The Issue The issue is whether the plan amendment adopted by Escambia County (County) by Ordinance No. 2017-53 on September 7, 2017, is in compliance.
Findings Of Fact Background Petitioner owns real property and resides in the County. She submitted written comments to the County during the adoption phase of the amendment. She is an affected person within the meaning of section 163.3184(1)(a), Florida Statutes. The County is a local government that is subject to the requirements of chapter 163, Florida Statutes. A sector plan is the process in which the local government engages in long-term planning for an area of at least 5,000 acres. §§ 163.3164(42) and 163.3245(1), Fla. Stat. It involves two levels of planning: a) a long-term master plan, and b) a Detailed Specific Area Plan (DSAP), which implements the master plan. A DSAP is created for an area that is at least 1,000 acres and identifies the distribution, extent, and location of future uses and public facilities. § 163.3245(3), Fla. Stat. While the DSAP is created by a local development order that is not subject to state compliance review, an amendment to an adopted sector plan is a plan amendment reviewed under the State Coordinated Review process. § 163.3184(2)(c), Fla. Stat. The development standards in the DSAP are separate and distinct from the development standards in non-sector plan properties. On June 3, 2010, the County approved Ordinance No. 2010-16, which adopted Evaluation and Appraisal Report-based amendments to the Plan, including a new Optional Sector Plan (OSP). The Ordinance was challenged by the Department of Community Affairs (DCA) and assigned DOAH Case No. 10-6857GM. In response to the DCA challenge, on February 3, 2011, the County adopted Ordinance No. 2011-3 as a stipulated remedial amendment. The Ordinance establishes a long-term master plan for central Escambia County known as the Mid-West Escambia County Sector Plan (Sector Plan). The Sector Plan is comprised of approximately 15,000 acres, north of Interstate 10, west of Highway 29, and south of Highway 196. The area is depicted on the Future Land Use Map (FLUM) as the OSP. The DCA determined the Ordinance to be in compliance. To implement the long-term master plan, on September 9, 2011, the County adopted Ordinance No. 2011-29, which establishes two DSAPs: Muskogee DSAP and Jacks Branch DSAP. Petitioner's residence and the subject property are located within the Jacks Branch DSAP. State compliance review of that action under section 163.3184(3) or (4) was not required. In 2011, the Legislature created the right to opt out or withdraw from a sector plan. See § 163.3245(8), Fla. Stat. This can be accomplished "only with the approval of the local government by plan amendment adopted and reviewed pursuant to s. 163.3184." Id. In response to the statutory amendment, the County adopted a plan amendment which provides that any additions to, or deletions from, a DSAP must follow the established procedures in the Plan. See Ex. 40, p. 14. In order to consolidate the County zoning districts, on April 16, 2015, the County adopted Ordinance No. 2015-12, which repealed the entire Land Development Code (LDC) and replaced it with a new LDC, which has a county-wide rezoning plan. After the first (and only) application to opt out of the Sector Plan was filed by a property owner, on March 16, 2017, the County amended the LDC through Ordinance No. 2017-14, which establishes seven criteria for evaluating this type of request. See LDC, § 2-7.4. The Ordinance was not challenged. According to the County, the criteria were actually drafted by the Department of Economic Opportunity (DEO) and require it to consider the following: All standard Comprehensive Plan map criteria; Comprehensive Plan requirement for changes to an existing DSAP; The size of the subject parcel in relation to the individual DSAP land use category and in relation to the overall Sector Plan, to specifically include the aggregate acreage of any previously granted opt-outs; The existing transportation infrastructure and any impact the proposed opt-out may have on the capacity of the infrastructure; The underlying existing zoning category and its compatibility with surrounding DSAP land use designations; The consistency of the requested future land use designation with the underlying zoning; and The previous future land use designation. Besides the foregoing criteria, subsection 2-7.4(b) provides that when the County reviews an opt-out application: [t]o the extent possible, the staff analysis and the reviewing bodies shall consider whether the applicant lost development rights or was effectively downzoned as part of the Sector Plan adoption. The Board may take into consideration any other relevant factors in making its determination related to the request. Once a parcel is removed from the County's Sector Plan, the underlying zoning that was in effect when the Sector Plan was created remains the same, but a new future land use (FLU) category must be assigned to the property by a plan amendment. § 163.3245(8), Fla. Stat. Withdrawing from a DSAP does not modify the DSAP because the DSAP is the development standard itself. The Property The parcel lies on the eastern edge of the DSAP about ten miles north of Interstate 10 on the northwest corner of Highway 29 and Neal Road. Highway 29 is a major four-lane arterial road running in a north-south direction with a median in the middle. The road is maintained by the state. Neal Road is a small, two-lane County road that intersects with Highway 29 from the west and provides access to a residential area where Petitioner resides. Existing commercial development