The Issue The issue is whether Plan Amendment 98-51C adopted by the City of Ocala by Ordinance No. 2869 on August 4, 1998, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this land use dispute, Petitioner, Shady Historic and Scenic Trails Association, Inc. (SHASTA), has challenged the consistency of a plan amendment adopted by Respondent, City of Ocala (City). The amendment changes the land use on certain real property owned by Intervenor, Norbert M. Dorsey, as Bishop of the Diocese of Orlando (Intervenor). By stipulation, the parties have agreed that SHASTA is a not-for-profit corporation whose members include residents of Marion County, Florida (County). Through the testimony of its registered agent, it was established that SHASTA is a "county- wide organization" formed in 1985 because of its concern "about where growth was going," and the potential impact of growth on the "plan." Another witness (Baldwin) made comments to the City at one of its meetings concerning the adoption of the plan. Whether she is a member of SHASTA is not of record, and it can reasonably be inferred that the witness resides and owns property outside of the City. SHASTA's registered agent also presented testimony at hearing, but whether she resides within the City or in the County is unknown. Finally, while SHASTA's registered agent presented argument during her opening statement concerning the organization's standing, she presented no evidence (through sworn testimony or exhibits received in evidence) that any member of the organization who resides, owns property, or owns or operates a business within the City made comments, recommendations, or objections to the City during the course of its review and adoption of the amendment. Therefore, there is insufficient evidence to demonstrate that Petitioner is an affected person within the meaning of the law. The City is a local government located within the County. It is one of five cities in the State designated by the Department of Community Affairs (DCA) as a "sustainable community" under Section 163.3244, Florida Statutes (1999). To this end, the City has entered into a sustainable community designation agreement with the DCA, and thus its plan amendments are not reviewed by the DCA or the regional planning council. Intervenor is an affected person since it owns the property which is the subject of the amendment. The amendment The City adopted plan amendment 98-51C by Ordinance No. 2869 on August 4, 1998. That amendment changed the land use on Intervenor's property from agriculture to public buildings and facilities. Section 1.1.12 of the City's Future Land Use Element specifies that the public buildings and facilities category "includes areas or facilities that serve the general public," such as "government buildings, public grounds, airports, cemeteries, churches and educational facilities." In making its recommendation, the City's Planning Department considered factors such as the type of soil on the property; the absence of known caves, sinkholes, or wetlands on the site; the suitability of the property for development; the property's location in the City's urban service area; the County's land use designation of the property as an urban land use; and the compatibility of the property with the surrounding land uses, including the proximity of the property to adjacent developments of regional impact (DRI), malls, large movie theaters, shopping centers, and other heavy commercial and retail development. In addition, the Planning Department considered the comments of other state and governmental agencies, including the DCA, St. Johns River Water Management District (SJRWMD), and County. The County did not object to the amendment. Based on the foregoing data and analysis, the Planning Department recommended to the City's Planning and Zoning Commission (Commission) that the plan amendment be adopted. The Commission in turn recommended to the City Council that the amendment be approved. That recommendation was accepted by the City on August 4, 1998. The property The subject property consists of 40 acres and was annexed into the City in 1998. It lies within the boundaries of the City at the southeastern corner of the intersection of Southwest 42nd Street and Southwest 27th Avenue. Both roads are two-lane paved roads designated by the County as special scenic roads. This means that the right-of-way on those roadways cannot be widened or altered, and trees cannot be removed in or adjacent to the right-of-way. Prior to annexation, the property had a low-density residential land use designation in the County, and it was zoned agricultural. However, this zoning was inconsistent with the land use designation and a more likely zoning classification under the County comprehensive plan would have been R-1, which permits a maximum of four dwellings per acre. Had the property been assigned a City zoning classification most similar to the County's R-1, it would have received a low-density residential use allowing five residential units per acre. Intervenor purchased the property for the purpose of building a private school on the site. In the County, schools are located in both rural and urban areas. Under the County's land use designation for the property, schools are an allowable use. Before the property was annexed, it was located within what is known as the City's "urban service area." Under an interlocal agreement with the County, the City had the exclusive right to provide water and sewer services to that area and to condition the provision of such services upon annexation. At the time the plan amendment was adopted, the property immediately south of the subject property was being operated as a thoroughbred horse farm known as Glen Hill Farm. Immediately to the north and across Southwest 42nd Street was property with a land use designation of low-density residential allowing five residential units per acre. That property was previously approved as a planned unit development of mixed commercial and residential uses. The adjacent property on the northwest corner of the intersection of Southwest 42nd Street and Southwest 27th Avenue has been developed as a high-density assisted living facility. Immediately behind the assisted living facility are two DRIs. The first includes retail uses (including a shopping center), professional and medical offices, two large apartment complexes (consisting of more than 700 units), and three or four nursing homes or adult living facilities; this DRI would allow a vocational or technical school with approximately 500 students. The second DRI consists of the Paddock Mall, which includes 580,000 square feet of developed retail use and another 173,000 square feet of available but undeveloped use. Across Southwest 27th Avenue to the west is property commonly known as the Red Oak Farm property, which is the subject of another plan amendment challenge by Petitioner in Case No. 98- 4144GM. That amendment allows medium-density residential use. Finally, the property is located within one mile of the fastest growing and most intensively developed property within the City, which lies in and around State Road 200. The objections raised by Petitioner In its Amended Petition filed on November 2, 1998, SHASTA has alleged that the plan amendment is not in compliance for a number of reasons. They include contentions that the property is unsuitable for a private high school in that all of the land slopes to the south where extensive flooding has occurred (paragraph 9); that the site cannot be engineered to prevent flooding or that control surface water flow by retention ponds will leak into the aquifer (paragraph 10); that the site is vulnerable to stormwater pollution (paragraph 11); that the City has inadequate data and analysis to support development regulations for natural resources protection, including sinkholes and floodplains pursuant to the Conservation Element (paragraph 12); that the City has not specified how sinkholes or solution pipes to the aquifer will be protected pursuant to Policies 1.5 and 1.7 of the Conservation Element (paragraph 13); that the City has violated Policy 1.4 of the Conservation Element by not continuing the County land use designations on the property (paragraph 14); that the City has not distributed proposed interlocal agreements for annexation and future land uses as required by Policy 2.8 of the Future Land Use Element (paragraph 15); that the amendment is not in compliance with Goal II of the Future Land Use Element (paragraph 16); that the amendment is not in compliance with Policy 3.5 of the Intergovernmental Coordination Element (paragraph 17); that the amendment is inconsistent with revisions made by the 1998 Legislature concerning school siting in Section 163.3177(6)(a), Florida Statutes (1999)(paragraph 18); that the amendment does not further "the six broad principles of sustainability," as set forth in Section 163.3244(1), Florida Statutes (1999)(paragraph 19); that extending water and sewer lines to the property is unfair to City taxpayers (paragraph 20); that City taxpayers will be forced to pay a higher rate to fund expansion of City services into the area (paragraph 21); and that the school will not be compatible with adult living facilities located northwest of the property (paragraph 24). Allegations not raised until hearing, such as a contention that the amendment would promote urban sprawl, were deemed to be untimely raised and were not considered. Finally, concerns about the specific design of the school, assuming one is built, are not relevant to a determination of whether the amendment is in compliance. As to the allegation in paragraph 18 concerning the amendment's lack of compliance with school siting requirements in Section 163.3177(6)(a), Florida Statutes, that allegation is irrelevant since the new law became effective more than a year after the amendment was adopted. Likewise, the allegation in paragraph 19 has been found to be irrelevant for the reasons stated in the Conclusions of Law, while the allegation in paragraph 16 regarding Goal II of the Future Land Use Element has no relevance to the amendment since it refers to a transportation concurrency exception/urban area redevelopment area, a matter not in issue here. Finally, the allegations in paragraphs 20 and 21 regarding the potential for taxes being raised are not grounds on which to find an amendment not in compliance. The undisputed (and only) evidence shows that there are no sinkholes or known wetlands on the property; that the property did not have a conservation land use under the County's Comprehensive Plan; that the City has entered into an interlocal agreement with the County establishing an urban service area; that the amendment is compatible with surrounding land uses, including adult living facilities; and that the City considered and analyzed all of the data summarized in Findings of Fact 6 and 7 before it adopted the amendment. Therefore, the allegations in paragraphs 12-15, 17, and 24 of the Amended Petition have not been sustained. Still in issue are the allegations in paragraphs 9-11 of the Amended Petition concerning potential flooding and stormwater pollution. They will be discussed below. The property The property was once one of the three largest horse farms in the County. These farms have already been developed or, as is the case here, are in the process of being developed. The entire City, including Intervenor's property, and most of the land in the County, lie within a Karst sensitive area, which features sinkhole and cave systems. Mapped and documented cave systems are found approximately one-half mile to the west- southwest (Briar Cave) of the property and a like distance to the east (Oak Creek Caverns). However, no sinkholes, caves, or wetland systems have been found on the property, and the rules of the SJRWMD pertaining to Karst sensitive areas do not prohibit the construction in question. The tract is part of a high Floridan Aquifer (Aquifer) recharge area which permits very rapid infiltration of surface waters to the Aquifer, and it discharges into a 100-year-old flood plain. However, the property itself is not located in a flood plain. Two basic soils are found on the property. They are the Kendrick soil and Zuber soil. Due to shrinkage or swelling of the clay and "low strength," these types of soil present "slight" or "moderate" construction limitations. Expert testimony confirmed, however, that through good planning and design, or presite removal of the soils, these limitations could be readily overcome. This was also acknowledged by two of Petitioner's witnesses. At the same time, if SJRWMD regulations for construction of water retention areas in Karst sensitive areas are followed, those limitations would be resolved. Typically, the City does not impose specific requirements concerning stormwater retention or groundwater protection at the comprehensive plan stage. Rather, these are normally imposed through the City's land development regulations at the site plan stage of the process. Presumably, at that point, Petitioner will have an opportunity to raise these types of concerns. The City has had experience with other properties having Karst topography and water recharge features similar to the property in question. For example, on the Heathbrook DRI, the City imposed groundwater protection provisions which other local governments throughout the State have used as a model for other developments. To prevent groundwater contamination, the City uses a tool called a DRASTIC Index (Index), which was prepared by the United States Environmental Protection Agency. The