 3, 2008, which provided for the review and approval of the amendments being challenged here. Pursuant to the results of the referendum, on June 16, 2008, the City approved Ordinance Nos. 2008-15, 2008-24, and 2008-25. Only the first Ordinance is in issue here; the other two are not contested. As required by Section 163.32465(4)(a), Florida Statutes, the amendments were then transmitted to the Department, Department of Environmental Protection, Department of Education, Department of State, Department of Transportation District Seven, Tampa Bay Regional Planning Council, Southwest Florida Water Management District, and Pinellas County Planning Department for their review and comment, if any. Comments on the amendments were offered by the Department on August 1, 2008, and by the Department of Transportation, Department of Education, and Tampa Bay Regional Planning Council. On August 26, 2008, the City adopted Ordinance No. 2008-15. Petitioner's challenge was then timely filed with the Division of Administrative Hearings on September 24, 2008. See § 163.32465(6)(a), Fla. Stat. ("[a]ny 'affected person' as defined in s. 163.3184(1)(a) may file a petition with the Division of Administrative Hearings . . . within 30 days after the local government adopts the amendment"). The Ordinance Ordinance No. 2008-15 establishes a new land use category, the Community Redevelopment District, which includes the Downtown and Gulf Boulevard Redevelopment Districts comprised of eleven character districts, and implements that change by amending the FLUM and certain text provisions within the FLUE and HE. The two new Districts comprise approximately twenty percent of the total land area of the City, or around 248.25 acres. The amendments are found in Attachment A, consisting of 115 pages, which is attached to the Ordinance. Attachment A includes six maps found on page 40 (Map 1 - Community Redevelopment Districts Location); page 41 (Map 2 - Gulf Boulevard Redevelopment Character Districts); page 42 (Map 3 - Downtown Community Redevelopment District 1); page 110 (Map 10 - Future Land Use Map - Gulf Boulevard Redevelopment District, Proposed Future Land Use); page 111 (Map 11 - Future Land Use Map - Downtown Redevelopment District, Proposed Future Land Use); and page 112 (Map 12 - Coastal High Hazard Area - Storm Surge for Category 1 (2007), St. Pete Beach, FL). Pages 1 through 6 are introductory material outlining the need for redevelopment. Pages 7 through 112 pertain to the Future Land Use Element, while pages 113 through 115 relate to the Housing Element. Because SOLV (rather than the City) prepared Attachment A, this is probably the reason why some parts of the lengthy Attachment A have been drafted in narrative style. Besides Attachment A, support documentation for the amendments is attached to the Ordinance and includes the legal notices published in a local newspaper; Citizen Courtesy Information Lists; Commission and Planning Board Agendas; excerpts from Division 31 of the City's Land Development Code; copies of various Ordinances; and a 127-page Special Area Plan submitted to the Pinellas Planning Council and Countywide Planning Authority in support of the amendment that was necessary in order for the City to adopt the Ordinance. In addition, the data and analyses used for the adoption of Ordinance No. 2004-24 were relied upon to support the amendments, including the Visioning Plan and the Master Plan. Petitioner's Objections In paragraphs 9 through 25 of his Petition, which are in the section entitled "Disputed Issues of Material Fact And/or Mixed Disputes [sic] Issues of Fact and Law," Dr. Pyle contends that the amendments adopted by the Ordinance are not in compliance for numerous reasons. The parties' Pre-Hearing Stipulation also states that "the Disputed Issues of Material Fact and/or Mixed Questions of Fact or Law set forth in the Petition for Administrative Hearing in this matter remain disputed issues for the purposes of the final hearing." In his Proposed Recommended Order, however, Petitioner states in a more concise fashion that the amendments are not in compliance because they: are not clearly based upon appropriate data, including data required for the FLUE; [are not] based upon and supported by an appropriate analysis of the best available data; did not demonstrate "need"; [are] inconsistent with the State Comprehensive Plan; [are] not "financially feasible"; [do] not meet format requirements; [do] not contain two planning periods; establish a mixed-use FLUM designation of CRD [Community Redevelopment District] that [does] not meet the statutory and rule requirements; [are] internally inconsistent; and [do] not meet the minimum procedural and notice requirements. These objections will be considered below, although not in the order listed above. Procedural Irregularities Petitioner contends that the City failed to follow certain notice requirements and therefore he was unduly prejudiced by these irregularities. Specifically, he claims that the notices published by the City in the St. Petersburg Times on June 8 and August 20, 2008, did not advise the public of all amendments, particularly one relating to the Resort Facilities Overlay District; did not include a map showing areas subject to the FLUM amendments in relation to major streets; did not advise that the City was amending the coastal construction control line (CCCL) definition in the Preservation land use category; and the actual changes being made "did not comport with the title of the adopted Ordinance." Copies of the published notices, albeit in very small and sometimes illegible print, are found in Joint Exhibit 2. Assuming all of these notice deficiencies are true, Petitioner did not establish that he was prejudiced by any irregularities. Besides being intimately involved in this controversy since its inception in 2002, the evidence shows that he attended both the transmittal and adoption hearings of Ordinance No. 2008-15; that he addressed the City Commission at both meetings; that he was provided copies of all pertinent documents; that through counsel he filed a Petition requesting a formal evidentiary hearing, which raises a litany of compliance issues; that he was allowed to conduct discovery; and that he was given an opportunity to fully litigate each issue in his Petition. The contention that he was prejudiced by procedural irregularities is hereby rejected. Planning Time Frames Petitioner alleges that the Plan, as amended, does not set forth either a short-term planning time frame for the five- year period following adoption, or a long-term planning timeframe for at least a ten-year period following adoption. He contends that this is inconsistent with Florida Administrative Code Rule 9J-5.005(4), which requires that "[e]ach local government comprehensive plan shall include at least two planning periods: one for at least the first five year period subsequent to the plan's adoption and one for at least an overall 10-year period." See also § 163.3177(3)(a)5., Fla. Stat. The existing Plan includes at least two planning periods, a Capital Improvements Plan (CIP) covering the first five years after the adoption of the Plan in 1998, and the School Board's Five-Year Work Program for fiscal year 2007-08 through 2011-2012. Although the CIP was first adopted in 1998, the statutory deadline for all local governments to transmit an updated CIP was December 1, 2008, or after the amendment was adopted. Also, the existing Plan utilized a population estimate from the Bureau of Economic and Business Research (BEBR) to project population for the City for the upcoming ten-year period. Besides the above time frames, the new amendment contains two other planning time frames for implementation of the redevelopment incentives in the Plan. First, it contains a Residential Unit Reserve section for the new District, holding specific numbers of residential units in reserve in three of the character districts (Downtown Core Residential District, Commercial Corridor Blind Pass Road District, and Commercial Corridor Gulf Boulevard District) for the first five years after adoption of the plan amendments. See Joint Exhibit 2, pages 106-107. This allows the City to evaluate the effectiveness of the redevelopment incentives in the amendment without releasing all residential density otherwise authorized. Second, the amendment contains a General Residential Unit Density Pool Reserve of 195 residential units in the Large Resort District which cannot be released in the first ten years after adoption of the amendment. See Joint Exhibit 2, page 108. Like the other provision, this planning tool allows the City to reevaluate the effectiveness of the redevelopment incentives in the amendment prior to authorizing additional density. Petitioner's own planner agreed that these time frames were part of the planning period for the proposed amendment. While Petitioner contends that the time periods are "minimum waiting periods not tied to any fixed time frame," it is reasonable to infer from the evidence that they will become operative once the Ordinance is implemented. The preponderance of the evidence shows that the Plan, as amended, complies with the requirement for two planning time frames and is not inconsistent with either the rule or statute. Mixed-Use Categories Florida Administrative Code Rule 9J-5.006(4)(c) encourages mixed use categories of land and provides that if they are used, "policies for the implementation of such mixed uses shall be included in the comprehensive plan, including the types of land uses allowed, the percentage distribution among the mix of uses, or other objective measurement, and the density and intensity of each use." Petitioner contends that FLUE Policy 2.1.1 establishes a new mixed use district (the Community Redevelopment District) but the Plan, as amended, does not contain the requirements set forth in the rule. The Community Redevelopment District is a mixed use land use category, as is each of the character districts included within the two sub-districts. The Plan identifies four character districts within the Gulf Boulevard Redevelopment District (Large Resort, Boutique Hotel/Condo, Activity Center, and Bayou Residential) and seven character districts within the Downtown Redevelopment District (Town Center Core, Town Center Corey Circle, Town Center Coquina West, Downtown Core Residential, Upham Beach Village, Commercial Corridor Blind Pass Road, and Commercial Corridor Gulf Boulevard). FLUE Policy 2.1.1 incorporates the development standards found in the "Community Redevelopment District" section of the FLUE for the two larger sub-districts and eleven smaller character districts. Therefore, it provides the policies required for the implementation of the new land use category. These policies govern the distribution, location, and extent of uses and densities and intensities of uses within the sub-districts. They also establish the boundaries, uses, densities, and intensities of use for the eleven character districts. The types of land uses allowed in each character district are clearly listed in a section of the text amendment corresponding to each character district titled "Permitted Uses and Standards." See Joint Exhibit 2, Attachment A, pages 75, 79, 82, 84, 91, 93, 98, 100, 102, and 105. For example, in the Large Resort District, primary uses are hotel, motel, resort condominium, and medium density multi-family residential. Id. at page 75. The density and intensity standards for each type of use allowed within each character district are also listed in the same sections of the Attachment. For example, the maximum density of residential development in the Boutique Hotel/Condo District is eighteen units per acre. Id. at page 75. Finally, the policies for each character district provide objective criteria governing the actual mix of uses permitted on any redevelopment site within the Community Redevelopment District. The location of each allowable use will be distributed throughout each district. For example, the Downtown Redevelopment District creates a traditional downtown core area with traditional downtown core services surrounded by residential neighborhoods buffered from commercial intrusion. See Joint Exhibit 2, Attachment A, page 36. On the other hand, the Gulf Boulevard Redevelopment District is a core resort and shopping destination for residents and visitors. Id. The Community Redevelopment District does not use a percentage distribution among the mix of uses since the City is essentially built out and already has a mix of uses