The Issue Whether an amendment to the Lee County Comprehensive Plan, adopted by Ordinance 15-10 on June 3, 2015, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2014).1/
Findings Of Fact Petitioners, Roger Thornberry, Georgette Lundquist, Steven Brodkin, Ruby Daniels, Rosalie Prestarri, and James Giedman, reside in and own property within Lee County. Petitioners submitted oral and written comments to Lee County concerning the challenged Plan Amendment during the period of time beginning with the transmittal hearing for the Plan Amendment and ending with the adoption of the Plan Amendment. Respondent, Lee County (the County), is a political subdivision of the State of Florida with the duty and responsibility to adopt and maintain a comprehensive growth management plan pursuant to section 163.3167, Florida Statutes (2015). Intervenors, RH Venture II, LLC; RH Venture III, LLC; and Greenpointe Communities, LLC (Greenpointe), are the owners and developers of the property which is subject to the Plan Amendment. Intervenors are the applicants for the Plan Amendment. The Lee County Comprehensive Plan (Comprehensive Plan) allocates future land uses based on community plans for 22 distinct communities within the County. The Fort Myers Shores planning community is located in eastern Lee County. Within Fort Myers Shores is a sub-community planning area known as Caloosahatchee Shores, which is located south of the Caloosahatchee River, east of Interstate 75 (I-75), and west of Hickey’s Creek. The southern boundary of Caloosahatchee Shores is the Orange River and State Road 82. Caloosahatchee Shores contains a mixture of future land use designations. The majority of the land is designated Suburban, Sub-Outlying Suburban, Rural, or Urban Community. The subject property is located in Caloosahatchee Shores within an existing 1,978-acre mixed-use golf community known as River Hall. Most of the existing development in River Hall was completed between 2004 and 2009 by the original developer, Landmar Group, which was then owned by Crescent Resources. Crescent Resources declared bankruptcy in 2009. Those portions of River Hall subject to the Plan Amendment were acquired by Greenpointe in 2010. The property subject to the Plan Amendment is approximately 585 acres of non-contiguous land within the existing mixed-use development. All of the property subject to the Plan Amendment is located within the Rural future land use category. The Plan Amendment changes the future land use category of the subject property from Rural to Sub-Outlying Suburban.2/ The density of development allowed in Rural is one dwelling unit per acre and the density of development allowed in Sub-Outlying Suburban is two units per acre. In 2001, the Lee County Board of County Commissioners (Lee County Commission) adopted procedures to encourage community planning aimed at specific neighborhood interests within the County. A coalition of property owners in Caloosahatchee Shores developed the Caloosahatchee Shores Community Plan (Community Plan) between 2001 and 2003. The Community Plan was incorporated into the Comprehensive Plan in 2003 and is codified as Future Land Use Element (FLUE) Goal 21 and its implementing objectives and policies. FLUE Goal 21 reads as follows: GOAL 21: CALOOSAHATCHEE SHORES: To protect the existing character, natural resources and quality of life in Caloosahatchee Shores, while promoting new development, redevelopment and maintaining a more rural identity for the neighborhoods east of I-75 by establishing minimum aesthetic requirements, planning the location and intensity of future commercial and residential uses, and providing incentives for redevelopment, mixed use development and pedestrian safe environments. This Goal and subsequent objectives and policies apply to the Caloosahatchee Shores boundaries as depicted on Map 1, page 2 of 8 in the Appendix. The Community Plan was amended in 2007 and again in 2009. Policy 21.1.5 was added to the Community Plan in 2009, and reads as follows: POLICY 21.1.5: One important aspect of the Caloosahatchee Shores Community Plan goal is to retain its’ [sic] rural character and rural land use where it currently exists. Therefore no land use map amendments to the remaining rural lands category will be permitted after May 15, 2009, unless a finding of overriding public necessity is made by three members of the Board of County Commissioners. It is undisputed that the Plan Amendment removes land from the Rural land use category. It is undisputed that the Lee County Commission did not make a finding of an “overriding public necessity” when it adopted the Plan Amendment. Petitioners allege the Plan Amendment is internally inconsistent with Policy 21.1.5 because the Lee County Commission did not make the requisite finding of an “overriding public necessity” to remove property from the Rural land use category.3/ Respondent and Intervenors argue that Policy 21.1.5 does not apply to the Plan Amendment because the existing development on the property subject to the Plan Amendment is not rural in either character or land use. Respondent and Intervenors introduced abundant evidence to establish that the property subject to the Plan Amendment is suburban development served by the full spectrum of urban services and devoid of any of the trappings of rural development, such as large-lot residential and agricultural uses. Respondent and Intervenors advocate an interpretation of Policy 21.1.5 which requires a finding of “overriding public necessity” only if a plan amendment removes property that exhibits rural character or rural land use from the Rural land use category. The County offered the testimony of Brandon Dunn, one of its principal planners. Mr. Dunn characterized the Policy as an “if/then statement”: if property in the Rural land use category (subject to a plan amendment) exhibits rural character and rural land use, then a finding of “overriding public necessity” is required. Under Mr. Dunn’s analysis, Policy 21.1.5 does not apply to the Plan Amendment because River Hall is a suburban community. Intervenors’ planning expert, Dr. David Depew, testified that the first sentence narrows the application of the second. Dr. Depew testified that the first sentence indicates “we aren’t talking about the category per se.”4/ Under Dr. Depew’s reading, the second sentence only applies to plan amendments which exhibit rural character or rural land use, rather than all plan amendments removing property from the Rural land use category. Neither Mr. Dunn’s nor Dr. Depew’s opinion is persuasive.5/ The interpretation advanced by both Respondent and Intervenors adds language to the second sentence of Policy 21.1.5 limiting its application to only those plan amendments which exhibit rural character and rural land use. The plain language of Policy 21.1.5 contains no such limitation. The policy directs the County to make a finding of an “overriding public necessity” as a prerequisite to removing land from the Rural land use category in Caloosahatchee Shores. The first sentence of Policy 21.1.5 does not constitute a limitation on the directive for a finding of an “overriding public necessity.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the Lee County Plan Amendment, adopted by Ordinance 15-10 on June 3, 2015, is not “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 1st day of December, 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 1st day of December, 2015.
The Issue The issue to be determined in this case is whether the Leon County Development Review Committee’s preliminary conditional approval of a site and development plan for the Brookside Village Residential Subdivision is consistent with the Tallahassee-Leon County 2030 Comprehensive Plan (“Comp Plan”) and the Leon County Land Development Code (“Code”).
Findings Of Fact The Parties Petitioner Moore Pond Homeowners Association, Inc. (“Moore Pond”), is a Florida not-for-profit corporation whose members are residents of Moore Pond, a single-family subdivision bordering the Project to the east. Petitioner Ox Bottom Manor Community Association, Inc. (“Ox Bottom Manor”), is a Florida not-for-profit corporation whose members are residents of Ox Bottom Manor, a single-family residential subdivision bordering the Project to the west. Respondent Golden Oak is a Florida limited liability company. Golden Oak is the applicant for the Project and the owner of the property on which the Project will be developed. Respondent Leon County is a political subdivision of the State of Florida, and has adopted a comprehensive plan that it amends from time to time pursuant to chapter 163, Florida Statutes. Land Use Designations The Project is located on land that is designated as Residential Preservation on the Future Land Use Map of the Comp Plan, and is in the Residential Preservation zoning district established in the Code. Residential Preservation is described in both as “existing homogeneous residential areas” that should be protected from “incompatible land use intensities and density intrusions.” Policy 2.2.3 of the Future Land Use Element (“FLUE”) of the Comp Plan permits residential densities within Residential Preservation of up to six dwelling units per acre (“du/a”) if central water and sewer services are available. Central water and sewer services are available in this area of the County. The Project is located within the Urban Services Area established by the FLUE, which is the area identified by the County as desirable for new development based on the availability of existing infrastructure and services. The Project The Project is a 61-lot, detached single-family residential subdivision on a 35.17-acre parcel. To avoid adverse impacts to approximately 12 acres of environmentally sensitive area in the center of the property, the Project places the single-family lots on the periphery of the property with access from a horseshoe-shaped street that would be connected to Ox Bottom Road. The environmentally sensitive area would be maintained under a conservation easement. The “clustering” of lots and structures on uplands to avoid environmentally sensitive areas is a common practice in comprehensive planning. The Comp Plan encourages clustering or “compact” development to protect environmentally sensitive features. The Project would include a 25-foot vegetative buffer around most of the perimeter of the property. There is already a vegetative buffer around a majority of the property, but the vegetative buffer will be enhanced to achieve 75 percent opacity at the time of additional planting and 90 percent opacity within five years. The buffers would include a berm and privacy fence. The proposed buffers exceed the requirements in the Code. In the course of the application and review process for the Project, Golden Oak made changes to the site and development plan to address concerns expressed by residents of the neighboring subdivisions. These changes included an increase in lot sizes abutting lots within Moore Pond and Ox Bottom Manor; a reduction in the number of lots from 64 to 61; and an expansion and enhancement of buffers. In addition, Golden Oak revised the proposed covenants and restrictions for the Project to incorporate minimum square footage requirements and to prohibit second-story, rear-facing windows on homes abutting lots in Moore Pond and Ox Bottom Manor. The Development Review Committee approved the Project, subject to the conditions outlined in the staff report and an additional condition regarding buffers. Compatibility Petitioners contend the Project would be incompatible with adjacent residential uses in Moore Pond and Ox Bottom Manor and, therefore, the Project should be denied because it violates the provisions of the Comp Plan and Code that require compatibility. Petitioners rely mainly on FLUE Policy 2.2.3, entitled “Residential Preservation,” which states that “Consistency with surrounding residential type and density shall be a major determinant in granting development approval.” Although Moore Pond and Ox Bottom Manor are also designated Residential Preservation, Petitioners claim the Project would be incompatible because of the differences in development type and density. The Project is the same development type (detached, single-family) and density (low density, 0-6 du/a) as the surrounding development type and density. Petitioners assert that the Project is a different development type because it is “cluster housing.” Cluster housing is not a development type. Clustering is a design technique. The clustering of detached, single-family houses does not change the development type, which remains detached, single-family. Petitioners object to the density of the Project of 1.73 du/a, but their primary concern is with the Project’s “net density” or the density within the development area (outside of the conservation easement). Most of the lots in the Project would be about 1/8 to 1/4 of an acre, with the average lot size being 0.26 acres. In contrast, the lots in Moore Pond range from 1.49 to 12.39 acres, with the average size being 3.08 acres. The lots in Ox Bottom Manor range from .53 acres to 0.96 acres, with the average size being 0.67 acres. There is also a significant difference in lot coverage between the Project and the two adjacent subdivisions. The witnesses for the County and Golden Oak never acknowledged the reasonableness of Petitioners’ claim of incompatibility or the notion that owners of large houses on large lots would object to having on their border a row of small houses on small lots. However, the objection of Moore Pond and Ox Bottom Manor residents was foreseeable. The gist of the arguments made by Oak Pond and the County is that the Project is compatible as a matter of law. Respondents demonstrated that the applicable provisions of the Comp Plan and Code, as interpreted by the County, treat a proposed Residential Preservation development as compatible with existing Residential Preservation developments. Put another way: a low density, detached single-family development is deemed compatible with existing low density, detached single- family developments. No deeper analysis is required by the County to demonstrate compatibility. Petitioners’ claim of incompatibility relies principally on FLUE Policy 2.2.3(e), which states in part: At a minimum, the following factors shall be considered to determine whether a proposed development is compatible with existing or proposed low density residential uses and with the intensity, density, and scale of surrounding development within residential preservation areas: proposed use(s); intensity; density; scale; building size, mass, bulk, height and orientation; lot coverage; lot size/configuration; architecture; screening; buffers, including vegetative buffers; setbacks; signage; lighting; traffic circulation patterns; loading area locations; operating hours; noise; and odor. Petitioners attempted to show that the application of these factors to the Project demonstrates it is incompatible with Moore Pond and Ox Bottom Manor. However, Policy 2.2.3 also sets forth guiding principles for protecting existing Residential Preservation areas from other types of development on adjoining lands. No guidelines are included for protecting Residential Preservation areas from proposed low density residential development. The County asserts that this reflects the County’s determination that low density residential development is compatible with existing Residential Preservation areas and, therefore, Policy 2.2.3 does not require that the Project be reviewed using the listed compatibility factors. The County showed that its interpretation of FLUE Policy 2.2.3 for this proceeding is consistent with its past practice in applying the policy. Respondents also point to Table 6 in FLUE Policy 2.2.26, which is a Land Use Development Matrix which measures a parcel’s development potential based on certain land use principles contained in the FLUE, including the parcel’s potential compatibility with surrounding existing land uses. The Matrix shows that a proposed low density residential land use “is compatible/allowable” in the Residential Preservation land use category. Petitioners argue that the Project is incompatible, using the definition of “compatibility” in section 163.3164(9), Florida Statutes: “Compatibility” means a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition. Petitioners contend the