Index is used by the City and a host of other regulatory agencies to determine the potential of property for groundwater contamination. According to the Index, the property is less vulnerable to contamination than approximately seventy percent of the rest of the land in the County. City water facilities are available in the right-of-way on the north and west sides of the property, while City sanitary sewer facilities are approximately one-half mile away. If the project goes forward, Intervenor would be required to run sewer lines from the existing sewer facility to the improvements to be located on its property. If stormwater retention facilities are constructed on the property pursuant to City land development regulations, more pre-development water would be retained on the property than would be the case if the property were not developed. In addition, less runoff would be generated from the property if it were developed under the public buildings and facilities land use than would occur if the property was developed under the City land use most comparable to the County's R-1 classification. The potential for flooding Because the property slopes from the north to the south, stormwater run-off naturally flows over the property to the south and east across Glen Hill Farm to a natural low area or pond located on that farm. The evidence shows that in February and March 1998, when unusually heavy rains occurred, substantial flooding occurred on the farm, causing one of its road to be closed for almost two weeks. Intervenor has entered into an agreement with Glen Hill Farm whereby the farm has agreed to allow a portion of stormwater to continue to flow onto its property. Without such an agreement, the City would have required that Intervenor retain all stormwater from a 100-year storm on its property. A stormwater run-off system and a drainage system can be designed on the property to fully satisfy the SJRWMD's Karst sensitive development regulations. Such a system will retain all post-development run-off created by a 100-year storm. Thus, development of the property is unlikely to cause flooding on adjacent properties. Stormwater runoff As noted above, the SJRWMD has promulgated regulations for the design and construction of drainage systems and drainage basins within Karst sensitive areas, which are designed to protect against stormwater run-off contamination of the underlying aquifer. These regulations are more stringent than those that apply to other areas; if adhered to by Intervenor, they will adequately contain and control stormwater run-off and prevent groundwater contamination. In order to develop the property, Intervenor will be required to go through the site plan approval process with the City and to comply with the SJRWMD Karst sensitive regulations. Sufficient testing has been performed on the property to determine that stormwater retention systems may be designed for the property which will avoid unreasonable risk of groundwater contamination. The land use assigned to the property has less potential for detrimental impact upon the environment than would occur had the County permitted development using an R-1 classification, or a similar one by the City upon annexation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the City of Ocala enter a final order finding Plan Amendment 98-51C to be in compliance. DONE AND ENTERED this 28th day of July, 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 28th day of July, 2000. COPIES FURNISHED: Darlene Weesner, Registered Agent Shady Historic and Scenic Trails Association, Inc. 655 Southwest 80th Street Ocala, Florida 34476 W. James Gooding, III, Esquire Gilligan, King & Gooding, P.A. 7 East Silver Springs Boulevard Suite 500 Ocala, Florida 34470-6659 Bryce W. Ackerman, Esquire Hart & Gray Post Office Box 3310 Ocala, Florida 34478-3310 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325A Tallahassee, Florida 32399-2100
The Issue The issue at the hearing was whether proposed sign locations located in Holmes County 5,000 feet West of State Road 79 on the South side of Interstate 10 and 7500 feet East of State Road 79 on the North side of Iterstate 10 should be permitted. 1/
Findings Of Fact Petitioner applied to Respondent for permits on two proposed sign locations in Holmes County, Florida. The locations were 5,000 feet West of State Road 79 on the South side of Interstate 10 and 7500 feet East of State Road 79 on the North side of Interstate 10. Both locations are in areas which are zoned commercial and otherwise meet the Department's requirements for spacing, etc. The area in question was zoned commercial in 1988 when the County adopted Ordinance Number 88-02 as a comprehensive zoning plan. The relevant commercial area parallels Interstate 10, Highway 90 and State Road 79 in which many commercial activities are presently located. The portions paralleling Interstate 10 West of State Road 79 are located on the North side of I-10 and run west, terminating at County Road 173. The portions paralleling I-10 East of State Road 79 are located on the North and South sides of I-10 and run east for over two miles. While some may disagree that the areas designated for commercial or industrial use will develop those uses in the future, it is clear that commercial or industrial development is a reasonable use of this land for comprehensive zoning purposes and neither the physical dimensions nor configurations of the area prevent or prohibit such use. Prior to the enactment of Ordinance 88-02, Holmes County held several public hearings and worked with a company which is an expert in land use planning in developing this ordinance. The ordinance considers all reasonable land uses and encompasses all unincorporated areas of the County. The ordinance is consistent with the County's comprehensive plan and with the purposes of the ordinance stated therein. The Ordinance does not permit lesser uses of the commercial or industrial areas. Commercial or industrial use is the only use allowed in the commercial and industrial areas. Neither variance or special exceptions are required for a commercial or industrial use of those areas. The ordinance is clearly comprehensive zoning and was not adopted by the County for the primary purpose to permit signs. Numerous other signs within this same area have been permitted by DOT since the adoption of Ordinance 88-02.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order permitting signs located in Holmes County 5,000 feet West of State Road 79 on the South side of Interstate 10 and 7500 feet East of State Road 79 on the North side of Interstate 10. DONE and ENTERED this 18th day of July, 1989, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1989.
Findings Of Fact Based upon all of the pleadings and evidence, including the stipulation by counsel, the following findings of fact are determined: Respondent, Marion County (County), 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. In this case, the County has adopted an amendment to its comprehensive plan, which is the subject of the dispute. Petitioners, Henry and Betty Prominski, are residents of Marion County and own a 16.5 acre tract of land on the southeast bank of Lake Weir in the southeastern portion of the County. The property is more commonly known as Orangewood Shores Subdivision. Until April 1994, the land was classified in the urban expansion category, which allows up to four residential units per acre. The County adopted its comprehensive plan in January 1992. After the plan was determined by the DCA to be not in compliance, the County eventually adopted certain remedial amendments on April 7, 1994, one of which changed the land use designation on petitioners' property from urban expansion to urban reserve. Under the new classification, only one residential unit per ten acres is allowed. A cumulative notice of intent to find the plan and remedial amendments in compliance was issued by the DCA on May 30, 1994. During the foregoing process, petitioners timely submitted oral or written objections to the County concerning the plan amendment, and thus they are affected persons within the meaning of the law. On September 14, 1994, the County, through its Staff Vesting Committee, issued Vesting Order No. 94-14, which granted petitioners' application for vesting determination on Orangewood Shores Subdivision. Among other things, the order determined that "the applicant has vested rights to complete the development (known as Orangewood Shores Subdivision) without aggregation of lots providing the applicant continues development activity in good faith." In this regard, petitioners have represented that they intend to "continue development activity in good faith," and they do not intend to vacate their plat. They also recognize that their land is vested from the plan amendment. Despite the lack of any viable issues regarding the development of their property, for the sake of "principle" only, they still wish to contest the de facto reclassification of their property. The foregoing language in the Vesting Order means that petitioners have vested rights to complete the development of their land notwithstanding the change of land use designation from urban expansion to urban reserve. The parties also agree that the effect of the Vesting Order is to vest the property from the comprehensive plan and the restrictions of the urban reserve area. Therefore, within the narrow context of the petition, the thrust of which is that the plan amendment prevents the subdivision's development, the issues raised therein are no longer viable, and petitioners do not have a cognizable interest in the outcome of this proceeding. The controversy is accordingly deemed to be moot.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing the petition in this case on the ground the issues raised therein are moot. DONE AND ENTERED this 21st day of June, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 1996. COPIES FURNISHED: Henry J. Prominski, Esquire Post Office Box 540 Weirsdale, Florida 32195-0540 Sherry A. Spiers, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 Thomas D. MacNamara, Esquire 601 Southeast 25th Avenue Ocala, Florida 34471-2690 James F. Murley, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Stephanie M. Gehres, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325-A Tallahassee, Florida 32399-2100
The Issue The issue in this case is whether Meridian Place Limited Partition meets all criteria for a limited partition under the City of Tallahassee law.
Findings Of Fact The Parties. Respondent, T.S. Builders, Inc. (hereinafter referred to as "T.S."), is a Florida corporation located at 2700 Hadley Place, Tallahassee, Florida. Respondent, City of Tallahassee (hereinafter referred to as the "City"), is a municipal corporation organized under the laws of the State of Florida. Petitioner, Jacob D. Varn, is a resident of the City. Mr. Varn resides in a small subdivision located on Meridian Place near the property which is the subject of this case. The subdivision in which Mr. Varn resides consists of approximately 5 or 6 lots. The evidence failed to prove who John and Nancy Fruin, Francis C. and Karen W. Skilling, Thomas J. Bixler, Sheila S. Varn, and Naomi S. Perkins are. The evidence also failed to prove where they reside. The Subject Property. T.S. owns a 1.385 acre unrecorded residential parcel of real property (hereinafter referred to as the "Subject Property") located at the southeast corner of Meridian Road and Meridian Place. Approximately 170 feet of the Subject Property fronts on Meridian Place and 356 feet fronts on Meridian Road. Meridian Road is a two-lane public street with a center turning lane. Meridian Road runs north-south. Meridian Road has been designated as a "canopy road." As a consequence, Meridian Road is subject to a canopy road protection setback: no construction is allowed within 100 feet from the centerline of Meridian Road. Meridian Place is a two-lane, dead-end, City-maintained residential public street. Meridian Place runs east-west. Meridian Place is not classified as a major or minor arterial or major collector roadway. The Subject Property is located within an unrecorded residential subdivision known as "Meridian Place." The Subject Property has not been previously subdivided. The Subject Property is located in an area designated as a Residential Preservation I zoning district. The maximum density allowed in Residential Preservation I zoning districts is 3.6 single-family dwelling units per acre. Land uses in the area immediately surrounding the Subject Property are limited to low-density, single-family residences. Certificate of Land Use Compliance and Concurrency Certification. On July 28, 1997, T.S. obtained a land use compliance certificate (hereinafter referred to as an "LUCC"), for the Subject Property from the City. The City identified the Subject Property in the LUCC as parcel I.D. No. 11-18-206-01-0000. Through the LUCC the City concluded that the Subject Property was eligible for subdivision into 5 single-family lots, as long as density did not exceed 3.6 dwelling units per acre, the allowable density for the zoning district within which the Subject Property is located. The LUCC indicated that access to the lots would have to be limited to Meridian Place. The City also concluded in the LUCC that any proposed subdivision of the Subject Property would be limited to subdivision as a "limited partition," that it would be reviewed under applicable canopy road requirements, and that it would require a concurrency certificate, an environmental permit, building permits, and