within the newly-created districts. Therefore, the plan amendment accomplishes a distribution of mix of land through location of uses in multi- story buildings, rather than a percentage distribution of mix. By doing so, it satisfies the requirement of the rule. See, e.g., The University Park Neighborhood Association, Inc. v. Department of Community Affairs, et al., DOAH Case No. 92- 0691GM, 1993 Fla. ENV LEXIS 19 (DOAH Nov. 2, 1992, DCA Feb. 24, 2003). Therefore, it is found that Petitioner failed to demonstrate by a preponderance of the evidence that the amendment is inconsistent with the rule. Preservation District The plan amendment is based upon the City's Visioning Plan and Master Plan. See Respondent's Exhibits 1 and 3. Neither document contains any recommendation that the City's Preservation Land Use District be revised in any way. In the existing 2010 Plan, the Preservation District is defined in FLUE Policy 1.1.1 as those beaches seaward of the CCCL, Fuller Island, and other environmentally significant natural resource areas. No development is allowed in the Preservation District except dune walkovers. Ordinance No. 2008-15 renumbers Policy 1.1.1 as 2.1.1 and makes a one-word change (underscored below) in the definition of the Preservation District so that it now reads as follows: Preservation (P), applied to the beaches seaward of the Florida Coastal Construction Control Line, Fuller Island and other environmentally significant natural resource areas; such designated areas shall not be developed except to provide beach access dune walkovers from adjacent developed properties under the provisions of the City's Beach Management Regulations. Petitioner argues that the effect of this change is to establish a new boundary line for the Preservation District (further seaward in some instances) and to no longer use the setback line previously used by the City, which was known as the Coastal Construction and Excavation Setback Line. He further contends that the City's setback line and the Florida (State) CCCL encompass different areas along the beach. In some cases, the City's setback line is more seaward than the State, and vice versa. Petitioner contends that the data and analysis for the 2010 Plan "implies" that the location of the Preservation land use category should be based upon the more restrictive of the City setback line or State CCCL, that is, whichever is less seaward. It is fair to infer from the evidence that the underlying reason for raising this claim is that an old Travelodge motel sits just south and east of Petitioner's condominium building and is scheduled to be redeveloped as a new high-rise condominium. Petitioner is concerned that if the State CCCL (rather than the City setback line) is used, it will allow the new building to be constructed closer to the Gulf of Mexico, presumably reducing his view and beach access. The City's witness Holly established that the City does not have a CCCL. Rather, it has an excavation and setback line. He further established that the City has consistently enforced the Preservation District geographically as the area seaward of the State CCCL. Also, the City's land development regulations implementing the existing Plan define the Preservation District as the property seaward of the State CCCL. The Countywide Plan also uses the State CCCL. The amendment is clarifying in nature and is intended to make the text in the City's Plan consistent with the Countywide Plan and existing enforcement practices. As explained by Mr. Holly, the City's setback line predates the establishment of the State CCCL, and functions much in the same manner as the State CCCL "in that it precludes structural development seaward of that line without specific application for approval of variance for those standards." See Transcript, page 415. Petitioner has failed to establish by a preponderance of the evidence that this clarifying change in the definition of the Preservation District in FLUE Policy 2.1.1 is not supported by adequate data and analysis. Format of Plan Amendment Petitioner next contends that the plan amendment is inconsistent with Florida Administrative Code Rule 9J-5.005(1), which contains general format requirements for comprehensive plans. For example, he points out that there are lengthy unnumbered narrative sections in Attachment A that apparently supplement the numbered sections, that the references to the land development regulations do not identify the specific land development regulation adopted by reference, that the series of maps are not labeled properly, and that the maps do not include north-south arrows or a scale. The amendment contains specific goals, objectives, and policies for the Community Redevelopment District. See Joint Exhibit 2, pages 43-48. It also contains goals, objectives, and policies for the two redevelopment districts, numbered policies for each character district, as well as unnumbered text setting forth permitted uses and standards for each character district. See Joint Exhibit 2, pages 67-70, 71-77, 78-80, 83-85, 86-90, 90-92, 92-94, 94-97, 97-98, 99-101, 101-103, and 104-106. The deposition testimony of Michael McDaniel, Chief of the Department's Office of Comprehensive Planning, established that while they are not typically used, the narrative sections of Attachment A are permissible to explain the goals, policies, and objectives. He further stated that nothing in the governing statutes or rules requires that all material adopted as part of a plan be labeled as, or be in the form of, a goal, policy, or objective, that many variations of format are found in plans adopted by local governments throughout the State, and that the Plan, as amended, is not inconsistent with any requirement. As to the makeup of the maps, Mr. McDaniel stated that while the Department prefers that maps be labeled as future land use maps, and that they contain the detail suggested by Petitioner, a failure to do so does not render the plan amendment not in compliance. Finally, he stated that the Department staff had no difficulty in understanding the maps or map series when they were reviewed by the Department in July 2008. Notably, the Department did not address any of these format issues when it prepared comments to the proposed amendment on August 1, 2008. Petitioner has failed to show by a preponderance of the evidence that the plan amendment is inconsistent with the requirements of Florida Administrative Code Rule 9J-5.005(1). Data and Analyses Petitioner alleges that the City failed to rely upon the best available data sources to support the amendment, that a proper analysis of the data was not made, and that the City did not react to the data in an appropriate way, as required by Florida Administrative Code Rule 9J-5.005(2). Petitioner presented no expert testimony or other evidence supporting the claim that the plan amendment lacked supporting data and analysis. Although he introduced into evidence various documents on the theory that this information constituted better data than that used by the City, the evidence does not support this allegation. For example, various documents concerning hurricane evacuation times were submitted, including the Tampa Bay Regional Hurricane Evacuation Study Update 2006, the Pinellas County Local Mitigation Strategy (LMS), and the 2008 Statewide Emergency Shelter Plan. See Petitioner's Exhibits 4, 16, and Since the plan amendment does not increase density, however, it does not conflict with established hurricane evacuation times. Also, the City is not increasing population to be evacuated to other zones; therefore, the Statewide Emergency Shelter Plan is irrelevant. Finally, the amendment is not contrary to any mitigation strategies in the LMS. Population estimates for the year 2006 prepared by the BEBR were introduced by Petitioner, presumably for the purpose of showing that more current population data should have been used, rather than the 2000 Census data relied upon by the City. See Petitioner's Exhibit 21. However, there is no requirement that the City update its population estimates and projections each time it adopts an amendment. According to Mr. McDaniel, this is normally done every seven years at the time of the EAR. In any event, the BEBR estimates an increase in population in the City of only 48 persons during the six-year period from 2000 to 2006 (from 10,002 to 10,050). Petitioner also introduced a list of claims for flood losses within the last ten years in the City for the purpose of demonstrating that the City failed to consider the location of these properties in adopting the amendment. However, the evidence shows that redevelopment policies in the amendment would bring existing older structures up to National Flood Insurance Protection standards. A list of Licensed Dwelling Units was also introduced to show that the list relied upon by the City was incomplete and failed to include a motel in close proximity to Petitioner's condominium. Assuming that this is true, the error was minor and did not affect the overall validity of the City's data. The plan amendment is supported by the City's visioning project, economic analysis, master planning project, and evaluation of infrastructure capacity and availability of services. It is also supported by data submitted by SOLV to the County in support of the amendment to the Countywide Future Land Use Plan, which includes the Special Area Plan. The more persuasive evidence supports a finding that there is relevant and appropriate data supporting the amendment, that the data was properly analyzed, and that the City reacted in an appropriate manner. Internal Inconsistency Petitioner further alleges that the plan amendment is internally inconsistent with Intergovernmental Element Policy 1.5.3, which requires that the City coordinate with the Pinellas County Emergency Management Department when adopting map amendments resulting in an increase in population within the CHHA. Under the existing definition of the CHHA in the 2010 Plan, the entire City is within the CHHA. The amendment implements a new definition, as required by Section 163.3178(2), Florida Statutes, which removes some parts of the City from the CHHA. Because the new amendment does not relate to either hurricane shelters or evacuation routes, and does not increase the residential density in the CHHA, compliance with the cited policy was not required. Petitioner further alleged that FLUE Policy 4.1.1 is internally inconsistent with Goals 2 and 3 of the Conservation and Coastal Element as well as the implementing objectives for those Goals. However, no testimony or other credible evidence was offered on this issue and the claim must fail. The preponderance of the evidence supports a finding that the Plan, as amended, in not internally inconsistent with other Plan provisions. Need Petitioner contends that the City did not prepare an analysis of need for future land uses authorized by the Ordinance, that it did not prepare an updated existing land use map series, that no tabular form of the approximate acreage and general range of density and intensity of each existing land use was prepared, and no population projections were presented, as required by Florida Administrative Code Rule 9J-5.006(1)(a), (b), (c), and (g). Therefore, he argues that the plan amendment is not supported by a demonstration of need for the new land use category to accommodate the anticipated growth. The supporting documentation for the plan amendment demonstrates the need for redevelopment of the City's lodging establishments, the need for additional height for tourist lodging uses in order to prevent conversion of those uses to condominium uses, and the need for aesthetic and other design changes to the City's building facades, streetscapes, and public areas with the redevelopment area. See Joint Exhibit 2, Attachment A, pages 1-3. The plan amendment does not propose new density to accommodate new populations. In fact, it reduces the overall residential density in the City, and the total amount of dwelling units, temporary lodging units, and non-residential (commercial) floor area ratio will also be reduced. Because the plan amendment does not increase the total amount of development, but is simply a plan for redevelopment of existing uses, there is no requirement that a need analysis be prepared. Financial Feasibility Petitioner also contends that the Plan, as amended, has not been shown to be financially feasible and does not include an updated five-year CIP. See § 163.3177(3)(a)5., Fla. Stat. ("the comprehensive plan shall