Project would unduly negatively impact Moore Pond and Ox Bottom Manor. Respondents contend it would not. However, as explained in the Conclusions of Law, this definition in chapter 163 is not an extra criterion for approving or denying the Project. Without abandoning their argument that Policy 2.2.3 does not require a compatibility analysis for the Project, both Golden Oak and the County performed compatibility analyses because of the objections raised by adjacent residents. Golden Oak’s expert planner analyzed compatibility on a larger scale by looking at subdivisions within a quarter-mile radius of the Project site. She found a range of densities and lot sizes, including one subdivision with a higher density and smaller lot size. However, nothing in Policy 2.2.3 or the other provisions of the Comp Plan suggests that the incompatibility of a proposed development with an existing, adjoining development is permissible if the proposed development is compatible with another development within a quarter of a mile. Still, her analysis showed the County’s past practice in interpreting and applying the relevant provisions of the Comp Plan and Consistency Code is consistent with the County’s position in this proceeding. Respondents’ compatibility analyses were based in part on legal factors. For example, it was explained that under the Comp Plan, residential density is always applied as gross density rather than net density. This policy is reasonable because it encourages clustering and compact development which helps to achieve important objectives of the Comp Plan, such as the protection of sensitive environmental features. However, it does not follow that because clustering has benefits, it cannot cause incompatibility. Clustering is a well-established growth management technique, despite the fact that clustering can cause some adverse impacts when it increases densities and intensities on the border with adjoining land uses. Such impacts are addressed with buffer requirements. This approach strikes a reasonable balance of the Comp Plan’s goals, objectives, and policies. If the buffer requirements are inadequate, as Petitioners claim, that is an issue that cannot be addressed here. Petitioners also contend the Project is inconsistent with sections of the Code that require compatibility. For example, section 10-6.617 pertains to the Residential Preservation zoning district and states that, “Compatibility with surrounding residential type and density shall be a major factor in the authorization of development approval.” Section 10-7.505(1) provides that each development shall be designed to “be as compatible as practical with nearby development and characteristics of land.” These general statements in the Code are implemented through the more specific requirements in the Code for proposed new developments. Petitioners did not demonstrate that the Project is inconsistent with any of the specific requirements of the Code for the reasons already discussed. The County showed that its interpretations of section 10-7.617 and section 10-7.505(1) for this proceeding are consistent with its past practice in applying these provisions. Summary Compatibility for purposes of land use determinations is not in the eye of the beholder, but is determined by law. The County’s growth management laws incorporate professional planning principles and use development techniques and density ranges, which provide flexibility in achieving important objectives, such as environmental protection. The focus is not on lot-to-lot differences, but on maintaining stable communities and neighborhoods. The preponderance of the evidence, which includes the County’s past interpretation of, and practice in applying, the compatibility provisions of the Comp Plan and Code, demonstrates that the Project is consistent with all requirements for approval.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Leon County Board of County Commissioners enter a final order approving the Project, subject to the conditions outlined by the Development Review Committee in its written preliminary decision dated August 18, 2017. DONE AND ENTERED this 26th day of December, 2017, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of December, 2017. COPIES FURNISHED: Justin John Givens, Esquire Anderson & Givens, P.A. 1689 Mahan Center Boulevard Tallahassee, Florida 32308 Alex Nakis 6036 Heartland Circle Tallahassee, Florida 32312 Mark Newman 6015 Quailridge Drive Tallahassee, Florida 32312 Gene Sherron 6131 Heartland Circle Tallahassee, Florida 32312 Jessica M. Icerman, Assistant County Attorney Leon County Room 202 301 South Monroe Street Tallahassee, Florida 32301 (eServed) Carley J. Schrader, Esquire Nabors, Giblin and Nickerson, P.A. Suite 200 1500 Mahan Drive Tallahassee, Florida 32308 (eServed) Gregory Thomas Stewart, Esquire Nabors, Giblin and Nickerson, P.A. Suite 200 1500 Mahan Drive Tallahassee, Florida 32308 (eServed) Kerry Anne Parsons, Esquire Nabors, Giblin & Nickerson, P.A. 1500 Mahan Drive Suite 200 Tallahassee, Florida 32308 (eServed) Gary K. Hunter, Jr., Esquire Hopping, Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Erin J. Tilton, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Jeremy Vincent Anderson, Esquire Anderson & Givens, P.A. Suite B 1689 Mahan Center Boulevard Tallahassee, Florida 32308 (eServed) Vince S. Long, County Administrator Leon County Suite 202 301 South Monroe Street Tallahassee, Florida 32301 Herbert W. A. Thiele, County Attorney Leon County Suite 202 301 South Monroe Street Tallahassee, Florida 32301 (eServed)
The Issue The issue is whether Citrus County's (County's) small-scale development amendment CPA-09-16 adopted by Ordinance No. 2009- A07 on May 26, 2009, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioner resides and owns property at 10662 West Halls River Road, Homasassa, Florida, in the southwestern part of the County. According to a County aerial map, the property appears to be 0.68 acres in size and is rectangular-shaped, with the eastern side fronting on the Homasassa River (River), while the western side adjoins West Halls River Road (also known as County Road 490A), a two-lane designated collector roadway for the County. See Intervenor's Exhibit 8. That road dead-ends a mile or so farther to the southwest in a subdivision known as Riverhaven. Petitioner has owned the property since April 1992. Intervenor, a limited liability corporation, acquired ownership of a 47.5-acre parcel in May 2007, which lies directly west-northwest of Petitioner's property and across West Halls River Road. In early 2009, it filed an application with the County seeking a change in the land use on 9.9 acres of the larger parcel from CL to RVP. The smaller parcel's address is 10565 West Halls River Road and is a short distance north of Petitioner's lot. The change in land use was requested because Intervenor intends to place a recreational vehicle (RV) park on the 9.9-acre parcel. On page 10-103 of the Plan's Future Land Use Element (FLUE), the CL land use is described in relevant part as follows: This land use category designates those areas having environmental characteristics that are sensitive to development and therefore should be protected. Residential development in this district is limited to a maximum of one dwelling unit per 20 acres and one unit per 40 acres in the Federal Emergency Management Agency's V-zone. On page 10-112 of the FLUE, the RVP land use is described in relevant part as follows: This category is intended to recognize existing Recreational Vehicle (RV) Parks and Campgrounds, as well as to provide for the location and development of new parks for recreational vehicles. Such parks are intended specifically to allow for temporary living accommodation for recreation, camping, or travel use. After the application was filed and reviewed by the County staff, a report was prepared by the then County Senior Planner, Dr. Pitts, on April 14, 2009, recommending that the application be approved. See Petitioner's Exhibit 5. The report noted that "this site is appropriate for some type of RV Park development subject to an appropriately designed master plan." Id. Although forty-nine RV units could potentially be placed on the parcel, the report noted that due to significant "environmental limitations of the area," the site "may not be able to be designed at maximum intensity for this land use district." Id. The "environmental limitations" are approximately 1.64 acres of wetlands that are located on four parts of the property, wetlands on neighboring properties, and "karst sensitivity." The report noted that these environmental issues would have to be addressed in a master plan to be submitted by the applicant before development. The matter was then favorably considered by the County's Planning and Development Review Board by a 4-1 vote on May 7, 2009. On May 26, 2009, the Board of County Commissioners (Board) conducted a public hearing on the application. By a 3-2 vote, the Board adopted Ordinance 2009-A07, which approved the change on the GFLUM. See Petitioner's Exhibit 2. Petitioner and Intervenor appeared at the hearing and submitted comments regarding the amendment. See County Exhibit 3. Accordingly, both are affected persons and have standing to participate in this matter. Because the size of the parcel was less than ten acres, the map change was not reviewed by the Department of Community Affairs. See § 163.3187(1)(c)1. and (3)(a), Fla. Stat. On June 24, 2009, Petitioner filed with DOAH his Petition challenging the small-scale development amendment. As summarized in the parties' Joint Prehearing Stipulation, Petitioner contends that the map change "is not consistent with [the County's] adopted comprehensive plan because such is incompatible with the character of the properties surrounding the subject property and because such is incompatible with [the] environmentally sensitive nature of the subject property and the properties surrounding the subject property." See Joint Prehearing Stipulation, pages 1-2. More specifically, Petitioner contends the map change is internally inconsistent with FLUE Policies 17.2.7, 17.2.11, and 17.2.8. The Subject Property Although its precise dimensions are not of record, from around 1952 until 1985, a golf course was located on a large tract of land west of West Halls River Road, where Intervenor's larger parcel of property is located. Currently, the larger parcel is vacant and undeveloped. The subject property (as well as the entire larger parcel) is classified as CL (Low Intensity Coastal and Lakes), which allows one dwelling unit per twenty acres. Because the property is in the coastal high hazard area (CHHA), the amendment allows five RV units per acre, or a total of forty-nine. In all likelihood, however, the number would be somewhat smaller due to "severe" environmental constraints discussed above. See Finding 5, supra. The new land use also allows a small amount of retail development to serve the RV customers. The 9.9-acre parcel surrounds a one-acre parcel that adjoins West Halls River Road, also owned by Intervenor, and carries a CLC (Coastal and Lakes Commercial) land use designation. A vested eighteen-unit RV park (Sunrise RV Park) has been located on the one-acre parcel since the late 1980s. Except for the small one-acre enclave, the property is bordered on three sides by vacant, unimproved property, all designated as CL. According to Petitioner, Sunrise RV Park has a small number of "dilapidated" trailers and "a bunch of junk stored on the front lawn." This was not disputed. The vacant lot directly south of the larger parcel, comprised mainly of wetlands, is owned by Glen Black, who objects to the map change. Across the roadway, the area north and south of Petitioner's property along the River is classified as CL and is "predominately residential." Besides the residential uses on the River side of the road, Intervenor identified around six non-conforming businesses (mainly former fish camps) that were vested prior to the adoption of the current Plan and that are interspersed with the residential lots. (Under current Plan provisions, they would not be allowed.) Around one-quarter mile or so south of the subject property is the Magic Manatee Marina (Marina) located on a two-acre parcel facing the River.2 A small fish camp with six "rental cottages" lies a few lots north of the Marina. There are also four small condominium buildings with dock facilities (known as Cory's Landing) just north of the fish camp. The aerial map reflects that all other lots south of Petitioner's property are used for residential purposes. Besides the other residential lots north of Petitioner's property, there are nine rental units at a vested "fishing resort" on a parcel slightly less than two acres in size located at 10606 West Halls River Road. Around one-half mile further north at the confluence of the Halls and Homasassa Rivers is a vested restaurant, Margarita Grill. Except for these vested non-conforming uses, all other lots are used for residential purposes, and the entire strip of land adjoining the River is classified as CL. North of Intervenor's 47.5-acre parcel, but not directly adjoining it, and on the western side of West Halls River Road, is a large unevenly-shaped tract of land classified as RVP, on which the Nature's Resort RV Park is located. That facility is authorized to accommodate around three hundred RVs. The entrance to that park from West Halls River Road appears to be at least one-quarter mile or more north of the subject property. Petitioner's Objections Petitioner contends that the amendment is not in compliance because it is internally inconsistent with FLUE Policies 17.2.7, 17.2.11, and 17.2.8, which concern environmental and compatibility requirements. These provisions are discussed separately below. Policy 17.2.7 Policy 17.2.7 provides as follows: The County shall guide future development to the most appropriate areas, as depicted on the GFLUM, specifically those with minimal environmental limitations and the availability of necessary services. Petitioner argues that the subject property is in an extremely sensitive environmental area due to extensive wetlands and a karst sensitive landscape. (Karst is a limestone underground rock structure that is very porous and through which pollutants can easily travel.) He further points out that the property is located within the CHHA. Given these environmental constraints, and the proposed increase in density, Petitioner contends the map change will run counter to the above policy. There are no provisions within the Plan that prohibit the location of an RV park within the CHHA. Policy 17.6.12 imposes numerous requirements for RV parks, including a thirty percent open space requirement, restrictions on densities, wetland protection, upland preservation, clustering, and connection to regional central water and sewer service. These policy restrictions have been implemented by more specific land development regulations (LDRs) that limit the density and intensity of RVs and the types of RVs (e.g., park models) that can be placed in an RV park located within a CHHA. In this case, because the property is in a CHHA, the LDRs impose a five- RV per acre limitation, as opposed to the normal fourteen RVs per acre in non-CHHA areas, and for evacuation purposes, park models are prohibited. Further, the RV park must be served by regional central water and sewer services. All land in the County west of U.S. Highway 19, including the subject property, is karst sensitive. As such, any development west of U.S. Highway 19 must meet certain design standards to ensure that the water supply is not threatened. The County says that these concerns must be addressed during the site approval (development) process. The record shows that there are four jurisdictional wetland sites on the parcel totaling 1.64 acres. There are also wetlands on the surrounding property. Because of these environmental constraints, Dr. Pitts (the former County Senior Planner) stated that it is "highly unlikely" that Intervenor "can develop at 49 units." He further pointed out that while it is "certainly possible to do it at a smaller number," there would be one hundred percent wetland protection through setbacks both to wetlands on the subject parcel, as well as the surrounding area, a thirty percent open space requirement on the site, a ten percent area dedicated to