certificates of occupancy. A certificate of concurrency for 3 single-family detached dwellings on the Subject Property was issued by the City to T.S. on September 16, 1998. The other permits must be obtained at a later date. T.S.'s Application for Limited Partition. On or about September 10, 1998, T.S. filed a City of Tallahassee Limited Partition Application (hereinafter referred to as the "Partition Application"), with supporting documents. The Partition Application was filed pursuant to Section 20.1, Article XX, Chapter 27 of the City's Code, the City's Zoning, Site Plan and Subdivision Regulations (Chapter 27 of the City's Code will hereinafter be referred to as the "Zoning Regulations"). The Partition Application filed by T.S. included the following: A completed City of Tallahassee Limited Partition Application; A Limited Partition Checklist indicating that all items, except an 8 1/2 X 14-inch document to be recorded in the Official Records Book, had been filed. The 8 1/2 x 14-inch document to be recorded in an official records book was required to include a boundary survey, the signature and seal of a surveyor, existing structures, date of preparation, total acreage, lot and block numbers, easements, a statement concerning future subdivisions, and a scale of plan (hereinafter referred to as the "Recordable Plan"); A vicinity map indicating the location of the Subject Property in relation to adjacent streets and properties; A Project Narrative, describing the proposed project; A completed Applicant's Affidavit of Ownership & Designation of Agent; A sketch of the Subject Property indicating the location of water and sewer connections to be serviced by the City; A 100-year flood frequency hazard area map for the area, including the Subject Property; and A copy of the Preliminary Certificate of Concurrency for the Subject Property. Although the Recordable Plan required by Section 20.1(3), Article XX, Chapter 27 of the Zoning Regulations was not provided with the Partition Application, consistent with City policy of requiring that the Recordable Plan be provided at the time of final approval of the limited partition, the City accepted T.S.'s Partition Application as complete. The document provided with the Partition Application by S., an 8 1/2 x 11 document, complied with the substantive requirements for the Recordable Plan. At the formal hearing, T.S. presented a Recordable Plan in substantial compliance with Section 20.1(3), Article XX, Chapter 27 of the Zoning Regulations. T.S. Exhibit 15. T.S.'s Proposed Limited Partition of the Subject Property. During the summer of 1998, T.S. submitted a proposal for development of the Subject Property to the City for a pre-application review. Comments concerning that proposal were provided to T.S. by the City in July 1998. T.S. modified its planned development and proposed the subdivision of the Subject Property into 3 single-family residential lots. The proposed density for the subdivision is 2.2 dwelling units per acre, which is within the allowable density for the zoning district in which the Subject Property is located. No new streets are to be created by the proposed partition and access will be limited to Meridian Place, an existing public street. City water and sewer are available to the Subject Property. T.S. has proposed the division of the Subject Property as follows (a copy of T.S. Builders' Exhibit 15 depicting the proposed division of the Subject Property is attached to this Recommended Order and is hereby incorporated herein; the copy of the exhibit will hereinafter be referred to as the "Attached Partition Plan"): Lot 1: Lot 1 will be located closest to Meridian Place. Lot 1 is shaded blue on the Attached Partition Plan. Lot 1 is rectangular in shape. Lot 1 will consist of approximately .391 acres or 17,041 square feet. Lot 1 will have 139.65 feet fronting on Meridian Place and 122.01 feet fronting on Meridian Road. Access from Lot 1 will be directly onto Meridian Place. The westernmost 50 feet of Lot 1 will be placed in an easement because it is located within the canopy road protection zone. Lot 2: Lot 2 will be located adjacent to the southern edge of Lot 1. Lot 2 is shaded yellow on the Attached Partition Plan. Lot 2 is rectangular in shape except for the easternmost boundary, which extends almost 15 feet further to the east on the northern boundary (154.74 feet) than on the southern boundary (139.78 feet). Lot 2 will consist of approximately .460 acres or 18,179 square feet, plus a driveway which will be shared with Lot 3. Lot 2 will have approximately 139.74 feet adjacent to the southern boundary of Lot 1 and 123.50 feet fronting on Meridian Road. Access from Lot 2 will be by a driveway along the eastern boundary of the Subject Property. The distance from Meridian Place to the southeastern corner of Lot 1 is 122.01 feet. The westernmost 50 feet of Lot 2 will also be part of the canopy road protection zone. Lot 3: Lot 3 will be located adjacent to the southern edge of Lot 2. Lot 3 is shaded orange and purple on the Attached Partition Plan. Lot 3 is rectangular in shape except for a portion of the lot that extends along the eastern boundary of Lot 2. This extension is shaded purple on the Attached Partition Plan. The purple-shaded portion of Lot 3 is 15 feet on the north, 123.50 feet on the east, 124.41 feet on the west, and approximately 30 feet on the south. Lot 3 will consist of approximately .534 acres or 18,619 square feet, plus a driveway which will be shared with Lot 2. Lot 3 will have approximately 139.78 feet adjacent to the southern boundary of Lot 2 and 109.65 feet fronting on Meridian Road. Access from Lot 3 will be by a driveway along the eastern boundary of the Subject Property. The western-most 50 feet of Lot 3 will also be part of the canopy road protection zone. Review and Approval of the Partition Application. The preliminary decision to approve the Partition Application was made after review by employees of the City from various interested City departments. The approval decision was made at a meeting held on September 17, 1998. No formal notice of the meeting was given to the public. Although the meeting was open to the public, no public participation was allowed. Mr. Varn was aware of the meeting and attended it. Gordon H. Hansen, a land use planner in the City's Growth Management Department, informed T.S. of the initial decision by letter dated September 17, 1998. The decision of the City was to conditionally approve the Partition Application. T.S. was informed of additional conditions by letter dated September 22, 1998, from the Land Use and Environmental Services Division of the City's Growth Management Department. Approval was conditioned upon T.S. accepting the conditions and submitting revised plans reflecting the acceptance of the conditions. T.S. accepted those conditions on September 17, 1998, September 28, 1998, and at the formal hearing of this case. The conditional approval was not final until the time allowed for a request for hearing challenging the approval had expired. Petitioners filed a challenge to the conditional approval resulting in the abeyance of the final decision until completion of the review process. Petitioners were given a full opportunity to be heard and to participate in the City's decision process during the hearing of this case. The conditional approval of the Partition Application was not given prior to the formal hearing of this case by the Director of the City's Growth Management Department. At the time of approval of the Partition Application, Rhett Miler was the Director of the Growth Management Department. During the hearing of this case the current Director of the City's Growth Management Department, Mr. Robert L. Herman, approved the Partition Application. This approval was obviously given more than ten days after the Partition Application was filed. Proposed Flag Lots. Lots 2 and 3 are irregularly shaped or "stem" lots. The main body of these lots does not abut any road. Proposed access to Lots 2 and 3 will by a narrow extension, or "stem," which will connect the main body of the lots to Meridian Place. Because Lot 1 is located between Meridian Place and Lots 2 and 3, a narrow arm of land is required to provide access to Meridian Place for Lots 2 and 3. As a consequence, Lots 2 and 3 constitute residential "flag lots" as defined in Section 2.1(33), Article II, Chapter 27 of the Zoning Regulations. Access to Meridian Place from Lot 2 as originally proposed by T.S. was to be by way of a 15-foot wide driveway running 122.01 feet from the northeast corner of Lot 2 to the boundary of the Subject Property on Meridian Place. This original driveway is located adjacent to the eastern boundary of Lot 1. The originally proposed driveway for Lot 2 is shaded green on the Attached Partition Plan. Access to Meridian Place from Lot 3 as originally proposed by T.S. was to be by way of another 15-foot wide driveway also running 122.01 feet from what is considered the northeast corner of Lot 3 to the boundary of the Subject Property on Meridian Place. This original driveway is located immediately adjacent to the eastern edge of the driveway for Lot 2. The originally proposed driveway for Lot 3 is shaded red on the Attached Partition Plan. One of the conditions for approval of the Partition Application imposed by the City on T.S. was that the proposed driveways for Lots 2 and 3 be combined to create one driveway to be used for both lots. T.S. agreed to this condition. The proposed driveways for Lots 2 and 3 will, therefore, have a combined total width of 30 feet. As a result of T.S.'s agreement, the proposed driveways will have a minimum of 20 feet of frontage to accommodate utility placement and easement within the driveway. The length of the driveway for Lot 2 will be less than 150 feet from Meridian Place. The length of the driveway for Lot 3 will also be less than 150 feet from Meridian Place if the irregularly shaped configuration of Lot 3 proposed by T.S. is accepted. The combined length of the proposed driveway for Lot 3 and the purple-shaded portion of Lot 3, however, is approximately 245.51 feet. The purple-shaded portion of Lot 3 was identified on T.S. Builders' Exhibit 13 as "access." That exhibit, however, was prepared to address environmental impacts, canopy zone protection, and slopes on the Subject Property. The evidence at hearing proved that T.S. is proposing the subdivision of the Subject Property with the purple-shaded area be included as part of Lot 3 and not merely as "access." The City considers the purple-shaded area of Lot 3 to be part of the "buildable area" of Lot 3. The City also considers the purple-shaded area to be a part of the lot and not the driveway because the driveway is considered to end where the driveway is no longer straight. Due to setback requirements, there is virtually no actual space in the purple-shaded area of Lot 3 which can be built within 160 feet from Meridian Place. See Section 10.6.Y, Article X, Chapter 27 of the Zoning Regulations. Although the odd shape of Lot 3 has obviously been proposed in order for the Subject Property to be subdivided into three, rather than two, lots which will meet the requirements of the Zoning Regulations for lot configuration applicable to flag lots, the City has consistently found similar lot configurations to be in compliance with the Zoning Regulations. The City has consistently concluded that "driveways" end where the width of property used for the driveway expands beyond the minimum width required for the driveway. In this case, the driveway for Lot 3 ends where the purple-shaded portion of Lot 3 begins. Even though the eventual owner of Lot 3 may not be able to place any construction on portions of the purple-shaded area of the lot, T.S. is proposing that Lot 2 and Lot 3 be legally subdivided as depicted on the Attached Partition Plan. As a consequence, the ultimate owner of Lot 3 may use the purple- shaded portion of Lot 3 in the same manner that the orange-shaded portion of the lot may be used. Based upon the City's policy concerning flag lots and the fact that Lot 3 will be legally configured as depicted on the Attached Partition Plan, Lot 3's driveway will consist of the area shaded red and green and will be less than 150 feet from Meridian Place. The Canopy Road Protection Area. In response to the determination that the Subject Property was adjacent to a canopy road, T.S. agreed to comply with the 100 feet from the center line of Meridian Road setback. That setback extends 50 feet into the Subject Property. That 50- foot portion of the Subject Property located within the setback area will serve as the boundary of a conservation easement. The conservation easement will be recorded by T.S. after the limited partition is approved. Section 2.1(13), Article II, Chapter 27 of the Zoning Regulations defines "development" for purposes of the Zoning Regulations to include the "dividing of land into two (2) or more parcels." The City interprets the prohibition of "development" within a canopy road protection area to apply to actual construction or other alteration of the land. The City does not consider that its approval of the mere legal division of property into parcels to be allowing "development to occur within" the canopy road protection area. The City's policy is reasonable. The canopy road protection setback is intended to protect canopy roads from intrusion and disturbance to the canopy. The legal subdividing of property involves no such intrusion or disturbance within the area required to be protected. This conclusion is also supported by other