contain a capital improvements element [which] set[s] forth: . . . [a] schedule of capital improvements . . . "). The statutory requirement for a CIP applies to projects necessary to ensure that adopted levels of service (LOS) standards are achieved and maintained. It applies to all public facilities and services for which an LOS standard is adopted pursuant to Section 163.3180, Florida Statutes. This was confirmed by the testimony of Mr. McDaniel. The evidence shows that all relevant City infrastructure facilities are operating at or above the adopted LOS. Therefore, there are no deficiencies which need correction in order to implement the redevelopment plan. As further confirmed by Mr. McDaniel, if a plan has been found to be in compliance, and the local government proposes changes that do not create a need for capital improvements, the plan amendment does not need to include an amendment to its CIP. In this case, the amendment does not increase the total permissible amount of residential density or non-residential use within the Community Redevelopment District, and no additional infrastructure capacity is needed. Petitioner's expert identified certain infrastructure projects for which he contended an updated CIP is needed, such as sidewalks, street lighting, and bike lanes. While these types of projects are all integral to the proposed redevelopment plan, they are not subject to concurrency or the financial feasibility standard. Even if they were, Petitioner's expert agreed such improvements could be accomplished through private investment when permits for projects are issued. Because Petitioner failed to show that the plan amendment would require the construction of any new or expanded public facilities to provide additional capacity to serve the development, his contention that the plan is not financially feasible must necessarily fail. Other Contentions All other contentions not discussed herein have been considered and rejected because no evidence on the issues was presented or the more credible and persuasive evidence supports a finding that the contentions are without merit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the plan amendments adopted by Ordinance No. 2008-15 are in compliance. DONE AND ENTERED this 4th day of May, 2009, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 2009.
The Issue The issue is whether the City of Ocala's Plan Amendment 97-39C adopted by Ordinance No. 2689 on August 5, 1998, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: A. Background For many years, Red Oak has operated a horse farm in the Ocala area. On an undisclosed date in the early 1990s, when Red Oak's property was still located outside the City's boundaries, the City initiated condemnation proceedings against Red Oak (whose tract of land then totaled around 206 acres) for the purpose of obtaining land to site an electrical substation. On May 10, 1994, Red Oak, the City's outside counsel, and the City Manager (but not the City Council) executed a Settlement Agreement (Agreement) to resolve the pending litigation, under which the City's staff agreed to support a City plan amendment changing the land use on the property to Medium Residential Density, support a conceptual development of the property attached to the Agreement (which included the construction, among other things, of an office/convention center, 96 single-family homes, and 715 apartments), and support annexation of the entire tract of property into the City. Because the City subsequently amended its Comprehensive Plan to prohibit apartments on the land use later assigned the property, the conceptual plan was abandoned by Red Oak and is no longer relevant. A City substation now occupies approximately 8 acres of former Red Oak property in the northwest corner of the tract. On November 5, 1996, the City annexed the remaining 197.42 acres of the Red Oak property. At the time of annexation, the property was subject to a combination of two County land use designations: Low Density Residential (one unit per acre) and Agriculture (one unit per ten acres). Pursuant to the Agreement, Red Oak then sought, with City staff's support, the adoption of a plan amendment changing the land use on the Future Land Use Map (FLUM) for the remaining acreage to Medium Density Residential, which authorizes ten dwelling units per acre. However, because of the high intensity of development (such as commercial activities, a hotel, a nursing home, retail outlets, and multi-family apartments) on the land just north of the subject property (of which the apartments were closest to Red Oak's property), the City Council rejected the staff's recommendation. Instead, it decided to reclassify the Red Oak property as Low Density Residential, rather than Medium Density Residential, so that the land use would be more consistent with the City's goal of using a "step-down approach," that is, to gradually step down (in a north to south direction) the intensity of development from commercial to office to apartments to single-family residential. By doing so, the intensity of development on the property would be reduced from ten dwelling units per acre, as proposed by the staff under Medium Residential Density, to no more than five single-family dwelling units per acre under Low Density Residential, which is the City's lowest adopted land use category for residential. On August 5, 1998, the City formally adopted Plan Amendment 97-39C. If the Plan Amendment is ultimately found to be in compliance, Red Oak will more than likely sell the property to a third party/developer, who will then convert the property from a horse farm to more intensive use. An adjacent 40-acre parcel which was later purchased by Red Oak (and is linked to the 197-acre parcel for development purposes) was recently annexed by the City, and is the subject of another plan amendment scheduled for adoption in the summer of 2003. That amendment also proposes to change the land use designation on the adjoining 40-acre tract of property to Low Density Residential. When the Plan Amendment was adopted, the City was one of five local government participants in the Sustainable Communities Demonstration Project authorized by former Section 163.3244, Florida Statutes. Under the terms of that statute, which was repealed in 2001, this Plan Amendment was not reviewed by the DCA. By avoiding this step in the review process, the City shortened the time for adopting the Plan Amendment from nine to four months. On September 4, 1998, SHASTA filed with DOAH its original Petition challenging the Plan Amendment. As later amended three times, the last two times by its former counsel, and generally restated in the parties' Prehearing Stipulation, SHASTA contends that the Plan Amendment is not in compliance because (a) the Plan Amendment is not based on surveys, studies, and data regarding growth and character of land; (b) there is insufficient data and analysis for a determination of the Plan Amendment to show a need for more land to be developed at five units per acre; (c) the developed land will be incompatible with rural land designated at one unit per ten acres in the County; (d) harm will come to the underlying aquifer as a result of large areas of impervious surface rendering the area vulnerable to contamination by stormwater pollution; (e) protection plans proffered by the City do not require special design of retention areas to prevent pollution or stop alteration of natural recharge; (f) the Plan Amendment does not meet the standards set forth in Section 163.3177(6)(d), Florida Statutes, and Rule 9J-5.011(1), Florida Administrative Code, protecting the natural resources; (g) a development agreement between the City and Red Oak approved by the City on April 8, 2003, does not adequately protect the many karst features and cave systems located on, under, and near the subject parcel, and the agreement includes land that is not a subject of this litigation; (h) the Plan Amendment should not have been adopted without DRI review even though the City was a Sustainable Community at the time of adoption; (i) the Plan Amendment is inconsistent with the goals of sustainability as set forth in Section 163.3244, Florida Statutes; (j) The Plan Amendment does not separate urban and rural uses or buffer them; (k) the Plan Amendment by its nature creates urban sprawl in an area unsuitable for urban development; (l) no analysis was presented for the suitability of five units per acre or the need for redevelopment to better use public services and utilities already in place, to better serve city residents and improve blighted areas; (m) the Plan Amendment does not protect adjacent agricultural activities, unique and important farmlands, and soils; (n) the Plan Amendment allows for land use which increases taxpayer cost of providing and maintaining facilities and services including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, and fire and emergency response, and it inhibits infill or redevelopment of existing city neighborhoods; and (o) the Plan Amendment fails to recognize secondary impacts to natural resources, the significant risk to the local population, and the degradation of regionally significant resources like Silver Springs which will ultimately receive water traveling underground to the spring. With a few exceptions discussed below, SHASTA failed to present evidence on any of the issues raised in its Third Amended Petition for Administrative Hearing or the parties' Joint Prehearing Stipulation; thus, the unsupported allegations have been considered to be abandoned and are hereby denied. At hearing, the principal focus of SHASTA's evidence generally related to the impact of development on a cave system located on the property. SHASTA also expressed concerns regarding the development of property in karst topography, and the general loss of agriculture lands in the City. The Parties The City is a local government having the responsibility of preparing a comprehensive plan and amendments thereto in a manner which conforms with Chapter 163, Florida Statutes. Red Oak is an affected person within the meaning of Section 163.3184(1)(a), Florida Statutes, since it owns the property which is the subject of the challenged Plan Amendment, and it submitted oral and written comments to the City during the adoption process. SHASTA is a not-for-profit corporation formed in September 1985. The City and Red Oak have stipulated that SHASTA has approximately 120 members, of whom at least 20 reside and own property within the City; however, property tax records offered into evidence by SHASTA show that as many as 35 members own property within the City. They have also stipulated that at least one member (Miriam Cook) appeared before the City during the adoption process and made comments and recommendations on behalf of SHASTA regarding the Plan Amendment. There is no evidence that SHASTA "resides," or owns a business or property, within the City. According to its representative, SHASTA members have an interest in the preservation, protection, and conservation of natural resources in the high-water-recharge and karst- sensitive lands adjacent to and within the City. At least one of its members (Darlene Weesner) has "intermittently" attended City Council meetings over the years (although it is unclear whether such attendance was on her own behalf or on behalf of SHASTA), and it can be reasonably inferred from the evidence that, through its members, the organization has actively attempted to provide information to the City and County regarding various planning decisions by those two bodies. Although its representative referred at hearing to a document describing various projects undertaken by SHASTA over the years, presumably related to natural resources and land use, the document was never offered, or received, in evidence. The Property As noted above, an operational horse farm now exists on the property, which consists mainly of improved pasture lands with many trees. It lies just southeast of the intersection of State Highway 200 (the City's busiest commercial corridor) and Interstate Highway 75 (I-75), a heavily-traveled, north-south, major roadway which cuts through the western part of the City. Just north of the property is the Paddock Park Development of Regional Impact (DRI), which consists of various commercial uses (a Publix shopping center, restaurants, and hotels), office space, medical offices, professional offices, and surgical centers, and (closest to Red Oak's property) two large apartment complexes with a total of 768 apartments. The