recreational uses, and minimum buffers on the side of the property facing West Halls River Road. For RV parks, pertinent LDRs adopted to implement the Plan require that the developer avoid all wetlands. Policy 17.2.7 expresses a County planning decision that future development be directed to "the most appropriate areas, as depicted on the GFLUM, specifically those with minimal environmental limitations." (Emphasis added) According to Dr. Pitts, the subject property has "severe" environmental limitations, and that "it will be difficult to design the site [in a way] that meets the standards of the comprehensive plan and the land development code." Notwithstanding the other provisions within the Plan and LDRs that place limitations on RV park development in an effort to satisfy environmental constraints, see Finding 18, supra, the subject property is clearly not "the most appropriate area, as depicted on the GFLUM" for new development, nor is it an area "with minimal environmental limitations." In fact, the amendment does just the opposite -- it directs new commercial development to an area with severe environmental limitations. Therefore, the greater weight of evidence supports a finding that the map change is internally inconsistent with Policy 17.2.7. Policy 17.2.11 Petitioner next contends that the plan amendment is contrary to the Plan's basic strategy of protecting environmentally sensitive areas, as set forth in FLUE Policy 17.2.11, which reads as follows: Consistent with the Plan's basic strategy for protection of environmentally sensitive areas, the following guidelines shall apply to all development in the Coastal, Lakes, and Rivers Region: No increase in residential density should be approved except for Planned Development standards already contained in the Plan. No additional high intensity non-residential land uses shall be approved for this region. Specifically new GNC [General Commercial] and IND [Industrial] districts shall be avoided. The subject property is within the Coastal Region and therefore subject to these guidelines. See Intervenor's Exhibit 3, page 10-3. On page 10-150 of the FLUE, the narrative text states in part that "with increasing development activity and growth in the coming years, existing restrictions on the density/intensity of land use should be maintained and enhanced to provide additional protection to this sensitive region." According to the Plan, a "GNC district allows potentially high density/intensity development" and "should not be located in areas of the County deemed to be environmentally sensitive areas." See Intervenor's Exhibit 3, page 10-110. It further provides that "[n]o new GNC shall be allowed in the coastal, lakes and river region." Id. Therefore, new GNC development should not be allowed in the Coastal Region. Although an RV park is a commercial use, it is not a GNC use. Further, the five-units per acre limitation is not considered a high-intensity non-residential use. Therefore, while the policy serves a laudable purpose, it does not prohibit RVP development within the Coastal Region. Therefore, the map change is not internally inconsistent with Policy 17.2.11. Policy 17.2.8 Petitioner's final objection is that an RV park is not compatible with the surrounding area. He goes on to contend that by placing an RVP designation adjacent to a large tract of CL land, the County has contravened FLUE Policy 17.2.8. That policy reads as follows: The County shall utilize land use techniques and development standards to achieve a functional and compatible land use framework which reduces incompatible land uses. Because compatibility is not defined in the Plan, Florida Administrative Code Rule 9J-5.003(23) is helpful in resolving this issue.3 That rule defines the term "compatibility" as follows: (23) "Compatibility" means a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition. In its Proposed Recommended Order, Intervenor also suggests that the definition of "suitability" is relevant to this issue. That term is defined in Rule 9J-5.003(128) as follows: (128) "Suitability" means the degree to which the existing characteristics and limitations of land and water are compatible with a proposed use or development. Petitioner characterized the area around his home as quiet, peaceful, and "all residential." He noted that except for a few vested, non-conforming businesses, such as the Sunrise RV Park, Marina, fish camp, and restaurant, the remainder of the area along the River, as well as Intervenor's larger parcel across the street, is either residential or vacant. Petitioner fears that an RV park will result in increased noise, park lighting during nighttime hours, trash being left by the roadside, more traffic on the two-lane road, and a decrease in the value of his property. He also believes that the developer intends to place the southern entrance to the RV park almost directly across the street from his home. The greater weight of evidence supports a finding that the proposed new land use designation is not compatible with the surrounding land. Intervenor argues that an RV park and the surrounding residential properties are compatible (and suitable) because there are already non-conforming uses along the River that have not unduly negatively impacted the area. These uses, however, number only six along that stretch of the River, and they have existed for decades due to vested rights. It is fair to infer that the insertion of an RV park in the middle of a large tract of vacant CL land would logically lead to further requests for reclassifying CL land to expand the new RV park or to allow other non-residential uses. The stated purpose of Policy 17.2.8 is to reduce "incompatible land uses." At the same time, Rule 9J-5.003(23) discourages land uses which are in relative proximity to each other and can unduly negatively impact the other uses or conditions. The commercial RV park, with a yet-to-be determined number of spaces for temporary RVs, tenants, and associated commercial development, will be in close proximity to a predominately residential neighborhood. A reasonable inference from the evidence is that these commercial uses will have a direct or indirect negative impact on the nearby residential properties and should not coexist in close proximity to one another. This is contrary to Policy 17.2.8, which encourages a reduction in "incompatible land uses," and the amendment is therefore internally inconsistent with the policy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that small-scale development amendment CPA-09-16 adopted by the County by Ordinance No. 2009-A07 on May 26, 2009, is not in compliance. DONE AND ENTERED this 9th day of October, 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 9th day of October, 2009.
The Issue The issues are (1) whether the City of Lake Worth (City) followed required statutory and rule procedures in adopting the height restrictions on pages 22 and 23 of the Future Land Use Element (FLUE) of the Evaluation and Appraisal Report (EAR) amendments, and (2) whether the adoption of the EAR-based amendments by the City more than 120 days after receiving the Department of Community Affairs' (Department's) Objections, Recommendations, and Comments (ORC) report renders them not in compliance.
Findings Of Fact The Parties Sunset is a Florida limited liability company whose principal address is 5601 Corporate Way, Suite 111, West Palm Beach, Florida. It owns property located at 826 Sunset Drive South within the City. See Sunset Exhibit 3. The property is currently classified on the FLUM as County Medium Residential 5.1 There is no factual dispute that Sunset is an affected person and has standing to participate in this proceeding. Ms. Hayes-Tomanek owns property within the City. She submitted comments regarding the height restrictions during the public hearing on October 20, 2009, adopting the EAR amendments. See City Exhibit 6, Minutes, p. 7. The City is a local government that administers the City's Plan. The City adopted the EAR-based amendments which are being contested here. The Department is the state land planning agency charged with the responsibility of reviewing plan amendments of local governments, such as the City. The Amendments On October 1, 2008, the City's EAR-based amendments were passed on first reading and transmitted to the Department. See Joint Exhibit 2. These amendments did not include any height-based restrictions on the three categories of residential property in the Plan: Single-Family, Medium-Density, and High- Density. These three categories make up around 75 percent of the City's total land area. According to Sunset's expert, height restrictions for those categories (which are less stringent than those later adopted and being challenged here) were then in the City's zoning ordinances. On January 14, 2009, the Department issued its ORC report regarding the EAR-based amendments. See Joint Exhibit 3. Objection 4 in the report stated in part that the "City has not adequately established its mixed use districts . . . because the mixed used categories do not establish the types of non- residential uses or the appropriate percentage distribution among the mix of uses, or other objective measurement. In addition, the General Commercial, Industrial, Public, Public Recreation and Open Space Future Land Use categories do not include the densities and intensities of use for these categories." Id. Sunset's expert points out that the ORC report, and in particular Objection 4, did not recommend any changes to the residential categories of property. Accompanying the ORC report was a document styled "Transmittal Procedures," which stated, among other things, that "[u]pon receipt of this letter, the City of Lake Worth has 120 days in which to adopt, adopt with changes, or determine that the City will not adopt the proposed EAR-based amendments." Id. The 120-day period expired on May 14, 2009. See Sunset Exhibit 15. The City initially scheduled an adoption hearing on May 5, 2009. See Sunset Exhibit 8. For reasons not of record, the EAR amendments were not considered that day. On June 25, 2009, then City Commissioner Jennings wrote Bob Dennis, Department Regional Planning Administrator, and asked whether the City could incorporate certain substantive changes into its EAR amendments between the first (transmittal) and second (adoption) readings. Among others, she asked if the following change to the EAR amendments could be made: Establish or change the maximum building heights in various land use classifications. During the master plan process, the city received public input regarding maximum building heights . . . . The height changes vary from a 10' reduction to a 25' reduction in different land use categories. The letter included an outline of the proposed changes in seven land use categories, including the three residential categories. See City Exhibit 2. In her deposition, Commissioner Jennings stated that around the time of the transmittal hearing in January 2008 she had requested that new height restrictions be incorporated into the EAR amendments, but based on conversations with City staff, she was under the impression that these changes could not be made at that time. See City Exhibit 9. By letter dated July 29, 2009, the Department, through its Chief of Office of Comprehensive Planning, responded to Commissioner Jennings' inquiry as follows: The proposed maximum building height changes identified in your letter are for the Single Family Residential, Medium Density Multi-family Residential, High Density Multi-family Residential, Mixed Use, Downtown Mixed Use, Transit Oriented Development, and the General Commercial land use categories. Contrary to the [FLUM] revisions discussed above, the City did transmit proposed amendments to Future Land [Use] Policy 1.1.3, including new and revised Sub-policies 1.1.3.1 through 1.1.3.11 concerning these land use classifications. Height limitations were proposed for the Mixed Use and Downtown Mixed Use land use categories. In addition, the Department's ORC Report includes an objection that the Mixed Use, Downtown Mixed Use, Transit Oriented Development, General Commercial, Industrial, Public, Recreation and Open Space land use classifications do not establish adequate densities and intensities of use for these categories. In preparing this letter, the Department notes that an intensity standard of 0.1 F.A.R. (floor area ratio) was proposed for the Recreation and Open Space category. To address the Department's objection, the Department recommended the City include densities and intensities for the listed land use categories and specify the percentage distribution among the mix of uses in the mixed use categories. Appropriate intensity standards for non-residential uses include a height limit and maximum square footage or a floor area ratio. Because the City transmitted amendments that included revisions to the residential and several non- residential land use categories and because the Department's ORC Report identified the need to include density and intensity standards for the mixed use categories and several non-residential land use categories, it would be acceptable for the City to revise the proposed height limitations previously submitted or to include height limitations for the other land use categories. As noted above, height alone is not a density or intensity standard. (Emphasis added) City Exhibit 3. This determination by the Department was just as reasonable, or even more so, than the contrary view expressed by Sunset's expert. After receiving this advice, the City conducted a number of meetings regarding the adoption of the EAR-based amendments, including a change in the height restrictions. On September 2, 2009, a Board meeting was conducted regarding the proposed new height restrictions. The Board voted unanimously to adopt the changes. The Minutes of that meeting reflect that a "special workshop" would be conducted by the Commission at 6:00 p.m., September 14, 2009, "to address height and intensity" changes to the EAR amendments. See City Exhibit 4, Minutes, p. On October 11, 2009, a "special meeting" of the Commission was conducted. Finally, on October 20, 2009, the City conducted the adoption hearing. There is no dispute that Petitioners appeared and presented comments in opposition to the proposed changes. By a 3-2 vote, Ordinance No. 2008-25 was adopted with the new height restrictions described on Table 1, pages 22 and 23 of the FLUE.2 See Joint Exhibit 4; Sunset Exhibit 6. This was 279 days after the City received the ORC report. The adopted amendments were then submitted to the Department for its review. Notices for each hearing (but not the special workshop) were published in a local newspaper. See City Exhibits 4, 5, and 6. Each advertisement indicated that one of the purposes of the meetings was to consider the "City's EAR- Based Amendments." No further detail regarding the EAR amendments was given. Sunset's expert acknowledged that local governments do not always provide more specificity than this in their plan amendment notices but stated he considers it to be a good planning practice to provide more information. On December 30, 2009, the Department issued its Notice of Intent to find the amendments in compliance. See City Exhibit 5. The following day, a copy of the Notice of Intent was published in The Lake Worth Herald. On January 19, 2010, Sunset timely filed a petition contending that certain procedural errors were committed by the City during the adoption process. This petition was twice amended prior to hearing. A petition was filed by Ms. Hayes-Tomanek on April 5, 2010. Petitioners' Objections Petitioners first point out that the City did not follow the requirement in section 163.3184(7)(a) that it "shall" adopt the amendments no more than 120 days after receipt of the ORC report. They contend that because the City failed to do so, this requires a determination that the EAR-based amendments are not in compliance. At hearing, Sunset also relied upon (for the first time) Florida Administrative Code Rule 9J-11.009(8)(e), which provides that "[p]ursuant to Section 163.3191(10), no amendment may be adopted if the local government has failed to timely adopt and transmit the evaluation and appraisal report- based amendments." The parties agree that the City did not adopt the EAR- based amendments until 279 days after receipt of the ORC report. According