provisions in the Zoning Regulations and the City's Environmental Management Ordinance, Chapter 28 of the Zoning Regulations (hereinafter referred to as the "Environmental Management Ordinance"), that specifically recognize that some actual development is allowed within the canopy protection area. See Section 10.4.A, Article X, Chapter 27 of the Zoning Regulations, and Section 3.1(1)(h), Article 3 of the Environmental Management Ordinance. The Environmental Management Ordinance. On or about May 5, 1998, T.S. submitted a completed Tallahassee-Leon County Natural Features Inventory (hereinafter referred to as the "Natural Features Inventory") for the Subject Property. The Natural Features Inventory indicated the extent to which slopes exist on the Subject Property, identified the canopy road setback and, by an attached letter, demonstrated that a cultural resource assessment had been performed. According to the Natural Features Inventory, it was concluded that there were "severe" grades on .024 acres of the Subject Property or 1.74% of the Subject Property. It was also concluded that there were "significant" grades on .415 acres of the Subject Property or 29.9% of the Subject Property. A natural features analysis of the Subject Property was also conducted by Susan Tanski, a Staff Biologist for the City. Ms. Tanski found that the Subject Property impacted a canopy road. She also found "severe" and "significant" grades on the Subject Property. By letter dated May 7, 1998, the City approved the Natural Features Inventory and indicated that the Meridian Road Canopy Road and the severe and significant slopes on the Subject Property would have to be addressed. Severe grades or slopes are considered "preservation" areas under the Environmental Management Ordinance and significant slopes and canopy roads are considered "conservation" areas. Although the Natural Features Inventory was submitted as part of T.S.'s original proposed project, the conclusions reached in the Natural Features Inventory of T.S. and Ms. Tanski's conclusions based thereon did not change as a result of the proposed subdivision of the Subject Property ultimately approved by the City and at issue in this proceeding. When the City initially approved the Partition Application, it informed T.S. that the approval was conditioned upon the submission of an environmental impact analysis to Ms. Tanski for review. In September 1998 T.S. submitted an environmental impact analysis of the Subject Property. Although no easement recording any preservation or conservation areas has been recorded by T.S.; yet, it has agreed to do so when the Partition Application is approved. No environmental management permit has been obtained by T.S. for the Subject Property. Significant and Sever Slopes. The Environmental Management Ordinance provides that grades of greater than 20%, or "severe" slopes, are considered "preservation" areas and that grades of between 10 and 20%, or "significant" slopes, are considered "conservation" areas. The City's policies for the treatment of significant and severe slopes is set out in Policy 601GM. Pursuant to Section 601.06 of Policy 601GM, significant slopes are subject to regulation unless they have a "minimum width or length of 80 feet at some point . . . " and " . . . the area must be at least one- quarter acre (10,890 square feet)." All severe slopes are subject to regulation regardless of size or dimension. There are four significant slopes on the Subject Property identified by T.S. as slopes A, B, C, and D. T.S. Exhibit 7. Slopes A, B, and C are all slopes that are of a size that do not require regulation. Slope D, which is approximately 11,813 square feet in area, is subject to regulation. Therefore, a minimum of 50% of slope D must be placed in a conservation easement. An area located adjacent to slope D has been identified as slope E. Slope E, which consists of 922 square feet, is a severe slope, subject to regulation and preservation. Slope E, when considered as a part of slope D, is less than 25% of the total area of the combined slopes. Therefore, slope E may be considered as a significant slope for purposes of regulation in this case. Rather than being subject to total preservation, all that is required is that 50% of the combined area of slopes D and E be placed in a conservation easement. The 50% preserved area may be made up totally of slope D, totally of slope E, or partly of slopes D and E. T.S. submitted documents to the City in May 1998 which included different measurements for the amount of significant and severe slopes on the Subject Property. See T.S. Exhibit 4. T.S. submitted updated data, however, with its environmental impact analysis submitted in September 1998. See T. S. Exhibit 7. The later information concerning the area of significant and severe slopes is the more accurate information relied upon the City in this proceeding. T.S. also represented in May 1998 that it did not intend to disturb slope E. As a result of this representation, the City informed T.S. that it would not be necessary to deregulate slope E (treat it as a significant slope) because of this representation. In September, and at the formal hearing of this case, the City and T.S. agreed that, due to the size of slope E and its proximity to slope D, slope E should be deregulated and slope E would be treated as a part of a single significant slope subject to 50% protection of the total area of slopes D and E. As a result, the City informed T.S. by letter dated September 30, 1998, that its request to deregulate (treat it as a significant slope) slope E was approved. The total combined area of slopes D and E is 12,735 square feet. Therefore, a minimum of 6,375.5 square feet must be preserved by placement in a conservation easement. T.S.'s written representations concerning how the required area will be preserved were not precise. In a letter dated June 5, 1998, from the Project Manager for T.S. to a City representative it was represented that "approximately 54% [of slopes D and E] is to be contained within the protected canopy zone and other undeveloped portions of the site." (Emphases added). In T.S.'s environmental impact analysis it was represented that "over 50% of the fourth [significant slope] lies within natural areas." (Emphasis added). At hearing, Ms. Tanski testified about the area of slope D to be included in a conservation easement according to what T.S. has depicted on site plans submitted to the City. According to Ms. Tanski, T.S. has depicted the inclusion of at least 50% of slopes D and E in the proposed canopy road conservation area. Evidence in rebuttal of Ms. Tanski's testimony was offered by Petitioners, but only after the formal hearing had concluded. Petitioners included calculations of the percentage of slopes D and E shown in the conservation easement area as part of their proposed order. Those calculations were not testified about during the formal hearing and do not appear to be the types of simple mathematical calculations that can be made from the evidence presented at hearing, especially in light of the failure to offer any to-scale drawings of the site into evidence during the hearing. The calculations offered by Petitioners in their proposed order were made by Mr. Varn, a licensed surveyor, after the formal hearing had ended. The calculations were the subject of Petitioners' first motion to reopen this case. That motion was denied and, therefore, the calculations should not have been relied upon by Petitioners in their proposed order. Even without the calculations and evidence Petitioners attempted to offer after the hearing of this case, Ms. Tanski's testimony concerning whether T.S. has depicted at least 50% of slopes D and E to be part of the canopy protection zone easement area cannot be accepted. A simple visual review of T.S. Exhibit 7, the document that Ms. Tanski relied upon in determining the percentage of slopes D and E included within the conservation easement, does not support a finding that T.S. has visually depicted how it will ensure that the condition concerning the percentage of slopes D and E to be included in a conservation easement will be met. Even though Ms. Tanski's conclusion concerning the percentage of slope D and E depicted to be in the conservation easement were not clear,is incorrect, T.S. has agreed that it will provide a conservation easement for recording that includes a minimum of 50% of the combined area of slopes D and E upon approval of its Partition Application. In summary, although some of T. S.'s representations concerning the extent of slopes D and E which will be subject to a conservation easement were not clear, T.S. has agreed to all conditions placed on the approval of its Partition Application, including the regulation of severe and significant slopes. T.S. has, therefore, agreed to ultimately record a conservation easement covering at least 50% of the combined area of slopes D and E upon approval of the Partition Application. There are no active karst features on the Subject Property. Compatibility. T.S.'s proposed use of the Subject Property is residential. Residential use of the Subject Property is consistent with the land uses in the surrounding area. T.S. has proposed a density of 2.2 residential units per acre for the Subject Property. This density, while greater than the immediately surrounding neighborhood density, is within the 3.6 residential units per acre density approved for the zoning district in which the Subject Property is located. While the proposed use of the Subject Property is more intense than the surrounding neighborhood, the weight of the evidence proved that there is nothing incompatible about the proposed use of the Subject Property. Miscellaneous Notice Requirements of the Tallahassee- Leon County Comprehensive Plan. Policy 1.3.6 of the Conservation Element of the Tallahassee-Leon County Comprehensive Plan (hereinafter referred to as the "City's Plan") provides the following: A site plan review will be required for all projects which have 40% or more of their acreage located in the preservation or conservation overlay districts. The land development code shall include procedures for public notification and comment on such development plans. Objective 1.5 of the Intergovernmental Coordination Element of the City's Plan provides, in part, the following: On a continuing basis, local government shall promote awareness and involvement of citizens of Tallahassee-Leon County in the comprehensive planning and plan implementation process. Specifically, the . . . City . . . shall make full use of the local media, and shall conduct public workshops, meetings, and hearings tailored to achieve broad public knowledge of planning issues and to solicit public involvement in local decision making. . . . Petitioners' reliance on Policy 1.3.6 of the Conservation Application Element and Objective 1.5 of the Intergovernmental Coordination Element of the City's Plan is misplaced. Neither of these provisions requires that notice of any meetings involved in this case be given to the public or that the public be allowed to actively participate in the meeting at which the Partition Application was considered by the City. The City's Plan provides the broad framework for the management of growth within the City over a long planning period. The details of that management system are set out in the City's land development regulations. The land development regulations govern the everyday decisions the City must make, not the City's Plan. If Petitioners' argument concerning the applicability of these provisions of the City's Plan to this matter were accepted, those provisions would also apply to practically every decision made by City staff. To interpret the City's Plan; Chapter 163, Florida Statutes; or Chapter 286, Florida Statutes, to require such public participation would cause an absurd result. Finally, Petitioners raised the alleged violation of Policy 1.3.6 of the Conservation Element and Objective 1.5 of the Intergovernmental Coordination Element of the City's Plan for the first time in their proposed recommended order. Petitioners did not allege any violation of this Policy or Objective in their petition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Planning Commission dismissing all Petitioners except Jacob D. Varn and finding that the Partition Application is approved with the conditions imposed upon, and agreed to by, T.S. Builders, Inc. DONE AND ENTERED this 10th day of June, 1999, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1999. COPIES FURNISHED: David W.Moye, Esquire Jacob D. Varn, Esquire Fowler, White, Gillen, Boggs, Villareal and Banker, P.A. 101 North Monroe Street, Suite 1090 Tallahassee, Florida 32301 Donna S. Biggins, Esquire Ronald A. Mowrey, Esquire Mowrey & Minacci, P.A. 515 North Adans Street Tallahassee, Florida 32301 Linda R. Hurst, Assistant City Attorney City of Tallahasee City Hall 300 South Adams Street Tallahassee, Florida 32301 Susan S. Thompson, Esquire Smith, Thompson & Shaw 3520 Thomasville Road, 4th Floor Tallahassee, Florida 32308 Jean Gregory, Clerk Tallahassee-Leon County Planning Commission City Hall, 4th Floor 300 South Adams Street Tallahassee, Florida 32301
The Issue The issue is whether the Respondents are subject to discipline for offering and selling lots in a subdivision. The Department contends that the Respondents were required to obtain an order of registration before selling land, and to comply with other requirements with respect to their sales practices. The Respondents contend they are exempt from the registration and other regulatory requirements.