western side of the property adjoins I-75, and an industrial park has been partially developed directly west of the property across I-75. Just beyond the industrial park lies the Heathbrook DRI, which consists of 900 acres, the majority of which have been designated as Low Density Residential with the remaining part designated for a retail mall. To the south of the property is the Westbury Subdivision which has been developed as a gated community with single-family residences on large lots. To the east of the property lies an approved Planned Unit Development (PUD) known as the Shady Road PUD, which contains a combination of several hundred single-family and multi-family homes. Just east-northeast of the property is a recently constructed Catholic high school which was the subject of Case No. 98-5019GM, a proceeding in which SHASTA also participated. Other nearby development (to the northeast) includes a Super Wal-Mart and a 16-screen movie theater complex. Finally, the City and County have currently approved and are planning to construct a four-lane road that would abut the southern boundary of the property and cross over I-75 so as to relieve traffic congestion on State Road 200 and nearby 17th Street. Collectively, these facts indicate that the Red Oak property is located near the fastest growing and most intensively developed area of the City and County. Like much of the other land in the County, Red Oak's property is located within a karst sensitive area. In these areas, the limestone which contains the Floridan aquifer exists at, or is very close to, the land surface, and the absence of cover material (sands, clays, and other material) over the limestone allows the rapid movement of surface water into the aquifer with little treatment. Thus, in much of the County (and the City), the Floridan aquifer (which is the main source of potable water) has a greater potential for contamination from surface pollutant sources than in other areas of the State. Because of these conditions, the St. Johns River Water Management District (District) has promulgated special rules governing the discharge of stormwater runoff which apply only to karst sensitive areas, such as those found in Alachua and Marion Counties. The property is also the site of a cave system known as the Briar Cave, considered to be a "medium difficulty cave" for recreational purposes, which lies underneath approximately 4.1 acres of the property. The cave is considered "unique" in the sense that only a handful of cave systems in the State have formations similar to Briar Cave. Red Oak and the City have recently entered into a Development Agreement under Sections 163.3220 through 163.3243, Florida Statutes, that places a number of restrictions on the development of the property, protects Briar Cave, and imposes groundwater protection provisions. For example, the Development Agreement requires that the developer implement an integrated pest management plan addressing the application of fertilizers and pesticides on the property; that additional restrictions (more stringent than District standards) be used in constructing the stormwater retention areas on the property; and that a water quality monitoring plan be implemented to monitor groundwater on the site. It also requires the property to be developed as a PUD under the City's land development regulations. This will enable the City to exercise more control over any future development of the property, including the right to approve where buildings will be placed on the property. The Plan Amendment Because the City was a participant in the Sustainable Communities Demonstration Project, there has been no formal state or regional review of the Plan Amendment. Thus, while the DCA offered what can be described as informal comments on a limited aspect of the Plan Amendment, it made no statutory determination as to whether the Plan Amendment is or is not in compliance. The Plan Amendment simply amends the City's FLUM to change the land use on Red Oak's property from a combination of two County land use classifications to Low Density Residential. In making this decision, the City relied upon the staff's consideration of the type of soil on the site; the terrain of the site; the protection of Briar Cave, sinkholes, or wetlands on the site; and other factors concerning the suitability of the property for development. The City also considered the fact that the property was located within its Urban Service Area, which meant that the City had the exclusive right (as opposed to the County) to provide water and sewer services after the property was annexed into the City. Finally, the City considered the compatibility of the property with the surrounding uses, including its proximity to adjacent DRIs, malls, a large movie theater, shopping centers, and other heavy commercial and retail development. From this, it made a determination that the Low Density Residential land use is the most appropriate land use designation to buffer the intensive urban uses of property immediately to the north of the property from the residential and agriculture properties to the south. The data relied upon by the City at the adoption hearing is found in City Exhibits 19-21 received in evidence. Even though SHASTA failed to adduce any evidence to support its claim that the Plan Amendment was not based upon sufficient data and analysis, the City and Red Oak have established by a preponderance of the evidence that the Plan Amendment is based on adequate data and analysis, and that the City reacted to this data in an appropriate manner. Besides the foregoing data, the City considered the comments of various governmental agencies, including the DCA, the District, and the County. The County did not object to the Plan Amendment, while the District's comments focused on protection of the cave and stormwater issues in karst sensitive areas. The City staff has responded to the District's concerns by incorporating a number of development restrictions (see Findings of Fact 15, 20, and 24) to protect these resources. The DCA was primarily concerned that the conceptual plan of development attached to the 1994 Settlement Agreement may constitute a DRI. However, that plan was later abandoned by Red Oak, and therefore the DRI issue raised by the DCA is no longer relevant. The cave A valuable cave system known as Briar Cave is located on the property, and whose underground system takes up slightly more than four acres. Under the Development Agreement between Red Oak and the City, Red Oak must give a conservation easement to the City for the cave site. The City has mapped the system to ensure that no development will occur around the cave, and that no vehicular traffic will be allowed on top of the site. Testimony by Red Oak's witness Garman, who has personally inspected at least 90 percent of Briar Cave, established that the cave map used by the City is reasonably accurate to less than a five percent error, and that a 40-foot buffer zone around the 4.1-acre site will adequately protect the system. By adding this buffer zone to the conservation area, that area will total around 5.7 acres. In addition, public access to the cave will be restricted, and only those persons who are specially trained and equipped to enter caves will be given access to the cave system. Finally, before any development on the property begins, the City will require that the developer design a drainage system (using standards more stringent than even District criteria) that will protect the aquifer from runoff associated with the project. Given these considerations, the preponderance of the evidence supports a finding that the cave system and aquifer will be protected from contamination, and that the Plan Amendment will not cause harm to Briar Cave. Through its professional geologist, who relied on observations made by one of his staff some ten years ago or so, SHASTA also contended that the cave system (at least in the early 1990s) had an intermittent perched water table that occurs (during non-drought periods) in the sands, and assists in the formation of cave deposits such as speleothems, stalectites, and stalagmites. Although the significance of such a table (assuming one exists) was not fully explained in the record, presumably an improperly designed drainage system associated with any future development on the property could cause harm to the perched water table and lead to the dissolution of the cave formations. In order to accurately determine if the cave has a perched water table, it would be necessary to install piezometers (monitoring wells), which measure water levels in the soil columns and the Floridan aquifer to ascertain whether there is a head difference between the two. Observations alone are insufficient to make that determination. In this case, piezometers were not used, and it is impossible to conclude with any degree of certainty that such a table exists. Although the cave does contain speleothems, stalectites, and stalagmites, as reported by witnesses Garmen and Boyes, the more credible evidence supports a finding that they were the result of infiltrating rainwater over long periods of time, and not a perched water table. Even assuming arguendo that such a table exists, the protective measures taken by the City will ensure that stormwater does not penetrate the cave. Stormwater runoff As noted above, the District has promulgated additional requirements found in Rule 40C-41.063(7), Florida Administrative Code, which regulate the design and construction of stormwater management systems within karst sensitive areas. These criteria are designed to protect against stormwater runoff contamination of the underlying aquifer and are more stringent than other District criteria that apply in non-karst sensitive areas. In addition, the Development Agreement imposes further limitations (generally described in Finding of Fact 15) related to groundwater contamination which are even more restrictive than the District rules. It is undisputed that a surface water management system can be designed to protect the groundwater and cave system from contamination. SHASTA also contends that based on its interpretation of infrared aerial photographs taken in the 1970s, a lineament (a linear subsurface feature) begins just southwest of the Red Oak property and runs across the property in a southwest to northeast direction and then northeast for several miles. It further asserts that if the Red Oak property is developed, the groundwater will be contaminated, and such contamination will then spread (presumably through the lineament) to the City's wellfield, which lies to the northeast of Red Oak's property. The exact distance between Red Oak's property and the City's wellfield is unknown, although the wellfield appears to be at least several miles to the northeast. The area between the two sites already contains rather intensive urban development. SHASTA's concern here is based on the incorrect assumption that any development on Red Oak's property will automatically contaminate the groundwater. As noted above, however, it is undisputed that a surface water management system can be designed to protect the groundwater from any contamination caused by development of the property. In addition, the City has enacted a wellfield protection ordinance, which imposes special restrictions on any activity within 1,500 feet of the wellfield that might pose a threat to the City's water supply. Even assuming that a lineament exists, a fact which is subject to some debate by the experts in this case, the ordinance and other groundwater protections associated with development of the Red Oak property are sufficient to ensure that the City's water supply will not be at risk. The preponderance of the evidence supports a finding that stormwater systems and development can be located within a karst sensitive area, including the subject property, that will adequately contain and control stormwater runoff and prevent groundwater contamination. Thus, the Plan Amendment poses no risk to groundwater or aquifer recharge areas, as alleged by SHASTA. Other Allegations In the absence of any credible evidence regarding the remaining allegations raised by SHASTA, those contentions are rejected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the City of Ocala enter a final order sustaining its determination that Plan Amendment 97-39C adopted by Ordinance No. 2689 on August 5, 1998, is in compliance. DONE AND ENTERED this 16th day of June, 2003, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2003.