to the Department's Regional Planning Administrator, Bob Dennis, the Department took no action after the 120 days had run because the statute "gives no guidance as to what happens when a local government does take more than the prescribed time in the statute." See City Exhibit 8. He also indicated that the Department has no policy relative to this situation. Sunset's expert agreed that there is no penalty in the statute in the event a local government takes more than the prescribed time. Richard Post, a Department Planning Analyst, noted that local governments sometimes take longer than the statutory time periods to "send in adopted amendments, and the Department has taken no particular posture regarding their tardiness." See City Exhibit 7. He further noted that if a filing is late, as it was here, it does not affect the Department's review. As a safeguard, if an adopted amendment is transmitted to the Department after the statutory time period, it is reviewed by a planner to determine whether the information is still relevant and appropriate or has become "stale" and out-of-date. In this case, the Department reviewed the adopted amendments and, notwithstanding the passage of 279 days since the ORC report was received by the City, the amendments were found to be in compliance. For the reasons expressed in Endnote 3, infra, rule 9J-11.009(8)(e) does not prohibit the City from adopting the challenged amendments.3 While Petitioners stated that they have suffered prejudice because the new height restrictions will adversely impact the use of their property, there was no evidence that the delay in adopting the amendments affected their ability to participate in the planning process. Petitioners also contend that the City failed to follow statutory and rule procedures when it added the height restrictions between the first and second readings of the amendments. By the City doing so, Petitioners argue that rule 9J-5.004 was violated, which requires that the City "adopt procedures to provide for and encourage public participation in the planning process, including consideration of amendments to the . . . evaluation and appraisal reports[,]" and procedures to assure that the public is noticed regarding such changes and has the opportunity to submit written comments. Petitioners further argue that subsections 163.3191(4) and (10) were violated by this action. The first subsection requires the local planning agency (the Planning & Zoning Board) to prepare the EAR report (as opposed to the amendments) in conformity with "its public participation procedures adopted as required by s. 163.3181[,]" while the second subsection requires that the City adopt the EAR-based amendments in conformity with sections 163.3184, 163.3187, and 163.3189. They also argue that the notice of the adoption hearing violated section 163.3184(15) because it failed to describe the changes being made to the original EAR-based amendments. Finally, they contend the new height restrictions were not responsive to the ORC report.4 Petitioners do not contend that the City has failed to adopt adequate public participation procedures, as required by rule 9J-5.004. Rather, they contend that the participation procedures were violated, and that members of the public and other reviewing agencies, such as the Treasure Coast Regional Planning Council, were not given an opportunity to provide input on the new height restrictions. The record shows that, notwithstanding the content of the notice in the newspaper, both Petitioners were aware of new height restrictions being considered by the City prior to their adoption, and both were given the opportunity to participate at the adoption hearing. There is no dispute that Sunset submitted written or oral comments to the Commission prior to the adoption of the new height restrictions. Likewise, Ms. Hayes-Tomanek has closely followed the planning process for years (mainly because she wants the density/intensity standards on her property increased) and became aware of the new height restrictions well before they were adopted. The record further shows that the new height limitations were discussed by City officials before June 2009, when Commissioner Jennings authored her letter to the Department, and that written input on that issue was received from 239 residents. See Sunset Exhibit 9; City Exhibit 9. It is fair to construe these comments from numerous citizens as "public input." Even if there was an error in procedure, there is no evidence that either Petitioner was substantially prejudiced in the planning process. Finally, Petitioners' assertion that the new height restrictions are not responsive to the ORC report has been considered and rejected. See Finding of Fact 9, supra; City Exhibits 7 and 8.5
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 EAR-based amendments adopted by Ordinance No. 2008-25 are in compliance. DONE AND ENTERED this 24th day of March, 2011, in Tallahassee, Leon County, Florida. S 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 24th day of March, 2011.
The Issue Whether the Petitioner, Carla Brice, has demonstrated by a preponderance of the evidence that she is entitled to a vested rights certificate to develop certain real property located in Alachua County, Florida without complying with the Alachua County Comprehensive Plan?
Findings Of Fact The Subject Property. The property at issue in this proceeding (hereinafter referred to as "Lot 111"), consists of approximately 6 acres of real property located in Alachua County, Florida. Lot 111 is currently owned by the Petitioner, Carla Brice. Ms. Brice acquired Lot 111 through inheritance from her father, Carl L. Brice. Ms. Brice acquired the property in approximately January of 1993. Early History of the Development of Arredonda Estates. During the 1950s Mr. Brice acquired a platted subdivision in Alachua County known as Arredonda Estates Unit 1 (hereinafter referred to as "Unit 1"). Approximately 100 acres of property located adjacent to Unit 1 were also acquired by Mr. Brice. Unit 1 met the existing plat law of Alachua County. Mr. Brice proceeded with the development of Unit 1 and the sale of lots therein. Part of the 100 acres acquired by Mr. Brice was subsequently platted and developed for sale as residential lots as Arredonda Estates Unit 2A (hereinafter referred to as "Unit 2A"). Arredonda Estates Unit 2B (hereinafter referred to as "Unit 2B") was to be located to the north of Unit 2A. Because of the lack of access out of Unit 2B, the then County engineer of the Alachua County, Roy J. Miller, informed Mr. Brice that he would not allow Mr. Brice to proceed with Unit 2B until Mr. Brice completed development of approximately 33 acres of real property located to the east of Unit 1. Mr. Miller believed that there would be better access from the various phases of Arredonda Estates if the 33 acres were developed first because there would be access out of the 33 acres onto County Road 24 and onto Broken Arrow Road to the east of the 33 acres. Mr. Miller, as the County engineer, wielded a great deal of influence in the development of property in Alachua County at the time Mr. Brice developed Units 1 and 2A and at the time he was beginning development of the 33 acres. Although the evidence failed to prove that Mr. Miller could have legally required Mr. Brice to develop the 33 acres before developing Unit 2B, the uncontroverted evidence proved that it was believed that Mr. Miller's approval was necessary in order to complete a development. The 33 acres surround Lot 111 on the east, west and north. The south boundary of Lot 111 is County Road 24, Archer Road. One of the two access roads to County Road 24 from the 33 acre development was located to the immediate east of Lot 111 and the other was located to the immediate west of Lot 111. Lot 111 is bounded on the south by County Road 24. The 33 acres were to be developed as Arredonda Estates (hereinafter referred to as "Unit 4"). The Development of Unit 4. Mr. Brice informed Mr. Miller that he was concerned about developing Unit 4 before developing Unit 2B because Mr. Brice planned to develop Lot 111 as a shopping center. He did not plan to build the shopping center until all phases of Arredonda Estates were completed, including Unit 2B. In agreeing to develop Unit 4 before Unit 2B, Mr. Brice was concerned about making expenditures for larger drainage facilities and obtaining additional easements necessary for the development of Lot 111 before he planned to begin actual development of the shopping center. Mr. Brice informed Mr. Miller of these concerns. The shopping center Mr. Brice planned to develop was to consist of 296,000 square feet of paved surface and 50,000 square feet of roof area. These plans required a redesign of the drainage for Unit 4. In particular, the following modifications were necessary: In conclusion I find it necessary to change the diameter of pipe #7 from an 18 inch diameter to a 21 inch diameter, placed at a 0.15 percent slope pipe grade. Some necessary amendments are required at this point. The larger size pipe in place will cost $9.20 per linear foot. Some sixty-two feet are needed, therefore the total cost will be $570.40. Brice exhibit 9. Despite Mr. Brice's concerns, Mr. Miller continued to insist on the development of Unit 4 before Unit 2B and Mr. Brice proceeded with the development of Unit 4. Unit 4 was platted on July 19, 1970. The plat was recorded in Plat Book H, Page 30, Official Records of Alachua County. The initial design of Unit 4 provided for one point of ingress and egress on to State Road 24 from Unit 4. Mr. Miller required that two points of ingress and egress be provided and Mr. Brice agreed. The evidence failed to prove that this requirement was agreed to in exchange for any representation from Alachua County that Mr. Brice would be allowed to develop the shopping center. The final plat provided two means of ingress and egress to State Road 24 and one means of ingress and egress to County Road Number Southwest 24-C (Broken Arrow Road). Lot 111 is contained on the plat. No intended use for Lot 111 was designated on the plat of Unit 4. The plat simply identifies the lot. See Brice exhibit 5. The plat identifies the development of residential lots only. The 33 acres was initially zoned as "A" (agriculture). In order to develop Unit 4 it was necessary to obtain approval of re-zoning of the property as R1C, residential use. The re-zoning of the 33 acres was sought and approved. Lot 111 was also zoned for agricultural use when acquired. On February 11, 1969, 4.27 acres of Lot 111 were re-zoned from "A" (agriculture) to "BR" (retail sales and service). On July 1, 1969, a special use permit allowing a mobile home trailer sales agency was issued for use of 1.1 acres contiguous to the 4.27 acre parcel of Lot 111 by Alachua County. On July 7, 1975, the 1.1 acres, which the special use permit had been issued for, was zoned from "A" to "BR." Construction plans for site improvements for Unit 4 were subsequently prepared, filed with Alachua County and were approved. See Brice exhibit 10. Included on the plans is a rectangular shape identified as "Proposed Shopping Center" containing indications of measurements representing 50,000 square feet of building space. The "Proposed Shopping Center" designation is located on Lot 111. Mr. Brice was subsequently informed that the site improvements for Unit 4 were approved by Alachua County. The evidence failed to prove, however, that Alachua County specifically considered or approved the construction of a shopping center on Lot 111 in approving the site improvement plans for Unit 4. The approved site improvements for Unit 4 were ultimately made and accepted by Alachua County in September of 1970. Government Action Relied Upon. Mr. Miller intended to allow Mr. Brice to develop Lot 111 as a shopping center "as he had planned." Mr. Miller's approval was conditioned on the completion of development of Units 2B and 4 and the sale of lots thereon. The shopping center to be approved was to be limited to what Mr. Brice "had originally proposed" which was a shopping center of 50,000 square feet. Mr. Brice complied with Mr. Miller's condition that he complete development of Unit 4 before developing Unit 2B. The evidence failed to prove that it was reasonable for Mr. Brice to believe that Mr. Miller's representations concerning the approval of Mr. Brice's intended development of a shopping center on Lot 111 would last indefinitely. It was also unreasonable for Mr. Brice to believe that the representations of Mr. Miller would survive indefinitely beyond the time that Mr. Brice completed development of Arredonda Estates. In July of 1970, Alachua County Zoning Regulations contained the following site plan approval requirement for shopping centers: No permit shall be issued for construction of a shopping center until the plans and specifications, including the design of ingress and egress roads, parking facilities, and such other items as may be found of importance have been approved by the zoning commission. Based upon this provision, Mr. Miller did not have the authority to approve the construction of a shopping center on Lot 111 in July of 1970. If the representations made by Mr. Miller to Mr. Brice concerning construction of the shopping center had been made in July, 1970, it would be unreasonable for Mr. Brice to rely upon Mr. Miller's representation because of the Alachua County Zoning Regulations quoted in finding of fact 31. If the representations were made before July, 1970, it would be reasonable for Mr. Brice to rely on Mr. Miller's approval of the shopping center because the evidence failed to prove that Alachua County Zoning Regulation quoted above was in effect before July, 1970. The weight of the evidence proved that Mr. Miller's representations were made before July, 1970. Detrimental Reliance. Mr. Brice proceeded with the development of Unit 4. Roads and drainage facilities associated with Unit 4 were constructed by 1971. The cost of these improvements was approximately $68,989.54. The total cost of improvements associated with Unit 4 was $121,947.54. Mr. Brice also had to obtain a drainage easement but the evidence failed to prove the cost of doing so. The exact amount expended on Unit 4 attributable to work performed just for Lot 111 and the shopping center was not proved by Ms. Brice. One method of allocating costs associated with the development of Unit 4 to Lot 111 suggested by Ms. Brice is to determine the percentage of acreage Lot 111 represents of the whole of Unit 4: approximately 17.9 percent. Applying this percentage to the total costs equals $21,828.61. The weight of the evidence, however, failed to prove that $21,828.61 was actually incurred in association with Lot 111. The evidence failed to prove that it would be reasonable to attribute any part of the expenditures listed in paragraphs 1, 3, 6, 8, 9, 11 or 12 of Brice exhibit 30 as attributable to Lot 111. Based upon evidence presented by Alachua County, the total expenditures made by Mr. Brice associated with Lot 111 and the shopping center were approximately $1,005.50. Subsequent Events. Mr. Brice caused preliminary plans for a shopping center for Lot 111 to be developed. Brice exhibit 14. Those plans were never submitted for approval and no building permit was issued approving the construction of a shopping center for Lot 111. The preliminary plans for the shopping center indicate a substantially different configuration for the shopping center than indicated on the site improvement plans for Unit 4. Brice exhibit 14. No final development plan or plat approving a shopping center on Lot 111 was issued by Alachua County. Efforts were made during the 1970s to market Lot 111 for development as a shopping center. These efforts were not successful. As a part of this effort, Mr. Brice incurred $7,000.00 for the construction of a three dimensional model of the proposed shopping center evidenced on the preliminary plans. It has been suggested that Mr. Brice did not proceed with the development of the shopping center during the 1970's and into the 1980's for a number of reasons: A dispute between Mr. Brice and Alachua County arose in 1976 concerning the road in Unit 2A; A dispute also arose concerning the water system in the area of Arredonda Estates; The state of the economy was not conducive to development. The evidence, however, failed to prove why the