Findings Of Fact The Division is the state agency responsible for the enforcement of the Florida Uniform Land Sales Practices Act, Chapter 498, Florida Statutes. Orlando East Corporation is a Florida corporation formed in 1980 by Robert J. Loughlin which engages in the business of selling unimproved real estate in the State of Florida. It is not a government agency. Robert J. Loughlin is the President and sole shareholder of Orlando East Corporation. Between 1980 and 1986 the corporation acquired title to approximately 97 lots in the Partin Park Subdivision, a plated subdivision which contains 768 lots located in Orange County, Florida. The plat is recorded in Plat Book N at page 67 in Public Records of Orange County. The subdivision was originally approved by the Board of County Commissioners of Orange County, on February 9, 1926. On April 15, 1980, Orlando East purchased lots 1-24 and 25A in block 5 of the subdivision and lots 24-48 in block 14; on December 5, 1985, the corporation purchased lots 1-24 in block 8 of the subdivision; on June 27, 1986, the corporation purchased lots 25-48 of block 8 of the subdivision. Obviously, Orlando East Corporation is not the original subdivider of Partin Park. The Respondents have offered for sale, and sold 60 of the lots they had purchased in Partin Park by conveying 3-lot parcels in 20 sales transactions. Some of the parcels were sold by agreements for deed (nine sales), or by warranty deed or exchange agreements (11 sales). The relevant documents were executed by Mr. Loughlin on behalf of the corporation. All sales took place before February 16, 1987. One of the purchasers under an agreement for deed was Shirley Katonka. Mr. Loughlin solicited purchasers for the parcels owned by Orlando East through long distance telephone calls to out-of-state purchasers. The Respondents have not obtained an Order Of Registration to sell the lots under Sections 498.005(12), and 498.029, Florida Statutes. Neither do the Respondents have a current Public Offering Statement approved by the Division for the lots offered for sale or sold in the Part in Park subdivision. None of the land conveyed by Orlando East Corporation in the subdivision was sold as part of a reservation program approved by the Division under Section 498.024, Florida Statutes. None of the lots were re-platted after Respondents purchased them. The lots were not offered for sale as cemetery lots. The offer to sell parcels in Partin Park subdivision was not registered with the Florida Department of Banking and Finance, Division of Securities, nor with the United States Securities and Exchange Commission. The sales of each 3 lot parcel in the subdivision were for $5,000 or less. The parcels were sold without any residential or commercial buildings located on them and without the obligation of Orlando East Corporation or Mr. Loughlin to construct residential or commercial buildings on them for the purchasers. The Division had not granted an order exempting Part in Park subdivision from the registration requirements of Chapter 498 Florida Statutes, before any of the 20 sales were made by the Respondents. None of the 20 purchasers the Respondents solicited for sales received a synopsis, which had been approved by the Division, of the sales script used in conjunction with the long distance telephone solicitations. The original plan Orlando East Corporation and Mr. Loughlin had for the distribution of the lots was to sell all lots to fewer than 45 persons. This was accomplished by grouping the lots into parcels of 3-lot units. There were no covenants, declarations, or legal restrictions on the property which prohibited Orlando East Corporation from disposing of the property as individual lots. One of the reasons lots were sold in 3-lot units was to provide a purchaser a large enough piece of property so that the owner might be able to build a house on it, after obtaining a variance from the local government. The property was not sold as a home-site subdivision, however. The individual lots as plated measured 25' x 140', but the 3-lot units meet the county requirements that building lots have 75 feet of frontage and a minimum of 10,000 square feet. Of the eleven agreements for deed, eight of the original purchasers are making payments on their lots. Ms. Shirley Katonka cancelled her purchase several years ago. The Respondents are receiving a gross income of $750 per month for the eight active agreements for deed. The monthly expenses of operation for the Respondents' business is between $300 and $350 per month, leaving the Respondents a net profit of between $400 and $450 per month for the eight active contracts, assuming the purchasers continue to pay under their agreements for deed. Orlando East Corporation currently has $450 in the bank. Respondents are not offering or selling lots now, but are awaiting the outcome of this proceeding. There is no evidence that the Respondents have been selling lots in Partin Park under a common promotional plan with any other person or entity, and the Division does not contend that they are involved in a common promotional plan with any other person or entity. The Respondents argue that their subjective plan of disposition for their 97 lots is determinative of whether they are entitled to an exemption from the registration requirements of Section 498.025(1)(d), Florida Statutes. They contend that their plan of distribution would have provided for no more than 32 sales.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondents to be subject to Chapter 498, to have violated Section 498.051(1)(a) and (d), fining them $1,000 each, and requiring them to give purchasers the opportunity to rescind their purchases under Sections 498.023(2)(c) and 498.051(3)(a), Florida Statutes. DONE and ENTERED this 24th day of January, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NOS. 90-1904 and 90-2515 Rulings on findings proposed by the Department: Adopted in Finding 2. Adopted in Finding 2. Implicit in Finding 3. 4 - 7. Adopted in Finding 3. To the extent necessary, adopted in Finding 2. Adopted in Finding 4. Adopted in Finding 6. Adopted in Finding 4. Adopted in Finding 6. Adopted in Finding 7. Adopted in Finding 2. Adopted in Finding 7. Adopted in Finding 8. Adopted in Finding 9, but amended to reflect the figure of $5,000. 18 and 19. Adopted in Finding 9. Adopted in Finding 10. Adopted in Finding 11. Adopted in Finding 12. Adopted in Finding 16. Rejected as argument. Rulings on findings proposed by the Respondent: Adopted in Finding 1. Adopted in Finding 2. Adopted in Findings 2 and 3. Rejected as unnecessary. Rejected as unnecessary. Rejected as a conclusion of law. Adopted in Finding 4. Adopted in Findings 4 and 5. Rejected as unnecessary, but implicit in Finding 4. Rejected as unnecessary. Only the conduct of the Respondent is at issue here. Implicit in Finding 12. Implicit in Finding 12, although there is no legal impediment to selling individual lots. Adopted in Finding 12, except for the final sentence which is rejected as unnecessary. Adopted in Finding 12. Implicit in Finding 12. Sentence one adopted in Finding 4, the remainder rejected as a conclusion of law. Adopted in Finding 7. Adopted in Finding 13. Adopted in Finding 14. Adopted in Finding 14. Adopted in Finding 14. Adopted in Finding 15. Adopted in Finding 15. Rejected as irrelevant. Adopted in Finding 6. Adopted in Finding 6. Adopted in Finding 16. 28 - 30. Rejected as unnecessary, because the Division's policy is derived from the language of the act and is consistent with the decision in Associated Mortgage Investors v. Department of Business Regulation, 503 So.2d 379 (Fla. 1st DCA 1987). COPIES FURNISHED: Calvin L. Johnson, Esquire Assistant General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Harold M. Braxton, Esquire Suite 400, One Datran Center 9100 South Dadeland Boulevard Miami, Florida 33156 Matthew Carter, Director Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Janet E. Ferris, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact By Joint Stipulation, dated February 23, 1984, Petitioners and Respondent agreed as follows: That those facts in the Petition To Determine The Invalidity Of A Proposed Rule which support the Petitioners standing to bring a Chapter 120.54(A), Florida Statute [sic] rule challenge are correct and are sufficient to establish said standing. The notice of the proposed rule and the rule itself first published in Volume 10, Number 2, Florida Adminis- trative Weekly, are hereby stipulated into evidence as forming the basis of the matter in controversy in this cause. The issues set forth in the Petition To Determine The Invalidity Of A Proposed Rule as to whether the Respondent has the authority to promulgate the rule in question form the sole basis of controversy. Respondent and Petitioners have agreed to submit simultaneous memo- randa of law in support of their respective positions. The memoranda shall be filed on or before March 19, 1984. The Hearing Officer shall then have thirty (30) days in which to render his final order in this cause. Respondent has proposed for adoption Rule 21H-18.11(4) Florida Administrative Code, which provides as follows: The term "Engineering Survey" as used in Section 471.005(4)(a), F.S., is defined as surveys made to obtain data for planning, design, and execution of engineering projects or developments; and may be necessary for the planning, progress, and completion of any engineering services. These surveys include, but are not limited to, con- struction layout, topographic surveys, hydrographic surveys, quantity surveys, and special purpose surveys to the extent that all the aforementioned surveys relate to engineering services. Respondent has asserted as the specific authority for, and law implemented by, the proposed rule only Section 471.005(4)(a), Florida Statutes. In summarizing the purpose and effect of the proposed rule in its notice published in the Florida Administrative weekly, Respondent pointed out that: The proposed rule essentially codifies previous rulings of the joint Board of Professional Engineers and Land Sur- veyors as it existed prior to 1979 and further amplifies generally accepted types of "surveying" which are nationally accepted as being capable of being per formed by qualified professional engineers. Further, including in its notice that the proposed rule would have minimal economic impact on Florida engineering practice, Respondent concluded that: . . . This estimate is based upon the fact that the definition of "engineering" in Ch. 471, F.S. has not been changed for several decades and various rulings of the Board of Professional Engineers and Land Surveyors (prior to 1979) as well as nationally accepted demarcations between those areas which are solely the practice of professional engineering and those of land surveyoring [sic] which have been followed in the State of Florida permit the overlap of functions between those individuals licensed under Ch. 471 and Ch. 472, F.S., to the extent set forth in the proposed rule.
The Issue Whether respondent's license as a registered residential contractor and a registered plumbing contractor should be disciplined on charges that he unlawfully (1) diverted funds received for the purchase of a lot and construction of a home; (2) acted in the capacity of a contractor and used a name other than that appearing on his license; (3) aided and abetted an uncertified or unregistered person to violate the Construction industry Licensing Law; and (4) failed to properly qualify percent business organization.