The Issue The issue for determination in this matter is whether Petitioner, Robert A. Mason, has demonstrated, pursuant to the Vested Rights Review Process of Clay County, Florida, that a vested rights certificate to undertake development of certain real property located in Clay County should be issued by Clay County, notwithstanding that part of such development will not be in accordance with the Clay County Comprehensive Plan.
Findings Of Fact The Property The Applicant, Petitioner Robert A. Mason, is the owner of real property located in Clay County, Florida. The Applicant's property is known as "Cypress Landing," containing 5.977 acres, which consists of a rectangular tract 200 feet by approximately 841 feet in the Hollywood Forest Subdivision, bounded on the east by the west shore of the St. Johns River, and on the west by the right-of-way for Peters Avenue, now known as Harvey Grant Road. The Applicant acquired the property on July 25, 1958, by warranty deed from Victor M. and Ruth C. Covington recorded in Official Records Book 3, page 250, public records of Clay County, Florida. The property was the south 1/2 of Lot 12, Lot 12-A, and Lot 13, and the north 1/2 of Lot 14 of Hollywood Forest, a platted subdivision on Fleming Island in Clay County. At the time Petitioner acquired the property, the applicable zoning district permitted the development of the property for single- family residential at a maximum density of three units per acre. When the Applicant originally acquired the property in 1958, he and his wife had intended at some future time to live on the property and use the property for their own purposes, including recreation, keeping horses, and retirement. At the time the Applicant acquired the property there was an existing dock extending from the property into the river. Due to subsequent changes in his employment circumstances, the Applicant did not build a residence on the property. The Applicant is a registered forester who retired from the Georgia Forestry Commission after 32 years of service. The Applicant and his wife currently reside in Georgia. Cypress Landing contains a multitude and variety of trees, including magnolia, Florida holly, live oak and cypress, many of which are more than 200 years old and have diameters in excess of 36 inches. The Applicant has taken great care and followed specific conservation measures to identify and preserve the historic trees on the property. Development of the Property In 1982-1983, the Applicant prepared a development plan for the Cypress Landing property which comprised a single-family residential development. The planned development consisted of a total of seven single-family lots, two of which faced the river, and the other five which were 122 feet by 200 feet and lay side by side between the road and the waterfront lots. The development plan included an easement (the "Road Easement") for ingress, egress, drainage and utilities along the northern waterfront lot into the southern waterfront lot. From the east end of the Road Easement, an additional pedestrian easement was provided along the northern ten feet of the southern waterfront lot for pedestrian access to the river. The Applicant employed a surveyor, McKee, Eiland & Mullis, Land Surveyors Inc., of Orange Park, Florida. The Applicant instructed the surveyor to plat the property in accordance with the development plan and all existing codes. The property was thereafter subdivided into seven lots, identified as Lots A, B, C, D, E, F, and G. Lots A through E are the inland lots and each measure 122 feet by 200 feet with a 30 feet non- exclusive easement for ingress, egress, drainage and utility purposes. Lots A through E are inland lots. Lots F and G are the waterfront lots which are slightly larger than the other five lots and not as uniform in configuration. Lot F has approximately 116 feet of water frontage and Lot G has approximately 97 feet of water frontage. In 1984, relying on the applicable zoning regulations, the Applicant contracted with Robert Bray to install a roadway which is 30 feet in width and 866 feet in length running along Lots A through E and ending at Lot F. The roadway was constructed with specific concern for the protection and preservation of the trees on the property. A pre-cast concrete curb running the entire length of the roadway was installed to protect the trees from runoff. Porous rock was used as the foundation of the roadway to promote proper drainage. The roadway was also constructed with an ellipsis at Lot C to protect a historic tree. The design of the roadway, as well as the materials used in building the roadway, met all Clay County code requirements at the time of construction. In 1984, the Applicant reconstructed the dock on the property. The dock had previously been damaged due to storms. The dock was reconstructed by Duke Marine Construction in accordance with all appropriate regulations. Covenants have been executed to allow for use of the dock as a community dock for all lot owners. The community dock is 300 feet in length. Also in 1984, the Applicant erected a sign indicating the entrance to Cypress Landing. The sign was later vandalized and removed. In 1988, the Applicant contracted with Jacksonville Electric Authority for the installation of an underground electric distribution system in Cypress Landing. The underground utilities distribution system was designed specifically to protect and preserve the existing trees on the property, and was installed by boring under the trees to place a conduit to protect the established roots. The underground electrical distribution system was installed in accordance with the Clay County code at that time. On May 29, 1987, the Applicant sold Lot A to Robert M. and Mary Wasdin. Clay County issued a building permit for the construction of a residence on Lot A. A house has been constructed on Lot A. On September 1, 1989, the Applicant sold Lot E to Robert G. and Marva Lou Widhalm. Clay County issued a building permit for the construction of a residence on Lot E. A house has been constructed on Lot E. Applicant's Expenses The applicant expended approximately $4,609.45 on topographical surveys, tree location surveys, and engineering plans which were prepared for the mapping and platting of Cypress Landing. The surveying expenses were paid prior to the adoption of the Clay County 2001 Comprehensive Plan. The Applicant incurred significant expenses in the design and construction of the roadway. Additional costs were incurred by the Applicant for the construction of the roadway in an environmentally sensitive manner which protected and preserved the historic trees on the property. The total amount expended in 1984 by the Applicant for the construction of the roadway was $6,880, all of which was paid prior to the adoption of the Clay County 2001 Comprehensive Plan. The Applicant expended $19,540 for the reconstruction of the community dock in 1984, which was paid prior to the adoption of the Clay County 2001 Comprehensive Plan. The Applicant expended $7,101.87 for the installation of the underground electrical distribution system in 1988 and 1989. This amount included an additional cost of $1,209.87 paid to JEA, which was the difference in cost between the underground system and an equivalent overhead electrical distribution system. This amount also included a cost of $5,502 paid to Allstate Electrical Contractors, Inc. of Jacksonville, Florida, for the boring and installation of the PVC conduits to protect the historic trees on the property. The expenses were paid prior to the adoption of the Clay County 2001 Comprehensive Plan. The Applicant expended $363.58 for costs associated with the Cypress Landing entrance sign and a security fence. The expenses were paid prior to the adoption of the Clay County 2001 Comprehensive Plan. Rights that will be Destroyed In 1991 Clay County originally adopted the Clay County 2001 Comprehensive Plan pursuant to Chapter 163, Part II, Florida Statutes. The Clay County 2001 Comprehensive Plan is now known as the Clay County 2015 Comprehensive Plan. Under the Comprehensive Plan, Cypress Landing was designated with a land use designation in the plan of "Rural Fringe." Policy 2.10 of the Clay County 2015 Comprehensive Plan provides that if land is divided into three or more lots, any three of which are 9.9 acres or less in size, then such land must be platted in accordance with the County's regulations, and all lots must be provided access to a road improved to meet County paved road standards. The County's Subdivision Regulations were amended after 1990. Section 16(1)(d)1.a.i. thereof now requires a minimum width for subdivision streets of 60 feet. The regulations further require that such streets be paved. The Cypress Landing Road Easement is only 30 feet wide. Moreover, new surface water runoff requirements require retention areas for rainwater. To comply with the post-1991 Clay County land use regulations would require a reconfiguration of the lots in Cypress Landing. Reconfiguration is not possible because two of the lots have been sold to new owners. Policy 2.9 of the Clay County 2015 Comprehensive Plan restricts any easement that provides access to multiple lots to a length of 1,000 feet, and limits to five the number of lots that may utilize the same for access. While the Cypress Landing Road Easement is less than 1,000 feet in length, the number of lots within the Cypress Landing development exceeds the maximum that can access the Road Easement. The Petitioner would be precluded from selling or developing the remaining lots within the Cypress Landing development without reconfiguration and loss of one or more lots. Moreover, because Lots "A" and "E" have already been sold, the Petitioner cannot add additional right-of-way width to the Road Easement in order to comply with the County's Subdivision Regulations regarding minimum right-of-way width. The Applicant would have been entitled to statutory vested rights if 50 percent of the lots had been sold prior to 1992. Procedural Requirements The procedural requirements of Vested Rights Review Process of Clay County, adopted by Clay County Ordinance 92-18, as amended, have been met.