shopping center was not developed. In 1973, Alachua County created a development review committee. Final site plans for commercial sites were required to be approved by the committee. Mr. Brice did not obtain approval for the proposed shopping center or seek assurances from Alachua County that Mr. Miller's representations concerning the shopping center on Lot 111 were still valid. During 1982 and 1983, Mr. Brice became aware of proposed revisions to the Alachua County Comprehensive Plan. Mr. Brice met with Alachua County officials concerning the revisions and followed the progress of the revisions. In 1984 Alachua County adopted a comprehensive plan. Under this plan commercial use of Lot 111 was not allowed except for a neighborhood convenience store with square footage of 10,000 square feet. In 1985, during a meeting with Alachua County personnel, Mr. Brice and his attorney were informed that Lot 111 could not be developed as a shopping center without a comprehensive plan amendment. No amendment was applied for. In 1989, offers to purchase Lot 111 were received. Those offers were continent upon the property being developed consistent with the BR zoning. Ms. Brice's name, then known as Carla B. Sutton, first appears in connection with Lot 111 in 1989 when offers to purchase Lot 111 were received. The evidence, however, failed to prove that she was owner of Lot 111 at that time. In 1989 or 1990, a conceptual site plan review was applied for by David Miller, Mr. Brice's representative, concerning Lot 111. Brice exhibit 21. The application was considered at an Alachua County Development Review Committee meeting on March 22, 1990. Consideration of the application was deferred for two weeks. The development Review Committee met on April 19, 1990 and considered the application for conceptual site plan review for Lot 111. The Committee was concerned about how the fact that Lot 111 had been zoned BR before the comprehensive plan had been adopted impacted the fact that development of Lot 111 as a shopping center was prohibited by the comprehensive plan. A decision was delayed for a month and staff was asked to prepare a report dealing with similarly situated parcels. By January 1991, proposed language providing for vesting of certain zoning had been drafted by Alachua County. Brice exhibit 24. By letter dated January 30, 1991, Kurt Larsen, Director of the Office of Planning and Development of Alachua County, informed all affected property owners that Alachua County was "considering" allowing a period of time during which existing zoning would be honored. Brice exhibit 25 Comments were invited. By letter dated February 15, 1991, counsel for Ms. Brice responded to Mr. Larsen's January 30, 1991 letter. Brice exhibit 26. A Transmittal Draft of the Future Land Use Element of the Alachua County Comprehensive Plan dated April 1991 was sent to the Florida Department of Community Affairs for review. See Brice exhibit 27. The Draft provided a two- year period during which undeveloped parcels zoned for a use that was otherwise inconsistent with the Comprehensive Land Use Plan would be allowed to be developed essentially in accordance with existing zoning. This policy was ultimately rejected by the Department of Community Affairs. Alachua County informed Ms. Brice of the action of the Department of Community Affairs by letter dated September 18, 1991. Brice exhibit 28. Rights That Will Be Destroyed. Alachua County adopted a Comprehensive Land Use Plan in 1991. The following policy was agreed to in a compromise between Alachua County and the Department of Community Affairs concerning commercial enclaves: Policy 3.4.3. Commercial Enclaves are designed within the Urban Cluster on the Future Land Use Map. These sites shall be subject to the following location and compatibility standards: Development of Commercial Enclaves shall be required to meet all concurrency requirements. Development shall be required to minimize access from arterials and collectors. Whenever possible, driveways shall use common access points to reduce potential turn movements. A maximum of 20,000 square feet of gross leasable area shall be permitted within each enclave. Uses may include neighborhood convenience centers consistent with Policy 3.8., offices consistent with Policy 3.9.1. and sit-down restaurants. The land development regulations for this land use category shall specify performance standards required to mitigate any adverse impact of such development on adjacent land uses and affected public facilities. Such performance standards shall include buffering and landscaping provisions, site design measures to locate such uses away from less intensive adjacent land uses, signage and parking restrictions, and intensity provisions (e.g. height and bulk restrictions). In the interim, until land development regulations consistent with these policies are adopted, the standards and criteria governing Commercial Enclaves shall be implemented through the County's Development Review Committee process. This policy shall be reviewed by 1993 to determine the effectiveness of the land use category. Mr. Brice was informed, after contacting the Alachua County Growth Management Department, that his development of Lot 111 was limited by the commercial enclave policy. Pursuant to the commercial enclave policy, development of Lot 111 is limited to a size of 20,000 square feet and the uses to which Lot 111 may be put are less than would be allowed under BR zoning. Carla Brice's Reliance and Detriment. The evidence in this case failed to prove that Ms. Brice, the current owner of Lot 111 and the applicant in this case, was aware of any representations made by Mr. Miller. More importantly, the evidence failed to prove that Ms. Brice in any way reasonably relied upon the representations made to her father. The evidence also failed to prove that Alachua County made any representations to Ms. Brice that she would be allowed to develop Lot 111 as a shopping center. In fact, Alachua County has indicated just the opposite to Ms. Brice since she became the owner of Lot 111. In light of the amount of time that passed after Mr. Miller's representations were made to Mr. Brice and the intervening events concerning development in Alachua County before Ms. Brice acquired Lot 111, any reliance by Ms. Brice on Mr. Miller's representations would not be reasonable. Finally, the evidence failed to prove that Ms. Brice detrimentally relied upon any representation of Alachua County concerning the development of Lot 111. Only Mr. Brice, Ms. Brice's father, made expenditures related to the development of Lot 111 as a shopping center. I. Procedural Requirements. On June 9, 1993 Ms. Brice filed her Application seeking an equitable vested rights certificate or a statutory vested rights certificate. On September 22, 1993 Kurt Larsen, Director, Department of Growth Management, Alachua County, informed Ms. Brice that the Application was denied. Ms. Brice appealed the decision to deny the Application by letter dated September 28, 1993. The Division of Administrative Hearings was requested by letter dated January 18, 1994, from Alachua County to assign a hearing officer to conduct a formal administrative hearing. The formal administrative hearing of this matter was conducted on March 14, 1994.
The Issue The issue in this case is whether the City of South Daytona Beach plan amendment adopted by Ordinance No. 94-05 on May 24, 1994, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact have been determined: Background The Parties Respondent, City of South Daytona Beach (City), is a local governmental unit subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive growth management plans and amendments thereto. Petitioner, Resolution Trust Corporation (RTC), is a federal agency now acting as the receiver for Commonwealth Federal Savings & Loan Association, a banking institution taken over by that agency and which owned the property affected by the City's plan amendment. As the owner of property within the City, RTC is an affected person within the meaning of the law and thus has standing to bring this action. The Nature of the Dispute On October 29, 1993, the City received an oral request, which was later confirmed in writing, from Thomas J. Wetherall on behalf of various residential property owners to make an amendment to the City's comprehensive plan to change certain nearby vacant land owned by RTC from a general commercial designation to residential density 1. Under the request, the City would change the use on the eastern part of RTC's 5.6 acre tract of land from commercial to single-family residential use. The specific amendment involves a change in the Future Land Use Map (FLUM). Rather than treating the change as one initiated by a property owner, the City elected to have its city manager file the application on its own behalf. Public hearings were held on the plan amendment on January 19 and February 16, 1994. A transmittal hearing was then conducted by the City on February 22, 1994, and despite objections by RTC, final adoptive action occurred on May 24, 1994, through the enactment of Ordinance No. 94-05. Thereafter, on July 1, 1994, the DCA issued a notice of intent to find the amendment in compliance. On August 5, 1994, RTC filed a petition for an administrative hearing challenging the plan amendment on the ground it was inconsistent with the law in various respects. As clarified at hearing, petitioner contends the amendment (a) violates certain provisions within Section 163.3177, Florida Statutes, (b) is inconsistent with policies 2-1, 2-4, 2-6 and 7-3 of objective 2 of the Future Land Use Element (FLUE) of the plan, and (c) is not supported by adequate data and analysis. The Plan Amendment Petitioner is the owner of a rectangular shaped tract of vacant land more commonly known as the Halifax Center. The land, which totals approximately 5.6 acres, lies between South Ridgewood Avenue (U. S. 1) to the west, Palmetto Avenue to the north, and Palmetto Circle to the east. The property being redesignated (2.6 acres) is the eastern part of the parcel and measures approximately 105 feet deep by 864 feet long. If found to be in compliance, the plan amendment would change the FLUM to redesignate the 2.6 acres of the property from general commercial to residential density 1. This means that instead of having its entire tract of property with a single designated commercial use, RTC would have a split designation, with roughly the eastern half designated as residential. Therefore, the eastern part of the tract could only be subdivided for a few substandard, medium to lower-end, single-family residential homes on lots 105 feet deep. Even then, the amendment does not give consideration to setback and buffer requirements needed between the newly created residential lots and the commercial land directly abutting their rear. Because of this, and the fact that its remaining commercial property has been reduced to a depth of 170 feet, petitioner complains that the value of its property has been substantially reduced, a concern not relevant here, and that the amendment does not conform to the requirements of the law. To the east of the subject property and across Palmetto Circle lie a string of large, single-family lots with upscale homes fronting on the Halifax River. It is this group of property owners who are responsible for the amendment. To the west of the property and across U. S. 1 is found a tract of vacant land designated for professional office land use. To the north of the property is found a combination of multi-family (8-10 units per acre) and general commercial uses. In crafting the amendment, it may be reasonably inferred that the City simply drew an arbitrary line down the middle of RTC's property, leaving what it believed to be was the bare minimum amount of commercial land necessary to comply with the plan. Although the City contended that one of the purposes of the amendment was to further its goal of increasing the amount of single-family housing in the City, it can be reasonably inferred that the true purpose of the amendment was to protect the value of homes located across Palmetto Circle by placing a buffer between their property and the commercial property to the west. Indeed, a City memorandum sent to the City's Land Development Regulation Board on January 12, 1994, stated that the purpose of the change was to "provide a buffer between (the) Ridgewood Avenue commercial zone and existing housing along Palmetto Circle." Is the Plan Amendment in Compliance? The City's comprehensive plan is broken down into elements which conform to the statutory requirements of Chapter 163, Florida Statutes. Under each element are found goals, objectives and policies. As is relevant here, the goal for the FLUE is to "(p)rovide for a well-rounded community as described in the overarching goal." Objective 2 of the FLUE is to: (l)ocate commercial and industrial land uses where transportation access is adequate and conflicts with other land uses can be minimized. Petitioner contends that the plan amendment conflicts with four of the policies which implement objective 2. These are policies 2-1, 2-4, 2-6 and 7-3, which read as follows: 2-1: Locate major commercial and industrial land uses along primary arterials. 2-4: Commercial districts along principal arterials shall be made deep enough to provide options to typical strip development. 2-6: Provide adequate commercial/industrial land for development or redevelopment which will result in a 15 percent increase in taxable value over the next ten years. 7-3: New development shall be required to be compatible with existing development by the arrangement of land use and/or the provision of adequate buffering. As noted earlier, petitioner's tract of land lies between U. S. 1 to the west and Palmetto Circle to the east. Because the western part of petitioner's property lies along Ridgewood Avenue (U.S. 1), a principal arterial road, and will continue to remain general commercial, the amendment is deemed to be consistent with policy 2-1. In other words, that portion of petitioner's property which retains a general commercial designation will be located "along primary arterials," in conformity with policy 2-1, while the remaining portion of the property which fronts on a local road (Palmetto Circle) will be designated residential. The purpose of policy 2-4 is to ensure that commercial districts along principal arterials such as U. S. 1 are deep enough to provide options to typical strip commercial development patterns. This type of development is defined as one or more buildings that are parallel to and facing the primary street with no circulation around the back. Petitioner contends that the plan amendment violates this policy since the remaining portion of its land designated general commercial will only be 170 feet deep in relation to U. S. 1, thereby severely limiting its development options. By reducing the depth of property, as will be done here by the City, the flexibility and creativity for developing petitioner's parcel will be substantially reduced. While respondents' experts opined that the site will be deep enough to accommodate some types of commercial development other than the typical strip pattern, such as freestanding buildings, a restaurant, or even two or three office buildings, the more persuasive evidence shows that anything less than 200 feet in depth eliminates virtually all meaningful development options except a strip shopping center. Since the remaining commercial land along U. S. 1 will not "be made deep enough to provide options to typical strip development," the amendment is inconsistent with policy 2-4. Under policy 2-6, the City's goal is to increase its tax base 15 percent by the year 2000. Since the overall plan went into effect in 1990, the City's tax base has increased approximately 14.5 percent. Petitioner contends that the plan amendment will substantially reduce the value of its property, and the concomitant tax base, and thus the plan amendment is inconsistent with the policy. But even if a reduction in value will occur, there is insufficient evidence to demonstrate that the City's taxable value will not increase by an additional half percent during the next five years. Accordingly, the undersigned finds the amendment to be consistent with policy 2-6. Finally, Policy 7-3 requires that new development be compatible with existing