The Issue The issue to be determined is whether Respondent violated section 475.25(1)(b) & (c), Florida Statutes (2007), as alleged in the Administrative Complaint and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with regulating the practice of real estate pursuant to section 20.165 and chapters 455 and 475, Florida Statutes. At all times material to this Administrative Complaint, Respondent was licensed as a real estate broker associate in the State of Florida, having been issued license number 3057283. At all times material to this Administrative Complaint, Respondent was licensed with Re/Max Professionals, Inc., a real estate corporation. At the time of hearing, Respondent was licensed with Access Realty of North Florida, Inc., a licensed real estate corporation. Respondent's address of record is 757 West Duval Street, Lake City, Florida 32055. At all times material to the Administrative Complaint, Respondent was the listing agent for a property known as 831 South West 5th Street, Live Oak, Florida (5th Street property). On March 4, 2008, Respondent listed the property as having a Commercial Intensive (CI) zoning. At the time of the listing, zoning classifications for property in Live Oak were not available on line, and could only be obtained by calling for the information. At the present time, George Curtis is employed by the City of Live Oak and handles inquiries regarding zoning for properties in the City of Live Oak. He does not recall receiving a telephone call from Respondent regarding the zoning classification for the 5th Street property. However, at the time of Respondent's inquiry, Mr. Curtis was just starting his employment with the city, and did not yet have an office. Inquiries were at that time directed to the City Clerk's office. Mr. Curtis could not state that no call was received by that office, or, if received, what information was given. The listing for the property states at the bottom, "[t]his information is deemed reliable, but is not guaranteed." Respondent listed the property zoning as CI after calling to inquire regarding the appropriate zoning for the property. While she testified that her call was to the Suwannee County office as opposed to the City of Live Oak, it is found that the call must have been made to the City, given the telephone call described below. The property described in the listing is not zoned CI, but rather Commercial Neighborhood (CN). In Live Oak, CI zoning is the most intense zoning district, and is limited to major arterial roads in the city. It is intended to meet the needs of a regional population. CN zoning is intended to provide for commercial use on a more limited scale, in terms of the size of the building that can be placed and the types of uses. It is intended to meet the needs of a neighborhood area. A funeral home would not be a permitted use for property zoned CN. It would require a zoning change. A funeral home would be permitted on a property zoned as commercial general (CG). The CG category is between CI and CN. In September 2008, Respondent contacted the City of Live Oak and was referred to George Curtis about the possible use of the property on SE 5th Street as a daycare. During their telephone conversation, he told her that in order to operate a daycare on the property, the owner would need to receive a special exception to the zoning requirements. He obtained her e- mail address and sent her an e-mail with attachments regarding obtaining special exceptions. Respondent believed, based upon their conversation, that the same would be true for any business to be located on the property. Mr. Curtis does not recall telling Respondent at that time that the property was not zoned as CI. On October 16, 2008, Respondent sent the following e- mail to Mr. Curtis: Hi George, the contract for a day care on 831 SW 5th Street, Live Oak (lots 14, 15, 16, Block E, Hildreth) fell through. I now have a pending contract but the buyers want to use the property for a funeral home. Do you see any problem with this? Anne The e-mail was sent at 5:01 p.m. At 5:22 p.m., Mr. Curtis sent the following reply: Hello Anne: I believe this property was Neighborhood Commercial between Green and Ammons on the south side of 5th. C-N does not have any allowances for a Funeral Home, even as a Special Exception. A petition could be proposed to the City Council for Residential- Office or Office Zoning that does allow for the Funeral Home (with also a Special Exception) but other criteria would have to be evaluated to be sure that parting and buffering requirements could be met after any zoning change took place--which is also a process that is not guaranteed but a possibility--there is no way to predict whether the rezoning and the special exception would be approved. This would probably be a 4-6 month process start to finish plus the associated fees to try. Funeral Homes are allowed by right in General Commercial Zoning but you have to front a major street (129/90/51, etc. to get considered for that zoning…) Hope this helps -- wish I had better news… Respondent claims that she never received this e-mail, and that she never deleted it from her computer. She testified that when she did not receive a response, she called the zoning office and was told that a special exception would be required for a funeral home. She passed this information on to Mr. Wright. On October 17, 2008, Russell Wright made an offer to purchase the property on S.W. 5th Street for $45,000. The contract (Petitioner's Exhibit 3) has been reduced and copied several times, and as a result, is illegible in most respects. However, it can be ascertained that the contract was made on October 17, 2008, and signed by the sellers on October 22, 2008. The contract specified that closing was to take place October 31, 2008, which it did. The contract also specified that the Buyers would pay $5,000 down, and the Sellers would finance the remainder at 8 percent, with payments of $485.31. As part of the closing, the Buyers and Sellers signed an Affidavit of Buyer and Seller Regarding Contract Compliance, which stated "all of the contingencies and conditions set forth in the contract (and all addendums thereto) between the Seller and Buyer have been satisfied, performed or waived by the Buyer and the Seller " Because of the condition of Petitioner's Exhibit 3, it cannot be determined whether the form contract made any representations regarding zoning and who was responsible for determining the appropriate zoning for the property. On October 23, 2008, Respondent sent an e-mail to Russell Wright with attachments labeled "Petition for Special Exemption," "How the Future Land Use Plan Map - Brochure," and "Sec. 12.2 Special Exceptions." The message in the e-mail reads: Hi Russ, here's the contact person who deals with the zoning in Live Oak, and the forms for filing. I received 1 of the forms back from you, the As Is Rider but I still need the corrected Lead based paint disclosure that I sent with the AS Rider in yesterday's fax. Please complete this form and fact back to me. The Seller's [sic] are going to close at 9:00 am on Friday 31st, please let me know as soon as possible a time that would be convient [sic] for you and your wife to attend. Regards, Anne. Mr. Wright acknowledged receiving an e-mail, but not the documents. He sent Respondent the other documents required for closing. After the closing, he called her and stated that he could not locate the paperwork related to special exceptions, and on November 3, 2008, she mailed it to him. With the paperwork was the following note: Dear Russell and Marcus: I have enclosed the paperwork for the Special exception. If you have any questions you may call George Curtis at 386-362-2276. Mr. Curtis is the development manager for the City of Live Oak. Regards, Anne Mr. Wright began making renovations on the property in order to open a funeral home. In July 2009, he began the process of getting his city occupational license. He could not obtain the license because the property was not zoned for his intended use. At that point, Mr. Wright contacted city officials, including George Curtis and the Mayor of Live Oak. Mr. Curtis advised Mr. Wright that he had sent an e-mail to Respondent advising her that a funeral home could not be operated on the property with its present zoning. Mr. Wright wrote to Respondent, demanding that she compensate him for the fact that he could not open the funeral home without a zoning change. The letter stated in pertinent part: The Mayor of Live Oak and Mr. George Curtis has informed me that I can apply for a zoning change so that My Wife and I can open our business. But it will cost $750.00 to file the initial papers. And that is NOT a guarantee. To date with the down payment and monthly payments and renovation cost, your dealings have cost us $25,000 plus pain and suffering and embarrassment. And we have property that we can't use for the intention it was purchased. Ms. Hurst, we are allowing you and your firm to settle this matter out of court. Ms. Hurst we will settle this matter for the amount of $50,000.00 which is damages plus pain and suffering. If you and ReMax Professionals, Inc., are not willing to settle with us out of Court, we will retain the Attorney with whom my Wife and I have consulted. . . . It is clear from the evidence that Mr. Wright chose to believe that he could open a funeral home on the property without any further administrative action either to change the zoning or to obtain a Special Exception for its intended use. Neither belief is consistent with the credible evidence that Respondent sent him information regarding Special Exemptions and the process to obtain them. All of the information given to him is consistent with his need to follow up with the City's zoning department, which he did not do. Based on the more persuasive evidence presented in this classic, "he-said, she-said" case, it is found that Respondent did not receive the October 17, 2008 e-mail from George Curtis, but believed that a Special Exemption would be required to operate a funeral home on the property, and that she supplied information to Mr. Wright to that effect. Mr. Wright's claim that Respondent represented that the property could be used as a funeral home with no further action is rejected.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing Count One in the Administrative Complaint; finding a violation of section 475.25(1)(c), as alleged in Count Two; imposing a reprimand and fining Respondent $250.00. DONE AND ENTERED this 8th day of June, 2011, in Tallahassee, Leon County, Florida. S Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 2011. COPIES FURNISHED: William Haley, Esquire Brannon, Brown, Haley, Robinson & Bullock, P.A. Post Office Box 1029 Lake City, Florida 32056-1029 Joseph A. Solla, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801-1757 Thomas W. O’Bryant, Jr., Director Division of Real Estate 400 West Robinson Street, Suite 801N Orlando, Florida 32801-1757 Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Palm Beach County Ordinance 2018-031 (“Ordinance”) is internally inconsistent with Palm Beach County’s 1989 Comprehensive Plan (“Comprehensive Plan”), and is, therefore, not “in compliance” with section 163.3177(2), Florida Statutes (2018); and whether the Ordinance fails to establish meaningful and predictable standards for the use and development of land or for the content of more detailed land development and use regulations as required by section 163.3177(1), Florida Statutes (2018).1/
Findings Of Fact The Parties and Standing Petitioner is a Florida limited liability corporation. Petitioner submitted written comments, recommendations, or objections to the County on October 30, 2018, during the period of time between the transmittal hearing and the adoption of the Plan Amendment. The County is a political subdivision of the State of Florida, with the duty and responsibility to adopt and maintain a comprehensive growth management plan pursuant to section 163.3167. The County exercises land use planning and zoning authority throughout unincorporated Palm Beach County. The Ordinance is a countywide, County-initiated Comprehensive Plan Text Amendment that would revise the FLUE to modify provisions for residential future land use designations. On July 13, 2018, the County Planning Commission conducted a properly noticed public hearing to review the proposed Plan Amendment and made recommendations to the Palm Beach County Board of County Commissioners (the “Board”) pursuant to chapter 163, Part II. One member of the public spoke in support of the amendment. The staff report that contained staff analysis regarding consistency with the Comprehensive Plan was made available to the Planning Commission prior to its deliberation. On July 20, 2019, Petitioner served a letter regarding the proposed Plan Amendment on Melissa McKinlay, Mayor and member of the Board. July 20, 2019, was three days prior to the date of the transmittal hearing for the proposed Plan Amendment. There was no evidence that the comments were received by Respondent on or after the date of the transmittal hearing. The July 20, 2019, letter stated that Petitioner “represents property owners located within the Palm Beach Farms plat in communities known as the Pioneer Road Neighborhood, the Gun Club Road Neighborhood, Monmouth Estates, and the Ranchette Road Neighborhood . . . . [Petitioner] has been active since early 2011 seeking to preserve the rural character of these communities.” Despite the foregoing, there was no competent substantial evidence adduced at the hearing to substantiate that Petitioner represented owners of property in any neighborhood other than the Pioneer Road neighborhood. On July 23, 2018, the Board conducted a public hearing to review the recommendations of the Planning Commission, and authorized transmittal of the proposed Plan Amendment to the state land planning agency and review agencies pursuant to chapter 163, Part II. The Board further directed staff to work with residents in the rural enclaves and to return with stronger language at the adoption hearing. Ten members of the public spoke in support of the Plan Amendment. There was no evidence that Petitioner, or any other person, spoke or presented written comments at the transmittal hearing in opposition to the Plan Amendment. The staff report and analysis regarding consistency with the Comprehensive Plan was made available to the Board prior to its deliberation. The state land planning agency issued a letter dated August 31, 2018, stating that the Agency “identified no comment related to important state resources and facilities within the Department’s authorized scope of review that would be adversely impacted by the amendment if adopted.” There were no other state agency comments received regarding the Plan Amendment. Subsequent to the transmittal public hearing, County staff worked with representatives from the Pioneer Road neighborhood and revised the language of the Residential Future Land Use amendment. On October 29, 2018, Petitioner sent a letter regarding the proposed Plan Amendment to Mayor McKinlay, service of which was apparently accepted by Denise Neiman, County Attorney. The evidence suggests that service was made on October 30, 2018, prior to the adoption of the Plan Amendment. On October 31, 2018, the Board adopted the Ordinance. The staff report and analysis regarding consistency with the Comprehensive Plan was made available to the Board prior to its deliberation. Five members of the public spoke in support of the Plan Amendment. There was no evidence that Petitioner, or any other person, spoke or presented written comments in opposition to the Plan Amendment, other than the October 29, 2018, letter described above. Existing Conditions The Pioneer Road neighborhood is approximately 550 acres of mostly Rural Residential property, interspersed with properties used for non-intensive commercial uses, such as plant nurseries and landscaping services. The Pioneer Road neighborhood contains between 175 and 220 developed home sites, many of which engage in light-scale personal agricultural uses (e.g., fruit trees, gardens, chickens, etc.). The neighborhood is served by private potable water wells and septic tanks. The Pioneer Road Area includes the Pioneer Road neighborhood, the Gun Club Road neighborhood, and surrounding low density Rural Residential enclave neighborhoods, and is but one of several neighborhood areas potentially affected by the Plan Amendment. Other rural neighborhood areas affected by the Ordinance include the State Road 7/Lantana Road Area and the Hyopluxo Road Area, each of which include a number of rural enclaves. The Plan Amendment The Plan Amendment is intended to revise the FLUE to modify provisions for the Future Residential Land Use designations. The Amendment, as described in the staff Final Report, is designed to: Recognize that there are Rural Residential areas within the Urban Suburban Tier that provide a valuable contribution to the housing diversity and lifestyle choices in the County. Establish that Agricultural Residential zoning is consistent with the urban residential future land use designations in the County. Recognize and support agricultural operations within residential future land use designations, including supporting the cultivation of agriculture and keeping of livestock. Provide additional specificity on the non- residential use location requirements in residential land use designations to ensure protection of residential neighborhoods. Allow Residential Multifamily Zoning on parcels with Medium Residential, 5 units per acre, future land use for properties using the Transfer of Development Rights or Workforce Housing Programs. The Plan Amendment applies countywide, and not to any specific neighborhood or property. Current neighborhood plans are considered when there are site-specific amendments. As related to Rural Residential enclaves, the Plan Amendment “will establish policy statements to direct growth away from those areas, or towards their edges,” and “will establish that the AR Zoning district is consistent with the urban residential zoning districts.” The Plan Amendment is also designed to “[r]ecognize and support agricultural operations within residential future land use designations, . . . including in the Urban Suburban Tier,” and restrict commercial vehicle activity and more intensive non-residential uses in residentially zoned areas except along major thoroughfares. Petitioner’s Challenge In its Amended Petition, Petitioner stated that the following amendments to the Comprehensive Plan “appear to recognize the existence and offer protection for the continuation of these Rural Residential Enclaves”: REVISE Policy 2.2.1-p: Rural Enclaves in Urban Service Area Application of Rural Standards. The County recognizes that there are long established rural residential enclave communities and homesteads in locations within the Urban/Suburban Tier that have Low Residential future land use designation. The County supports the continuation of those rural areas in order to encourage a high quality of life and lifestyle choices for County residents. In addition, within these areas In the Urban/Suburban Tier, the County may apply the ULDC standards for rural residential development as follows: in low density areas in Urban Residential future land use categories; on parcels presently used for agricultural purposes; or on parcels with a Special Agricultural future land use category. NEW Policy 2.2.1-w: The County shall adopt specific overlays in the Comprehensive Plan and/or Unified Land Development Code to protect the character of rural enclaves identified though the neighborhood planning process.