The Issue The issue in this case is whether Meridian Place Limited Partition meets all criteria for a limited partition under the City of Tallahassee law.
Findings Of Fact The Parties. Respondent, T.S. Builders, Inc. (hereinafter referred to as "T.S."), is a Florida corporation located at 2700 Hadley Place, Tallahassee, Florida. Respondent, City of Tallahassee (hereinafter referred to as the "City"), is a municipal corporation organized under the laws of the State of Florida. Petitioner, Jacob D. Varn, is a resident of the City. Mr. Varn resides in a small subdivision located on Meridian Place near the property which is the subject of this case. The subdivision in which Mr. Varn resides consists of approximately 5 or 6 lots. The evidence failed to prove who John and Nancy Fruin, Francis C. and Karen W. Skilling, Thomas J. Bixler, Sheila S. Varn, and Naomi S. Perkins are. The evidence also failed to prove where they reside. The Subject Property. T.S. owns a 1.385 acre unrecorded residential parcel of real property (hereinafter referred to as the "Subject Property") located at the southeast corner of Meridian Road and Meridian Place. Approximately 170 feet of the Subject Property fronts on Meridian Place and 356 feet fronts on Meridian Road. Meridian Road is a two-lane public street with a center turning lane. Meridian Road runs north-south. Meridian Road has been designated as a "canopy road." As a consequence, Meridian Road is subject to a canopy road protection setback: no construction is allowed within 100 feet from the centerline of Meridian Road. Meridian Place is a two-lane, dead-end, City-maintained residential public street. Meridian Place runs east-west. Meridian Place is not classified as a major or minor arterial or major collector roadway. The Subject Property is located within an unrecorded residential subdivision known as "Meridian Place." The Subject Property has not been previously subdivided. The Subject Property is located in an area designated as a Residential Preservation I zoning district. The maximum density allowed in Residential Preservation I zoning districts is 3.6 single-family dwelling units per acre. Land uses in the area immediately surrounding the Subject Property are limited to low-density, single-family residences. Certificate of Land Use Compliance and Concurrency Certification. On July 28, 1997, T.S. obtained a land use compliance certificate (hereinafter referred to as an "LUCC"), for the Subject Property from the City. The City identified the Subject Property in the LUCC as parcel I.D. No. 11-18-206-01-0000. Through the LUCC the City concluded that the Subject Property was eligible for subdivision into 5 single-family lots, as long as density did not exceed 3.6 dwelling units per acre, the allowable density for the zoning district within which the Subject Property is located. The LUCC indicated that access to the lots would have to be limited to Meridian Place. The City also concluded in the LUCC that any proposed subdivision of the Subject Property would be limited to subdivision as a "limited partition," that it would be reviewed under applicable canopy road requirements, and that it would require a concurrency certificate, an environmental permit, building permits, and certificates of occupancy. A certificate of concurrency for 3 single-family detached dwellings on the Subject Property was issued by the City to T.S. on September 16, 1998. The other permits must be obtained at a later date. T.S.'s Application for Limited Partition. On or about September 10, 1998, T.S. filed a City of Tallahassee Limited Partition Application (hereinafter referred to as the "Partition Application"), with supporting documents. The Partition Application was filed pursuant to Section 20.1, Article XX, Chapter 27 of the City's Code, the City's Zoning, Site Plan and Subdivision Regulations (Chapter 27 of the City's Code will hereinafter be referred to as the "Zoning Regulations"). The Partition Application filed by T.S. included the following: A completed City of Tallahassee Limited Partition Application; A Limited Partition Checklist indicating that all items, except an 8 1/2 X 14-inch document to be recorded in the Official Records Book, had been filed. The 8 1/2 x 14-inch document to be recorded in an official records book was required to include a boundary survey, the signature and seal of a surveyor, existing structures, date of preparation, total acreage, lot and block numbers, easements, a statement concerning future subdivisions, and a scale of plan (hereinafter referred to as the "Recordable Plan"); A vicinity map indicating the location of the Subject Property in relation to adjacent streets and properties; A Project Narrative, describing the proposed project; A completed Applicant's Affidavit of Ownership & Designation of Agent; A sketch of the Subject Property indicating the location of water and sewer connections to be serviced by the City; A 100-year flood frequency hazard area map for the area, including the Subject Property; and A copy of the Preliminary Certificate of Concurrency for the Subject Property. Although the Recordable Plan required by Section 20.1(3), Article XX, Chapter 27 of the Zoning Regulations was not provided with the Partition Application, consistent with City policy of requiring that the Recordable Plan be provided at the time of final approval of the limited partition, the City accepted T.S.'s Partition Application as complete. The document provided with the Partition Application by S., an 8 1/2 x 11 document, complied with the substantive requirements for the Recordable Plan. At the formal hearing, T.S. presented a Recordable Plan in substantial compliance with Section 20.1(3), Article XX, Chapter 27 of the Zoning Regulations. T.S. Exhibit 15. T.S.'s Proposed Limited Partition of the Subject Property. During the summer of 1998, T.S. submitted a proposal for development of the Subject Property to the City for a pre-application review. Comments concerning that proposal were provided to T.S. by the City in July 1998. T.S. modified its planned development and proposed the subdivision of the Subject Property into 3 single-family residential lots. The proposed density for the subdivision is 2.2 dwelling units per acre, which is within the allowable density for the zoning district in which the Subject Property is located. No new streets are to be created by the proposed partition and access will be limited to Meridian Place, an existing public street. City water and sewer are available to the Subject Property. T.S. has proposed the division of the Subject Property as follows (a copy of T.S. Builders' Exhibit 15 depicting the proposed division of the Subject Property is attached to this Recommended Order and is hereby incorporated herein; the copy of the exhibit will hereinafter be referred to as the "Attached Partition Plan"): Lot 1: Lot 1 will be located closest to Meridian Place. Lot 1 is shaded blue on the Attached Partition Plan. Lot 1 is rectangular in shape. Lot 1 will consist of approximately .391 acres or 17,041 square feet. Lot 1 will have 139.65 feet fronting on Meridian Place and 122.01 feet fronting on Meridian Road. Access from Lot 1 will be directly onto Meridian Place. The westernmost 50 feet of Lot 1 will be placed in an easement because it is located within the canopy road protection zone. Lot 2: Lot 2 will be located adjacent to the southern edge of Lot 1. Lot 2 is shaded yellow on the Attached Partition Plan. Lot 2 is rectangular in shape except for the easternmost boundary, which extends almost 15 feet further to the east on the northern boundary (154.74 feet) than on the southern boundary (139.78 feet). Lot 2 will consist of approximately .460 acres or 18,179 square feet, plus a driveway which will be shared with Lot 3. Lot 2 will have approximately 139.74 feet adjacent to the southern boundary of Lot 1 and 123.50 feet fronting on Meridian Road. Access from Lot 2 will be by a driveway along the eastern boundary of the Subject Property. The distance from Meridian Place to the southeastern corner of Lot 1 is 122.01 feet. The westernmost 50 feet of Lot 2 will also be part of the canopy road protection zone. Lot 3: Lot 3 will be located adjacent to the southern edge of Lot 2. Lot 3 is shaded orange and purple on the Attached Partition Plan. Lot 3 is rectangular in shape except for a portion of the lot that extends along the eastern boundary of Lot 2. This extension is shaded purple on the Attached Partition Plan. The purple-shaded portion of Lot 3 is 15 feet on the north, 123.50 feet on the east, 124.41 feet on the west, and approximately 30 feet on the south. Lot 3 will consist of approximately .534 acres or 18,619 square feet, plus a driveway which will be shared with Lot 2. Lot 3 will have approximately 139.78 feet adjacent to the southern boundary of Lot 2 and 109.65 feet fronting on Meridian Road. Access from Lot 3 will be by a driveway along the eastern boundary of the Subject Property. The western-most 50 feet of Lot 3 will also be part of the canopy road protection zone. Review and Approval of the Partition Application. The preliminary decision to approve the Partition Application was made after review by employees of the City from various interested City departments. The approval decision was made at a meeting held on September 17, 1998. No formal notice of the meeting was given to the public. Although the meeting was open to the public, no public participation was allowed. Mr. Varn was aware of the meeting and attended it. Gordon H. Hansen, a land use planner in the City's Growth Management Department, informed T.S. of the initial decision by letter dated September 17, 1998. The decision of the City was to conditionally approve the Partition Application. T.S. was informed of additional conditions by letter dated September 22, 1998, from the Land Use and Environmental Services Division of the City's Growth Management Department. Approval was conditioned upon T.S. accepting the conditions and submitting revised plans reflecting the acceptance of the conditions. T.S. accepted those conditions on September 17, 1998, September 28, 1998, and at the formal hearing of this case. The conditional approval was not final until the time allowed for a request for hearing challenging the approval had expired. Petitioners filed a challenge to the conditional approval resulting in the abeyance of the final decision until completion of the review process. Petitioners were given a full opportunity to be heard and to participate in the City's decision process during the hearing of this case. The conditional approval of the Partition Application was not given prior to the formal hearing of this case by the Director of the City's Growth Management Department. At the time of approval of the Partition Application, Rhett Miler was the Director of the Growth Management Department. During the hearing of this case the current Director of the City's Growth Management Department, Mr. Robert L. Herman, approved