development by the arrangement of land use and/or adequate buffering. Under the proposed plan amendment, the City has created a more integrated residential neighborhood along Palmetto Circle. Also, the redesignated land will serve as a form of buffer between the residential development on the east side of Palmetto Circle and the commercial development on the west side of Palmetto Circle. Although the City asserts that the change in land use should reduce the potential amount of traffic on the local road (Palmetto Circle) that would otherwise increase through commercial development, this assertion is questionable given the fact that no access to the commercial property from Palmetto Circle now exists. Finally, if the amendment becomes operative, the property would be the only single-family residential property on the corridor east of U. S. 1 and west of Palmetto Circle. Collectively, these considerations support a finding that the plan amendment's consistency with policy 7-3 is fairly debatable. Property appraisals are not appropriate data or analysis upon which to base future land use designations. In other words, property values should not control planning decisions. If they did, future land use maps would reflect only high intensity uses, not a balanced community. Except to the limited extent it bears on policy 2-6, evidence presented by petitioner that the plan amendment would decrease the value of the Halifax Center from $610,000.00 to less than $359.000.00 has little, if any, probative value on the other relevant issues. Although petitioner raised other contentions in its initial petition, including one that the plan amendment is not supported by adequate data and analysis, these issues have been deemed to be irrelevant, abandoned, or not supported by sufficient evidence to make a finding in petitioner's favor. In determining whether a plan amendment is in compliance, the DCA looks to consistency with the plan as a whole rather than isolated parts. Therefore, an amendment may be inconsistent with the plan in certain respects, but still be in compliance as a whole unless the inconsistency is determined to be "very important." It may be reasonably inferred from the evidence that the City's policy of discouraging "typical strip development" is an important ingredient in its overall plan. To summarize, the evidence fails to show to the exclusion of fair debate that the plan amendment is inconsistent with policies 2-1, 2-6 and 7-3 of objective 2 of the future land use element of the plan. As to policy 2-4, however, it is found that the City's determination of compliance is not fairly debatable, and thus the amendment is not in compliance in that respect.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining the City of South Daytona Beach comprehensive plan amendment to be not in compliance. DONE AND ENTERED this 19th day of April, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5182GM Petitioner: Partially accepted in finding of fact 3. Partially accepted in finding of fact 7. Partially accepted in finding of fact 4. 4-6. Rejected as being a conclusion of law. 7. Partially accepted in finding of fact 9. 8. Partially accepted in finding of fact 8. 9. Partially accepted in finding of fact 7. 10. Partially accepted in finding of fact 16. 11-12. Rejected as being unnecessary. Rejected as being a conclusion of law. Partially accepted in finding of fact 14. Partially accepted in finding of fact Rejected as being irrelevant since not Rejected as being a conclusion of law. Partially accepted in finding of fact 16. raised as an 13. issue. 19. Partially accepted in finding of fact 14. Partially accepted in finding of fact 15. Rejected as being irrelevant. Partially accepted in finding of fact 17. Rejected as being irrelevant. Respondent (DCA): 1-2. Partially accepted in finding of fact 1. 3. Partially accepted in finding of fact 2. 4. Partially accepted in findings of fact 4, 6 and 7. 5-6. Partially accepted in finding of fact 10. 7-10. Partially accepted in finding of fact 11. 11. Partially accepted in finding of fact 12. 12-13. Partially accepted in finding of fact 13. 14. Partially accepted in finding of fact 14. 15. Partially accepted in finding of fact 15. 16. Partially accepted in finding of fact 17. Respondent (City): 1-2. Partially accepted in finding of fact 1. 3. Partially accepted in finding of fact 2. 4-5. Partially accepted in finding of fact 4. 6-7. Partially accepted in finding of fact 5. 8. Covered in preliminary statement. 9. Partially accepted in finding of fact 12. 10-11. Partially accepted in finding of fact 14. 12. Partially accepted in finding of fact 15. 13-14. Rejected as being irrelevant. 15. Partially accepted in finding of fact 16. 16. Covered in preliminary statement. 17-18. Partially accepted in finding of fact 17. 19. Covered in preliminary statement. 20. Partially accepted in finding of fact 16. 21. Partially accepted in finding of fact 12. 22. Partially accepted in finding of fact 14. 23. Partially accepted in finding of fact 15. 24-26. Partially accepted in finding of fact 16. 27-28. Partially accepted in finding of fact 9. 29. Partially accepted in finding of fact 17. 30. Covered in preliminary statement. 31. Partially accepted in finding of fact 19. 32. Partially accepted in finding of fact 17. 33. Partially accepted in finding of fact 19. Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary for a resolution of the issues, irrelevant, not supported by the more credible, persuasive evidence, subordinate, or a conclusion of law. COPIES FURNISHED: Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Maureen A. Arago, Esquire 1411 Edgewater Drive Suite 203 Orlando, FL 32804 Karen A. Brodeen, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Scott E. Simpson, Esquire 595 West Granada Boulevard Suite A Ormond Beach, FL 32174
The Issue The issue in this case is whether the Bradford County Board of County Commissioners should approve or deny an application to rezone a 12.76-acre parcel located at the southwest corner of Highway 301 and County Road 18 in unincorporated Bradford County (“the Property”) from Residential, (Mixed) Single Family/Mobile Home (RSF/MH-1) to Commercial Intensive (CI).
Findings Of Fact The Parties Petitioners Craig W. Patterson and Timothy Buffkin own the Property and are the applicants for the proposed re-zoning. Bradford County is the local government responsible for determining the land use designation and zoning classification for the Property and has adopted a comprehensive plan and LDRs which it amends from time to time. The Property The Property is a 12.76-acre parcel located at the intersection of U.S. Highway 301 (US 301) and County Road 18 (CR 18) in unincorporated Bradford County. US 301 is a four-lane divided principal arterial roadway, and CR 18 is a two-lane major collector roadway. The intersection has a traffic light and left turn lanes on US 301. This is the only intersection of a principal arterial road and a major collector road in unincorporated Bradford County. The Property is roughly rectangular, with approximately 1,240 linear feet fronting on US 301 (eastern boundary of the Property) and approximately 450 feet fronting on County Road 18 (northern boundary). The Property is not located within a flood-prone area and has little or no wetlands. Approximately a half mile to the east of the Property is Hampton Lake. The Property is relatively flat. The soils on the property are poorly drained soils, but not indicative of wetlands. The soils and topography of the property do not preclude its development with a system to control stormwater and drainage. Currently, the Property contains one single-family dwelling unit. The Property is bounded on the north by a commercial land use and single-family residences, on the east by vacant and commercial land use, on the south by vacant land, and on the west by vacant land and single-family residences. Current Zoning and Land Use Designations Before October 2004, the Property was designated on the County’s Future Land Use Map (FLUM) as “Residential Low Density,” which authorizes residential development at a density of less than or equal to two dwelling units per acre. On October 21, 2004, the County amended the FLUM to re-designate the Property as “Commercial.” However, the zoning for the Property remained “Residential, (Mixed) Single Family / Mobile Home (RSF/MH-1). The current zoning does not allow the types of uses appropriate under its Commercial land use designation. The Property is also located within an Urban Development Area which is defined in the Future Land Use Element of the comprehensive plan as an “area to which higher density agricultural, residential (single family, multi-family and mobile homes) and commercial and industrial uses are to be directed.” Within Urban Development Areas, lands classified as “Commercial” are to be used for the “sale, rental and distribution of products or performance of services, as well as public, charter and private elementary, middle and high schools.” Certain other uses may also be approved as special exceptions or special permits. Surrounding Land Uses A portion of the land to the north of the Property and all of the land immediately east are within the municipal boundaries of the City of Hampton. The City of Hampton has zoned property at the US 301/CR 18 intersection as “CG”, a commercial designation which includes all of the uses authorized under Bradford County’s CI zoning district. Within the past several years, a truck repair and auto parts facility was located and is still operating east of the Property, across US 301. Farther east, but bordering those commercial lands, a residential subdivision (Fox Hollow) is under development. The Requested Re-zoning The Applicants seek to re-zone the Property to Commercial Intensive (CI). Permitted principal uses and structures allowed within the CI zoning district are consistent with the types of commercial uses listed in the comprehensive plan for the Commercial land use designation, namely retail outlets for the sale of food, home furnishings, vehicles, etc.; service establishments such as barber shops, shoe repair shops, repair and service garages; medical or dental offices; and wholesaling. The CI zoning district is described as “intended for intensive, highly automotive-oriented uses that require a conspicuous and accessible location convenient to streets carrying large volumes of traffic and shall be located within commercial land use classifications on the [FLUM].” The Property meets the description of a conspicuous and accessible location that is convenient to streets carrying large volumes of traffic. Concurrency Management Assessment The requested re-zoning is a “straight” re-zoning request, meaning that the re-zoning is not associated with any particular proposed use. Future development of the site will be subject to development plan review and approval, pursuant to Article Fourteen of the County LDRs. A concurrency reservation is not available until final site plan approval. However, at the County’s request, the North Central Florida Regional Planning Council (NCFRPC) performed concurrency management assessments of the re-zoning in 2006 and again in 2008. In 2006, the NCFRPC provided the County with nonbinding concurrency determination that the applicable service levels would be met or exceeded for potable water (to be supplied by potable water wells); sanitary sewer (to be served by on-site septic tanks); solid waste; drainage; recreation; affordable housing; and historic resources. As to transportation facilities, the 2006 concurrency management assessment determined that the maximum potential development of the Property would generate 389 trips on US 301 at “PM peak hour.” When added to the then-existing PM peak hour trips, based on Florida Department of Transportation (FDOT) traffic count data, US 301 would continue to operate within the adopted level of service (LOS). Between 2006 and 2008, the adopted LOS standard for US 301 was raised from “C” to “B,” meaning that the governmental objective was changed to maintain a freer flow of traffic during evening peak traffic. Therefore, despite the reduction of “background” trips on US 301, the 2008 concurrency management assessment determined that maximum development of the Property would cause the new LOS “B” standard to be exceeded. Petitioners presented a traffic analysis based upon more recent FDOT traffic count data than was used by the NCFRPC for its 2008 concurrency management assessment. The newer data showed a further decline in background trips on US 301, so that adding the maximum potential trips from the Property would no longer result in total PM peak hour trips that would exceed the adopted LOS standard. Petitioners’ more recent data and analysis is professionally acceptable and should be used. At the time of site plan review for any future development of the Property, an updated concurrency assessment will be required and will be based on the number of trips generated by the actual proposed use, rather than the trips that would be generated by the maximum development potential of the Property. The assessment will also use the most current FDOT traffic count data. Compatibility with Surrounding Land Uses The County’s Planning and Zoning Board reviewed the application for re-zoning at its July 10, 2006, meeting. It recommended denial of the re-zoning based upon the impact of the proposed change upon living conditions in the neighborhood. As factual support for the recommended denial, the Planning and Zoning Board’s report cites “all comments received during the said public hearing and the Concurrency Management Assessment concerning said application.” At the August 19, 2008, public hearing held before the Administrative Law Judge, members of the public expressed concern that the CI zoning would be incompatible with the existing residential development to the west, in the Hampton Lake area. Some members of the public also expressed concern about possible future uses of the Property, such as a truck stop or bar. Package stores for the sale of alcoholic beverages, bars, taverns, cocktail lounges, truck stops and automotive service stations can only be approved as special exception uses in the CI zoning district. Special exception uses require approval of the County’s Board of Adjustment after a public hearing, upon a finding that granting the special exception use would promote the “public health, safety, morals, order, comfort, convenience, appearance, propriety or the general welfare.” The Board of Adjustment must also determine that the special exception use would be compatible with adjacent properties. A favorable decision here on the requested re-zoning to CI is not a determination that a bar or truck stop on the Property would be compatible with the adjacent residential area. The LDRs impose site use and design criteria for commercial uses that adjoin residential districts. Site plan approval for commercial developments in CI zoning districts requires the consideration of landscape buffers, height restrictions, off-street parking requirements, lot coverage and yard standards. These development conditions are designed to minimize impacts to adjacent residential areas. Stormwater Some of the speakers at the public hearing expressed concern about stormwater runoff from the Property. One speaker, Michael Davis, testified that stormwater from the Property currently flows across his property. Another expressed concern that runoff from the Property would flow directly to Hampton Lake. On-site stormwater retention facilities would be required for the Property in conjunction with its development. The LDRs require that post-development runoff rates not exceed pre-development conditions. The objective of the required stormwater runoff controls is to approximate the rate, volume, quality, and timing of stormwater runoff that occurred under the site’s unimproved or existing state. There is no basis, at this stage of analysis, to determine that the County’s stormwater regulations are not adequate to prevent adverse stormwater impacts to adjacent residences or to Hampton Lake. Traffic on CR 18 Several speakers expressed concerns regarding increased traffic on CR 18. Petitioners conducted a site-specific traffic count for CR 18 east of US 301 and determined that the peak hour trips are now 131. The capacity for CR 18 is approximately 600. Based upon the total of 389 additional trips generated by the maximum potential development of the Property (on either US 301 or CR 18), the adopted LOS standard for CR 18 would not be exceeded. Petitioners demonstrated that the proposed re-zoning is consistent with the comprehensive plan and the LDRs.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Bradford County Board of County Commissioners approve the requested re-zoning. DONE AND ENTERED this 18th day of September, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 2008. COPIES FURNISHED: Ray Norman, Clerk of the Board Bradford County Board of County Commissioners 945 North Temple Avenue Starke, Florida 32091 Marcia Parker Tjoflat, Esquire Charles L. Gibbs, Esquire Pappas Metcalf Jenks & Miller, P.A. 245 Riverside Avenue, Suite 400 Jacksonville, Florida 32202 William E. Sexton, Esquire Brown & Broling 486 N. Temple Avenue Starke, Florida 32091