[2/] Comprehensive Plan Policy 2.2.1-j, which is unchanged by the Plan Amendment, provides that: Table 2.2.1-j.1 establishes the consistent residential zoning and planned development district for the Residential Future Land Use Designations. In addition, within the Urban/Suburban Tier of the Glades Tier, the Agricultural Residential and Agricultural Production zoning districts are consistent with all residential future land use designations. As amended, Table 2.2.1-j.1 provides as follows: Table 2.2.1-j.1 Residential Future Land Use - Zoning Consistency1 Future Land Use Designation Consistent Zoning Zoning District Planned Development Agricultural Reserve AGR AGR-PUD Rural Residential AR4, RE5 RR-PUD, MHPD, RVPD Western Communities Residential AR PUD Low Residential AR4, RE, RT, RTS, RS PUD, TND, MHPD Medium Residential AR4, RE, RT, RS, RTU, RM/RH2 PUD, TND, MHPD High Residential AR4, RE, RT, RS, RM, RH PUD, TND, MHPD Congregate Living Residential3 RM PUD, TND, TMD, MUPD, MXPD3 The disputes raised in the Amended Petition were in “[t]he footnotes and caveats” to Table 2.2.1-j.1, which “will permit significant increases in future density, intensity and designs in a manner that will permanently and negatively alter the historic rural and unique character of these neighborhoods.” As pled, “the following three provisions completely undermine any effort to preserve the Rural Residential Enclaves”: REVISE Table 2.2.1-j.1 Residential Future Land Use – Zoning Consistency: Note No. 2 (RM District): The RM district is consistent with the MR-5 designation only for those areas properties that were zoned RM or RH prior to the Plan’s August 31, 1989 adoption or are 3+ acres utilizing the Transfer of Development Rights and/or Workforce Housing Program. REVISE Table 2.2.1-j.1 Residential Future Land Use – Zoning Consistency: Note No. 4 (AR Zoning) A lot with AR that was legally subdivided shall be considered a conforming lot. Properties with AR zoning with a residential future land use designation in the Urban/Suburban Tier are not required to rezone when subdividing for a residential use provided that the newly subdivided density is a maximum of 1 unit per acre, or when developing a non-residential use that is allowed in AR. Policy 2.2.1-n Non-Residential Uses Criteria. NEW Subsection (5). More intense non-residential uses may be allowed in residential zoning districts along major thoroughfares and roadways that are not residential streets. In addition to the foregoing, Petitioner alleged that the following deletion renders the Ordinance inconsistent with the Comprehensive Plan, and inconsistent with the Plan Amendment: 4. DELETE Language from FLUA Regulation Section Land Development Regulations in the Urban Service Area, Urban/Suburban Tier. The County may apply the ULDC standards for rural residential areas in the Urban/Suburban Tier in low density areas in the Residential future land use designations which are used for agricultural purposes, or on parcels with a Special Agricultural (SA) land use category. Areas within the Urban Service Area/Suburban Tier may be suitable for agricultural use throughout the implementation period of the Plan. It is not the intent of the Plan to encourage premature urbanization of these areas; however, agricultural uses are expected to convert to other uses consistent with the Plan when those agricultural uses are no longer economically viable. Agricultural uses permitted in the residential land use designation must be compatible with the protection of the residential lifestyle and quality of life. Table 2.2.1-j.1, footnote 2 In its Amended Petition, Petitioner alleged that revised Table 2.2.1-j.l, footnote 2, is inconsistent with new Policies 2.2.1-w and 2.2.1-p of the Plan Amendment. However, in his testimony, Mr. Crosby focused exclusively on the alleged inconsistency with Policy 2.2.1-w, not mentioning or otherwise offering evidence regarding inconsistency with Policy 2.2.1-p. As amended, revised Table 2.2.1-j.l, footnote 2, applies only to “RM/RH” zoning districts, and provides that “[t]he RM district is consistent with the MR-5 [Medium Residential/5 units per acre] designation only for those properties that were zoned RM [Residential Multifamily] or RH [Multifamily Residential High Density] prior to the Plan’s August 31, 1989 adoption, or when properties of 3 or more acres in size within an MR-5 designation qualify for a higher density through the Transfer of Development Rights and/or Workforce Housing Program density bonus programs.” The plain language of revised Table 2.2.1-j.l, footnote 2, establishes that it applies only to the MR-5 future land use designation, and only to properties that were either zoned as RM or RH before August 31, 1989, or that qualify for the listed density bonus programs. The three-acre threshold was established to prevent single lots in established MR-5 neighborhoods from increasing density out of character with the neighborhood. Prior to the amendment of footnote 2, if a property owner proposed new development on property with an MR-5 land-use designation and more than three acres of land and proposed to utilize Transfer of Development Rights or the Workforce Housing Program for a density increase, the property owner was limited to a Planned Unit Development (PUD). The amendment allows the application of the density bonus in an RM zoning district. Revised Table 2.2.1-j.l, footnote 2, is designed to foster infill development on MR-5 designated parcels that may be too small to be developed as a PUD. Furthermore, footnote 2 does not bypass the requirements of the Land Development Code Article 5 Density Bonus Programs, and applicants are still required to comply with those application review and approval processes. Finally, Petitioner’s expressed concern is the effect of the Plan Amendment on AR designated rural enclave communities such as the Pioneer Road neighborhood. Amended footnote 2 does not apply to AR zoning districts. Petitioner failed to prove, beyond fair debate, that revised Table 2.2.1-j.l, footnote 2, is inconsistent with the Comprehensive Plan, including new Policy 2.2.l-w, or that it improperly increases density. Furthermore, Petitioner, having failed to offer any evidence as to revised Table 2.2.1-j.l, footnote 2’s, inconsistency with revised Table 2.2.1-p, failed to meet its burden with regard to that element of its Amended Petition. Table 2.2.1-j.1, footnote 4 In its Amended Petition, Petitioner alleged that revised Table 2.2.1-j.l, footnote 4, is inconsistent with new Policies 2.2.1-w and 2.2.1-p of the Plan Amendment. However, in his testimony, Mr. Crosby focused exclusively on the alleged inconsistency with Policy 2.2.1-w, not mentioning or otherwise offering evidence regarding inconsistency with Policy 2.2.1-p. Petitioner argues that the footnote allows property owners to immediately subdivide their property to one unit per acre without review, rezoning, or going through the typical process if they are in the AR zoning district. As to the alleged inconsistency with new Policy 2.2.1-w, neither footnote 4, nor any other provision of the Plan Amendment, creates a specific overlay that can be compared for consistency with the authority for, but not the implementation of, the creation of future overlays. Petitioner failed to demonstrate, through competent, substantial evidence, that revised Table 2.2.1-j.l, footnote 4, is inconsistent with new Policy 2.2.1-w of the Plan Amendment. As to the alleged inconsistency between revised Table 2.2.1-j.l, footnote 4, and new Policy 2.2.1-p, the evidence demonstrated that the County implemented the Managed Growth Tier System to protect viable existing neighborhoods and communities, and to direct the location and timing of future development within five geographically specific Tiers -- Urban/Suburban, Exurban, Rural, Agricultural Reserve, and the Glades. Table 2.2.1-g.l of the FLUE establishes maximum density for Residential Future Land Use Designations. The lowest density designation in the Urban/Suburban Tier is Low Residential, one unit per acre (LR-1) designation, which allows up to one unit per acre. According to existing Table 2.2.1-j.l, the AR zoning district is not currently consistent with Low Residential (LR), Medium Residential (MR), and High Residential (HR) Future Land Use Designations. As set forth in Table III.C, LR, MR, and HR Future Land Use Designations are allowed within the Urban/Suburban and Glades Tiers. Through a review of County records, it was determined that there were thousands of acres of land currently zoned AR in the Urban/Suburban Tier. Thus, under the existing tiered land use designations, those AR zoned parcels were inconsistent with the Comprehensive Plan. Accordingly, the Plan Amendment revised Table 2.2.1-j.l to add AR zoning districts as being allowable in LR, MR, and HR Future Land Use Designations, thus making AR zoning districts consistent in the Urban/Suburban Tier. Revised Table 2.2.1-j.l, footnote 4, applies to AR zoning districts within the Rural Residential (existing), and the LR, MR, and HR Future Land Use Designations (added). The requirement for AR zoned properties to rezone with a maximum LR-1 density of one unit/acre is eliminated because such properties, with the proposed Plan Amendment, will be consistent with LR, MR, and HR Future Land Use Designations within the Urban/Suburban Tier and, thereby, maintain their agricultural residential uses. Proposed Policy 2.2.1-p recognizes that there are established rural residential enclaves within the Urban/Suburban Tier that have an LR Future Land Use Designation, and affirms the County’s support of the continuation of those rural areas. Allowing properties with LR Future Land Use Designations to subdivide up to one unit/acre does not increase density, as the LR Future Land Use Designation currently allows up to one unit/acre without the Plan Amendment. Policy 2.2.1-p is unchanged in establishing that the County may apply its Uniform Land Development Code (“ULDC”) standards for rural residential development in low density and agricultural future land use categories. Petitioner failed to prove, beyond fair debate, that revised Table 2.2.1-j.l, footnote 4, is inconsistent with the Comprehensive Plan, including new Policy 2.2.l-w, that it improperly increases density, or that any existing County subdivision regulations would not apply. Furthermore, Petitioner, having failed to offer any evidence as to revised Table 2.2.1-j.l, footnote 4’s, inconsistency with revised Table 2.2.1-p, failed to meet its burden with regard to that element of its Amended Petition. Policy 2.2.1-n.5. Revised Policy 2.2.1-n.5. is designed to direct more intense non-residential uses allowed in residential areas to properties “along major thoroughfares and roadways” and away from residential streets. In its Amended Petition and Mr. Crosby’s testimony, Petitioner alleged that revised Policy 2.2.1-n.5. is inconsistent with new policy 2.2.1-w regarding the adoption of specific overlays to protect “the character of individual rural enclaves identified through the neighborhood planning process.” As indicated previously, the Plan Amendment did not create a specific overlay to compare for consistency with the authority for, but not the implementation of, the creation of future overlays. Revised Policy 2.2.1-n.5. is designed to direct allowable non-residential uses to the periphery of residential communities “along” the major thoroughfares, which is not the same as “in proximity” to major thoroughfares. Pursuant to proposed Policy 2.2.1-n.5., local residential streets are not to be subject to commercial vehicle activity (other than home businesses), and more intense non-residential uses in residentially-zoned areas will be limited to those with access to major thoroughfares. The more restrictive language is intended to protect residential neighborhoods in any Managed Growth Tier. Revised Policy 2.2.1-n.5. cannot be read in isolation from other provisions of Policy 2.2.1-n, including the existing requirements that non-residential uses, when being permitted, be consistent with the Comprehensive Plan, and that their density and intensity be comparable and compatible with the adjoining residential area, and revised Policy 2.2.1-n.6., which requires conditions of approval of the non-residential uses “to ensure compatibility with surrounding residences.” Petitioner failed to prove, beyond fair debate, that revised Policy 2.2.1-n.5. is inconsistent with the Comprehensive Plan, including new Policy 2.2.l-w. Deleted Language Petitioner failed to offer any evidence as to the language deleted from the FLUA Regulation Section to demonstrate that it rendered the Plan Amendment inconsistent with the Comprehensive Plan. Petitioner therefore failed to meet its burden with regard to that element of its Amended Petition. County’s Evidence The County introduced competent, substantial testimonial and documentary evidence that the Plan Amendment is consistent with the Comprehensive Plan FLUE, Section I.C. “County Directions,” paragraphs 1, 2, 4, 5, and 15. The Plan Amendment promotes the protection of established neighborhoods, fosters agriculture uses, establishes that existing rural neighborhoods within the Urban/Suburban Tier cannot be replaced, and will manage growth in a manner to protect these areas. The County demonstrated that the Plan Amendment is designed and intended to direct growth towards activity nodes and centers and along major thoroughfares, and promote redevelopment and urban infill in appropriate areas of the County. The County introduced competent, substantial testimonial and documentary evidence that the proposed Plan Amendment is consistent with the Comprehensive Plan FLUE, Section II., Objective 1.1 “Managed Growth Tier System” by maintaining a variety of housing and lifestyle choices, enhancing existing communities, protecting land for agriculture, and providing opportunities for agriculture. The County introduced competent, substantial testimonial and documentary evidence that the proposed Plan Amendment is consistent with the Comprehensive Plan FLUE, Section II., Objective 1.2 “Urban/Suburban Tier - Urban Service Area,” Policy 1.2-a by protecting the character of rural enclaves through the promotion of agriculture and home-based commercial uses that are compatible with the neighborhoods, while directing increased density away from the center of rural neighborhoods.
Conclusions For Petitioner: Benjamin Crosby, Qualified Representative Palm Beach Farms Rural Preservation Committee, LLC 7425 Wilson Road West Palm Beach, Florida 33413 Troy W Klein, Esquire Law Office of Troy W. Klein, P.A. Suite 1B, Barristers Building 1615 Forum Place West Palm Beach, Florida 33401 For Respondent: Kim Phan, Esquire Jason Tracey, Esquire Palm Beach County Attorney's Office Suite 359 300 North Dixie Highway West Palm Beach, Florida 33401
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the Plan Amendment adopted by Palm Beach County as Ordinance 2018-031, on October 31, 2018, is “in compliance,” as that term is defined by section 163.3184(1)(b), Florida Statutes; and that Petitioner’s challenge was not brought for an improper purpose as defined in section 120.569(2)(e), Florida Statutes, or section 120.595(1), Florida Statutes. DONE AND ENTERED this 8th day of January, 2020, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 2020.
The Issue Whether Interstate-Tallahassee West has demonstrated that development rights in certain real property it owns have vested against the provisions of the 2010 Comprehensive Plan?
Findings Of Fact The Purchase of the Property. In the Spring and Summer of 1985, Thomas W. Anthony began an inquiry relative to the purchase and development of 21.5 acres (original tract) located at the intersection of Capital Circle West and I-10. (R-2, pp. 11-15.) On December 11, 1985, a Deposit Receipt and Contract for Sale and Purchase was executed between Rehold, Inc. and C. Gary Skartvedt, Thomas W. Anthony, and Mary J. Price, d/b/a Denver West Joint Venture (Denver, Colorado) for the purchase of the original tract. (Deposit Receipt and Contract for Sale and Purchase.) On March 14, 1986, the Interstate-Tallahassee West Partnership Agreement was executed and Interstate purchased the original tract from Rehold, Inc. (Chronological Listing of Events, p. 1.) At the time of the closing on the initial purchase of the original tract, the property was zoned C-2, with the exception of a small portion in the northwest corner of the tract which was zoned A-2. (R-2, pp. 34-35, Preliminary Plat approved on January 18, 1990.) Development Chronology. During 1987 and 1988 the original tract was held to realize growth potential in terms of Interstate's economic investment. (Chronological Listing of Events, p. 2.) In 1989, Interstate began negotiations for the sale of a portion of the original tract to Kent C. Deeb (Deeb). (Chronological Listing of Events, p. 2.) On June 26, 1989, Broward Davis and Associates, Inc. prepared a drawing of easement location and depiction of a 25 year flood line relative to the portion of the original tract which was the subject of the negotiations between Interstate and Deeb. (Chronological Listing of Events, p. 2, R-2 p. 20.) On September 12, 1989, Tilden Lobnitz and Cooper, Inc., (Consulting Engineers) recommended a reconfiguration of the original tract relative to the location of high voltage power lines. (Chronological Listing of Events, p. 2.) On October 11,1989, final descriptions of the lakes on the original tract were prepared for Interstate by Broward Davis and Associates. (Chronological Listing of Events p. 2.) On November 13, 1989, a sketch depicting a revised legal description of a proposal to subdivide the subject property was prepared for Interstate by Broward Davis and Associates, Inc. (Chronological Listing of Events, p. 2.) On December 7, 1989, an Environmental Assessment of the site was prepared for Interstate by Jim Stidham and Associates. (Chronological Listing of Events, p. 2.) On December 14, 1989, Deeb executed a Purchase and Sale Agreement which contemplated the conditional purchase of 6.98 acres of the original tract from Interstate. Interstate signed the Purchase and Sale Agreement on December 27, 1989. (Purchase and Sale Agreement, p. 8.) Interstate contends the execution of this Purchase and Sale Agreement resulted in it incurring substantial contractual obligations and argues that these obligations (along with other items and events) are elements in support of "common law vesting" of its development rights. This agreement is the subject of expanded discussion later in this Final Order. The services that Interstate obtained during 1989 (as described in paragraphs 6-11 above) were related to the eventual consummation of the Purchase and Sale Agreement with Deeb. (R-2, pp. 20-21 and 27, Chronological listing of Events, p. 2.) On January 18, 1990, the Tallahassee-Leon County Planning Commission approved Interstate's Preliminary Plat of the subject property. (Chronological Listing of Events, p. 3.) On April 4, 1990, the Tallahassee City Commission approved Interstate's previously filed application to rezone a portion of the subject property from A-2 to C-2. (Chronological Listing of Events, p. 3.) Interstate entered into a written Utility Agreement with the City on or about July 10,1990. (Letter of agreement dated June 25, 1990 from Henry L. Holshouser, Director of Growth Management, to Interstate Tallahassee West.) The Utility Agreement is the subject of expanded discussion later in this Final Order. On August 20, 1990 a Vested Rights Application covering 6.98 acres of the original tract, which is the subject of the Purchase and Sale Agreement between Interstate and Deeb, was approved. (Letter dated August 21,1990 to Kent Deeb from Mark L. Gumula, Director of Planning, Tallahassee-Leon Planning Commission, containing CERTIFICATION OF VESTED STATUS.) The Vested Rights Application for the approximately 15.6 acres remaining of the original tract was disapproved by the Staff Committee and that portion of the property is the subject of this appeal. (R-1, p. 17.) Interstate has not prepared a specific building or development design for the property which is the subject of this appeal. (R-2, p. 97, R-1, p. 5.) As of the date of the hearing in this case, Interstate had no specific building plans for the property which is the subject of this appeal. (R-2, p. 38.) As of the date of the hearing in this case, Interstate had not chosen a specific land use for the property. (R-2, pp. 38-39.) As of the date of the hearing in this case, Interstate had not made application for environmental permits for the property. (R-2, pp. 49 and 98.) As of the date of the hearing in this case, the only infrastructure that had been constructed on the original tract are two