is located on the east side of Highway 29. Most recently, a Family Dollar Store was developed directly across the street from the property. Currently, the parcel is vacant and lies in the Conservation Neighborhood District, which permits a maximum density of three dwelling units per gross acre and is the lowest density of residential development allowed in the Sector Plan. Only residential uses are allowed in the district, which is intended to treat stormwater and preserve open space and wildlife. Based on maps of the area, Petitioner's property appears to be no more than one-half mile west of the subject property. The character of the area in Petitioner's neighborhood is low-density residential development. Before the Sector Plan was adopted, the assigned land use on the parcel was MU-S. This use is intended for "a mix of residential and non-residential uses while promoting compatible infill development and the separation of urban and suburban land uses." Its express purpose is to serve as a mixed-use area. As described by a County witness, "the mixed-use aspect of it allows a non-residential component first, but, again, it's predominately residential, low-density residential." The range of allowable uses includes residential, retail services, professional office, recreational facilities, and public and civic, with a maximum intensity of a 1.0 floor area ratio. Until the Sector Plan was created, the parcel was zoned as Gateway Business District (GBD). Under the new rezoning plan established in 2015, all parcels outside the Sector Plan which were zoned GBD were consolidated with similar zoning categories into the new district of Heavy Commercial/ Light Industrial (HC/LI). Permitted uses under this district are residential, retail sales, retail services, public and civic, recreation and entertainment, industrial and related, agricultural and related, and "other uses," such as billboards, outdoor sales, trade shops, warehouses, and the like. Once a parcel is withdrawn from the Sector Plan, it retains the underlying zoning in effect when the DSAP was established. Because the new zoning scheme consolidates GBD into HC/LI, the parcel will revert to HC/LI. Therefore, the zoning and land use will be the same as they were before the Sector Plan was created. This combination is not unusual, as there are "multiple parcels" outside the DSAP that have this zoning/land use pairing. The Challenged Amendment In June 2016, the property owner filed an application with the County requesting that his parcel be removed from the Mid-West Sector Plan. At that time, neither the County nor the applicant realized that a new land use must be assigned. Consequently, no request for a new land use was made. Because this was the first time an opt-out application had been filed with any local government, the County had a series of meetings with DEO seeking guidance on how to proceed. It was told by DEO that the opt-out application and a FLU change should be processed in the same manner as a FLUM amendment and then reviewed under the State Coordinated Review process. DEO also provided suggested criteria that should be considered when processing such an application. These criteria were adopted as new LDC section 2-7.4. The County followed all steps suggested by DEO. DEO instructed the County to require a second application from the property owner, which included a request for a new land use category. After the second application was filed, the County began the process of determining whether the application satisfied the opt-out criteria in section 2-7.4 and relevant Plan requirements. The second application addressed the FLU requirement and contained the analysis required for each component of the Plan. A future land use of Mixed-Use Urban (MU-U) was initially requested by the owner. This category is consistent with HC/LI zoning, but is a much more intense land use category than MU-S. Because of concerns that the MU-U land use would not be compatible with the surrounding neighborhood in the DSAP, the County changed the proposed new land use to MU-S, the use assigned to the property before the Sector Plan was adopted. MU-S is the same land use assigned to other non-Sector Plan parcels surrounding the subject property, and there are non- industrial uses within the HC/LI zoning district that are consistent with MU-S. If the application is approved, only 25 potential residential units will be removed from the total Sector Plan, and the reduction in total developable area will be de minimis. Except for a change to the DSAP map and the acreage table, no changes to the text of the DSAP are made. During the application process, the County addressed natural resources, wetlands, historically significant sites, and impacts on the environment. The County also evaluated the application in light of the criteria found in section 2-7.4 and determined that, as a whole, it satisfied those requirements. See Cnty. Ex. 34, pp. 28-39. Because a proposed use of the property was not submitted with the application, an analysis of a specific use was not made. When a site plan to develop the property is filed, the proposed use will be evaluated by the Development Review Committee, and then by the Board of County Commissioners. That review will ensure that the intended development will not be inconsistent with the zoning district and land use assigned to the parcel. The opt-out request was debated extensively during a series of ten public hearings that began in September 2016. Members of the public were allowed to speak for or against the proposal. On September 7, 2017, the County voted to amend the Plan by (a) allowing the