the Partition Application. This approval was obviously given more than ten days after the Partition Application was filed. Proposed Flag Lots. Lots 2 and 3 are irregularly shaped or "stem" lots. The main body of these lots does not abut any road. Proposed access to Lots 2 and 3 will by a narrow extension, or "stem," which will connect the main body of the lots to Meridian Place. Because Lot 1 is located between Meridian Place and Lots 2 and 3, a narrow arm of land is required to provide access to Meridian Place for Lots 2 and 3. As a consequence, Lots 2 and 3 constitute residential "flag lots" as defined in Section 2.1(33), Article II, Chapter 27 of the Zoning Regulations. Access to Meridian Place from Lot 2 as originally proposed by T.S. was to be by way of a 15-foot wide driveway running 122.01 feet from the northeast corner of Lot 2 to the boundary of the Subject Property on Meridian Place. This original driveway is located adjacent to the eastern boundary of Lot 1. The originally proposed driveway for Lot 2 is shaded green on the Attached Partition Plan. Access to Meridian Place from Lot 3 as originally proposed by T.S. was to be by way of another 15-foot wide driveway also running 122.01 feet from what is considered the northeast corner of Lot 3 to the boundary of the Subject Property on Meridian Place. This original driveway is located immediately adjacent to the eastern edge of the driveway for Lot 2. The originally proposed driveway for Lot 3 is shaded red on the Attached Partition Plan. One of the conditions for approval of the Partition Application imposed by the City on T.S. was that the proposed driveways for Lots 2 and 3 be combined to create one driveway to be used for both lots. T.S. agreed to this condition. The proposed driveways for Lots 2 and 3 will, therefore, have a combined total width of 30 feet. As a result of T.S.'s agreement, the proposed driveways will have a minimum of 20 feet of frontage to accommodate utility placement and easement within the driveway. The length of the driveway for Lot 2 will be less than 150 feet from Meridian Place. The length of the driveway for Lot 3 will also be less than 150 feet from Meridian Place if the irregularly shaped configuration of Lot 3 proposed by T.S. is accepted. The combined length of the proposed driveway for Lot 3 and the purple-shaded portion of Lot 3, however, is approximately 245.51 feet. The purple-shaded portion of Lot 3 was identified on T.S. Builders' Exhibit 13 as "access." That exhibit, however, was prepared to address environmental impacts, canopy zone protection, and slopes on the Subject Property. The evidence at hearing proved that T.S. is proposing the subdivision of the Subject Property with the purple-shaded area be included as part of Lot 3 and not merely as "access." The City considers the purple-shaded area of Lot 3 to be part of the "buildable area" of Lot 3. The City also considers the purple-shaded area to be a part of the lot and not the driveway because the driveway is considered to end where the driveway is no longer straight. Due to setback requirements, there is virtually no actual space in the purple-shaded area of Lot 3 which can be built within 160 feet from Meridian Place. See Section 10.6.Y, Article X, Chapter 27 of the Zoning Regulations. Although the odd shape of Lot 3 has obviously been proposed in order for the Subject Property to be subdivided into three, rather than two, lots which will meet the requirements of the Zoning Regulations for lot configuration applicable to flag lots, the City has consistently found similar lot configurations to be in compliance with the Zoning Regulations. The City has consistently concluded that "driveways" end where the width of property used for the driveway expands beyond the minimum width required for the driveway. In this case, the driveway for Lot 3 ends where the purple-shaded portion of Lot 3 begins. Even though the eventual owner of Lot 3 may not be able to place any construction on portions of the purple-shaded area of the lot, T.S. is proposing that Lot 2 and Lot 3 be legally subdivided as depicted on the Attached Partition Plan. As a consequence, the ultimate owner of Lot 3 may use the purple- shaded portion of Lot 3 in the same manner that the orange-shaded portion of the lot may be used. Based upon the City's policy concerning flag lots and the fact that Lot 3 will be legally configured as depicted on the Attached Partition Plan, Lot 3's driveway will consist of the area shaded red and green and will be less than 150 feet from Meridian Place. The Canopy Road Protection Area. In response to the determination that the Subject Property was adjacent to a canopy road, T.S. agreed to comply with the 100 feet from the center line of Meridian Road setback. That setback extends 50 feet into the Subject Property. That 50- foot portion of the Subject Property located within the setback area will serve as the boundary of a conservation easement. The conservation easement will be recorded by T.S. after the limited partition is approved. Section 2.1(13), Article II, Chapter 27 of the Zoning Regulations defines "development" for purposes of the Zoning Regulations to include the "dividing of land into two (2) or more parcels." The City interprets the prohibition of "development" within a canopy road protection area to apply to actual construction or other alteration of the land. The City does not consider that its approval of the mere legal division of property into parcels to be allowing "development to occur within" the canopy road protection area. The City's policy is reasonable. The canopy road protection setback is intended to protect canopy roads from intrusion and disturbance to the canopy. The legal subdividing of property involves no such intrusion or disturbance within the area required to be protected. This conclusion is also supported by other provisions in the Zoning Regulations and the City's Environmental Management Ordinance, Chapter 28 of the Zoning Regulations (hereinafter referred to as the "Environmental Management Ordinance"), that specifically recognize that some actual development is allowed within the canopy protection area. See Section 10.4.A, Article X, Chapter 27 of the Zoning Regulations, and Section 3.1(1)(h), Article 3 of the Environmental Management Ordinance. The Environmental Management Ordinance. On or about May 5, 1998, T.S. submitted a completed Tallahassee-Leon County Natural Features Inventory (hereinafter referred to as the "Natural Features Inventory") for the Subject Property. The Natural Features Inventory indicated the extent to which slopes exist on the Subject Property, identified the canopy road setback and, by an attached letter, demonstrated that a cultural resource assessment had been performed. According to the Natural Features Inventory, it was concluded that there were "severe" grades on .024 acres of the Subject Property or 1.74% of the Subject Property. It was also concluded that there were "significant" grades on .415 acres of the Subject Property or 29.9% of the Subject Property. A natural features analysis of the Subject Property was also conducted by Susan Tanski, a Staff Biologist for the City. Ms. Tanski found that the Subject Property impacted a canopy road. She also found "severe" and "significant" grades on the Subject Property. By letter dated May 7, 1998, the City approved the Natural Features Inventory and indicated that the Meridian Road Canopy Road and the severe and significant slopes on the Subject Property would have to be addressed. Severe grades or slopes are considered "preservation" areas under the Environmental Management Ordinance and significant slopes and canopy roads are considered "conservation" areas. Although the Natural Features Inventory was submitted as part of T.S.'s original proposed project, the conclusions reached in the Natural Features Inventory of T.S. and Ms. Tanski's conclusions based thereon did not change as a result of the proposed subdivision of the Subject Property ultimately approved by the City and at issue in this proceeding. When the City initially approved the Partition Application, it informed T.S. that the approval was conditioned upon the submission of an environmental impact analysis to Ms. Tanski for review. In September 1998 T.S. submitted an environmental impact analysis of the Subject Property. Although no easement recording any preservation or conservation areas has been recorded by T.S.; yet, it has agreed to do so when the Partition Application is approved. No environmental management permit has been obtained by T.S. for the Subject Property. Significant and Sever Slopes. The Environmental Management Ordinance provides that grades of greater than 20%, or "severe" slopes, are considered "preservation" areas and that grades of between 10 and 20%, or "significant" slopes, are considered "conservation" areas. The City's policies for the treatment of significant and severe slopes is set out in Policy 601GM. Pursuant to Section 601.06 of Policy 601GM, significant slopes are subject to regulation unless they have a "minimum width or length of 80 feet at some point . . . " and " . . . the area must be at least one- quarter acre (10,890 square feet)." All severe slopes are subject to regulation regardless of size or dimension. There are four significant slopes on the Subject Property identified by T.S. as slopes A, B, C, and D. T.S. Exhibit 7. Slopes A, B, and C are all slopes that are of a size that do not require regulation. Slope D, which is approximately 11,813 square feet in area, is subject to regulation. Therefore, a minimum of 50% of slope D must be placed in a conservation easement. An area located adjacent to slope D has been identified as slope E. Slope E, which consists of 922 square feet, is a severe slope, subject to regulation and preservation. Slope E, when considered as a part of slope D, is less than 25% of the total area of the combined slopes. Therefore, slope E may be considered as a significant slope for purposes of regulation in this case. Rather than being subject to total preservation, all that is required is that 50% of the combined area of slopes D and E be placed in a conservation easement. The 50% preserved area may be made up totally of slope D, totally of slope E, or partly of slopes D and E. T.S. submitted documents to the City in May 1998 which included different measurements for the amount of significant and severe slopes on the Subject Property. See T.S. Exhibit 4. T.S. submitted updated data, however, with its environmental impact analysis submitted in September 1998. See T. S. Exhibit 7. The later information concerning the area of significant and severe slopes is the more accurate information relied upon the City in this proceeding. T.S. also represented in May 1998 that it did not intend to disturb slope E. As a result of this representation, the City informed T.S. that it would not be necessary to deregulate slope E (treat it as a significant slope) because of