storm water ponds which were built in the 1970's, and prior to Interstate's purchase of the property. (R-2, pp. 86, 87.) Interstate was never assured by the City that the property could be used for any specific use such as a motel, apartments or offices. Interstate and the City made no commitments as to any specific uses of the property. (R-2, pp. 47-48.) The City advised Interstate by letter dated August 13, 1990, that the 2010 Comprehensive Plan requires Planned Unit Development zoning for an office park (which is by definition an office building or buildings of more than 40,000 square feet). (Letter from Martin P. Black, City's Chief of Land Use Administration, to Interstate Tallahassee West, dated August 13, 1990.) The City did not advise Interstate that it could not build such an office building on its property. (R-2, pp. 45, 46, and 100.) As of the date of the hearing in this case, Interstate had not requested a determination from the City as to whether the 2010 Comprehensive Plan would prohibit development of the property as the market might dictate. (R-2, p. 40.) At the hearing in this case, Interstate presented the testimony of Mr. Deeb regarding the existence of a master environmental permit for the original tract which was in place before Interstate purchased the property. (R-2, p. 67.) However, Interstate offered no evidence that such permit contemplated any specific use or density regarding development of the property. Costs Associated with Interstate's Property. Interstate purchased the original tract in 1986 at a cost of $748,000. (R-2, p. 17; Development Expenditures.) The cost to purchase the property was not incurred in reliance on any representation of the City. Interstate has expended $325,063.82 in interest on acquisition loans, pursuant to the property purchase. (Development Expenditures.) The interest cost on acquisition loans was not incurred in reliance on any representation of the City. Interstate has expended $46,824.95 in Ad Valorem taxes on the property. (Development Expenditures) These costs were not incurred based on any representation of the City. Interstate has expended $28,839.75 on engineering and survey work on the property. (Development Expenditures) The costs of the engineering and survey work during 1989 were substantially incurred by Interstate in conjunction with the negotiations of the potential sale of the 6.98 acre parcel of its property to Deeb. (Chronological Listing of Events, pp. 2-3; R-2, p. 27.) These costs were not incurred based upon any representation of the City. Interstate has expended $8,500.00 in legal and miscellaneous fees associated with development of the original tract and the potential sale of the 6.98 acres to Deeb. (Chronological Listing, Development Expenditures) Interstate has failed to prove that these costs were incurred based on any representation of the City. The Purchase and Sale Agreement with Deeb. Negotiations between Interstate and Deeb regarding The Purchase and Sale Agreement began in the Spring of 1989. (R-2, p. 20.) Deeb executed the agreement on December 14, 1989, and the Interstate partners signed the agreement on December 27, 1989. (Purchase and Sale Agreement, p. 8.) Interstate does not assert that the City was privy to this agreement and has failed to prove that it relied on any representation of the City in entering into this agreement or in incurring any costs or future obligations pursuant to the agreement. Interstate was aware that the 2010 Comprehensive Plan was being developed when the Tallahassee-Leon Planning Commission approved Interstate's Preliminary Plat on January 18, 1990. (R-2, p. 50.) Interstate knew that the Comprehensive Plan "was coming" at the time Mr. Anthony (partner in Interstate) understood that the original tract was to be subdivided in order to "cut out" a site for Deeb so as to "key on him" as to the development of the property. (R-2, p. 46.) The Preliminary Subdivision Plat drawing, subsequently presented to the Tallahassee-Leon Planning Commission, is dated November 29, 1990. (Preliminary Subdivision Plat as approved on January 18, 1990.) The testimony of Thomas W. Anthony that Interstate would not have entered into the Purchase and Sale Agreement with Deeb if it knew that it would not be able to move forward with C-2 development of the remaining lots is accepted. (R-2, p. 36.) However, Interstate has failed to prove that it relied on any representation of the City that it could so proceed upon adoption of the 2010 Comprehensive Plan. The Utility Agreement. The Utility Agreement (previously described in paragraph 16) was executed by the City on June 25, 1990. The agreement was signed by on behalf of Interstate on June 29, 1990, by C. W. Harbin and Tommy Faircloth, and on July 10, 1990, by Mr. Anthony. This agreement outlines what Interstate and the City have each agreed to do in terms of Interstate's proposed development. The agreement describes Interstate's proposed development activity in general terms as "commercial development". In this agreement, the City makes no representation or commitments relative to any specific land use or specific density concerning Interstate's property. Interstate has failed to prove that the City, in executing the Utility Agreement, made any representation upon which Interstate relied in incurring any costs or future obligations. The Preliminary Plat Approval. The Preliminary Plat Approval of January 18, 1990, does not contemplate any specific uses, intensities or designations. (R-2, pp. 47-48.) Interstate has failed to prove that the approval of the Preliminary Plat constitutes an act or representation upon which Interstate relied in incurring any costs or future obligations. The A-2 Rezoning Approval. Interstate has failed to prove that it relied upon the act of the City, in approving Interstate's request to rezone a portion of the original tract from A-2 to C-2 in incurring any costs or future obligations. Interstate's Application for Vested Rights. On or about July 25, 1990, Interstate filed an application for vested rights determination (Application), with the Tallahassee-Leon County Planning Department. (Application VR0008T.) The Following information concerning the development of the subject property is contained on the Application: "Kent C. Deeb" is listed as the "owner/agent". Question 3 lists the name of the project as "Interstates Tallahassee West." The project is described as a "Four Lot Subdivision." The project location is described as "lots 1 and 2 Block A Commonwealth Center." The total project costs are estimated at $2.5 Million." Progress towards completion of the project is listed as: A. Planning: "Plans; Rezoning; Subdivision Plat Approval; Utility Agreement for Extension with the City"; B. Permitting: "Existing with the original Commonwealth Center Development; C. Site Preparation: "Zoning, Platting, and Plans"; D. Construction: "Original Holding Ponds". Total expenditures to date attributed to the progress towards completion of the project are listed as $1.325 Million. The form of government approval allowing the project to proceed is listed as "Original Plat; Rezoning; Subdivision Plat." On August 20, 1990, a hearing was held to consider the application before the City's three member Staff Committee. Kent C. Deeb appeared and testified for Interstate. By letter dated August 21, 1990, Mark Gumula, Director of Planning for the Tallahassee-Leon Planning Department, informed Interstate that the Application had been denied. During the hearing before the undersigned, Interstate stipulated that it sought approval of its Application based upon "common law vesting" and not upon "statutory vesting," as those terms are defined in City of Tallahassee Ordinance 90-0-0043AA.
Findings Of Fact The petition Petitioners, George and Judy Sands (Sands), seek to recover attorney's fees and costs under the provisions of Section 57.111, Florida Statutes, as a "prevailing small business party" in the matter of Department of Community Affairs v. George H. Sands, et al., DOAH Case No. 91-3472DRI, recommended order issued June 12, 1992 (the "underlying action). The underlying action The underlying action arose upon the respondent's, Department of Community Affairs' (Department's), appeal, pursuant to Section 380.07, Florida Statutes, of a building permit issued by Monroe County to the Sands which would have allowed the construction of a single family dwelling unit to replace a preexisting wood-frame structure. The predicate for the Department's appeal was its contention that the permit was inconsistent with the Monroe County comprehensive plan and land development regulations since it would authorize the replacement of a nonconforming structure or use contrary to the maximum net density standards applicable to residential development in a sparsely settled land use district. On appeal, the Sands denied that the structure being replaced was a nonconforming structure or use, and asserted affirmatively that the Department was estopped to contest the propriety of the permit and that they were entitled to an exception afforded by Section 9.5-268, Monroe County Land Development Regulations (MCLDR). Following the referral of the matter by FLWAC to the Division of Administrative Hearings, a formal hearing was held and a recommended order issued in the underlying action. That order concluded, consistent with the position advocated by the Department, that the permit would authorize the replacement of a nonconforming structure or use contrary to the maximum net density standards of the MCLDR applicable to residential development in a sparsely settled land use district, and that the Sands' estoppel defense was without merit. Notwithstanding, it was further found that the Sands were entitled to the exception afforded by Section 9.5-268, MCLDR and, therefore, their development was permissible. With regard to the exception issue, the recommended order found: 14. Notwithstanding the provisions of Section 9.5-262, MCLDR, the Monroe County land development regulations provide an exception to the density limitations other wise imposed by such section for certain dwelling units existent on the effective date of the regulations. Pertinent to this case, Section 9.5-268, MCLDR, provides: "Notwithstanding the provisions of section 9.5-262 . . . the owners of land upon which a dwelling unit . . . used as a principal residence prior to the effective date of the plan was lawful on the effective date of this chapter shall be entitled to a density allocation of one (1) dwelling unit for each such unit in existence on the effective date of this chapter." The parties to the underlying action disagreed, however, as to the proper interpretation or application of such provision to the facts of this case. Significant to an appreciation of the disagreement between the parties is an understanding of the peculiarity of the circumstances existent on the Sands' property. In this regard, the proof in the underlying action demonstrated that the Sands' property, consisting of approximately .45 acres, was purchased in January 1990, for use as rental property. At the time of the purchase, the property supported a concrete block residence, two bedrooms and one bath, of approximately 900 square feet and a wood-frame residence, two bedrooms and one bath, of approximately 625 square feet (the building to be replaced). Both buildings were constructed in 1948 and were each used by the Sands' predecessor in title as a principal residence, although not at the same times, prior to and as of the effective date of the Monroe County land development regulations. Pertinent to this case, the Sands' predecessor in title occupied the concrete block structure when the comprehensive plan became effective, and his adult children the wood-frame structure. The entire parcel was, however, claimed as homestead by the Sands' predecessor in title. At hearing, the Department contended the exception afforded by Section 9.5-268, MCLDR, should be interpreted to apply only to the owner of the residence on the effective date of the plan, and then only to the principal residence. Under such interpretation, the density exception offered by Section 9.5-268, MCLDR, would be lost where, as here, the owner sold the property or was not using the dwelling unit to be replaced as their principal residence when the plan became effective. Such position is consistent with the land planning concept that nonconforming structures or uses should be phased out over time. In contrast to the Department's interpretation, Monroe County interpreted the provision to essentially establish an allowable density on the effective date of the plan, based on prior usage, and to accord subsequent owners the benefit of such increased density allocation. Such position is consistent with the county's view of the exception accorded by Section 9.5-268, MCLDR, which assesses the propriety of the structures existent on the property as of the effective date of its comprehensive plan, and accords such structures "exemption status" if, had they been destroyed then, the existing code would have allowed their replacement. Monroe County's interpretation, while not the only interpretation, or perhaps the most desirable interpretation, was found to be not clearly erroneous and, therefore, permissible. Accordingly, the issue was resolved, as set forth in the recommended order rendered in the underlying action, as follows: 4. Dispositive of whether construction of the Sands' dwelling unit is consistent with the Monroe County land development regulations is the interpretation to be accorded Section 9.5-268, MCLDR. Generally, an administrative construction of a statute by an agency responsible for its administration is entitled to great deference and should not be overturned unless clearly erroneous. Depart ment of Environmental Regulation v. Goldring, 477 So.2d 532 (Fla. 1985); All Seasons Resorts, Inc. v. Division of Land Sales, Condominiums, and Mobile Homes, 455 So.2d 544 (Fla. 1st DCA 1984); and Sans Souci v. Division of Land Sales and Condominiums, 421 So.2d 623 (Fla. 1st DCA 1982). The same deference has been accorded to rules which have been in effect over an extended period and to the meaning assigned to them by officials charged with their administration. Pan American World Airways, Inc. v. Florida Public Service Commission, 427 So.2d 716 (Fla. 1983), and State Department of Commerce, Division of Labor v. Matthews Corp., 358 So.2d 256 (Fla. 1st DCA 1978). Moreover, the agency's interpretation does not have to be the only one or the most desirable one; it is enough if it is permissible. Pan American World Airways, Inc. v. Florida Public Service Commission, supra, and Florida Power Corp. v. Department of Environmental Regulation, 431 So.2d 684 (Fla. 1st DCA 1983). Here, no less deference should be accorded Monroe County's interpretation of its land development regulations where, as here, such interpretation evidences due consideration for private rights of ownership and is not contrary to its comprehensive plan. See e.g., Thomson v. Village of Tequesta Board of Adjustment, 546 So.2d 457 (Fla. 4th DCA 1989). Such being the standard, it is concluded that Monroe County's interpretation of Section 9.5-268, MCLDR, is a permissible interpretation. Accordingly, the subject development is consistent with the Monroe County comprehensive plan and land development regulations, and the Sands have demonstrated their entitlement to their permits. While the dispositive issue in the underlying action was resolved adverse to the Department, such resolution does not compel the conclusion that the Department's decision to contest the propriety of Monroe County's decision to issue the subject permit, by an appeal for de novo review before FLWAC, lacked a reasonable basis in law or fact when initiated. To the contrary, the appropriate interpretation to be accorded Section 9.5-268, MCLDR, was subject to legitimate debate, had never previously been applied in a permitting context, and had never been subject to scrutiny in a court of law or administrative forum. 2/ Under such circumstances, the action initiated by the Department to contest the propriety of Monroe County's decision to issue the permit had a reasonable basis in law and fact. Prevailing small business party Following the rendition of the recommended order in the underlying action, which recommended that FLWAC enter a final order affirming Monroe County's decision to issue the building permit and dismiss the appeal filed by the Department, the Department and the Sands entered into a settlement agreement. Such agreement, dated September 9, 1992, provided in part: On April 12, 1991, the Department timely filed an Appeal of Building Permit No. 9130002861 issued by the County alleging that the permit was inconsistent with the mandates of the Monroe County Land Development Regulations, the Monroe County Comprehensive Plan, and Chapter 380, Florida Statutes. A copy of the Petition is attached to this Agreement as Exhibit B. The Owners deny the allegations in the Appeal Petition. However, the parties have discussed the mutual resolution of the issues raised in this Appeal and desire to resolve these issues and have the Appeal dismissed. The parties acknowledge the terms of this Agreement are reached in mutual resolution of the issues involved. TERMS AND CONDITIONS Based upon the recitations above, and in consideration of the mutual covenants contained herein, the parties to this Agreement agree as follows: The intent of this Agreement is to resolve fully the issues raised in the Department's Appeal of the Monroe County development order, Building Permit No. 9130002861. The Owners agree to use the subject property and structure as affordable housing, as that term is defined in the Monroe County Code. The parties to this Agreement waive any right to appeal under Section 380.07, Florida Statutes, or otherwise challenge in any forum, on any ground, the development order. Within five working days of receipt of the executed settlement agreement, the Department shall submit a Notice to the Florida Land and Water Adjudicatory Commission to dismiss voluntarily, with prejudice, its Appeal of the development order. Consistent with such stipulation, the Department, on September 9, 1992, filed a notice of voluntary dismissal with FLWAC, and by final order of September 16, 1992, FLWAC dismissed the pending appeal. In their motion for attorney's fees and costs pursuant to Section 57.111, the Sands predicated their "small business party status" on the following allegations: George and Judy Sands are a "small business party" in that they are the owners of a small business, Sands of the Keys, whose principal office is in Tavernier, Monroe County, Florida, who have not more than twenty-five (25) full [sic] employees or a net worth of not more than Two Million Dollars ($2,000,000.00) including personal and business investments. . . . The Sands' ownership of Sands of the Keys, a corporation, does not render them "small business parties" for purposes of Section 57.111, Florida Statutes. However, at hearing, without objection, the Sands also offered proof that they were also the owners of commercial and residential properties in the Florida Keys, which they lease to various commercial and residential tenants as part of an ongoing business enterprise. Pertinent to this case, the replacement structure that was to be constructed was intended to be used as rental property in furtherance of such enterprise. Considering the relationship of the property at issue in the underlying action to the Sands' commercial and residential leasing business, as well as the proof that the Sands have not more than 25 full-time employees nor a net worth of more than $2 million dollars, including both personal and business investments, the uncontroverted proof demonstrates that they are a "small business party," as that term is defined by Section 57.111(3)(d), Florida Statutes.
The Issue At issue in this proceeding is whether a certain development order (permit) issued by Monroe County to George and Judy Sands, as owners, and PG Construction, Inc., as contractor, for the construction of a single family dwelling unit is consistent with the Monroe County comprehensive plan and land development regulations.