Findings Of Fact Respondent Is a Licensed Contractor At all times material to the charges, respondent John W. Powell was licensed as a registered residential contractor (license no. RR 0002745) and a registered plumbing contractor (license no. RF 0038050). (Prehearing Stipulation; P-7) Respondent's Sale and Conveyance of Real Property In October, 1978, Joseph J. D'Antoni, a resident of Baltimore, Maryland, visited Indian Lake Estates Subdivision ("Subdivision") in Polk County, Florida, with the intention of purchasing a lot. Respondent, who owned numerous lots in the Subdivision, agreed to sell two lots to Mr. D'Antoni (and his brother-in-law) for the sum of $7,500. Mr. D'Antoni gave him a $1,000 payment, then mailed him the $6,500 balance after returning to Maryland. (Testimony of D'Antoni; P-2) Respondent then executed and mailed a warranty deed conveying Lot 5, Block 340, Indian Lake Estates Subdivision, Unit II, to Mr. D'Antoni and his wife. He used a standard warranty deed form printed for Lawyers' Title Guaranty Fund, Orlando, Florida, and conforming to Section 689.02, Florida Statutes. As grantor, he "fully warrant[ed] the title to said land, and [promised to] defend the same against the lawful claims of all persons whomsoever." (Testimony of D'Antoni; P-2) The deed was prepared by John P. White, an attorney in Lake Wales, Florida. Although respondent, as grantor, did not limit his warranty except for a standard limitation relating to taxes, easements, restrictions, and conditions of record), the preparer of the deed included a personal disclaimer indicating that he (the preparer) was expressing no opinion as to the condition of title: The preparer of this instrument was neither furnished with or requested to review an abstract on the described property and therefore expresses no opinion as to the condition of title. (P-2) Mr. D'Antoni was unaware that the property was encumbered by a mortgage held by the First Highlands Service Corporation. The mortgage had been executed by respondent in 1973. It covered numerous lots in the Subdivision and secured a loan of $330,000. Mr. D'Antoni, who trusted respondent, thought that he was receiving the property free and clear of encumbrances. Respondent did not tell him otherwise. Although the title disclaimer was not read by Mr. D'Antoni, it, by its terms, applied only to Mr. White, the identified preparer of the deed. It did not affect the warranty of title given by respondent, the grantor. (Testimony of D'Antoni; P-2) A year later, in December, 1979, First Highlands Service Corporation sued the D'Antonis, Joseph Giardina, (his brother-in-law), and 19 other owners, seeking to foreclose its mortgage covering the Subdivision lots. In order to obtain release from the mortgage, the D'Antonis and Mr. Giardina paid First Highland Service Corporation $4,000 each. Respondent neither defended their title to the property, nor repaid them the $4,000. (Testimony of D'Antoni; P-4, P-5) Respondent's Construction of a House for the D'Antonis On November 6, 1978, after the deed to lot 5 was executed and delivered, the D'Antonis executed a construction contract with J. W. Powell and Sons, Inc. Respondent, who signed as President of J. W. Powell and Sons, Inc., had not qualified that company with the Florida Construction Industry Licensing Board. (Testimony of D'Antoni; Prehearing Stipulation, P-6) Under the contract, respondent agreed-to build a house on lot 5, in accordance with certain specifications, for $42,000. Item 10 of Article 8 specifies that the price includes "city water." The home was built; the D'Antonis paid the purchase price, then moved in. Some time later, they were sued by Consolidated Utility Company for $425, the waterline connection fee. They subsequently paid that amount, plus court costs, to the utility company. (Testimony of D'Antoni; P-6) At the time respondent built the D'Antonis' house, Wilbur Sheffer was employed by Consolidated Utility Company to install waterlines along Fort Meyers Drive, the road where the D'Antonis' house was located. Mr. Sheffer installed the waterlines up to the individual property boundaries. It was standard practice for contractors to pay sewer charges and water meter deposit and connection (or tap-in) fees when they obtained their building permits, after which he would install the meter. The contractors would then lay waterline from the meter to the home, leaving the line uncovered for later inspection. Property owners were not allowed to connect to the adjacent waterlines unless fees were paid and the meters installed. Respondent paid the meter fee on the D'Antonis' home, but the meter was not installed because he did not pay the connection fee. Nevertheless, respondent, without authorization from the utility company, connected the D'Antonis' house to the utility's adjacent waterlines. (Testimony of Sheffer; P-8) On block 340 of the subdivision, where Ft. Meyers Drive was located, respondent was responsible for paying the water tap fees when the water was available. Records of the utility company show that respondent paid two of the four water tap fees he was billed for on block 340. At the time the D'Antonis' home was under construction, the utility company sometimes negotiated with contractors, who were building homes in the Subdivision, and waived tap fees in exchange for their constructing adjacent waterlines. However, such line extension agreements were usually handled through the office of the company's engineer, Richard Madaus. Mr. Madaus had no record of any agreement with respondent regarding waterline extensions to block 340, where the D'Antonis' home was being constructed. Instead, the records show that respondent was billed for connection fees on block 340 as early as October 26, 1978, and that, thereafter, he paid tap fees for two of the four homes on that block in March and July of 1979. (Testimony of Madaus; P-9a, P-9c, P-9d, P-9e) Respondent's testimony that he was never billed for water connection fees in block 340 and that it was not his responsibility to pay those fees because he had already paid for installing the adjacent waterline, is not credible given the fact that he paid two such connection fees and that the utility company requested these connection fees from him before he began building the D'Antonis' home. The only change in the utility company's policy occurring around the time the D'Antonis' home was constructed was to request the health department to notify the company when septic tank permits for homes in the Subdivision were paid for so that the company could request tap fees at the same time. (P-9a-F) Respondent's Failure to Qualify J. W. Powell and Sons, Inc. It is undisputed that respondent failed to qualify J. W. Powell and Sons, Inc. with the Construction Industry Licensing Board. He did not know that such action was required. The attorney who formed the corporation did not tell him of this requirement. Neither did the county tax collector who Issued him occupation licenses under both his and the corporation's name. (Testimony of respondent)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be fined $500. DONE and ENTERED this 16th day of February, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1983.
The Issue The issue is whether the City of Boca Raton's (City's) amendments to the Future Land Use Map (FLUM) and the Transportation Element of its Comprehensive Plan (Plan) adopted by Ordinance Nos. 4987 and 4991 on December 11, 2007, are in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties The City is a municipality in eastern Palm Beach County located approximately half way between West Palm Beach and Fort Lauderdale. It adopted the Ordinances which approve the land use amendments being challenged. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, such as the City. MCZ is a joint venture real estate company (and an Illinois limited liability company) that acquired ownership of the Club in December 2004. MCZ applied to the City for the plan amendments being challenged and plans to redevelop the property which is the subject of the land use change. Through its agent and consultants, MCZ timely submitted comments to the City during the adoption of the plan amendments. Robert Dukate owns and resides on property facing one of the Club's golf courses, on which are the 29.58 acres that MCZ wishes to develop. He acknowledged that he drafted the Petition (without the assistance of counsel) which was filed in this case. Mr. Dukate timely submitted comments to the City during the adoption of the amendment. The parties agree that he is an affected person. See § 163.3184(1)(a), Fla. Stat. Save Boca is a Florida-for-profit limited liability corporation formed on June 14, 2007, or approximately two months after MCZ filed its application for approval of the plan amendments. According to Petitioners' Exhibit 5, it has around eighty members, although Mr. Dukate stated at hearing that it has "[a]pproximately 70," of which around thirty-five own property at the Club, and twenty-eight live directly adjacent to the proposed development. The corporation's Operating Agreement approved on June 24, 2007, indicates that Save Boca is a "member managed organization." Petitioners' Exhibit 12. However, it has only one manager, Lillian Dukate (Mr. Dukate's wife), who also serves as its Treasurer. Even though Ms. Dukate is the sole manager of the corporation and signed the Petition, she had no role in the drafting of the document. She added that she only reviewed "a little" of the Petition before it was filed in February 2008 and "just kind of skimmed through it just to see what it was." There is one other officer, Ann Pinkocze, who serves as Secretary but has no involvement with the corporation except for signing checks. The Petition alleges that the organization "submitted oral and/or written comments and objections to the amendment during the adoption process." This was confirmed at hearing by Mr. Dukate who indicated that the organization hired an attorney (Jane West, Esquire) to submit oral or written comments to the City Commission during the adoption process. There is some confusion regarding the nature and purpose of the organization. Neither the Articles of Incorporation nor the Operating Agreement (the only two documents pertaining to the operation of the corporation) provides that information. At hearing, Mr. Dukate, who was responsible for its formation, stated that the corporation was formed "for the purposes of saving green space within the City of Boca Raton at the request of many residents in this particular community." He added that it is not necessarily limited to activities within the City and denied that it was formed specifically to oppose these plan amendments or "reap the benefits of any negotiations [it] might have with the developer." Although Section III.6 of the Operating Agreement requires that the organization conduct "an annual membership meeting," and it provides that "any member may call a special membership meeting at any time by communicating to all other members the plan to schedule a special meeting," there is no evidence that the organization has ever held a meeting or passed a resolution. This fact was partially acknowledged by Mr. Dukate when he confirmed that no meetings have been held since the City adopted the amendments in December 2007. Minimal activities conducted by the organization include the filing of a Petition and participating in this matter, sending emails and correspondence to members of the Boca Teeca community, and the hiring of one expert and counsel shortly before the hearing. According to a letter he wrote to his neighbors on June 22, 2007, or around a week after Save Boca was formed, Mr. Dukate urged them to join Save Boca "to coordinate the process" of negotiating with MCZ on behalf of the community in order to reduce the impact of the project as much as possible. Intervenor's Exhibit 21. In an earlier email authored by Mr. Dukate on June 10, 2007, concerning the possibility of hiring an attorney to oppose the project, he stated that "[c]onsidering the amount of money that the city was extracting from this developer -- $3myn [$3 million] + $185K for the median beautification + more money for work-force housing -- we should have no trouble getting in excess of $300k for our community, or almost $10k/house." Intervenor's Exhibit 22. Through cross-examination at hearing, Intervenor sought to establish that there was no action ever taken by the corporation to approve the filing of a petition in this case. However, that issue was not pursued in the Joint Proposed Recommended Order and it is assumed that claim has been abandoned. The Operating Agreement indicates that all management decisions will require "the approval of a majority of managers" and that "[a]ction by written consent may be taken without a meeting, without prior notice, and without a vote." Petitioners' Exhibit 12, page 1. Ms. Dukate is the only manager and she alone could presumably make a decision to initiate a legal proceeding on behalf of Save Boca. Except for the Petition itself, there is no evidence of any other "written consent." Background As noted above, MCZ purchased the Club in December 2004. The Club consists of approximately 212 acres on which are located a residential community known as Boca Teeca, three nine- hole golf courses (known as the north, west, and south courses), a clubhouse, an inn, and maintenance facilities. The Club is bounded on the west by Interstate 95 (I-95), on its southern border by Yamato Road, by a railroad track which lies just west of North Dixie Highway (State Road 811) on its eastern side, and by a canal on its northern boundary. Northwest Second Avenue (a part of which is also known as Boca Raton Boulevard), a City- maintained road, runs in a north-south direction through the eastern half of the property, while Jeffrey Street intersects with Northwest Second Avenue and runs from there through the center of the property in a northwest direction and eventually crosses over