The Issue The issue is whether that portion of Plan Amendment 98-1ER known as LU-97-02 is in compliance.
Findings Of Fact Based upon all of the evidence, including the stipulation of counsel, the following findings of fact have been determined: Background In this land use dispute, Petitioners, Janet Bollum (Bollum) and Glenn and Mary Brewer (the Brewers), who are property owners within or near the City of Deland, contend that a portion of Plan Amendment 98-1ER adopted by Respondent, City of Deland (City), is not in compliance. The portion of the amendment under challenge, known as Plan Amendment LU-97-02, changes the land use on 39.56 acres of land owned by Intervenor, Marcia Berman, Trustee (Berman), to Highway Commercial. The property is currently under contract to be sold to Intervenor, Wal-Mart Stores East, Inc. (Wal-Mart), who intends to construct a Wal-Mart super store on a part of the site. Respondent, Department of Community Affairs (Department), is the state agency charged with the responsibility of reviewing comprehensive land use plans and amendments. Until 1997, the Berman property was located in the unincorporated area of Volusia County (County). Prior to 1994, it carried an Urban Medium Intensity land use designation. That year, the County redesignated the property as Industrial. In 1997, the City annexed the Berman property and revised its Future Land Use Map the following year to change the land use to Highway Commercial. This change was accomplished through the plan amendment under challenge. On May 1, 1998, the Department issued its Statement of Intent to Find Portions of Plan Amendment Not in Compliance. More specifically, it found that the new land use designation would "generate traffic which causes the projected operating conditions of roadways to fall below adopted level of service standards and exacerbates projected roadway deficiencies." The Department also found that the amendment was "not supported by or based on, and does not react in an appropriate way to, the best available data and analyses." In making these findings, the Department relied in part upon a traffic study prepared by "TEI" in 1998 which reflected that the City's traffic system did not have sufficient capacity to accommodate the new land use. The Department determination triggered this action. On May 27, 1998, Petitioners, and 82 other property owners, filed a paper styled "Petition for Administrative Hearing and Petition to Intervene" challenging the change of land use on the Berman property in numerous respects. The paper was treated as a petition to intervene and was later granted. After the case was temporarily abated in August 1998 pending efforts to settle the matter, in January 1999, a new traffic study was prepared for the City by Ghyabi, Lassiter & Associates (GLA study), which determined that the existing and planned City transportation network could accommodate the impacts from the development allowed under the amendment. All parties except Petitioners then executed a Stipulated Settlement Agreement in February and March 2000, which resolved all issues originally raised by the Department. Thereafter, the Department issued an Amended Notice of Intent to find the plan amendment in compliance. As required by Section 163.3184(16)(f), Florida Statutes (1999), the parties were realigned consistent with their respective positions. Through an Amended Petition filed by Petitioners on July 19, 2000, all original Petitioners except Bollum and the Brewers have been dismissed, and the factual issues in this case narrowed to two: (a) whether the recent traffic studies "demonstrate a transportation concurrency failure, and a failure to fall within a lawful transportation concurrency exception under F.S. 163.3180(5)(c) and (d)"; and (b) whether the "plan amendment data and analyses continue a failure to show demand for additional 'highway commercial' land, as originally asserted by the Department's Notice of Intent." Standing of the Parties Bollum owns property, resides within, and owns and operates a business within the City. She also submitted written and oral comments to the City while the amendment was being adopted. The parties have stipulated that she is an affected person and thus has standing to participate. The Brewers own property and reside in an unincorporated area of the County in the immediate vicinity of the proposed plan amendment. They also reside within what is known as the "Greater Deland Area," as defined by Chapter 73-441, Laws of Florida. However, they do not own property, reside within, or own and operate a business within the corporate limits of the City, and thus they lack standing to participate. The parties have stipulated that Intervenors Berman and Wal-Mart have standing to participate in this proceeding. The Amendment The Berman property lies on the eastern side of U.S. Highway 17 just north of the intersection of U.S. Highways 17 and 92, approximately three miles north of the City's central business district. The land is currently undeveloped. Prior to being annexed by the City, the property was located within the unicorporated area of the County, just north of the City limits. The earliest County land use designation was Urban Medium Intensity, a primarily residential land use classification which also allowed some commercial development, including small neighborhood shopping centers. In 1993, the County began a comprehensive examination of land use and zoning restrictions in the vicinity of the Berman property. In May 1994, it redesignated the Berman property from Urban Medium Intensity to Industrial. This use allowed not only industrial development, but also some commercial development. Before the Berman property was annexed by the City, it was depicted on the City's Urban Reserve Area Map (map). That map established advisory designations for unincorporated County land abutting the City, and was meant to be a guide for City land use decisions when property was annexed. The property was designated on the map as approximately one-half Commercial and one-half Industrial. In 1997, the Berman property was annexed by the City. Because the City was then required to place a land use designation on the property, on May 16, 1998, it adopted Amendment 98-1ER, which redesignated the property from Volusia County Industrial to City Highway Commercial. The new mixed-use designation allows "a wide range of retail and service and office uses," as well as up to twenty percent residential land uses, including multi-family manufactured housing developments. Thus, the Highway Commercial land use designation is meant to accommodate major shopping centers like the one proposed by Wal-Mart. Transportation issue In their Amended Petition, Petitioners allege that accepting as fact the "most recent traffic studies," those studies still "demonstrate a transportation concurrency failure, and a failure to fall within a lawful transportation concurrency exception under F.S. 163.3180(5)(c) and (d)." The "most recent traffic studies" are the GLA study, and it shows that the existing and planned City transportation network can accommodate the traffic impacts arising from development allowed under the plan amendment. Some of the transportation impacts from the expected development on the Berman property will affect roadways within an area of the City that was formally designated in May 1992 as a Special Transportation Area (STA) or road segments with specialized level of service (LOS) standards. The STA includes the central business district and certain outlying areas essentially bounded by Minnesota Avenue, Amelia Avenue, the rear property lines of properties along the north side of New York Avenue (State Road 44), South Hill Avenue, Beresford Avenue, Boundary Avenue, and Clara Avenue, which extend to approximately one mile from the Berman property. None of the roadways within the STA are on the Florida Intrastate Highway System. Rule 9J-5.0055(2), Florida Administrative Code, requires that the City adopt LOS standards on roadways within its planning jurisdiction (which are not on the Florida Intrastate Highway System), including the disputed portion of U.S. Highways 17 and 92. The applicable LOS standards and STA provisions are found in Policies 3.1.7 and 3.1.10, respectively, of the Transportation Circulation Element of the plan. They read as follows: 3.1.7 For those roadways listed in Policy 3.1.6 [which include U.S. Highways 17 and 92], the City of Deland may permit development to occur until the peak hour traffic volumes exceed a 20% increase over the peak traffic counts published in the FDOT's 1989 Traffic Data Report. 3.1.10 As a result of FDOT's approval of the STA designation for US 17/92 (Woodland Boulevard), from Beresford Avenue to Michigan Avenue, and SR 44 (New York Avenue), from SR 15A to Hill Avenue, the following maximum LOS and/or traffic volumes shall be permitted. ROADWAY SEGMENT US 17/92, from Beresford to Michigan = 22,028 SR 44, from SR 15A to US 17/92 = LOS E SR 44, from US 17/92 to Hill = LOS E *The proposed maximum traffic volume is compatible with the maximum LOS for this section of roadway, as stated in Policy 3.1.7. These two policies have been found to be in compliance and are not subject to challenge in this proceeding. Although the STA is identified as a specific area, the City's Comprehensive Plan anticipates that development from outside of this area will impact the STA. As noted above, however, the undisputed GLA study demonstrates that the plan amendment will not allow development which would cause these adopted LOS standards to be exceeded. The STA was approved in May 1992, or prior to the enactment of Section 163.3180, Florida Statutes (1993), which allows certain exceptions from the otherwise blanket requirement to adopt and enforce a transportation LOS standard for roadways. Two planning tools made available to local governments by Section 163.3180(5), Florida Statutes (1993), are a Transportation Concurrency Exception Area (TCEA) and a Transportation Concurrency Management Area, both of which allow exceptions to transportation concurrency requirements. The practical effect of a TCEA is to allow development to proceed without having to comply with transportation concurrency. Petitioners essentially contend that the STA created by the City for the central business district and certain outlying areas is "the substantial equivalent of a TCEA," and thus it should be treated as one for purposes of this proceeding. They go on to argue that while the City may grant an exception to concurrency requirements for transportation facilities for projects located within a TCEA, those benefits cannot be extended to any other area, including the Berman property. Based on this premise, Petitioners conclude that without the benefit of the TCEA exception, the anticipated traffic from the new development on the Berman property will cause a "continuation of a [LOS] failure on the constrained segments of US 17/92 and on the unconstrained segment from SR44 to Wisconsin Avenue," in violation of the law. Petitioners' contention is based on an erroneous assumption. The evidence shows that the City has never adopted a TCEA. Neither has the STA "transformed" into a TCEA, as Petitioners suggest. Moreover, as noted above, the undisputed GLA study shows rather clearly that the plan amendment will not allow development which would cause the adopted LOS standards to be exceeded. Petitioners further contend that the plan amendment is somehow inconsistent with the transportation exception requirements in Section 163.3180(5)(b) and (c), Florida Statutes (2000). However, these provisions apply to developments "which pose only special part-time demands on the transportation system[,]" that is, "one that does not have more than 200 scheduled events during the calendar year and does not affect the 100 highest traffic volumes." The evidence shows that the Highway Commercial land use category is not designed for such developments and, in fact, encourages far more intense uses. Is There a Need for Additional Commercial Land? Petitioners next contend that "the plan amendment data and analyses continue a failure to show demand for additional 'highway commercial' land, as originally asserted by the Department's Notice of Intent and not resolved by the Compliance Agreement." In the immediate vicinity of the Berman property, near the intersection of U.S. Highways 17 and 92 north of the City, "there is an emerging trend of 'regional-type' commercial developments." This area is already partially developed with commercial uses, and it has additional areas depicted for future commercial and industrial use. There are no other parcels in the City, especially in this area, of a sufficient size to accommodate this type of regional commercial development. There are numerous ways to project the raw, numerical need for commercial land in the City. The City's Comprehensive Plan, its Evaluation and Appraisal Report, and the GLA study all contain statements regarding projected population and employment, each portraying a slightly different result. In fact, Petitioners' own expert criticized the numbers used in these documents as being unreliable and suspect. The need calculus basically involves projecting population over a ten-year planning period and then allocating commercial, residential, and other land uses in an amount to match that projection. For the reasons set forth below, this process is imprecise, and it must be tempered by other factors. First, the planner must project population over the ten-year planning timeframe. Any mistake in this projection will skew the numbers. Second, employment ratios used in the calculus can change from year to year, especially in a smaller community. Also, other planning objectives are inherently subject to change year by year. Given this imprecision and changing market demands, it is appropriate for professional planners to overallocate land uses. An excess allocation of twenty-five percent (or an allocation factor of one hundred and twenty-five percent) is recognized by professional planners as being appropriate. The evidence supports a finding that this amount is reasonable under the circumstances present here. There are numerous professionally acceptable ways in which to allocate land uses. The City has not adopted a particular methodology in its Comprehensive Plan. The specifics of the plan amendment and the City's Comprehensive Plan make application of a strict numerical calculus even more difficult. The prior designation of the property was Industrial, which is not a pure industrial category, but actually allowed up to thirty percent of commercial uses. The amendment here simply changes the land use from Industrial, with some commercial uses allowed, to a mixed-use Highway Commercial designation. As noted earlier, the City's Comprehensive Plan anticipates regional commercial uses in the area of the Berman property. Finally, the parcel is relatively small (less than 40 acres) and is embedded within an urban area. Given the uncertainty of a numerical calculation of commercial need in the City, the size and location of the property, the property's inclusion in an urban area, and the surrounding commercial land uses, the evidence supports a finding that either Industrial or Commercial would be an appropriate land use for the property. The evidence further supports a finding that the need question is not a compliance issue here and does not support a finding that the plan amendment is not in compliance.