Findings Of Fact The parties Respondents, George and Judy Sands (Sands), are the owners of Lot 15, Tropical Coral Reef Estates, Plantation Key, Monroe County, Florida; a property located within that part of Monroe County designated as an area of critical state concern, and upon which they have received a development order (permit) from Monroe County to construct a single family dwelling unit. Respondent, PG Construction, Inc., is the contractor that applied for the permit on behalf of the Sands. Respondent, Monroe County (Monroe County), is a local government within the Florida Keys Area of Critical State Concern designated by Section 380.0552, Florida Statutes, and is responsible for the implementation of, and the issuance of development orders that are consistent with, the Monroe County comprehensive plan and land development regulations, as approved and adopted in Chapters 9J-14 and 28-20, Florida Administrative Code. Petitioner, Department of Community Affairs (Department), is the state land planning agency charged with the responsibility of administering and enforcing the provisions of Chapter 380, Florida Statutes, and all rules promulgated there-under. Sections 380.031(18) and 380.032(1), Florida Statutes. Here, the Department has filed a timely appeal to the issuance of the subject permit, and contends that construction of the dwelling unit is inconsistent with the Monroe County comprehensive plan and land development regulations since it would exceed allowable density limitations. Background The subject property is approximately .45 acres, and was purchased by the Sands in January 1990. At the time of purchase, the property supported a concrete block residence, two bedrooms and one bath, of approximately 900 square feet and a wood-frame residence, two bedrooms and one bath, of approximately 625 square feet. Both buildings were constructed in 1948 and were, pertinent to this case, used by the Sands' predecessor in title as a principal residence prior to and as of the effective date of the Monroe County land development regulations (September 15, 1986). Following their acquisition of the property, the Sands undertook to upgrade both structures with the intention of offering use of the residences to employees of their business, which was located across the street from the property. 2/ Ultimately, however, the Sands decided to replace, rather than remodel, the wood-frame residence, and employed David de Haas-Grosseck (de Haas), a consultant and designer of residential properties, who was of the opinion that such replacement was permissible under the provisions of Section 9.5-268, Monroe County land development regulations (MCLDR), discussed infra, to attend the necessary details. 3/ On February 5, 1991, de Haas, on behalf of the Sands, filed an application with Monroe County for a building permit to construct a modular single family residence upon the property. Thereafter, the County advised de Haas that since the wood-frame structure was to be removed a demolition permit would also be required. Accordingly, on February 11, 1991, de Haas applied for a demolition permit to remove such structure. The demolition permit (permit number 9130002904) was issued by the County on February 11, 1991, and rendered to the Department on February 13, 1991. The building permit (permit number 9130002861) was issued by the County on February 25, 1991, and rendered to the Department on February 27, 1991. Under existing law, such permits were not effective until expiration of the time within which the Department was authorized to appeal their issuance, to-wit: 45 days after they were rendered to the Department. The Sands, having been expressly so advised by de Haas, were acutely aware of the limitations on their building permit. Consequently, the Sands requested a waiver of the Department's appeal period. By letter of March 21, 1991, the Department denied such request and stated: Dear Mr. Sands: Monroe County issued you permit number 913-2861 on February 25, 1991. The DCA received the permit on February 27, 1991. Therefore, the Department's 45-day appeal period expires on April 13, 1991. Subsequent to the issuance of the permit by the County, you requested a waiver of the DCA's appeal period. At this time, the Department declines to issue you the waiver. Changes or additional information may be needed to meet County Code requirements. Our concerns include that the proposed development exceeds the allowable density in a SS zoning district. DCA staff will continue to review your plans and the permit, which may warrant action by the Department . . . . Notwithstanding the Sands' express knowledge that their building permit was not effective, as well as express advice from the Department that it had concerns regarding the propriety of such development, the Sands, following the expiration of the Department's appeal period on their demolition permit, demolished the wood-frame structure on or about April 4, 1991. Thereafter, by petition filed with the Florida Land and Water Adjudicatory Commission on April 12, 1991, the Department timely challenged the propriety of Monroe County's decision to issue the building permit. 4/ The Sands, notwithstanding express knowledge that their building permit was not effective pending the Department's appeal, proceeded to construct the modular unit on the property. Such unit is approximately 650 square feet in size, excluding the two enclosed screen porches which measure 10' X 20' each, and complies with current building code requirements. The Sands' decision to construct such unit pending appeal was voluntary, and they proceeded with such construction at their own risk considering the nature of this proceeding. Consistency of the building permit with the Monroe County comprehensive plan and land development regulations The Sands property is located within what the Monroe County land development regulations (MCLDR) define as a sparsely settled residential land use district. The purpose of such district is stated in Section 9.5-209, MCLDR, to be as follows: . . . to establish areas of low density residential development where the predominate character is native or open space lands. Consistent with the purpose of such land use district, the Monroe County land development regulations permit, as of right, only the following uses: Detached residential dwellings; Beekeeping; Home occupations -- Special use permit requiring a public hearing; Accessory uses. Section 9.5-238(a), MCLDR. Moreover, consistent with the purpose of the district, the density or intensity of development is limited by Section 9.5-261, MCLDR. Pertinent to this case, 9.5-261, MCLDR, addresses the issue of land use intensity or density, and provides: No structure or land in Monroe County shall hereafter be developed, used or occupied at an intensity or density greater than the standards set out in this division. . . . And, Section 9.5-262, MCLDR, establishes the maximum residential density in a sparsely settled residential land use district at .5 dwelling units per acre. Accordingly, a minimum of two acres is required under the Monroe County land development regulations to permit, as of right, one detached residential dwelling. Notwithstanding the provisions of Section 9.5-262, MCLDR, the Monroe County land development regulations provide an exception to the density limitations otherwise imposed by such section for certain dwelling units existent on the effective date of the regulations. Pertinent to this case, Section 9.5-268, MCLDR, provides: Notwithstanding the provisions of section 9.5-262 . . . the owners of land upon which a dwelling unit . . . used as a principal residence prior to the effective date of the plan was lawful on the effective date of this chapter shall be entitled to a density allocation of one (1) dwelling unit for each such unit in existence on the effective date of this chapter. Here, the Department and Monroe County disagree as to the proper interpretation of the foregoing provision. The Department interprets such provision to apply only to the owner of such residence on the effective date of the plan. Under such interpretation, the density benefits offered by Section 9.5-268, MCLDR, would be lost where, as here, such owner sold the property. In contrast, Monroe County interprets such provision to essentially establish an allowable density on the effective date of the plan, and to accord subsequent owners the benefit of such increased density allocation. 5/ Such interpretation, while not the only possible interpretation, is not inconsistent with the comprehensive plan or clearly erroneous, and therefore permissible. 6/ Accordingly, the subject permit is consistent with the Monroe County comprehensive plan and land development regulations. 7/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Florida Land and Water Adjudicatory Commission enter a final order affirming Monroe County's decision to issue building permit number 9130002861, and dismissing the appeal filed by the Department of Community Affairs. RECOMMENDED in Tallahassee, Leon County, Florida, this 12th day of June 1992. WILLIAM J. KENDRICK 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 12th day of June 1992.
The Issue The issues are (1) whether the City of Lake Worth (City) followed required statutory and rule procedures in adopting the height restrictions on pages 22 and 23 of the Future Land Use Element (FLUE) of the Evaluation and Appraisal Report (EAR) amendments, and (2) whether the adoption of the EAR-based amendments by the City more than 120 days after receiving the Department of Community Affairs' (Department's) Objections, Recommendations, and Comments (ORC) report renders them not in compliance.
Findings Of Fact The Parties Sunset is a Florida limited liability company whose principal address is 5601 Corporate Way, Suite 111, West Palm Beach, Florida. It owns property located at 826 Sunset Drive South within the City. See Sunset Exhibit 3. The property is currently classified on the FLUM as County Medium Residential 5.1 There is no factual dispute that Sunset is an affected person and has standing to participate in this proceeding. Ms. Hayes-Tomanek owns property within the City. She submitted comments regarding the height restrictions during the public hearing on October 20, 2009, adopting the EAR amendments. See City Exhibit 6, Minutes, p. 7. The City is a local government that administers the City's Plan. The City adopted the EAR-based amendments which are being contested here. The Department is the state land planning agency charged with the responsibility of reviewing plan amendments of local governments, such as the City. The Amendments On October 1, 2008, the City's EAR-based amendments were passed on first reading and transmitted to the Department. See Joint Exhibit 2. These amendments did not include any height-based restrictions on the three categories of residential property in the Plan: Single-Family, Medium-Density, and High- Density. These three categories make up around 75 percent of the City's total land area. According to Sunset's expert, height restrictions for those categories (which are less stringent than those later adopted and being challenged here) were then in the City's zoning ordinances. On January 14, 2009, the Department issued its ORC report regarding the EAR-based amendments. See Joint Exhibit 3. Objection 4 in the report stated in part that the "City has not adequately established its mixed use districts . . . because the mixed used categories do not establish the types of non- residential uses or the appropriate percentage distribution among the mix of uses, or other objective measurement. In addition, the General Commercial, Industrial, Public, Public Recreation and Open Space Future Land Use categories do not include the densities and intensities of use for these categories." Id. Sunset's expert points out that the ORC report, and in particular Objection 4, did not recommend any changes to the residential categories of property. Accompanying the ORC report was a document styled "Transmittal Procedures," which stated, among other things, that "[u]pon receipt of this letter, the City of Lake Worth has 120 days in which to adopt, adopt with changes, or determine that the City will not adopt the proposed EAR-based amendments." Id. The 120-day period expired on May 14, 2009. See Sunset Exhibit 15. The City initially scheduled an adoption hearing on May 5, 2009. See Sunset Exhibit 8. For reasons not of record, the EAR amendments were not considered that day. On June 25, 2009, then City Commissioner Jennings wrote Bob Dennis, Department Regional Planning Administrator, and asked whether the City could incorporate certain substantive changes into its EAR amendments between the first (transmittal) and second (adoption) readings. Among others, she asked if the following change to the EAR amendments could be made: Establish or change the maximum building heights in various land use classifications. During the master plan process, the city received public input regarding maximum building heights . . . . The height changes vary from a 10' reduction to a 25' reduction in different land use categories. The letter included an outline of the proposed changes in seven land use categories, including the three residential categories. See City Exhibit 2. In her deposition, Commissioner Jennings stated that around the time of the transmittal hearing in January 2008 she had requested that new height restrictions be incorporated into the EAR amendments, but based on conversations with City staff, she was under the impression that these changes could not be made at that time. See City Exhibit 9. By letter dated July 29, 2009, the Department, through its Chief of Office of Comprehensive Planning, responded to Commissioner Jennings' inquiry as follows: The proposed maximum building height changes identified in your letter are for the Single Family Residential, Medium Density Multi-family Residential, High Density Multi-family Residential, Mixed Use, Downtown Mixed Use, Transit Oriented Development, and the General Commercial land use categories. Contrary to the [FLUM] revisions discussed above, the City did transmit proposed amendments to Future Land [Use] Policy 1.1.3, including new and revised Sub-policies 1.1.3.1 through 1.1.3.11 concerning these land use classifications. Height limitations were proposed for the Mixed Use and Downtown Mixed Use land use categories. In addition, the Department's ORC Report includes an objection that the Mixed Use, Downtown Mixed Use, Transit Oriented Development, General Commercial, Industrial, Public, Recreation and Open Space land use classifications do not establish adequate densities and intensities of use for these categories. In preparing this letter, the Department notes that an intensity standard of 0.1 F.A.R. (floor area ratio) was proposed for the Recreation and Open Space category. To address the Department's objection, the Department recommended the City include densities and intensities for the listed land use categories and specify the percentage distribution among the mix of uses in the mixed use categories. Appropriate intensity standards for non-residential uses include a height limit and maximum square footage or a floor area ratio. Because the City transmitted amendments that included revisions to the residential and several non- residential land use categories and because the Department's ORC Report identified the need to include density and intensity standards for the mixed use categories and several non-residential land use categories, it would be acceptable for the City to revise the proposed height limitations previously submitted or to include height limitations for the other land use categories. As noted above, height alone is not a density or intensity standard. (Emphasis added) City Exhibit 3. This determination by the Department was just as reasonable, or even more so, than the contrary view expressed by Sunset's expert. After receiving this advice, the City conducted a number of meetings regarding the adoption of the EAR-based amendments, including a change in the height restrictions. On September 2, 2009, a Board meeting was conducted regarding the proposed new height restrictions. The Board voted unanimously to adopt the changes. The Minutes of that meeting reflect that a "special workshop" would be conducted by the Commission at 6:00 p.m., September 14, 2009, "to address height and intensity" changes to the EAR amendments. See City Exhibit 4, Minutes, p. On October 11, 2009, a "special meeting" of the Commission was conducted. Finally, on October 20, 2009, the City conducted the adoption hearing. There is no dispute that Petitioners appeared and presented comments in opposition to the proposed changes. By a 3-2 vote, Ordinance No. 2008-25 was adopted with the new height restrictions described on Table 1, pages 22 and 23 of the FLUE.2 See Joint Exhibit 4; Sunset Exhibit 6. This was 279 days after the City received the ORC report. The adopted amendments were then submitted to the Department for its review. Notices for each hearing (but not the special workshop) were published in a local newspaper. See City Exhibits 4, 5, and 6. Each advertisement indicated that one of the purposes of the meetings was to consider the "City's EAR- Based Amendments." No further detail regarding the EAR amendments was given. Sunset's expert acknowledged that local governments do not always provide more specificity than this in their plan amendment notices but stated he considers it to be a good planning practice to provide more information. On December 30, 2009, the Department issued its Notice of Intent to find the amendments in compliance. See City Exhibit 5. The following day, a copy of the Notice of Intent was published in The Lake Worth Herald. On January 19, 2010, Sunset timely filed a petition contending that certain procedural errors were committed by the City during the adoption process. This petition was twice amended prior to hearing. A petition was filed by Ms. Hayes-Tomanek on April 5, 2010. Petitioners' Objections Petitioners first point out that the City did not follow the requirement in section 163.3184(7)(a) that it "shall" adopt the amendments no more than 120 days after receipt of the ORC report. They contend that because the City failed to do so, this requires a determination that the EAR-based amendments are not in compliance. At hearing, Sunset also relied upon (for the first time) Florida Administrative Code Rule 9J-11.009(8)(e), which provides that "[p]ursuant to Section 163.3191(10), no amendment may be adopted if the local government has failed to timely adopt and transmit the evaluation and appraisal report- based amendments." The parties agree that the City did not adopt the EAR- based amendments until 279 days after receipt of the ORC report. According to the Department's Regional Planning Administrator, Bob Dennis, the Department took no action after the 120 days had run because the statute "gives no guidance as to what happens when a local government does take more than the prescribed time in the statute." See City Exhibit 8. He also indicated that the Department has no policy relative to this situation. Sunset's expert agreed that there is no penalty in the statute in the event a local government takes more than the prescribed time. Richard Post, a Department Planning Analyst, noted that local governments sometimes take longer than the statutory time periods to "send in adopted amendments, and the Department has taken no particular posture regarding their tardiness." See City Exhibit 7. He further noted that if a filing is late, as it was here, it does not affect the Department's review. As a safeguard, if an adopted amendment is transmitted to the Department after the statutory time period, it is reviewed by a planner to determine whether the information is still relevant and appropriate or has become "stale" and out-of-date. In this case, the Department reviewed the adopted amendments and, notwithstanding the passage of 279 days since the ORC report was received by the City, the amendments were found to be in compliance. For the reasons expressed in Endnote 3, infra, rule 9J-11.009(8)(e) does not prohibit the City from adopting the challenged amendments.3 While Petitioners stated that they have suffered prejudice because the new height restrictions will adversely impact the use of their property, there was no evidence that the delay in adopting the amendments affected their ability to participate in the planning process. Petitioners also contend that the City failed to follow statutory and rule procedures when it added the height restrictions between the first and second readings of the amendments. By the City doing so, Petitioners argue that rule 9J-5.004 was violated, which requires that the City "adopt procedures to provide for and encourage public participation in the planning process, including consideration of amendments to the . . . evaluation and appraisal reports[,]" and procedures to assure that the public is noticed regarding such changes and has the opportunity to submit written comments. Petitioners further argue that subsections 163.3191(4) and (10) were violated by this action. The first subsection requires the local planning agency (the Planning & Zoning Board) to prepare the EAR report (as opposed to the amendments) in conformity with "its public participation procedures adopted as required by s. 163.3181[,]" while the second subsection requires that the City adopt the EAR-based amendments in conformity with sections 163.3184, 163.3187, and 163.3189. They also argue that the notice of the adoption hearing violated section 163.3184(15) because it failed to describe the changes being made to the original EAR-based amendments. Finally, they contend the new height restrictions were not responsive to the ORC report.4 Petitioners do not contend that the City has failed to adopt adequate public participation procedures, as required by rule 9J-5.004. Rather, they contend that the participation procedures were violated, and that members of the public and other reviewing agencies, such as the Treasure Coast Regional Planning Council, were not given an opportunity to provide input on the new height restrictions. The record shows that, notwithstanding the content of the notice in the newspaper, both Petitioners were aware of new height restrictions being considered by the City prior to their adoption, and both were given the opportunity to participate at the adoption hearing. There is no dispute that Sunset submitted written or oral comments to the Commission prior to the adoption of the new height restrictions. Likewise, Ms. Hayes-Tomanek has closely followed the planning process for years (mainly because she wants the density/intensity standards on her property increased) and became aware of the new height restrictions well before they were adopted. The record further shows that the new height limitations were discussed by City officials before June 2009, when Commissioner Jennings authored her letter to the Department, and that written input on that issue was received from 239 residents. See Sunset Exhibit 9; City Exhibit 9. It is fair to construe these comments from numerous citizens as "public input." Even if there was an error in procedure, there is no evidence that either Petitioner was substantially prejudiced in the planning process. Finally, Petitioners' assertion that the new height restrictions are not responsive to the ORC report has been considered and rejected. See Finding of Fact 9, supra; City Exhibits 7 and 8.5
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the EAR-based amendments adopted by Ordinance No. 2008-25 are in compliance. DONE AND ENTERED this 24th day of March, 2011, in Tallahassee, Leon County, Florida. S R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 2011.
The Issue The issues to be determined in this appeal are whether the Appellants have standing to bring this appeal, and (2) whether the development plan application met the applicable criteria for approval under Section 30-3.46 of the City's LDC in light of the standard of review outlined in Section 30-3.57 of the City's LDC.