I-95 where it becomes Clint Moore Road. MCZ plans to redesign the Club by significantly upgrading the eighteen-hole championship golf course, creating a new nine-hole executive golf course from an existing nine-hole championship course, creating new enhanced social facilities, and constructing 211 new townhome units. The townhomes will be constructed on approximately 29.58 acres in the southwest portion of the property just east of I-95 and south of Jeffrey Street. Nine holes of the existing golf course are currently located on that site and will be eliminated, to be replaced by a nine-hole executive course in another area of the Club. It is fair to infer that one of the driving forces behind this challenge is Petitioners' opposition to the construction of 211 townhomes on what is now open space (currently a nine-hole golf course) lying to the west-southwest of the homes of Mr. Dukate and presumably some other Save Boca members. By application filed with the City on April 10, 2007, MCZ sought approval of the two plan amendments in question, including a change in the 29.58 acres from Recreation and Open Space to Residential Medium (Ordinance No. 4987) and a text amendment (consisting of a new goal, policy, and four objectives and an amendment to an existing policy) to the City's Transportation Element (Ordinance No. 4991). The FLUM amendment allows a density on the property not to exceed 9.5 units per acre, although MCZ has agreed to not exceed 7.1 units per acre. See Policy LU.1.1.2. The text amendments specifically provide for the adoption of an Alternate Traffic Concurrency Standard (ATCS). The effect of the text amendments is to allow a new interim level of service (LOS) standard (1,960 two-way peak hour trips) for that portion of Northwest Second Avenue extending from Yamato Road to Jeffrey Street to account for the anticipated impacts of the proposed development. This was necessary since the traffic volume on the roadway has been, and is currently, exceeding the upper limit of its established LOS E (1,550 vehicles at peak hour). Any development approved pursuant to the ATCS must also employ certain mitigation measures, such as improved turn lanes. The amendments were considered at a meeting of the City's Planning and Zoning Board on June 7, 2007. With one dissenting vote, the Board recommended approval to the City. The amendments were then considered and approved by the City Council at a public hearing conducted on September 11, 2007. On September 25, 2007, the amendment package was transmitted to the Department for its review. (The amendment package included four Ordinances; however, only two are in issue.) On November 30, 2007, the Department issued its Objections, Recommendations and Comment Report (ORC), which cited objections relating to ensuring adequate potable water and transportation capacity to support the proposed map amendments and establishing a level of service (LOS) standard "consistent with Rule 9J-5, F.A.C." More specifically, in terms of traffic impacts, the Department was concerned that the City had only evaluated the impacts of the proposed development rather than the maximum development potential that would be allowed under the new land use category. On December 11, 2007, the City Council voted to adopt Ordinance Nos. 4987 and 4991, which approved the change in the FLUM and amended the Transportation Element. The amendment package was transmitted to the Department for its final review on December 17, 2007. That package included revised data and analysis in response to the ORC. See Finding of Fact 44, infra. On January 25, 2008, a Department staff report was issued recommending that the two Ordinances be found in compliance. This was approved by the Office of Comprehensive Planning on January 28, 2008. On February 4, 2008, the Department published its Notice of Intent in the Boca Raton News. On February 25, 2008, Petitioners filed their Petition contending that Ordinance Nos. 4987 and 4991 were not in compliance. As grounds, they asserted that Ordinance No. 4987 (the FLUM amendment) is inconsistent with Objective REC. 3.1.0 of the Plan, while they generally contended that Ordinance No. 4991 (the text amendment) is inconsistent with the EAR and various provisions within the Transportation Element of the Plan, is not supported by adequate data and analysis, and violates the concurrency statute. Petitioners' Objections Petitioners first contend that the FLUM amendment is inconsistent with Objective REC 3.1.0, which requires the City to "[d]esignate, acquire, or otherwise preserve a system of open space" that, among other things, "provides visual relief from urban development." The Petition alleges that the amendment "reduces the availability of open space, as well as, the availability of land designated for recreational use within the city and does not provide visual relief from urban development." Petition, paragraph 15. Mr. Dukate's residence is approximately 150 feet from the location of the proposed townhome development and overlooks a golf course, some trees, and I-95 in the distance. The proposed townhomes are designed to resemble villas in a Key West architectural style and are clustered in groups of six connected by pedestrian walkways. The height restriction for all units is thirty-five feet. However, the townhomes closest to the single-family homes have been designed as two- story units. There will be significant landscaping and a buffer between the townhomes and I-95 and the existing single-family homes to the east. The evidence shows that if the property is developed, it will provide visual relief from urban development. In addition, the proposed development provides substantial open space on site, over sixty percent more than is required by the City's Land Development Code. The FLUM amendment also furthers the cited Objective by providing pedestrian and bicycle linkages between parks, schools, residential, and commercial areas. Although the issue of compatibility was not raised in the Petition except in the context of proving standing, the City's Principal Planner, Jennifer Hofmeister, established that her review of the FLUM amendment was a "lot more detailed and specific than a lot of other local governments would do [for] their compatibility analysis." Ms. Hofmeister concluded that the two uses are compatible under the current Plan. In making her analysis, she reviewed the adjacent land uses on the FLUM, the proposed site plan submitted by MCZ, including the maximum height of the townhomes, and the densities allowed by single- family neighborhoods and the new land use. Ms. Hofmeister further noted that higher density housing has existed adjacent to single-family homes in the area just north of Yamato Road since the Club was developed in 1973 or 1974. She also pointed out that in the field of planning, medium density (such as townhomes) is considered a transitional land use in the residential land use category and is compatible with a single- family neighborhood. Petitioners' planning expert, Deborah Golden-Gestner, acknowledged that while she had reviewed parts of the application file, such as the Department of Transportation's (DOT) traffic comments, she had never seen or reviewed the challenged plan amendments before she presented testimony at the final hearing. Ms. Golden-Gestner contended that the City's review process was flawed because it failed to consider the 1973 master plan for the Boca Teeca community, which limited development to 1,774 units, of which 1,682 have been built to date. Therefore, she concluded that the FLUM amendment violates the terms of that plan since it allows 211 more units to be built. However, consistency with a master plan is not a compliance consideration. Further, the 1973 master plan was not raised as an issue in the Petition. Assuming arguendo that the master plan is data that could have been considered by the City (although this argument was not made by Petitioners), Ms. Hofmeister established that the property subject to the FLUM amendment (a golf course) has been purchased by a separate entity (MCZ) and is subject to a different master plan. Petitioners have not shown beyond fair debate that the FLUM amendment is inconsistent with the cited Objective or is otherwise not in compliance. Ordinance No. 4991 amends the Transportation Element of the Plan in several respects. First, it revises Policy TRAN. 1.3.1., which prescribes the LOS standards to be maintained on roadways during peak hour and daily conditions, by providing that an exception to those LOS standards is permitted if it is "approved pursuant to Goal 5 of the Transportation Element." At the same time, the Ordinance creates a new Goal 5 which reads as follows: GOAL TRAN. 5.0.0: IT IS THE GOAL OF THE CITY OF BOCA RATON TO IMPLEMENT INTERIM CONCURRENCY MEASURES FOR CONSTRAINED ROADWAYS IDENTIFIED IN THE COMPREHENSIVE PLAN, PENDING THE ADOPTION BY THE CITY COUNCIL OF A MULTI-MODAL TRANSPORTATION DISTRICT ("MMTD") FOR THE CITY. The City also created the following rather lengthy objective and policies to implement the above goal: OBJECTIVE TRAN. 5.1.0: The City Council shall adopt interim traffic concurrency measures that are compatible with, and supportive of, MMTD concepts and principles, including the provision of alternative modes of transportation, funding mechanisms to support transit, applicable roadway improvements and transportation mode connectivity. POLICY TRAN. 5.1.1: The Boca Raton City Council established as its "Major Issue" pursuant to the 2005 Evaluation and Appraisal Report, the adoption of an MMTD for the City. As an interim measure, pending adoption of MMTD Goal, Objective and Policy amendments to the Comprehensive Plan, the City Council desires to implement a procedure for the approval of an alternative traffic concurrency standard ("ATCS") over roadways that are constrained and exceed the adopted level-of-service as provided in Policy TRAN 1.3.1. Any development approved pursuant to the ATCS shall employ mitigation measures as provided below and must be consistent with all other provisions of the Comprehensive Plan. Any development approved pursuant to the ATCS shall implement mitigation measures including, but not limited to, the following: All development shall include on-site and off-site non-vehicular transportation improvements including sidewalks, shared use pathways, transit facilities and/or bike lanes. These improvements shall be constructed to either tie into or expand existing public facilities as a means to provide connectivity to existing regional transit facilities. All development shall continue to test for concurrency pursuant to the Palm Beach County Traffic Performance Standards Ordinance. Any required roadway network improvements otherwise consistent with the Comprehensive Plan, such as turn lanes and signalization improvements shall be constructed by, and at the expense of, the petitioner [developer]. All development shall include a Transportation Demand Management program, traffic calming techniques, a complementary mix of land uses, appropriate densities and intensities of land, access to transit facilities, access management plans and pedestrian friendly site design. Any development approved pursuant to this Comprehensive Plan goal shall enter into an agreement documenting any and all mitigation measures, including any funding necessary to implement MMTD improvements (i.e. mitigation measures) proposed to mitigate roadway level-of-service impacts. POLICY TRAN. 5.1.2: The City shall adopt appropriate Land Development Regulations prior to the approval of any development pursuant to the Code. POLICY TRAN. 5.1.3: Any request for development approval pursuant to the ATCS shall be authorized by the City Council through an amendment to the Comprehensive Plan, and shall be processed in accordance with the Conditional Land Use Amendments and Rezoning provisions found at Chapter 23, Article VI, of the Land Development Code. POLICY TRAN. 5.1.10: Policy TRAN. 1.4.8. establishes NW 2nd Avenue from Yamato Road to the northern City Limit as a 2-lane, undivided, constrained roadway, in order to, among other reasons, maintain the residential character of the adjacent neighborhoods. The following establishes the ATCS for the proposed Ocean Breeze development ("Development") (Universal Conditional Approval Request (UC-06-04)) to satisfy traffic concurrency under Goal 5 of the Transportation Element, pursuant to the purposes stated in this Goal and Objective, subject to the following mitigation measures and conditions: The level-of-service for NW 2nd Avenue between Yamato Road and Jeffrey Street is hereby established as 1,960 two-way peak hour trips. The Ocean Breeze developer shall enter into a written mitigation agreement to implement the below described mitigation measures, including but not limited to those measures provided in POLICY TRAN. 5.1.1., as more specifically defined below. The developer shall contribute $6,000,000 to the City to offset roadway capacity constraints. These dollars shall be used by the City to improve NW 2nd Avenue as a 4-lane divided highway or to fund MMTD improvements that will impact the Development. The Mitigation Agreement shall specify the disposition of funds in the event the Development Order expires. The developer shall construct the following off-site MMTD improvements: sidewalks along NW 2nd Avenue and Jeffrey Street to tie the proposed development into the City's pedestrian and bikeway system. The Mitigation Agreement shall not be transferred or assignable without the written consent of the City and it shall be entered into prior to the issuance of a Development Order. * * * (Although the terms of a mitigation agreement between a local government and a developer are not normally included in the comprehensive plan, the testimony was that local governments are now incorporating this type of language in their plans.) Petitioners have alleged that the amendments adopted by Ordinance No. 4991 are not in compliance for a number of reasons, some of which