this representation. In September, and at the formal hearing of this case, the City and T.S. agreed that, due to the size of slope E and its proximity to slope D, slope E should be deregulated and slope E would be treated as a part of a single significant slope subject to 50% protection of the total area of slopes D and E. As a result, the City informed T.S. by letter dated September 30, 1998, that its request to deregulate (treat it as a significant slope) slope E was approved. The total combined area of slopes D and E is 12,735 square feet. Therefore, a minimum of 6,375.5 square feet must be preserved by placement in a conservation easement. T.S.'s written representations concerning how the required area will be preserved were not precise. In a letter dated June 5, 1998, from the Project Manager for T.S. to a City representative it was represented that "approximately 54% [of slopes D and E] is to be contained within the protected canopy zone and other undeveloped portions of the site." (Emphases added). In T.S.'s environmental impact analysis it was represented that "over 50% of the fourth [significant slope] lies within natural areas." (Emphasis added). At hearing, Ms. Tanski testified about the area of slope D to be included in a conservation easement according to what T.S. has depicted on site plans submitted to the City. According to Ms. Tanski, T.S. has depicted the inclusion of at least 50% of slopes D and E in the proposed canopy road conservation area. Evidence in rebuttal of Ms. Tanski's testimony was offered by Petitioners, but only after the formal hearing had concluded. Petitioners included calculations of the percentage of slopes D and E shown in the conservation easement area as part of their proposed order. Those calculations were not testified about during the formal hearing and do not appear to be the types of simple mathematical calculations that can be made from the evidence presented at hearing, especially in light of the failure to offer any to-scale drawings of the site into evidence during the hearing. The calculations offered by Petitioners in their proposed order were made by Mr. Varn, a licensed surveyor, after the formal hearing had ended. The calculations were the subject of Petitioners' first motion to reopen this case. That motion was denied and, therefore, the calculations should not have been relied upon by Petitioners in their proposed order. Even without the calculations and evidence Petitioners attempted to offer after the hearing of this case, Ms. Tanski's testimony concerning whether T.S. has depicted at least 50% of slopes D and E to be part of the canopy protection zone easement area cannot be accepted. A simple visual review of T.S. Exhibit 7, the document that Ms. Tanski relied upon in determining the percentage of slopes D and E included within the conservation easement, does not support a finding that T.S. has visually depicted how it will ensure that the condition concerning the percentage of slopes D and E to be included in a conservation easement will be met. Even though Ms. Tanski's conclusion concerning the percentage of slope D and E depicted to be in the conservation easement were not clear,is incorrect, T.S. has agreed that it will provide a conservation easement for recording that includes a minimum of 50% of the combined area of slopes D and E upon approval of its Partition Application. In summary, although some of T. S.'s representations concerning the extent of slopes D and E which will be subject to a conservation easement were not clear, T.S. has agreed to all conditions placed on the approval of its Partition Application, including the regulation of severe and significant slopes. T.S. has, therefore, agreed to ultimately record a conservation easement covering at least 50% of the combined area of slopes D and E upon approval of the Partition Application. There are no active karst features on the Subject Property. Compatibility. T.S.'s proposed use of the Subject Property is residential. Residential use of the Subject Property is consistent with the land uses in the surrounding area. T.S. has proposed a density of 2.2 residential units per acre for the Subject Property. This density, while greater than the immediately surrounding neighborhood density, is within the 3.6 residential units per acre density approved for the zoning district in which the Subject Property is located. While the proposed use of the Subject Property is more intense than the surrounding neighborhood, the weight of the evidence proved that there is nothing incompatible about the proposed use of the Subject Property. Miscellaneous Notice Requirements of the Tallahassee- Leon County Comprehensive Plan. Policy 1.3.6 of the Conservation Element of the Tallahassee-Leon County Comprehensive Plan (hereinafter referred to as the "City's Plan") provides the following: A site plan review will be required for all projects which have 40% or more of their acreage located in the preservation or conservation overlay districts. The land development code shall include procedures for public notification and comment on such development plans. Objective 1.5 of the Intergovernmental Coordination Element of the City's Plan provides, in part, the following: On a continuing basis, local government shall promote awareness and involvement of citizens of Tallahassee-Leon County in the comprehensive planning and plan implementation process. Specifically, the . . . City . . . shall make full use of the local media, and shall conduct public workshops, meetings, and hearings tailored to achieve broad public knowledge of planning issues and to solicit public involvement in local decision making. . . . Petitioners' reliance on Policy 1.3.6 of the Conservation Application Element and Objective 1.5 of the Intergovernmental Coordination Element of the City's Plan is misplaced. Neither of these provisions requires that notice of any meetings involved in this case be given to the public or that the public be allowed to actively participate in the meeting at which the Partition Application was considered by the City. The City's Plan provides the broad framework for the management of growth within the City over a long planning period. The details of that management system are set out in the City's land development regulations. The land development regulations govern the everyday decisions the City must make, not the City's Plan. If Petitioners' argument concerning the applicability of these provisions of the City's Plan to this matter were accepted, those provisions would also apply to practically every decision made by City staff. To interpret the City's Plan; Chapter 163, Florida Statutes; or Chapter 286, Florida Statutes, to require such public participation would cause an absurd result. Finally, Petitioners raised the alleged violation of Policy 1.3.6 of the Conservation Element and Objective 1.5 of the Intergovernmental Coordination Element of the City's Plan for the first time in their proposed recommended order. Petitioners did not allege any violation of this Policy or Objective in their petition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Planning Commission dismissing all Petitioners except Jacob D. Varn and finding that the Partition Application is approved with the conditions imposed upon, and agreed to by, T.S. Builders, Inc. DONE AND ENTERED this 10th day of June, 1999, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 10th day of June, 1999. COPIES FURNISHED: David W.Moye, Esquire Jacob D. Varn, Esquire Fowler, White, Gillen, Boggs, Villareal and Banker, P.A. 101 North Monroe Street, Suite 1090 Tallahassee, Florida 32301 Donna S. Biggins, Esquire Ronald A. Mowrey, Esquire Mowrey & Minacci, P.A. 515 North Adans Street Tallahassee, Florida 32301 Linda R. Hurst, Assistant City Attorney City of Tallahasee City Hall 300 South Adams Street Tallahassee, Florida 32301 Susan S. Thompson, Esquire Smith, Thompson & Shaw 3520 Thomasville Road, 4th Floor Tallahassee, Florida 32308 Jean Gregory, Clerk Tallahassee-Leon County Planning Commission City Hall, 4th Floor 300 South Adams Street Tallahassee, Florida 32301
The Issue Whether Grandview Landscaping Services, Inc., is liable to Petitioner for the purchase of landscaping trees; and, if so, in what amount.
Findings Of Fact Petitioner, Southeastern Trees, LLC (Petitioner or Southeastern Trees), is a Florida Limited Liability Corporation located in Gainesville, Florida, engaged in the business of commercial tree farming. Keith Lerner is the President of Southeastern, and David Lerner is the Vice President. Respondent, Grandview Landscaping Services, Inc. (Respondent or Grandview), is a Florida corporation headquartered in Ocala, Florida, engaged in commercial landscaping. Grandview is licensed by the Department as a dealer in nursery products, flowers, and sod. In August 2015, John Sapp, Grandview’s owner, visited Petitioner’s tree farm and selected 27 live oak trees to purchase. On December 11, 2014, Mr. Sapp returned to Southeastern Trees and took possession of the 27 live oak trees. Mr. Sapp used his own equipment to haul the trees. Petitioner sent an invoice to Respondent on December 11, 2014, in the amount of $5,724.00 for the 27 live oak trees. The invoice term was “net 30,” allowing 30 days for Respondent to pay in full. After 30 days had elapsed without payment, David Lerner contacted Mr. Sapp to request payment. Mr. Lerner also requested the location of the trees in order to place a lien thereon. According to Mr. Lerner, Mr. Sapp refused to divulge the location of the trees. After 60 days had elapsed without payment, Keith Lerner contacted Mr. Sapp via telephone. According to Keith Lerner, he spoke with Mr. Sapp on March 1, 2015, who informed him the trees were beautiful and Mr. Sapp would “get him a check.” Keith Lerner attempted to reach Mr. Sapp via telephone again on March 10, 2015, and left messages with Grandview’s office and on Mr. Sapp’s personal mobile phone. Mr. Lerner did not receive a return call. On March 25, 2015, Petitioner sent Respondent, via certified mail, a letter requesting payment of $5,724.00 for the 27 live oak trees and “any interest available to us beyond the 30 days of credit that were extended to you.” The letter was delivered to both Grandview’s business address and Mr. Sapp’s home address. The certified mail receipts were returned to Southeastern Trees, signed and dated March 26, 2015. Petitioner filed a complaint with the Department on March 31, 2015, against Southeastern Trees. Petitioner paid a filing fee of $50.00 As of the date of the hearing, Southeastern Trees had not responded to Petitioner’s request for payment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order approving the claim of Southeastern Trees, LLC, against Grandview Landscaping Services, Inc., in the amount of $5,774.00. DONE AND ENTERED this 8th day of October, 2015, in Tallahassee, Leon County, Florida. S Suzanne Van Wyk Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 2015.