Findings Of Fact The Property The property consists of approximately 0.50 acres located at 422 Northwest Third Avenue, Gainesville, Florida (the Property). The Property currently has a Residential Low- Density (RL) future land use (FLU) category under the City's Comprehensive Plan. The RL FLU category includes five implementing zoning districts, and the Property is in the Residential Conservation (RC) zoning district. The Property is not located within the boundaries of the Pleasant Street Historic District. Blackwater owns the Property and submitted a minor development plan application, identified as AD-17-00143, for three buildings with six dwelling units and associated parking, stormwater facilities, and utility improvements. The three buildings have two dwelling units each, which is a use allowed by right in the RC zoning district. The use is described in Section 30-4.16 of the City's LDC as "Multi-family, small scale (2-4 units per building)." The Property was conveyed to Blackwater by a warranty deed recorded January 15, 2014. The warranty deed describes parcel 14518-002-000 as the east one-half of lot 7 and all of lots 8 and 9 in the south half of block 27 of "Brush's Addition to Gainesville," according to the Plat recorded in "Plat Book 'A,' Page 88 of the Public Records of Alachua County, Florida." Issues on Appeal The Appellants raised and argued four issues in this appeal. Whether the Property is a parcel or lot that can be developed under the City's LDC. The Appellants argue that the Property is not a "parcel" and also not a "lot" under the City's LDC. The LDC definitions are found in Section 30-2.1 of the City's LDC, which states: Parcel means a unit of land within legally established property lines. Legally established property lines means those lines created by a recorded plat, minor plat or lot split, those units of land recognized as lots formed prior to 1961 as recorded on a map kept by the building division, and those lots recognized by the county code enforcement department at the time of any annexation. Lot means a parcel of land contained within property lines of a specific area, including land within easements and building setback lines of the area, but excluding any land within street right-of-way. The Appellants contend that the Plat of Brush's Addition to Gainesville (the Plat) legally established property lines. The Appellants further contend the definitions mean that only the lots created by the Plat are parcels. In other words, the "unit of land within legally established lines" cannot consist of more than one of the originally platted lots. This is not the City's interpretation of its own LDC. The Property, as described by the warranty deed, is a parcel within the property lines first established on the Plat. As argued by the City and Blackwater during oral argument, the Appellants' interpretation is not reasonable and "could stop all multifamily development in the [C]ity." The City's interpretation of its own LDC is not clearly erroneous and has foundation in reason. Also, approval of the development plan was not an ultra vires act since the City was required to make a decision on the development plan application in accordance with the provisions of its LDC. Whether the Property meets minimum lot width standards under the City's LDC. The Appellants' second argument is that the development plan fails to meet the required minimum lot width standard under Section 30-4.17 of the City's LDC. The Appellants argue that since Lots 8 and 9 on the Plat are each 50 feet wide, then the permitted use should be "single-family," which has a minimum lot width of 35 feet. Based on the above finding, the Property is a parcel or lot that may be developed under the City's LDC. The Property's lot width is 125 feet, which meets the minimum width standard for the proposed "multi-family, small scale (2-4 units per building)" use. Whether the requirements for a masonry wall and Type B landscape buffer apply to the Property and the development plan. Section 30-4.8.D.2.e of the City's LDC provides: A decorative masonry wall (or equivalent material in noise attenuation and visual screening) with a minimum height of six feet and a maximum height of eight feet plus a Type B landscape buffer shall separate multi- family residential development from properties designated single-family residential. The Appellants argue that the development plan should be required to meet this buffer standard because the RC zoning district is residential, and the Property abuts single-family dwellings. Under the LDC provision, the buffer is required to separate multi-family developments from properties "designated single-family residential." The City argues that designations refer to a property's FLU category as designated in the City's Comprehensive Plan. The Appellants argue that "designated single-family residential" simply refers to a single-family dwelling. Policy 4.1.1 of the City's Comprehensive Plan describes certain FLU categories such as Single-Family (SF). Policy 4.1.4 of the City's Comprehensive Plan provides that the City can amend land use "designations" under certain circumstances. Policy 4.2.1 of the City's Comprehensive Plan provides that the City shall adopt regulations that separate uses with performance measures, such as "buffering of adjacent uses by landscape." Based on the language of the City's Comprehensive Plan, it is a reasonable interpretation that use of the term "designated" refers to the FLU category. The Property and the abutting single-family dwellings have the same FLU category designation of RL. Thus, the masonry wall and Type B buffer requirements of Section 30-4.8 of the City's LDC do not apply to this development plan. Whether the Property's development plan meets applicable parking standards under the City's LDC. The Appellants argue that the development plan must provide 13 parking spaces, and it only provides nine parking spaces, which does not meet the parking standards of Sections 30- 7.2 and 30-7.5 of the City's LDC. In addition, the Appellants argue that the parking must be paved because the City's LDC only allows gravel parking areas with ten or fewer parking spaces. Under Section 30-7.5 of the City's LDC, the development plan must provide 13 parking spaces. The development plan provides nine parking spaces on the Property and four on-street spaces approved by the City, for a total of 13 parking spaces. The nine parking spaces on the Property satisfy the requirement of allowing gravel parking areas with ten or fewer parking spaces. Standing Appellants Vanessa Burt and Suzi Rumsey are the only residents who own property within 400 feet of the Property. Appellants Jason Atkins-Tuffs and Lauren Atkins are recent new home buyers in the Pleasant Street Neighborhood. Mr. Atkins-Tuffs is concerned that the development plan would not be a "good fit for our growing historic downtown family neighborhood." Appellant Dotty Faibisy is an almost 20-year resident and is concerned that the development plan "is a poor fit for the Historic Pleasant Street Neighborhood." Appellants John Rehfuss and Caroline Rehfuss are residents since 2013 in the Pleasant Street Historic District and are concerned that the development plan "is going to be a poor fit, both aesthetically and functionally, for our neighborhood." Appellant Tan Silva is a 23-year resident, who lives outside of but "on the edge" of the Pleasant Street Historic District and feels that compatible development should be maintained. Appellant Furman Wallace is an 84-year resident of the Pleasant Street Neighborhood. He is concerned with the character and type of buildings in the Pleasant Street Neighborhood. Appellant Thomas Hawkins was a 12-year resident of the Pleasant Street Neighborhood and is currently building a new home in the neighborhood. Mr. Hawkins is concerned that the development plan does "not compliment the neighborhood's historic architecture" and is not consistent with the City's LDC requirements.
Findings Of Fact Upon consideration of the oral and documentary evidence received at the final hearing, the following relevant facts are found: At approximately 9:30 A.M. on February 10, 1984, petitioner, a black female, telephoned a number listed in the newspaper to inquire about a duplex for rent. She was informed that an apartment was available and that she would need to bring $410.00 which included $200.00 for a security deposit and a monthly rental fee of $210.00. Petitioner informed the lady on the telephone that she would be there to see the apartment around 11:30 A.M. Petitioner went to the bank to get the $410.00 and then drove to the Highlands Apartments rental office. When she drove up in the driveway, a lady came running out and introduced herself as Evelyn Massey. According to the petitioner, Ms. Massey said "I told you on the phone that I had an apartment for you, but I don't have." She went on to explain that another lady had previously paid a deposit on the apartment and had not come back; but, between the time of talking to petitioner that morning and then, the lady had come back and paid the rest of the money and thus had the apartment. Ms. Massey also informed the petitioner that that unit was the only apartment available and that she had no other vacancies. After this incident, petitioner telephoned Laurie J. Turner between 12:30 and 1:00 P.M., told her what had happened and requested her to call the same telephone number petitioner had called and to inquire about an apartment. Ms. Turner, a white female, did call the number given her by petitioner, a gentleman answered the telephone, she inquired about the availability of the apartment in the newspaper and he told her, according to Ms. Turner, that it was still available. Ms. Turner then related this information to petitioner. In response to petitioner's contact with the EOO on February 10, 1984, Jeanette Fenton, the Equal Opportunity Assistant/Fair Housing Administrator, began her investigation and made several telephone calls to the Highlands Apartments on that same day. According to Ms. Fenton, "various responses, contradictory responses, were received as to the availability of apartments there." Ms. Fenton also decided to send a black female and a white female as testers to determine the type of treatment that would be received at the Highlands Apartments. On February 10, 1984, Ms. Fenton called Jeanese Wells, a black female, explained that she had a complaint of discrimination against the Highlands Apartments and requested her to go out there and inquire about an apartment. Ms. Wells telephoned the Highlands Apartments on February 11, 1984, spoke to a woman who did not identify herself and inquired if there was a unit available for rent. The woman indicated that there was and gave Ms. Wells directions to the apartments. When Ms. Wells arrived, a woman named Evelyn showed her an apartment and told her that the charges and terms would be a $350.00 deposit, a $35.00 application fee and a one-year lease. Ms. Wells was also informed that her credit references and previous residences would be checked. When Ms. Wells inquired as to whether anyone else was interested in the apartment, Evelyn replied that she had had several phone calls on it, but no firm commitments. According to Ms. Wells, Evelyn showed no reluctance to lease the apartment to her and "there was no negative interaction between the two of us." Ms. Wells did not describe the apartment she inspected. On the same day, February 11, 1984, Ms. Fenton, a white female, telephoned the number listed in the newspaper, spoke with a female named Evelyn, was informed that a unit was available and was given directions to the Highlands Apartments. Ms. Fenton drove out there and inspected a one-bedroom unit, accompanied by Evelyn. According to Ms. Fenton, Evelyn informed her that the requirements for renting the unit would be a $200.00 deposit, rental payments in the amount of $60.00 a week or $210.00 a month, and a six month's lease. No application fee would be required, but there was an application form which required information regarding employment, credit references and landlord references. Ms. Fenton was told, however, that she could move into the unit that day if she wished, that there were no other apartments that were vacant and that the one-bedroom apartment she was viewing was the one that was advertised in the newspaper. Petitioner submitted her formal housing discrimination complaint to the EOO on February 15, 1984. By letter dated March 1, 1984, the EOO informed Roy Hansen that a complaint involving the Highlands Apartments had been filed and transmitted a copy of the complaint to him. The EOO continued to investigate the matter, found probable cause that a violation of the Fair Housing Ordinance had occurred and attempted conciliation. Petitioner Shorter left Hillsborough County for six to eight months between February 15, 1984 and June of 1985. During the conciliation process, petitioner no longer wished to lease a unit at the Highlands Apartments and desired to settle her complaint for an amount of $10,000.00 in damages as compensation. Mr. Hansen was willing to settle the complaint for $200.00 to avoid the expense of attorney's fees. Petitioner rejected Mr. Hansen's counter- offer and requested a hearing by letter dated June 19, 1985. Ms. Evelyn Massey left the State of Florida shortly after the events which occurred on February 10 and 11, 1984. She did not testify in this proceeding and her whereabouts are unknown. Mr. Ron Massey left Florida around November of 1984 and his whereabouts are likewise unknown. Roy Hansen is a professor of sociology at the University of South Florida, a private consultant and a part- owner of the Highlands Apartments, which contains several complexes and includes 104 separate units. He employed a manager, Ron Massey, to care for the apartments on a day-to-day basis and to handle rentals. One of the reasons Mr. Massey was hired was because he had had prior experience in managing a predominantly black rental complex. In February of 1984, Ron Massey was married to Evelyn Massey and they lived together in one of the Highlands Apartment units which was also utilized as the rental office. While Evelyn Massey did answer the telephone in that office and did show apartments to potential tenants, only Ron Massey was employed as the manager and only he received a salary therefor. Mr. Hansen instructed the Masseys to apply equal criteria to all potential tenants. Out of 104 units, approximately 17 are rented to minorities. The normal deposit required at the Highlands Apartments was $200 or $350 if the tenant had a pet.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the housing discrimination complaint filed by Julia M. Shorter on February 15, 1984, be DISMISSED. Respectfully submitted and entered this 11th day of April, 1986, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1986. COPIES FURNISHED: Julia M. Shorter 8307 Bahia Street Tampa, Florida 33619 George W. Phillips P. O. Box 270504 Tampa, Florida 33688 Amelia G. Brown Assistant County Attorney P. O. Box 1110 Tampa, Florida 33601 Robert W. Saunders, Director Equal Opportunity Office P. O. Box 1110 Tampa, Florida 33601 APPENDIX The proposed findings of fact submitted by the respondent and the intervenor have been approved and/or incorporated in this Recommended Order, except as noted below: Respondent 3. Rejected, contrary to the evidence of record. Intervenor 1. No substantial evidence that Ms. Shorter applied for a "one bedroom apartment." 8. Rejected, not supported by competent substantial evidence.
The Issue The issues to be determined in this case are whether the amendments to the Martin County Comprehensive Growth Management Plan (CGMP) adopted by Ordinance Nos. 843, 845 (as amended by Ordinance No. 847), 846, 847, 851, 853, and 854 are “in compliance” as that term is defined in Section 163.3184(1)(b), Florida Statutes.1/
Findings Of Fact The Parties The Department is the state land planning agency and is charged with the duty to review comprehensive plan amendments and to determine whether they are “in compliance,” as that term is defined in the Section 163.3184(1), Florida Statutes. Martin County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time. Groves Holdings, LLC, is a Florida limited liability company. Groves Holdings, LLC operates a real estate management and investment business in the County that manages the leasing, entitlement, and disposition of lands owned by its related subsidiaries Groves 12, LLC, and Groves 14, LLC. Groves 12, LLC, and Groves 14, LLC, are Florida limited liability companies wholly owned by Groves Holdings, LLC. Groves 12, LLC, owns 2,800 acres of citrus grove. Groves 14, LLC, owns 1,700 acres of land being developed as a residential community and equestrian club known as Hobe Sound Polo Club. The land owned by Groves 12, LLC, is located in the rural area of the County, approximately one mile from the closest boundary of an urban service district. The land being developed by Groves 14, LLC, is also located in the rural area. Groves 14, LLC, also owns 450 acres not being developed that are located partially within the rural area and partially within an urban service district The Groves submitted written comments regarding the Plan Amendments to the County during the period of time beginning with the transmittal hearing and ending with the adoption of the Plan Amendments. Donna Melzer and Eliza Ackerly each owns real property in and resides in Martin County. Melzer and Ackerly each submitted comments regarding the Plan Amendments to the County during the period of time beginning with the transmittal hearing and ending with the adoption of the Plan Amendments. MCCA is a not-for-profit Florida corporation incorporated in 1997 for the purposes of conserving the natural resources of Martin County, and maintaining and improving the quality of life for residents of the County. Its members include individuals and corporate and non-corporate entities. A substantial number of its members reside, own property, or operate a business in Martin County. MCCA engages primarily in lobbying, public advocacy, and litigation in Martin County regarding the CGMP. MCCA conducts membership meetings, sends a newsletter to members and others, and sometimes hosts meetings open to the general public. MCCA is also involved in environmental preservation activities in Martin County, including educational meetings, field trips, and lobbying for public purchase of lands for conservation. No evidence was presented to show that MCCA owns property in the County, maintains an office in the County, or holds a business or occupational license. MCCA submitted comments to the County regarding the Plan Amendments, on behalf of its members, during the period of time beginning with the transmittal hearing and ending with the adoption of the Plan Amendments. Hereafter, MCCA, Donna Melzer, and Eliza Ackerly will be referred to collectively as MCCA. The Plan Amendments Section 163.3191(1), Florida Statutes, requires each local government to conduct an evaluation and appraisal of its comprehensive plan every seven years and to prepare an Evaluation and Appraisal Report (“EAR”). Martin County initiated its second evaluation and appraisal process in 2007, culminating in the adoption of an EAR in July 2008. Section 163.3191(10), Florida Statutes, requires a local government to adopt comprehensive plan amendments based on the recommendations in the EAR in a single amendment cycle within 18 months after adopting the EAR. The County’s proposed EAR-based amendments were sent to the Department in September 2009. The Department issued its Objections, Recommendations, and Comments (“ORC”) Report the next month. After considering and responding to the ORC Report, the County adopted Ordinance Nos. 842 through 856 on December 16, 2009, amending all the elements of the CGMP. The Department reviewed the Plan Amendments and determined that a new “Essential Services Nodes” policy of the FLUE adopted by Ordinance No. 845 was not in compliance. The Department determined that all of the other amendments adopted by Martin County were in compliance. The County adopted Ordinance No. 857, which rescinded the Essential Services Nodes policy to which the Department had objected. The decision to rescind the policy was made unilaterally by the County. The rescission was not pursuant to a compliance agreement with the Department. Based on the County’s rescission of the Essential Services Nodes policy, the Department determined that Ordinance No. 845, as amended by Ordinance No. 857, was in compliance. All of the Plan Amendments are text amendments. The Future Land Use Map (“FLUM”) is not changed. Urban Service Districts The CGMP establishes urban service districts (USDs) in the County. There is an Eastern USD and an Indiantown USD. These USDs are subdivided into a primary USD and a secondary USD. About 87 percent of the County’s population resides east of the Florida Turnpike in the Eastern USDs. The Indiantown USDs, which are west of the Florida Turnpike, are separated from the Eastern USDs by more than 20 miles of mostly agricultural lands. The primary purpose of the USDs is to prevent urban sprawl by directing growth to those areas where urban public facilities and services are available or are programmed to be available at appropriate levels of service. The provision of urban public facilities and services is generally limited to USDs. The term “public urban facilities and services” is defined in the CGMP as “regional water supply and wastewater treatment/disposal systems, solid waste collection services, acceptable response times for sheriff and emergency services, reasonably accessible community park and related recreational facilities, schools and the transportation network.” Under FLUE Policy 4.7A.2, urban development, including commercial, industrial, mixed-use, and urban residential land uses may only be located within the Primary USDs. FLUE Policy 4.7B.1 permits low density residential use (half-acre lots or greater) in the Secondary USD. No urban or suburban uses and no utility services such as water and sewer may extend outside the USD boundaries. Most of the lands outside the Primary and Secondary USDs are designated Agricultural, but there are also lands designated Public Conservation and Public Utilities. MCCA’s Issues Section 1.10 Chapter 1 of the CGMP is entitled “Preamble” and addresses general topics such as the legal status of the CGMP, the continuing evaluation of the CGMP, and amending the CGMP. The Preamble contains no goals, objectives, or policies. MCCA objects to a sentence in Section 1.10 of the Preamble, adopted by Ordinance No. 843, which states, “This Plan shall be adopted by ordinance and shall supersede the 1990 Comprehensive Plan and all related amendments.” MCCA contends that this sentence will create problems and confusion if some of the Plan Amendments are determined to be in compliance, but other amendments are determined to be not in compliance. There is no confusion. The reference to “This Plan” in Section 1.10 is reasonably interpreted to refer to the entire CGMP, as amended by the latest EAR-based amendments that are either already in effect or will become effective following the conclusion of these consolidated cases.2/ Chapter 2 Definitions MCCA objects to several definitions added in Chapter 2 of the CGMP, but the evidence presented does not show an internal consistency or other "in compliance" issue. FLUE Goal 4.7 MCCA objects to the changes in FLUE Goal 4.4G, which would be re-designated Goal 4.7. Existing Goal 4.4G states: 4.4G Goal (encourage urban development in urban service areas) Martin County shall regulate urban sprawl tendencies by directing growth in a timely and efficient manner to those areas where urban public facilities and services are available, or are programmed to be available, at the levels of service adopted in this Growth Management Plan. (italics in original) New Goal 4.7 states: Goal 4.7. To regulate urban sprawl by directing growth in a timely and efficient manner to areas with urban public facilities and services, where they are programmed to be available, at the levels of service adopted in this Plan. (italics in original) MCCA contends that the removal of the word “shall” in the new goal “removes the mandatory restriction.” The County did not intend to make a substantive change to Goal 4.4G. In this particular context, the removal of the word “shall” does not require a different interpretation or application of the goal. It is not a substantive change. FLUE Policy 4.12A.2 MCCA’s major objection to Ordinance No. 845 is with new FLUE Policy 4.12A.2. Most of the objections raised by MCCA to other changes in the CGMP are directly related to MCCA's objection to Policy 4.12A.2. MCCA contends that this new policy, which allows “small-scale service establishments” outside the USDs, fails to include reasonable controls on commercial development and will adversely affect agricultural uses and the quality of life of rural residents.3/ Policy 4.12A.2 states: Restrictions outside urban service districts. Outside urban service districts, development options shall be restricted to low-intensity uses, including Agricultural lands, not exceeding one unit per 20 gross acres; Agricultural Ranchette lands not exceeding one unit per five gross acres; and small-scale