are quite general in nature and do not identify the specific parts of the lengthy text amendments that are actually being challenged. First, they argue that the amendments are inconsistent with a statement found at page 37 of the City's 2005 EAR, which reads as follows: For any significant future development to occur in this area, Boca Raton Blvd. would need to be widened to a four (4)-lane divided roadway. Developers would be required to fund this improvement. The estimated cost to widen Boca Raton Blvd. to a four (4)-lane divided road is approximately 14.3 million dollars based upon the FDOT Transportation Cost Manual. Petitioners generally assert that because the Mitigation Agreement entered into by the developer and the City only provides for $6 million for the widening of Northwest 2nd Avenue (Boca Raton Boulevard) and not the $14.3 million referred to in the EAR, the amendment and the EAR are inconsistent. An EAR is the first step in updating a local government's comprehensive plan and is prepared every seven years to determine if the plan's goals, objectives, and policies are being met, or if new goals, objectives, and policies need to be implemented. See § 163.3191, Fla. Stat.; Fla. Admin. Code R. 9J-5.003(44). Once an EAR is found to be sufficient by the Department, the next step is for the local government to adopt EAR-based amendments which incorporate the recommended revisions in the EAR. However, there is no requirement in Chapter 163, Florida Statutes, or Florida Administrative Code Rule Chapter 9J-5 that plan amendments be consistent with EAR provisions. See § 163.3184(1)(b), Fla. Stat. In fact, the City may deviate from changes recommended in the EAR, so long as the action taken is supported by adequate data and analysis. In this case, the proposed amendments are not EAR-based amendments, and the Department did not review, and was not required to review, the City's EAR to determine whether the proposed amendments were consistent with that document.6 Petitioners further allege that the City is basing the amendments on the adoption and implementation of the MMTD, which "may, or may not be adopted." Petition, paragraph 18. They go on to allege that this in turn violates GOAL TRAN. 1.0.0, which provides that a goal of the City shall be to provide a safe transportation system. The purpose of a MMTD is to promote alternative forms of transportation, such as pedestrian, bicycle, and transit modes, in order to reduce automobile trips. The 2005 EAR identified the adoption of a MMTD as a major issue for the City. Intervenor's Exhibit 7, Chapter 3. While the City is currently in the planning stages for the establishment of a MMTD, it must first have money in the budget to implement the changes and then prepare amendments to the Plan and Code of Ordinances. The precise date when this will occur, if at all, is unknown. The evidence established that the plan amendments are neither contingent nor dependent on the implementation of the MMTD. Indeed, the traffic analysis supporting the amendments has not assumed that any trips would be removed from the roadway by the implementation of the MMTD. Further, the Department did not consider the implementation of the MMTD in its review of the amendments nor deem it necessary. If the City does in fact implement the MMTD at some future date, it will need to amend its Plan by a separate amendment. Therefore, the MMTD is not relevant to determining whether the amendments are in compliance.7 Petitioners further allege that the plan amendment, which specifically modifies the LOS to allow for 1,960 two-way trips on a segment of Northwest Second Avenue, violates Policy TRAN. 1.4.8 by allowing "congestion which will jeopardize the safety of not only the motorists but especially the pedestrians and the reduction of the quality of life and lead to degradation of the residential character of the community." Petition, paragraph 19. The policy allegedly contravened provides that "NW 2nd Avenue from Yamato Road to the northern city limits shall remain a 2-lane undivided constrained facility in order to maintain the residential character and provide a pedestrian and bicycle friendly culture to adjacent neighborhoods." The segment of roadway at issue is Northwest Second Avenue between Jeffrey Street and Yamato Road, which cuts through the eastern half of the Club and is a local road. Although classified as a "2-lane undivided constrained facility" in the Plan, this roadway is actually considered an undivided three-lane roadway because it has a number of dedicated left turn lanes. Like all City (or local) roads, this segment is designated LOS E, which allows for 1,550 two-way peak trips. This LOS has been consistently exceeded since 1994. (Local governments have the discretion to establish LOS standards on local roads that are not consistent with any LOS standards established by the DOT. See § 163.3180(10), Fla. Stat.) The LOS as defined in the Highway Capacity Manual and accepted by the City and Palm Beach County (County) is ultimately defined in terms of driver delay. The City Traffic Engineer, Douglass Hess, established that various improvements which are required by the City as conditions of approval for these amendments will help improve the LOS along this segment. Specifically, the developer will be required to install sidewalks along Northwest Second Avenue and turn lane improvements at the intersection of Northwest Second Avenue and Jeffrey Street. The turn lane improvements include a redesign of the north-bound turn lane (by expanding the lane from 120 feet to 300 feet long), which will allow for more storage of cars, and the addition of a new south-bound turn lane which will direct traffic to West Jeffrey Street. Mr. Hess also analyzed the intersection of Northwest Second Avenue and Jeffrey Street on a chart demonstrating the average motorist's delay during the morning and afternoon peak hours under three different scenarios. See Intervenor's Exhibit The first scenario was as the intersection currently exists in 2007 peak season; the second is 2010 conditions without the development; and the third demonstrated 2010 conditions with the development, including the lane improvements. The Exhibit reflects that the average delay in seconds during morning and afternoon peak hours under existing traffic conditions in 2007 is now 74.8 and 73.1 seconds, respectively, or LOS E. Under 2010 traffic conditions with development, including the required improvements, the average delay in seconds will be reduced to 30.5 and 47.3 seconds during morning and afternoon peak hours, respectively, or within the standards for LOS C and D. Therefore, any congestion will greatly improve with this development and the improvements required by the City. Petitioners further allege that Policy TRAN. 1.3.7 is violated "due to a lack of accurate [traffic] data being provided to the city" (Petition, paragraph 17), and "[i]ncreasing the peak-hour traffic level of service standards for a development results in having no standards at all and should not be allowed under the policies of responsible growth planning and therefore violates the concurrency requirements required by the State of Florida" Petition, paragraph 20. Policy TRAN. 1.3.7 provides that "[p]roposed land use changes shall only be approved when traffic impact studies or mitigation measures ensure that adopted roadway level-of-service standards will be upheld." The new LOS for the segment in question is 1,960 two-way peak trip hours, of which only seventy-eight are attributable to the proposed development at the Club during the peak hour. In determining the impact of the development, the City Traffic Engineer considered a number of factors. First, he noted that the traffic volumes on this segment of roadway had actually been declining over the past several years. Even so, he elected to increase the existing traffic by a compounded growth rate of 1.15 percent per year. Second, based upon data provided by the County and City, he also included committed traffic that has not yet materialized on the roadway network. This is traffic that is associated with the approved projects within the area that have not yet reached full build-out of the development. Finally, he added to the roadway network the traffic associated with the Club development. The foregoing analysis resulted in the volume on the relevant segment of roadway to be 1,908 in the peak hour. Because of concerns noted by the Department in its ORC, which asked that the City assume a total build-out of the proposed new zoning category rather than the reduced number of units proposed by MCZ, the City made a second analysis of the traffic impacts. In its second analysis, the City evaluated the impacts using a horizon year of 2012, rather than 2010. Even though the developer proposed to construct only 211 townhomes, the City assumed that there would be 281 dwelling units on the property. With these new assumptions, the traffic volume increased to 1,958, which was still within the proposed LOS standard of 1,960 vehicles during the peak hour. The City reacted appropriately to this data and analysis when it adopted the challenged amendments. In challenging Ordinance No. 4991, Petitioners relied primarily upon the testimony of Larry Hymowitz, a Transportation Planner with the DOT who submitted comments to the Department on November 21, 2007, as part of the Department's review process. See Petitioners' Exhibit 10. The DOT is one of the agencies that is required by law to be provided with copies of proposed amendments for review and to then forward its comments to the Department. In criticizing the same amendment, Ms. Golden- Gestner also relied heavily upon the DOT's comments. Although Mr. Hymowitz concluded that there was a lack of information submitted by the City to demonstrate that adequate mitigation had been proposed to offset the increased traffic from the project, he did not review the adoption package or any other documentation dated after September 2007. Therefore, he was unaware of the additional data and analysis submitted by the City. In this respect, his analysis was flawed. Mr. Hymowitz also incorrectly assumed that the LOS for the Boca Raton Boulevard segment was LOS D, or 1,250 trips per peak hour. In doing so, he overlooked a footnote in the City's transmittal package to the Department which explained that links within the jurisdiction of the City are assigned LOS E. Moreover, the only objection noted by the DOT in its written comments was related to potential traffic impacts on I-95 and U.S. Highway 1. The evidence establishes, however, that the impact of the proposed development on I-95 between Glades Road and Yamato Road (which are the roadways having the two closest ramps onto I-95) was only six trips during peak hour, which is considered to be insignificant and requires no mitigation. Similarly, the impacts on U.S. Highway 1 were small, and the impacted sections would continue to operate at an acceptable LOS D throughout the building of the project and into the horizon year of 2012. Petitioners' traffic consultant, Mr. Wyman, concluded that because Northwest Second Avenue is already a constrained roadway, and the project will generate new traffic, the City should require "proper" mitigation, such as four-laning the roadway or scaling back the development. In reaching this conclusion, Mr. Wyman questioned the accuracy of the City consultant's traffic report. He stated that if he had prepared the traffic report, he would have used more conservative estimates for pass-by trips and different directional components in the traffic count calculation. He agreed, however, that the traffic counts were done "professionally and correctly," he stated that he "respected" the methodology used by the City's consultant, and he agreed that a traffic study includes some subjective analysis by the person performing the study. Finally, in a similar vein, Petitioners have raised a broad contention that "concurrency" requirements under Section 163.3180, Florida Statutes, have been violated. Petition, paragraph 20. (Although the statute runs for eight pages, a more specific citation to a particular part of the statute was not given.) In responding to this broad contention, the Department's Regional Planning Administrator pointed out that the Department is not required to make a concurrency determination in its review of a plan amendment. Rather, its review is limited to determining whether the local government is properly planning for its public facilities. In doing so, the Department determines whether the City (a) has the facilities available at the present time to meet the needs of the proposed development, or (b) the City has plans for facilities to be in place when the impacts of the development occur. Thus, the actual concurrency determination is made by the local government at the time a development order or permit is issued. In this case, the Department determined that the new LOS standard of 1,960 trips on the impacted roadway segment was sufficient to accommodate the development of the project at the maximum development potential. Finally, contrary to Petitioners' assertion, in establishing the new LOS, the City was not required to include any capital improvements in its schedule of capital improvements since none are necessary to maintain that standard. Petitioners have failed to show beyond fair debate that the plan amendments adopted by Ordinance No. 4991 are not supported by adequate data and analysis, are inconsistent with other Plan provisions, violate the concurrency statute, or are otherwise 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 that the City's plan amendments adopted by Ordinance Nos. 4987 and 4991 are in compliance. Jurisdiction is retained for the purpose of considering Intervenor's Motions for Sanctions, Fees, and Costs, if renewed within thirty days after a final order is entered in this matter. DONE AND ENTERED this 4th day of August, 2008, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 2008.