Recommendation Based on the Foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining Plan Amendment 98-1ER adopted by the City of Deland by Ordinance Number 98-07 on March 16, 1998, to be in compliance. DONE AND ENTERED this 20th day of November, 2000, 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 20th day of November, 2000. COPIES FURNISHED: Steven M. Siebert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 C. Allen Watts, Esquire Cobb, Cole & Bell Post Office Box 2491 Daytona Beach, Florida 32115 Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 F. Alex Ford, Jr., Esquire Landis, Graham, French, Husfeld, Sherman & Ford, P.A. Post Office Box 48 Deland, Florida 32721-0048 Mark A. Zimmerman, Esquire James, Zimmerman, Paul & Huddleston Post Office Drawer 2087 Deland, Florida 32721-2087 David L. Powell, Esquire Hopping, Green, Sams & Smith, P.A. Post Office Box 6526 Tallahassee, Florida 32314 Margaret E. Bowles, Esquire Margaret E. Bowles, P.A. 205 South Hoover Street Suite 402 Tampa, Florida 33609 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
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.
Findings Of Fact Based upon all of the evidence, including the stipulation of counsel, the following findings of fact are determined: Background The parties Respondent, Franklin County (County), is a local governmental unit subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter authorizes the County, under certain conditions, to adopt what is known as a small scale development amendment to its comprehensive plan. At issue in this case is a small scale development amendment adopted by the County on October 3, 1996. Petitioner, St. George Plantation Owners Association, Inc. (petitioner), is a not-for-profit corporation organized for the protection and management of the Plantation Area of St. George Island. The island lies just south of Apalachicola, Florida in the Gulf of Mexico. The parties have stipulated that petitioner is an affected person within the meaning of the law and thus it has standing to bring this action. Intervenors, Ben Johnson and Coastal Development Consultants, Inc., are the owners of approximately 58 acres on St. George Island known as the Resort Village Property. The property is adjacent to the St. George Island Airport. A portion of intervenors' property, 9.6 acres, is the subject of the plan amendment being challenged. The nature of the dispute Intervenors' property is subject to a 1977 Development of Regional Impact (DRI) order adopted by the County in 1977. The order has been amended from time to time. Among other things, the order provides conceptual approval for the development of "one or more high quality resort hotels or motels, together with such affiliated uses as may be appropriate or desirable, such as gift and tourist shops, restaurants, recreational activities and similar activities." Intervenors desire to develop the Resort Property Village consistent with the 1977 DRI order. The first part of the project consists of approximately 9.6 acres which they have designated as Phase I. The land is located within the Plantation Area of St. George Island and has a land use designation of residential. In June 1995, intervenors submitted detailed site plans for Phase I to the County. On August 1, 1995, the County conducted a public hearing to review the proposed site plans and specifications for Phase I. It adopted a motion which directed its staff "to review and perfect the plans presented, so that the Board can consider the final approval of the plan." It also directed its staff to provide advice concerning the procedure to be followed. After consulting with the Department of Community Affairs (DCA), which recommended that the comprehensive plan be amended to change the land use to accommodate the commercial uses, the staff recommended that the County adopt a small scale development amendment by changing the designation on its Future Land Use Map (FLUM) for 9.6 acres from residential to commercial. By a 3-2 vote, on October 3, 1996, the County adopted Ordinance No. 96- 22 which changed the designation for the 9.6 acres on the FLUM from residential to commercial. Because the amendment affected ten or fewer acres, the County opted to make the change with a small scale development amendment under Section 163.3187(1)(c), Florida Statutes. According to the site plan which accompanied a Notification of Proposed Change filed with the County on May 26, 1996, the Phase I development includes four hotels, 10,250 square feet of commercial space, 300 square feet of retail space, a beach club, a 325 seat conference center, various support and recreational facilities, and a wastewater treatment plant. The Phase I site plan, however, does not include the three subsurface absorption beds which are required to service the effluent from the wastewater treatment plant. If the absorption beds were included, they would increase the size of Phase I from 9.6 to approximately 14.6 acres. In a petition challenging the adoption of the small scale amendment, petitioner contends that, if the absorption beds are properly included in the land use amendment, the land use area would exceed ten acres and thus would require a full-scale land use amendment subject to DCA review. In response, the County and intervenors have contended that, under the current plan, there is no need to change the land use where the wastewater treatment facility will be located since such facilities are allowed in any land use category. As such, they contend there is no requirement to include such property in Ordinance 96- 22. The Wastewater Treatment Facility The proposed development will be served by a wastewater treatment facility. The Department of Environmental Protection (DEP) has issued a permit to Resort Village Utility, Inc., a utility certified by the Florida Public Service Commission to serve the entire 58-acre Resort Village property. The permit provides that the plant can accommodate up to, but not exceeding, 90,000 gallons of treated effluent per day. The facility consists of the wastewater treatment plant, lines to the plant from the development which carry the untreated wastewater to the plant, and lines from the plant to three sub-surface absorption beds where the treated effluent is disbursed. The absorption beds required for the Phase I project wastewater treatment facility will not serve any residential customers. Rather, they will only serve Phase I and any other subsequent phases of Resort Village development, which is a commercial development. Construction must begin on the wastewater treatment plant once the flow of waste effluent reaches 7,500 gallons per day, or if the wastewater from restaurants reaches 5,000 gallons per day. The Phase I project is required to use this facility once the rate of flow of waste effluent exceeds 10,000 gallons per day. Until these thresholds are met, the project will rely temporarily on aerobic systems to handle and treat waste effluent. Under the permit issued by the DEP, the wastewater treatment facility required for Phase I consists of both a wastewater treatment plant and three absorption beds. Through expert testimony of a DEP professional engineer, it was established that the absorption beds were integral to the design and successful operation of the facility. The County and intervenors acknowledge this fact. Therefore, the "use" that is the subject of the amendment is the entire wastewater treatment facility, including the absorption beds, and "involves" some 14.6 acres. Since the plan amendment does not involve "10 or fewer acres," as required by statute, the amendment cannot qualify as a small scale development amendment and is thus not in compliance. In making these findings, the undersigned has considered a contention by the County that Policy 2.3 of the comprehensive plan sanctions its action. That policy reads as follows: Public utilities needed to provide essential service to existing and future land uses in Franklin County shall be permitted in all the land use classifications established by this plan. Public utilities includes all utilities (gas, water, sewer, electrical, telephone, etc.) whether publicly or privately owned. At hearing, the County planner construed the term "public utilities" as being "minor (utility) infrastructure," including wastewater treatment plants not exceeding 100,000 gallons per day. Relying on this provision, the County reasons that the proposed facility is "minor" infrastructure, since it will only have 90,000 gallons per day capacity, and thus it can be placed in a residential land use category. They go on to argue that, since no change in land use classification is needed to permit the facility, it is unnecessary to include the facility in the plan amendment. According to the County, however, the plant (but not the beds) was included only because it was easier to draw a map for the entire 9.6 acres rather than excise that portion of the land where the plant will be located. Under the same theory, the County has placed at least two existing wastewater treatment facilities in the residential land use category. Those facilities, however, predate the adoption of the comprehensive plan in April 1991, and both serve residential, as opposed to commercial, developments. Moreover, the County admitted that it lacks any "clear" policy about the meaning of "public utilities," and it has never adopted a land development regulation to implement the interpretation given at hearing. The County's position is contrary to conventional land use planning practices which define "utilities" as infrastructure such as water or electrical lines that transport a service and would, by their very nature, be required to cross different land uses. Conversely, conventional land use planning practices define "facilities" as infrastructure that performs a service, such as power plants or pumping stations. This infrastructure does not cross different land use categories. In this case, the absorption beds perform a service by further processing and treating waste effluent from Phase I. Therefore, conventional land use planning practices would logically call for the plant and related absorption beds to be classified as "public facilities" under Policy 2.2(i) of the County's comprehensive plan. That policy defines the term as including "water and sewer facilities." The classification would also be compatible with the definition of "public facilities" found in DCA Rule 9J-5.003(105), Florida Administrative Code. Finally, the County and intervenors point out that the facility may not be constructed for many years, depending on the rate and amount of development that occurs in Phase I. Thus, they contend that there is no immediate requirement for the County to change the future land use designation of the property where the absorption beds will be located. But given the fact that the beds and plant are a single, interrelated system, the County cannot choose to change the land use designation for a portion of the facility while ignoring the remainder.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administration Commission enter a Final Order determining Ordinance No. 96-22 adopted by Franklin County on October 3, 1996, as not in compliance for failing to meet the criteria of Section 163.3187(1)(c), Florida Statutes. DONE AND ENTERED this 13th day of February, 1997, in Tallahassee, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1997. COPIES FURNISHED: Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Room 2105 Tallahassee, Florida 32399-0001 Richard W. Moore, Esquire Post Office Drawer 1759 Tallahassee, Florida 32302-1759 Alfred O. Shuler, Esquire Post Office Drawer 850 Apalachicola, Florida 32320-850 L. Lee Williams, Esquire Post Office Box 1169 Tallahassee, Florida 32302-1169 Stephanie Gehres Kruer, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325-A Tallahassee, Florida 32399-2100 Gregory C. Smith, Esquire Office of the Governor The Capitol, Room 209 Tallahassee, Florida 32399-0001