service establishments necessary to support rural and agricultural uses. (italics in original) Martin County contends that this policy is not a substantive change because nearly the same wording already exists as Section 4.6.D.4 in a part of the FLUE entitled “Implementation Strategies,” and the section was merely re- located and re-designated as Policy 4.12A.2. Section 4.6.D.4 provides: Development outside the urban services district shall be restricted to low intensive development in order to promote cost-effective practices in the delivery of public services. Outside Urban Service Districts development options shall be restricted to low intensity uses including agriculture and agricultural ranchettes, not exceeding one unit per 5 gross acres, and small-scale service establishments necessary to support rural and agricultural uses as provided by section 6.4.A.5.e., Housing Service Zones in the Housing Element. (italics in original) The reference in this policy to Housing Service Zones is an error. Sometime in the past, the County deleted provisions in the CGMP regarding Housing Service Zones, but overlooked this particular reference. Comparing Section 4.6.D.4 with new Policy 4.12A.2, the significant changes appear to be that Section 4.6.D.4 is transformed from a “strategy” to a “policy,” and the new policy no longer ties small-scale service establishments to Housing Service Zones. However, the determination of whether a substantive change was made in the replacement of Section 4.6.D.4 with new Policy 4.12A.2 also requires consideration of Policy 4.4.G.1.e, which states: Martin County shall provide reasonable and equitable options for development outside of Primary Urban Service Districts, including agriculture and small-scale service establishments necessary to support rural and agricultural uses. Policy 4.4.G.1.e is already designated as a policy and it does not tie small-scale service establishments to Housing Service Zones. Therefore, although Section 4.6.D.4 differs from new Policy 4.12A.2, there is no substantive difference between new Policy 4.12A.2 and existing Policy 4.4.G.1.e. MCCA asserts that Policy 4.12A.2 and Policy 4.4.G.1.e differ substantively because the former does not have the “agricultural land use designation limits on uses allowed” that are in Policy 4.4.G.1.e. However, as shown above, both policies allow for small-scale service establishments that support rural uses as well as agricultural uses. In support of its arguments about small-scale service establishments, MCCA also points to existing FLUE Policy 4.4.G.1.b (re-designated Policy 4.7A.2) and “implementation strategy” 4.6.D.3 (to be deleted) which require commercial uses to be located in the Primary USDs. The policy and implementation strategy that restrict commercial uses to the Primary USDs co- exist in the CGMP with Policy 4.4.G.1.e, which allows small- scale service establishments outside the Primary USDs. Therefore, in whatever manner the County currently reconciles these policies and strategies, that reconciliation pre-dates the EAR-based amendments. The FLUE amendments adopted by Ordinance No. 845 do not alter the situation. MCCA refers to the County planning staff's report associated with another proposed plan amendment known as "Becker B-4" in support of MCCA's argument that the amendments at issue in the present case have substantively changed the FLUE with regard to small-scale service establishments. However, none of MCCA's allegations regarding the relevance of the Becker B-4 staff report are borne out. If the Becker B-4 amendment is adopted by the County, it will be subject to its own "in compliance" review. In summary, when all relevant provisions of the CGMP are taken into account, the changes made by Ordinance No. 845 that are related to small-scale service establishments are not substantive changes to the CGMP. MCCA’s claims of internal inconsistency that are based on MCCA’s objections to new Policy 4.12A.2 must also fail as unsupported by evidence of a substantive change. MCCA’s claim that the County did not demonstrate a need for more commercial uses outside the USDs (based on the allowance for small-scale service establishments) must also fail as unsupported by evidence of a substantive change. MCCA’s claim that the allowance for small-scale service establishments constitutes a failure of the County to discourage urban sprawl must also fail as unsupported by evidence of a substantive change. FLUE Policy 4.5F.4 MCCA objects to the changes to Policy 4.5F.4, which allows planned unit developments (PUDs) designed to preserve open space, environmentally sensitive lands, and agricultural land uses. These PUDs can be located in areas currently designated Agricultural and can include residential lots greater than two acres in size if certain criteria are met. MCCA contends that this policy is inconsistent with Policy 4.13A.1, which restricts residential densities in agricultural areas to 20-acre residential lots. The allowance in Policy 4.5F.4 for PUDs with residential lots smaller than 20 acres already exists. Therefore, in whatever manner the County currently reconciles Policies 4.5F.4 and 4.13A.1, that reconciliation pre-dates the EAR-based amendments. The FLUE amendments adopted by Ordinance No. 845 do not alter the situation. Furthermore, a PUD created under Objective 4.5F requires a plan amendment. It appears that one of the purposes of this requirement is to re-designate any agricultural lands to a residential future land use designation.4/ FLUE Objective 4.7A MCCA objects to the removal of the word “shall” from existing FLUE Objective 4.4.G.1 (which would be re-designated as Objective 4.7A). MCCA argues that the existing objective prohibits commercial uses outside the Primary USDs and that the removal of the word “shall” will allow commercial uses outside the USDs. However, the objective does not prohibit commercial uses outside the Primary USDs. The objective states that the County “shall concentrate higher densities and intensities of development” in the Primary USDs. To concentrate a land use in one location does not mean to prohibit it elsewhere. It is Policy 4.7A.2 that requires new commercial uses to be located in the Primary USDs. In this particular context, the removal of the word “shall” does not require a different interpretation or application of Objective 4.7A. It is not a substantive change. FLUE Policy 4.9H.2 MCCA objects to new Policy 4.9H.2, regarding residential PUDs, because the policy indicates that commercial uses can be included in a residential PUD, even if the PUD is located outside the Primary USDs. Policy 4.7A.2 requires all new commercial development to be located in the Primary USDs. Objective 4.5F and its associated policies allow for residential PUDs in agricultural areas outside the USDs, but do not indicate that the PUDs in agricultural areas can include commercial uses. Policy 4.9H.2 conflicts with Policy 4.7A.2 and with Objective 4.5F and its associated policies FLUE Policy 4.13A.7.(1)(d) MCCA objects to new Policy 4.13A.7.(1)(d), which allows one “accessory dwelling unit” on a residential lot. Accessory units cannot be sold separately from the primary dwelling unit and are not counted as separate units for purposes of density calculations. MCCA's argument regarding accessory dwelling units assumes that the new policy allows accessory units in the rural areas of the County, outside the Primary USDs. However, Policy 4.13A.7.(1)(d) appears under the heading "General policies for all urban Residential development." The term "urban" is not defined in the CGMP, but there are several FLUE policies that direct urban residential densities to the Primary USDs, such as Policies 4.7A.2 and 4.7A.3. Objective 4.7A directs densities greater than two units per acre to the Primary USDs, which indicates that densities greater than two units per acre are urban densities. In order to maintain internal consistency, accessory units would have to be confined to areas of the FLUM designated for urban residential density. See FLUE Objective 4.13A.7. The County's proposal to not count accessory uses for density purposes was shown to be a professionally acceptable planning practice. Accessory units are similar to residential additions, converted garages, and other changes that can add bedrooms and residents on a residential lot, but which traditionally have been disregarded when calculating density. FLUE Policy 4.13A.8.(5) MCCA contends that changes made to Policy 4.13A.8.(5), regarding Expressway Oriented Transient Commercial Service Centers ("Expressway Centers"), combined with the proposed deletion of Section 4.6.D.3 of the "Implementation Strategies," allows for more commercial development without data and analysis to support the need for additional commercial development. Policy 4.13A.8.(5) creates Expressway Centers at three large Interstate 95 interchange locations in the County as a special land use designation to accommodate the unique needs of people traveling through the County. Section 4.6.D.3 (which ordinance No. 845 would delete) allows a waiver for Expressway Centers from the general requirements applicable to the USDs if an applicant for a waiver meets certain criteria. MCCA contends that the waiver process weighs "the traveling public’s needs against the value of the urban boundary." That is not an accurate description of the waiver process, because none of the criteria mentions the urban boundary. MCCA contends that the waiver process has been replaced with a "market need test" in Policy 4.13A.8.(5) without supporting data and analysis and that the change encourages urban sprawl. Policy 4.13A.8.(5) requires a market feasibility analysis to show that "the uses proposed are warranted by the traveling public they are intended to serve." MCCA presented no evidence on the County's past applications of Section 4.6.D.3 and Policy 4.13A.8.(5). MCCA failed to show how the demonstration required for a waiver under Section 4.6.D.3 is substantively different and more protective than the demonstration required to establish an Expressway Center under Policy 4.13A.8.(5). MCCA failed to show how the creation of Expressway Centers or the specific amendments to Section 4.6.D.3 and Policy 4.13A.8.(5) will lead to more commercial uses outside the Primary USDs, so as to encourage urban sprawl. State Comprehensive Plan MMCA failed to present evidence or argument to demonstrate that any of the Plan Amendments is inconsistent with the State Comprehensive Plan. Other Issues MCCA raised other issues in its petitions for which it did not present evidence at the final hearing. With regard to all the issues raised by MCCA that are not specifically addressed above, MCCA failed to prove an inconsistency. The Groves' Issues The Groves’ principal objection to the Plan Amendments is with the County’s methodology for determining the need for residential dwelling units, which is based in large part on the a residential capacity analysis (RCA) set forth in FLUE Policy 4.1D.4, adopted by Ordinance No. 845. The Groves contend that the RCA overestimates the capacity or supply of dwelling units on vacant lands that can be used to meet projected population growth. Because need is derived from a comparison of supply and demand, the Groves contend that the RCA’s overestimation of supply will always cause the County to underestimate the need for additional dwelling units. FLUE Policy 4.1D.4 provides: The County shall consider the following factors in its residential capacity analysis: The current peak population, based on the University of Florida’s Bureau of Economic and Business Research (BEBR) medium population, shall be used to demonstrate the unit need in the fifteen year planning period; A market factor of 125 percent shall be applied to the unit need; The Eastern Urban Service District and the Indiantown Urban Service District shall be considered separately; Maximum density shall be calculated for Future Land Use categories in which residential development is allowed; Wetland acreage shall be subtracted from the vacant, undeveloped acreage; Because some land will be taken up by non-residential uses such as roads and utilities, a reduction of 8.5 percent shall be calculated to account for such uses. In the past, Martin County used a similar methodology for determining residential need, but it was not a part of the CGMP. New FLUE Policy 4.1D.3 requires that a new RCA be performed every two years. The RCA is to be used to evaluate future plan amendments and future changes to USD policies. The Groves did not dispute the County’s calculation of residential demand, the number of dwelling units needed to serve the projected population through the planning period 2010 to 2025. As stated in FLUE Policy 4.1D.4, demand is based on mid- range population projections from the University of Florida’s Bureau of Economic and Business Research, which is then adjusted by a 125 percent market factor. A market factor is a multiplier that is applied to account for factors that prevent the full or efficient use of densities allowed by a FLUM. FLUE Policy 4.1D.4 requires that the Eastern USDs and the Indiantown USDs be considered separately. This requirement is based on an historical pattern of higher population growth east of the Florida Turnpike and the expectation that the pattern will continue into the foreseeable future. The County projected an increase of 17,598 new residents in the Eastern USDs and an increase of 754 in the Indiantown USDs by 2025. When these figures are divided by average persons per household (2.21), the result is a demand for 7,963 dwelling units in the Eastern USDs and 341 dwelling units in the Indiantown USDs. Applying the market factor of 125 percent results in a demand for 9,954 dwelling units in the Eastern USDs, and 426 units in the Indiantown USDs for the 2010-2025 planning period. To calculate the residential supply of dwelling units that can be developed on existing vacant lands, FLUE Policy 4.1D.4 directs that the calculation begin by determining the maximum density allowed under each future land use category of the vacant lands. In the following discussion, the maximum density allowed under a future land use designation will be referred to as the “theoretical” maximum density. It is the general practice of the Department to require local governments to use theoretical maximum densities in a need analysis unless there are policies in the comprehensive plan preventing landowners from attaining the theoretical maximum densities. However, like the Department's general practice to accept a market factor no greater than 125 percent, these are not requirements explicitly stated in Department rules from which the Department never deviates. FLUE Policy 4.1D.4 incorporates two limiting factors that prevent the attainment of theoretical maximum densities: (1) wetlands and (2) roads rights-of-way and utility easements. Development is generally prohibited in wetlands. However, landowners whose lands contain wetlands can transfer half of the “lost” density associated with the wetland acreage to the uplands. Therefore, in calculating the acreage of vacant lands that are available for residential development, the RCA subtracts half the wetland acreage. The County also reduces the total vacant land acreage by 8.5 percent to account for the loss of developable acreage due to the presence of road rights-of-way and utility easements within which development is prohibited. After reducing the total acres of vacant lands in the USDs to account for wetlands and for rights-of-way and utilities, the County determined that there is a supply or vacant land capacity of 5,790 dwelling units in the Eastern USDs and 5,335 units in the Indiantown USDs. The County then adjusted these numbers to account for approved residential developments that have not yet been constructed. This adjustment resulted in final calculation of the existing supply in the Eastern USDs of 9,339 dwelling units and an existing supply in the Indiantown USDs of 6,686 dwelling units. The Groves' Critique of the RCA The Groves argue that the RCA overestimates supply by failing to account for other policies of the CGMP that restrict development and prevent a landowner from attaining the theoretical maximum density. Conservation and Open Space Element (COSE) Policy 9.1G.4 requires the preservation of a wetland buffer around a wetland. There was conflicting evidence about whether the County credits the landowner for the acreage set aside as a wetland buffer. The Groves contend that no credit is given and cites Table 4-2 of the FLUE, which indicates that wetland buffer acreage is not subtracted to arrive at the total available acreage that can be developed. The Groves also point to the testimony of a County planner, who stated that the County intended to subtract buffer acreage from vacant land acreage, but ultimately did not do so "based on adamant public comment." However, the County's planning director, Nicki Van Vonno, stated that "[Y]ou do get the full density off of the buffer land." It would be logical for the County to not subtract wetland buffer acreage when calculating residential capacity if the landowner is getting full credit for the buffer acreage. Therefore, it is found that the County allows a full transfer of the density associated with wetland buffer acreage to the uplands. COSE Policy 9.1G.5 requires that 25 percent of upland native habitat on a site be preserved. The landowner is allowed to transfer density from these native upland habitat areas to the unaffected areas of the property. Nevertheless, the Groves contends that COSE Policy 9.1G.5 impairs the ability of landowners to attain the theoretical maximum density. The CGMP also requires a portion of the site be set aside for sufficient water retention and treatment. The RCA does not account for any loss of density caused by water retention and treatment areas. The County had proposed to reduce the theoretical maximum density by 15 percent to account for "surface water management and required preservation,” but abandoned the idea when the Department objected to it as not adequately supported by data and analysis. The evidence presented at the hearing was insufficient to establish that the requirements of the CGMP associated with surface water management and preservation reduces the theoretical maximum density of residential lands by 15 percent. The County has a mixed-use land use category called Commercial-Office-Residential (COR). The County allows only a third of a COR parcel to be developed for residential uses and this practice reduces the theoretical maximum density of COR lands. However, the RCA assumes 100 percent of the COR acreage is available for residential use. The County attempted to justify this discrepancy by pointing out that the limitation of residential uses on COR lands is not incorporated into the CGMP. However, it is an undisputed fact (datum) that the County's practice reduces residential capacity on COR lands. The RCA fails to account for this fact. If the RCA accounted for the limitation of residential development on COR lands, the supply of dwelling units in the Eastern USDs would be reduced by 733 units. FLUE Policy 4.13A.7.(1)(a) establishes a 40-foot height limit countywide which sometimes prevents a landowner from attaining the theoretical maximum density. The RCA does not account for any loss of density caused by building height restrictions. FLUE Policies 4.1F.1 through 4.1F.3 require transitional density zones when land is developed at a higher density than adjacent lands. FLUE Policy 4.1F.2 establishes a zone (or “tier”) abutting the adjacent land, equal to the depth of an existing adjacent residential lot in which development is restricted, to the same density and compatible structure types (e.g., height) as on the adjacent property. The RCA does not account for any loss of density due to the tier policies. Although the landowner is allowed to transfer density to the unaffected portion of the property in the case of some development restrictions imposed by the CGMP, there is not always sufficient acreage remaining to make full use of the transferred density. The Groves' expert witness, Rick Warner, reviewed residential development projects that had been approved or built during the past 15 years in the Eastern USDs and compared the actual number of approved or built units to the theoretical maximum density allowed by the applicable land use designation for the property at the time of approval. Warner determined that, on average, the projects attained only about 45 percent of the theoretical maximum density. The Groves presented the testimony of Morris Crady, who testified that, of the 14 development projects in the County that he was involved in, CGMP policies caused the projects to be developed at 1,285 units fewer than (about 41 percent of) the maximum theoretical density. Comparing the County’s estimated demand for 9,954 dwelling units in the Eastern USDs through 2025 with the County’s estimated supply of 9,339 dwelling units, indicates a deficit of 615 dwelling units. Comparing the County’s estimated demand for 426 dwelling units in the Indiantown USDs through 2025 with the County’s estimated supply of 6,686 dwelling units, indicates a surplus of 6,260 dwelling units. The County decided to make no changes to the FLUM because it believes the projected population can be accommodated with existing land use designations. The Groves argue that, because the RCA overestimates supply, the deficit in the Eastern USDs is actually substantially larger.5/ For example, taking into account the County's policy regarding limiting residential uses on COR lands, the deficit would be 1,348 units in the Eastern USDs. The deficit would be enlarged by the effects of the other factors discussed above that reduce a landowner's ability to attain the theoretical maximum density. The County contends that there is additional residential capacity outside the USDs that should be considered. The County also points to the large surplus of available dwelling units in the Indiantown USDs. The County asserts that there is excess supply to meet the need when all the available dwelling units in the County are considered. These other considerations, however, are not a part of the RCA and, therefore, are in conflict with the RCA. Acres vs. Dwelling Units The Groves assert that County's determination of residential does not identify the amount of land needed for each category of land use as required by law, but, instead, expresses need solely in terms of total dwelling units. The Department has accepted residential need analyses expressed in dwelling units. Dwelling units can be converted into acreages, but only if one is told what density to apply. A local government must determine how many dwelling units it wants in each land use category in order to convert a need expressed in total dwelling units into a need expressed in acreages. Martin County believes that it has a sufficient supply of dwelling units to meet the projected population through the planning period. Apparently, the County is also satisfied with the existing size and distribution of future land use categories as depicted on the FLUM. The existing vacant land acreages for each land use category, set forth in the CGMP, represents the amount of land in each land use category that the County believes is needed to meet the projected population. However, there is an imbalance in the various types of residential land uses in the Eastern USDs. For example, there are only 13 acres of high density residential land and 57 acres of medium density residential land remaining in the Eastern USDs. In contrast, there are 2,950 acres of rural residential lands. The County has acknowledged that its past emphasis on low-height and low-density has contributed to a lack of affordable housing. The Treasure Coast Regional Planning Council noted that the small amount of vacant land in the County available for medium and high residential development contributes to the lack of affordable housing in the County. The Plan Amendments include policies which are designed to address the imbalances in land uses and the lack of affordable housing. These policies include permitting accessory dwelling units for urban residential development; allowing a 10 du/ac density bonus and an affordable housing density bonus in Medium Density Residential developments; reducing the criteria for an affordable housing density bonus in High Density Residential developments; and reviewing residential capacity in the Indiantown USDs. Commercial Need There is no state-wide standard for the amount of commercial, industrial, institutional, conservation, or agricultural lands that a local government must identify in its comprehensive plan in order to accommodate its projected population. The County acknowledges that there is a deficit of commercial land necessary to accommodate economic needs, but no changes in the FLUM are proposed as part of these EAR-based amendments.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that Plan Amendments are “in compliance,” except for the following policies adopted by Martin County Ordinance No. 845, which the Department should determine are not "in compliance": FLUE Policy 4.1D.4; and FLUE Policy 4.9H.2. DONE AND ENTERED this 3rd day of September, 2010, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 2010.
The Issue The issue is whether Plan Amendment 07-08 adopted by the City of Tampa (City) by Ordinance No. 2008-145 on August 21, 2008, is in compliance.
Findings Of Fact Based upon all of the evidence, the following facts are determined: The Parties The City is a municipality in Hillsborough County and has adopted a Plan that it amends from time to time. Its current Plan, as amended, was adopted in 1998 and has been determined to be in compliance. Since 2007, the City has participated in the Pilot Program for adoption of plan amendments, a process described in Section 163.32465, Florida Statutes. Under the Pilot Program, municipalities have "reduced state oversight of local comprehensive planning," and plan amendments may be enacted in "an alternative, expedited plan amendment adoption and review process." Id. The amendment being challenged here was adopted under the Pilot Program. The Department is the state land planning agency and is statutorily charged with the duty of reviewing plan amendments. Pursuant to the Pilot Program, the City must send a plan amendment transmittal package to the Department (and other designated agencies and entities) for its preliminary review. However, the Department does not issue an Objections, Recommendations, and Comments Report or a notice of intent. Instead, it "may provide comments regarding the amendment or amendments to the local government." § 163.32465(4)(b), Fla. Stat. The Department may also initiate an administrative proceeding for the purpose of determining whether an amendment is in compliance. See § 163.32465(6)(b), Fla. Stat. Florida Rock owns property and operates a business within the City and submitted oral and written comments in support of the proposed amendment. The facts establish that it is an affected person and has standing to participate in this proceeding. The Air Force owns property abutting Florida Rock's property and on which MacDill is located. The Air Force submitted written and oral comments to the City in opposition to the plan amendment. As such, it is an affected person and has standing to participate in this proceeding. Background A part of the City extends down a peninsula known as Interbay Peninsula with Hillsborough Bay to the east, Tampa Bay to the south, and Old Tampa Bay to the west. MacDill is located at the southern tip of the peninsula and consists of 5,767 acres. The facility was established in 1941. Its primary runway (Runway 4/22) is 11,421 feet long, exclusive of the 995- foot overrun, and runs in a southwest-northeast direction. Because of prevailing winds and its proximity to other airports in the St. Petersburg area to the west, the majority of the takeoffs are to the northeast. Around ninety percent of the landings are from the southwest (over Tampa Bay on the approach) to the northeast. Florida Rock owns two adjoining parcels of land on Interbay Peninsula, totaling 25.51 acres, located at 6604 South Dale Mabry Highway, which is a commercial corridor. The property lies just south of InterBay Boulevard, a few hundred feet west of Himes Avenue, and directly north of MacDill. At its closest, the site is less than three thousand feet from the edge of the overrun portion of the active runway. To the north and east of the property are residential properties, many of which were developed between 1940 and 1959. Another surge of development occurred in the 1980s. The properties to the north have residential land use designations. Future residential development of parcels to the north and east are capped at ten units per acre because of their location near MacDill. Directly to the south of the property is a vacant parcel with a Light Industrial land use. To the east of that property is land used as a park and includes baseball and soccer fields. MacDill lies south of the vacant parcel. The existing uses west of the property (and to the west of Dale Mabry Highway) are commercial, industrial, apartment, and office. The subject property has been classified as Light Industrial under the City's Plan. As the name implies, that land use category allows for light industrial uses that have only minimal offsite impacts such as noise and odor, along with offices, manufacturing, warehousing, and other general commercial uses. Residential uses are prohibited under this category. Development is subject to a maximum floor area ratio of 1.5. (Floor area ratio measures the intensity of non- residential land uses.) Currently, a warehouse distribution facility (truck terminal) owned by Florida Rock is located on the northern end of the property. Approximately one-half of the parcel is vacant. A small part of the property (between eight and nine acres) on the southern end is wetlands and has been designated as an environmentally sensitive area by the Planning Commission. On March 8, 2007, Florida Rock filed an application with the Planning Commission to change the land use on the property from Light Industrial to Community Mixed Use-35 (CMU- 5). See Joint Exhibit 2. The proposed use of the property was described in the application as a "Mixed Use Development." Id. The new land use designates "areas suitable for general commercial, professional office, and multi-family development" and, absent any other limiting conditions, would permit a development potential of eight hundred ninety-two residential units or a maximum commercial buildout of almost 1.7 million square feet. No text amendments were proposed. On March 31, 2008, the Planning Commission recommended approval of the application and forwarded that recommendation to the City. On April 10, 2008, the City held its first public hearing on the amendment and voted to transmit the plan amendment to the Department and other entities that are required by law to receive copies of the amendment and supporting data and analyses. See § 163.32456(4)(a), Fla. Stat. The proposed amendment and supporting data and analyses were submitted to the Department and other entities on April 11, 2008. See Florida Rock Exhibit 2. Comments regarding the amendment were submitted by the Department to the City on May 14, 2008. See Department Exhibit Comments were also filed by the Air Force, the Florida Department of Transportation, and the Tampa Bay Regional Planning Council, all voicing concerns.4 The Department concluded its comments by stating that it "strongly urges the City not to adopt the amendment." Id. Notwithstanding the adverse comments, on August 21, 2008, the City adopted Ordinance No. 2008-145, which approved the application and changed the land use on Florida Rock's property to CMU-35. To counter at least in part the objections lodged by the Department and Air Force, the Ordinance contained a condition that "[r]esidential density shall not exceed ten (10) units per gross residential acre of land and/or a floor area ratio of 1.5." See Florida Rock Exhibit 3. This limitation on residential development is consistent with Future Land Use Element (FLUE) Policy A-3.1, adopted in 1989, which limits new residential development within the MacDill and Tampa International Airport flight paths, also known as Accident Potential Zones, to ten dwelling units per acre. Under either category, Florida Rock can build more than 1.5 million square feet of commercial uses. More than likely, the potential residential (and/or commercial) development on the property will be something less than ten dwelling units per acre because of setback, parking, mitigation, and other miscellaneous requirements. Also, density bonuses do not apply. One City witness estimated that the maximum development potential will be around 8.6 units per acre. The Department timely filed its Petition with DOAH on September 26, 2008. See § 163.32465(6)(b), Fla. Stat. ("[t]he state land planning agency may file a petition with the Division of Administrative Hearings pursuant to ss. 120.569 and 120.57, with a copy served on the affected local government, . . . within 30 days after the state land planning agency notifies the local government that the plan amendment package is complete"). Although the Petition and parties' Joint Prehearing Stipulation identify a number of issues to be resolved, the Department and Air Force's Proposed Recommended Orders address only two broad grounds for finding the amendment not in compliance: that the proposed land use is not compatible with the adjacent military installation, which the Department describes as being the "principal dispute in this proceeding"; and that the proposed plan amendment is not based on relevant and appropriate data and analyses, as required by Section 163.3177(6)(a), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(2)(a). All other allegations are assumed to no longer be in issue, voluntarily withdrawn, or not supported by the preponderance of the evidence.5 Operations at MacDill The host wing at MacDill is the Sixth Air Mobility Wing (Wing). Serving under that Wing is the 91st Air Refueling Squadron (Squadron), which owns sixteen KC-135R aircraft that are permanently based at MacDill. The Squadron's primary mission is refueling other military aircraft, a mission that requires the KC-135R to travel around the globe. The KC-135R can carry up to 200,000 pounds of Jet Propellant 8 (JP-8) aviation fuel, a kerosene-based jet fuel, depending on the nature and duration of its mission. Besides the KC-135R, other aircraft permanently based at MacDill include three C-37s (smaller jet aircraft) assigned to the 300LS Squadron, the 310th Airlift Squadron, and five or six aircraft associated with the National Oceanic and Atmospheric Administration. MacDill also hosts approximately six-to-eight joint exercises per year (lasting between one and three weeks) involving numerous fighter and bomber aircraft that use the Avon Park bombing range for training, as well as C-17s and C-130s (transport aircraft) that use the facility for special training. In addition, Air Force and National Guard reserve units train at MacDill. Therefore, on any given day, multiple fighters and aircraft from other military branches, and occasionally even a commercial aircraft, may use the runways at MacDill. On an average day at MacDill, there are sixty takeoffs and landings and up to five sorties. This does not include touch and go takeoffs and landings, which involve pattern or transition work. Mainly residential uses are located in the flight path of Runway 4 as far south as, and to the east of, the Florida Rock property. That type of development continues in the flight path until the aircraft exit the Interbay Peninsula and pass over Hillsborough Bay. Due to this encroachment, when departing on Runway 4, the aircraft maintain a runway heading until reaching an altitude of four hundred feet; they then turn right on a heading of 080 and climb to, and maintain, one thousand, six hundred feet until air space is de-conflicted to ensure that all aircraft in the area are separated. Air traffic control requires that all flights are instrument departures using radar vectors. Also, because of existing residential encroachment and concerns about noise, MacDill has compromised some of its mission flexibility by limiting its hours of operation to 6:00 a.m. to 11:00 p.m. and limiting engine use on some fighter aircraft by reducing after-burning usage. When departing on Runway 4 and passing just to the east of Florida Rock's property (and over the closest existing residential development), the KC-135R is at an elevation of approximately three hundred feet and sometimes as low as one hundred forty feet, depending on its fuel load and wind conditions. Air Installation Compatible Installation Zone (AICUZ) The AICUZ program is a program developed by the United States Department of Defense for military airfields to promote land use compatibility in areas subject to aircraft noise and accident potential. There have been four AICUZ studies prepared for MacDill, which were published in 1976, 1978, 1998, and 2008. The latter study was not yet finalized and available to the public when Plan Amendment PA-07-08 was adopted. The 1998 study was prepared to present and document flying conditions at MacDill following the reassignment of KC-135R aircraft to the base in 1996. The AICUZ delineates a Clear Zone, Accident Potential Zone I (APZ I), and Accident Potential Zone II (APZ II) for each runway and makes land use recommendations for each of those areas. These areas are based on standardized data compiled from military airfields around the globe to determine areas of increased accident potential. However, the studies do not assess risk nor consider the safety record of each individual airfield. Based on the standardized data, the Clear Zone is the area with the highest potential for accidents, then the APZ I, and finally the APZ II. Accident potential increases toward the centerline of the runway, and away from the ends of those zones. The southwest corner of Florida Rock's property abuts the Clear Zone for Runway 4, while the remainder of the site lies within the APZ I north-northeast of the runway. Two aerial photographs submitted into evidence provide an excellent view of the zones, the flight path of Runway 4, the existing development north of the airfield, and the location of Florida Rock's property. See Air Force Exhibits g and g1. The AICUZ land use compatibility chart recommends no residential uses in a Clear Zone or in an APZ I. (The chart identifies a number of examples of uses that are compatible with APZ I and flight operations at MacDill, such as miscellaneous manufacturing and low intensity office use. See Department Exhibit 3, pages 46 through 50.) In an APZ II, the AICUZ only recommends approval of single-family detached units for residential uses. These recommendations apply to all military installations with airfields and do not take into consideration unique local situations. However, the AICUZ recommendations are not binding on local governments and are to be balanced by the local government along with other planning considerations. The active runway at MacDill is three thousand feet wide. At the end of the overrun for Runway 4 (and Runway 22 to the southwest) is the Clear Zone, which is normally three thousand feet wide and three thousand feet long. At the end of the Clear Zone is the APZ I, which ordinarily is three thousand feet wide and five thousand feet long. At the end of the APZ I is the APZ II, which ordinarily is three thousand feet wide. By using standardized APZs, the Air Force can alter the mission of a base (e.g., change from fighters to bombers) without having to alter the APZs. The southeastern end of Runway 22 is surrounded by Tampa Bay. Therefore, the Clear Zone, APZ I, and APZ II for Runway 22 are located over the water and conform to the standard dimensions described above. Because aircraft departing on Runway 4 are required to make a right turn to a heading of 080 shortly after departure, the flight track for Runway 4 has an atypical split to the right. This deviation from a straight extension from the runway is permitted only when a majority of the aircraft fly predominately in the alternate direction. This split causes the APZ I for Runway 4 to deviate from the ordinary rectangular shape and to have two distinct APZ IIs, one directly northeast of, and aligned with, Runway 4, and the other to the east-northeast tracking the alternate direction of the aircraft after takeoff. The City's Plan depicts the Clear Zone, APZ I, and APZ II on Figure 11 of the Transportation Element and shows the outline of those areas on the FLUM. See Fla. Admin. Code R. 9J-5.019(2)(a)5. and (5)(a)7., which requires that both the Transportation Element and FLUM depict "clear zones and obstructions." Besides the delineation of a Clear Zone, APZ I, and APZ II, the AICUZ also includes noise contours and land use recommendations based on these noise contours. Noise contours are specific to each airfield based on one year of flight data applying noise variables, such as aircraft type, altitude, and engine power. An additional ten decibel (dB) noise penalty is added for flights after ten o'clock in the evening. Noise contours are mapped in five dB increments between sixty-five and seventy dB. A noise of sixty-five dB is equivalent to the sound of normal conversations. A noise of seventy-five dB is perceived by most persons to be twice as loud as a sixty-five dB noise. The AICUZ land use guidelines include a determination that residential uses in the Day Noise Level (DNL) sixty-five to sixty-nine contour and seventy to seventy-four contour are generally compatible with noise attenuation of twenty-five dB and thirty dB, respectively. The guidelines further note that residential use is discouraged in DNL sixty-five to sixty-nine and strongly discouraged in DNL seventy to seventy-four, but if residential uses must be allowed, measures to achieve outdoor to indoor Noise Level Reduction (NLR) for DNL sixty-five to sixty- nine dB and DNL seventy to seventy-four dB should be incorporated into building codes. The subject property is located mostly in the DNL sixty-five to sixty-nine dB contour, while less than nine acres in the southern portion are located within the DNL seventy to seventy-four dB contour. The FAA compatibility guidelines codified in 14 CFR Part 150, Appendix A, which apply to civilian airports, include a determination that residential uses are compatible with the DNL sixty-five to sixty-nine contour. Nothing in Chapter 163, Florida Statutes, or Florida Administrative Code Rule Chapter 9J-5 requires noise contours to be mapped or for comprehensive plans to include noise standards. The Joint Land Use Study (JLUS) The JLUS is a Department of Defense program administered through its Office of Economic Adjustment and funded by the Federal Government. It provides funds and resources for local governments located adjacent to military installations, such as the City, to evaluate a study area of properties affected by the military installation. The City and MacDill conducted a JLUS, which was finalized in June 2006, or before Amendment PA07-08 was adopted. The study was initiated at the request of MacDill because of its concern that urban encroachment might affect its operations and future viability. Two of the stated goals of the JLUS were to promote "comprehensive planning for long term land use compatibility between MacDill and the surrounding community" and to restrict "land uses that are deemed to be incompatible with MacDill operations by the AICUZ study." See Department Exhibit 4. The JLUS relied heavily upon information regarding flight operations, accident potential, and noise impacts in the 1998 AICUZ. It analyzed each zone in the AICUZ to identify existing development encroachment densities and ultimately made recommendations regarding development issues adjacent to MacDill. According to the 2006 study, residential uses constitute ninety-one percent of the three hundred twenty-seven acres of property that lie within the APZ I and most are single- family detached homes. As of 2003, the AICUZ was almost fully developed and only 72.2 acres were held in private ownership. Most of this development has existed for years. The study further indicated that almost eight thousand people lived in APZ-1, and that the average net density in the APZ I is 5.78 units per acre, although higher densities exist in some areas. The JLUS included four sets of land use options for the Clear Zones and APZs, which vary in intensity from three to ten units per acre, none of which followed the AICUZ recommendation of no new residential uses in APZ I. One recommended option was that within APZ I, densities for residentially-designated parcels be limited to zero to six dwelling units per acre and a 0.5 floor area ratio. Another recommended option was to maintain the status quo within the APZ I, as expressed in FLUE Policy A-3.1, of ten dwelling units per acre. Ultimately, the committee preparing the report adopted the zero to six dwelling units per acre option. The JLUS further recommended that the City amend FLUE Policy A-3.1 by establishing a new land use category entitled "Military Installation Airport Compatibility Plan Category" with a density/intensity range of zero to six dwelling units per acre and a 0.5 floor acre ratio within APZ I. See Department Exhibit 4, page 5-5. Although the Planning Commission recommended to the City that these changes be approved, to date the City has not formally adopted either recommendation in its Plan. See Department Exhibit 19. The Objections Compatibility The Department and Air Force contend that the proposed future land use on the Florida Rock property (CMU-35) is not compatible with MacDill. Although the Department has not adopted any rule specific to military installation compatibility or to airport APZs, the word "compatibility" is defined in Florida Administrative Code Rule 9J-5.003(23) as follows: A condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition. Whether or not adjacent property is "unduly negatively impacted" and therefore compatible or not is a fact-specific determination made by the Department on a case-by-case basis. Section 163.3177(6)(a), Florida Statutes, was amended in 2004 to require that the FLUE of each local government "include criteria to be used to achieve the compatibility of adjacent or closely proximate lands with military installations." To assist local governments with all types of land use compatibility issues, including those involving military installations, in May 2004 the Department prepared a PowerPoint presentation, presumably for the benefit of various local government planning officials. See Florida Rock Exhibit 34. Among other things, the document includes a list of twelve "Suggested Best Practices" in addressing military installation compatibility. One suggested practice is for the local government to adopt noise attenuation standards in either the plan itself or land development regulations. To ensure compliance with the 2004 statutory amendment, as well as requirements of Florida Administrative Code Rule Chapter 9J-5, the City's Plan includes a number of provisions to achieve compatibility with MacDill operations. Most, if not all, of these provisions were actually in effect before the change in the law, having been adopted in response to the 1998 AICUZ. Specifically, Transportation Element Objective 9.6, and underlying Policies 9.6.1 through 9.6.5, generally require that the City ensure that new development will not obstruct military aircraft operations; that MacDill representatives be included in the review of all proposed plan amendments within the APZs and Approach Zones; that the City consult the AICUZ recommendations when proposing land use changes within APZ I and II; that the City promote compatibility within the APZs and Approach Zones through reduced densities; that the City and Planning Commission continue to review the impacts of development within the Approach Zones; and that communication towers and antennas be prohibited in APZ I and II. See Fla. Admin. Code R. 9J-5.019(4)(c)21., which requires that the Transportation Element include policies to "[protect] airports from the encroachment of incompatible land uses." In addition, FLUE Objective A-3, and underlying Policies A-3.1, A-3.3, A-3.4, A-3.6, and A-3.7, some of which apply only to MacDill, and others to both MacDill and Tampa International Airport, generally require that "adjacent development be compatible with airport related activities"; that future residential development be restricted to ten dwelling units per acre; that new construction and redevelopment which inhibits the safe and efficient operation of airport facilities with the APZs be prohibited; that "noise sensitive" development be prohibited unless noise attenuation features are included; that new development not obstruct aircraft operations; and that floor area ratios be promoted to guarantee the efficient operation of the airports. See Fla. Admin. Code R. 9J- 5.006(3)(c)2., which requires policies in the FLUE that "[p]rovi[de] for compatibility with adjacent uses." As noted earlier, all of these provisions have been found to be in compliance. The compatibility argument by the Department and Air Force centers around two concerns: accident potential and noise impacts of aircraft departing from and/or landing at MacDill. In response to the accident potential concern, Florida Rock and the City point out that no witness could recall a Class I accident (one resulting in a property loss of over $1 million, a loss of life, or a permanent injury) ever occurring at a MacDill Clear Zone or APZ. They also point out that aircraft safety is continually improving, and that the Air Force itself concedes that the number of accidents has decreased "tremendously" over the last forty years. Finally, they point out that ninety percent of the landings at MacDill are from the southwest over Tampa Bay and thus pose no threat to Florida Rock's property. The two stages of a flight with the greatest potential for accident are on takeoff and landing. Based on historical locations of accidents, the APZ has the greatest potential for accidents when aircraft are in distress. The Florida Rock parcel is located within APZ I. Although no Class I accidents have occurred at MacDill for at least the last forty years, and aircraft safety has dramatically improved over the years, there is no guarantee that an accident will not happen in the future. If an accident occurred, the results could be highly destructive. This is particularly true since the KC-135R routinely departs over or close to the southeastern corner of the Florida Rock parcel, sometimes at altitudes as low as one hundred forty feet, carrying up to 200,000 pounds of JP-8 aviation fuel. Debris scatter from a larger, heavier aircraft such as the KC-135R typically covers around eight acres. The debris scatter from a smaller aircraft, such as a fighter jet, is around three acres. Therefore, an aircraft accident would obviously be catastrophic for residents living around the site of the accident. Depending on its location, residential encroachment in the APZ can erode operational flexibility. As noted earlier, due to long-existing residential housing north and northeast of the airfield, the hours of operation at MacDill have been curtailed by eliminating flights between 11:00 p.m. and 6:00 a.m., more than likely due to noise concerns rather than safety issues. The KC-135R must make a right turn towards Hillsborough Bay when it reaches an elevation of only four hundred feet. Pilots must use instruments (rather than visual flight rules) and vectors when departing the airfield, but the evidence suggests this limitation is due to congested traffic in the area and the fact that MacDill air traffic control only "owns" the airspace below one thousand, six hundred feet, and not because of residential encroachment. According to an Air Force witness, depending on the type of development in the APZ and the height of the structures, it might cause the KC-135R to maintain a higher altitude on takeoff (with a corresponding lower fuel load) and/or to make a slight change in direction. However, FLUE Policy A-3.3 prohibits new construction "which inhibits the safe and efficient operations of airport facilities within the [APZ]"; FLUE Policy A-3.6 provides that "[n]ew development shall not obstruct aircraft operations"; and FLUE Policy A-3.7 provides that "[a]ll building regulations (floor area ratios (FAR) and height) shall be promoted to guarantee the continued efficient operation of the airport and ensure public safety." Also, Transportation Element Policy 9.6.5 prohibits the construction of communication towers and antenna in the APZ I and II zones. Presumably, these restrictions are enforced during the site approval process. MacDill has always been located in an urban area and residential development has existed for decades directly in the flight path of Runway 4. In fact, the AICUZ was nearly fully developed in 2003. Therefore, it is fair to characterize the area in and around the flight path as already developed and built out with a residential character. While the potential for an accident is always present, the evidence does not show that this consideration has unduly negatively interfered with the missions or operational flexibility of the base. Even the 1998 AICUZ describes the risk to people on the ground of being killed or injured by aircraft accidents as "minute." See Department Exhibit 3, page 42. Even though the proposed change in land use will result in more residential development to the west of the flight path for aircraft using Runway 4, it should not unduly negatively impact, directly or indirectly, the use or condition of MacDill. (Under the Light Industrial land use, Florida Rock can now construct a building that employs hundreds of people.) The more persuasive evidence shows that the plan amendment is not incompatible in this respect. Most of the Florida Rock property lies entirely within the DNL sixty-five dB noise contour zone. This means that the average noise exposure is sixty-five dB, but the actual noise of all aircraft in the fleet is much louder than that on takeoff. For example, fighter aircraft are around one hundred ten dB at one thousand feet and would be much louder at lower altitudes. Some types of bombers, which occasionally use the base for training operations, were described as being so loud that you have "to hold the table down or things will fall over." Even so, CMU-35 residential development within this category of noise exposure is consistent with the FAA land use compatibility table and is generally compatible with AICUZ land use guidelines. The southern end of the site, which is a wetland area, is within the DNL seventy to seventy-four dB noise contour, but it is highly unlikely that development could ever occur in that area, given its designation as an environmentally sensitive area by the Planning Commission. The City has adopted a land development regulation, codified as Section 27-137.5, which requires that all residential development within the APZ-I be "designed and constructed to reduce noise levels by twenty-five (25) decibels." Another land development regulation, Section 5-301.1 requires noise level reduction, or abatement, of twenty-five dB for construction in the APZ-I. Both provisions were enacted in order to ensure compatibility with MacDill's operations. While the Department points out that there are no specific provisions such as these in the Plan to reduce noise impacts, FLUE Policy A-3.4 "[p]rohibit[s] future 'noise sensitive' development such as residences . . . which do not provide the required noise attenuation features within those noise contour areas adjacent to MacDill AFB which may pose health hazards." The Air Force acknowledged that curtailment of flight operations for the KC-135R has not occurred due to noise complaints from residents or users of property around the base. In making this admission, it may have overlooked the fact that late-night operations (between 11:00 p.m. and 6:00 a.m.) have been curtailed for an unknown period of time, presumably because of concerns that operations during these hours would disturb the nearby residential areas. But this is due to existing development, and not future development, and there is no evidence that development by Florida Rock would likely cause a further reduction in MacDill's hours of operation. Although the Department argues that residents in the neighborhood adjacent to MacDill constantly complain to the base and City officials, recorded noise complaints numbered only seventeen in 2007, twenty-five in 2008, and sixteen through the date of the hearing in 2009. One person living in APZ II was the source of eleven of the twenty-five recorded complaints in 2008 and four of the sixteen in 2009, while many of the other complaints came from persons who live in other counties or cities in the area. It is fair to say that all of the noise complaints are associated with fighter and bomber aircraft, which occasionally use the base for training missions, and not the KC-135R, which is permanently stationed at the base. Even though the Florida Rock property may be subjected to potentially more than a hundred takeoffs and landings per day, with aircraft operating at altitudes as low as one hundred forty feet, there is insufficient evidence to support a finding that military operations will be affected by noise concerns. This is evidenced by the fact that literally hundreds of existing residences in the APZ are now subjected to the same conditions, yet they have coexisted with MacDill operations for many years. Further support for this finding is based on the fact that very few complaints have been filed by persons living in the immediate area. Even though a City witness conceded that the noise from aircraft may be a "nuisance" to some area residents, the greater weight of evidence supports a finding that from a noise perspective, the proposed change in land use would not be incompatible with MacDill operations or use.6 The evidence supports a finding that a change in the land use for the Florida Rock property will be compatible with adjacent uses, including MacDill, as that word is defined in Florida Administrative Code Rule 9J-5.003(23). Data and Analysis The map change on the FLUM must be based on surveys, studies, and data regarding the area, including the compatibility of uses on lands adjacent to or closely proximate to military installations. See § 163.3177(6)(a), Fla. Stat. Florida Administrative Code Rule 9J-5.005(2) implements that provision and spells out the requirements for satisfying the statute. These include requirements that the data must be "relevant and appropriate," "taken from professionally accepted existing sources, such as . . . existing technical studies," and "collected and applied in a professionally acceptable manner." See Fla. Admin. Code R. 9J-5.005(2)(a). The City must also "react to it in an appropriate way" at the time the amendment is adopted. Id. Finally, a local government may rely on data and analysis used to support the original plan or a previous plan amendment unless "the previously submitted data and analysis no longer include and rely on the best available existing data. See Fla. Admin. Code R. 9J-11.007(1). The Department and Air Force argue that the 1998 AICUZ and the June 2006 JLUS are the best available, relevant, and appropriate data regarding land uses around MacDill, and that the City failed to appropriately react to that data when it adopted the amendment. They further argue that the City relied on data and analyses supporting the 1998 Plan, which is no longer the best available existing data. On the other hand, Florida Rock and the City assert that there is adequate data and analysis that support the adopted map change, including the Transportation Element and FLUE policies listed above (Joint Exhibit 1), the JLUS data and recommendations (Department Exhibit 4), the Planning Commission report (Florida Rock Exhibit 3), the City Community Planning Division staff report (City Exhibit 28), the portion of the Department's PowerPoint relating to Military Installation Compatibility (Florida Rock Exhibit 34), and 14 CFR Part 150, Appendix A, which was officially recognized. The 2006 JLUS includes as one option a recommendation that the status quo for density in FLUE Policy A-3.1 be maintained for development around MacDill. The Planning Commission staff report noted that both land use categories have the same maximum commercial buildout potential; that the site will never be developed to its maximum potential; that the change is consistent with recent trends away from light industrial in that area; that the new designation is consistent with the surrounding area; that the amendment is consistent with all other provisions in the Plan; and that the City must ensure that any development will not obstruct operations at MacDill. Similarly, the City Community Planning Division staff report noted that MacDill and the South Tampa community have coexisted for sixty-five years; that the predominant land use in the area is residential; that the change is consistent with FLUE Policy A-3.1; that noise attenuation measures will be employed; that the CMU-35 designation continues the land use trend away from light industrial; that the site will not be able to develop to its full potential; and that the change would be consistent with the future development pattern of the area. The map change is also supported by the land use compatibility policies in the AICUZ study for noise contours, as well the FAA noise compatibility guidelines. Finally, the change is consistent with existing policies in the FLUE and Transportation Element. They provide further support for the requested change and the City's determination that the map change is compatible with surrounding uses, including MacDill flight operations. The City reacted appropriately to these data and analyses when it enacted the amendment. The AICUZ is based on standardized data complied from airbases around the world to determine areas of increased accident potential. It did not assess the individual risk nor consider the safety record of MacDill; it did not give consideration to any unique local situations, including the fact that MacDill is located in a fully developed urban area and has coexisted with residential development in the Runway 4 flight path for decades; and it characterized the risk of an aircraft accident as "minute." Because residential development under the map change will be subject to noise attenuation requirements, the new use will be consistent with the AICUZ and FAA guidelines. The JLUS presented four options for residential use within the APZ I, one of which continues the existing policy of allowing ten dwelling units per acre in APA I. Although the committee ultimately recommended that more restrictive measures be implemented, this recommendation was not adopted by the City. Standing alone, the JLUS contains competing data that support a less intense residential classification on the Florida Rock property. But the City has no land use category that allows the site a mixed use with a maximum of six residential units per acre. When taken as a whole, the data and analyses relied upon by the City constitute adequate support for the plan amendment. Accordingly, the Department and Air Force have failed to show by a preponderance of evidence that the plan amendment contravenes Section 163.3177(6)(a), Florida Statutes, or Florida Administrative Code Rules 9J-5.005(2)(a) and 9J- 11.007(1). See, e.g., Geraci, et al. v. Hillsborough County, et al., DOAH Case No. 95-0259GM, 1999 Fla. ENV Lexis 11 at *114-15 (DOAH Oct. 16, 1998, DCA Jan. 12, 1999)(even though the data and analysis may support another classification, a local government is not required to demonstrate that its land use classification choice is perfect, or that the data and analysis support that use to the exclusion of any other classification). The more persuasive evidence supports a finding that the challenged plan amendment is in compliance.
Recommendation RECOMMENDED that the Department of Community Affairs enter a final order determining that the plan amendment adopted by Ordinance No. 2008-145 is in compliance. DONE AND ENTERED this 26th day of August, 2009, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 2009.