parcel to withdraw from the OSP, removing the Sector Plan overlay on the parcel, and amending the FLUM by assigning the property a MU-S land use designation. No other changes were made. The amendment does not create a remnant area or fragmented DSAP. The amendment was transmitted to DEO for review under the State Coordinated Review process. DEO determined it met the requirements of chapter 163 for compliance purposes. The State Coordinated Review is more comprehensive than the Expedited Review process under section 163.3184(3). On November 8, 2017, a Notice of Intent to find the amendment in compliance was issued by DEO. See Cnty. Ex. 39. Petitioner filed her Petition within 30 days after the Ordinance was adopted, but before DEO issued its Notice of Intent. Therefore, it was timely. Besides DEO's review, the Department of Transportation and Department of Education reviewed the proposal for impacts on transportation and school concurrency, respectively. No further information was requested from the County by any agency. Petitioner's Objections In the parties' Pre-hearing Stipulation, Petitioner raises a procedural objection to the manner in which the withdrawal application was adopted. She also alleges generally that the amendment creates inconsistent and incompatible zoning and future land use pairing in violation of sections 163.3177(2) and 163.3194(1); is inconsistent with the FLU Element; conflicts with statutory provisions regarding compatibility of adjacent land uses; and lacks sufficient data and analysis required by section 163.3177(1)(f). These contentions, and others not directly related to a compliance challenge, are addressed below. Petitioner first contends an opt-out application must be adopted by a local development order, rather than by a plan amendment. She argues the County erred by not providing her the opportunity to cross-examine witnesses at the adoption hearing and failing to subject the proposal to more "intense review and analysis." The quasi-judicial process requires strict scrutiny of a local government's action, rather than a fairly debatable standard of review, and provides third parties the right to challenge the local government's decision in circuit court, rather than in a section 163.3184 proceeding. This contention has been rejected and is addressed in the Conclusions of Law. Petitioner contends approval of the application will lead to further requests by other property owners to opt out of the Sector Plan. Currently, there are over 1,000 property owners in the Sector Plan. During the County hearings, staff identified 24 or 25 other properties that might choose to file an opt-out application in the future. Whether those owners will do so is no more than speculation at this point. The County responds that it will evaluate each application on a case-by- case basis. A case-by-case analysis is necessary because an application involving a large parcel of property would clearly have a different analysis than one which involves only 8.67 acres. More importantly, because the opt-out process is a statutory right created by the Legislature, the County is obligated to consider every opt-out application filed, and if it satisfies the applicable criteria, it must be approved. In any event, there is nothing in sections 163.3184 or 163.3245 which requires the local government to deny an application merely because another property owner might file a similar application at some point in the future. Petitioner contends the County acted "unreasonably" because it did not establish opt-out criteria until after the application was filed. The County's action was reasonable under the circumstances because it had no standards or precedent for reviewing this type of application; at the direction of DEO, the criteria were adopted before final action on the application was taken; and the criteria were considered by the County. Petitioner contends the criteria in section 2-7.4 are vague and lack specific, objective evaluation standards. However, Ordinance No. 2017-14 was never challenged and is presumed to be valid. Petitioner contends HC/LI zoning is inconsistent with the MU-S land use and violates sections 163.3177(2) and 163.3194(1)(b).1/ Those provisions require generally that zoning regulations and land uses be consistent with one another and the elements of the Plan. The zoning and land use will be the same as existed before the Sector Plan was adopted. They correlate with the zoning and land use on numerous other non-Sector Plan parcels in the immediate area and throughout the County. MU-S contemplates a mixed-use area, while HC/LI contains a variety of residential, commercial, and industrial uses. Although industrial uses are inconsistent with the land use, see Endnote 1, there are many other uses within the zoning district that are compatible with MU-S. It is fairly debatable that the zoning and land use designation are compatible. FLU Objective 1.3 provides that future land use designations should "discourage urban sprawl, promote mixed use, compact development in urban areas, and support development compatible with the protection and preservation of rural areas." By allowing more intensive development next to the Conservation Neighborhood District, Petitioner contends the plan amendment is inconsistent with this directive because it encourages urban sprawl. "Sprawl" is defined in chapter 3 of the Plan as [h]aphazard growth of dispersed, leap- frog and strip development in suburbs and rural areas and along highways; typically, sprawl is automobile-dependent, single use, resource-consuming, and low-density development in previously rural areas and disconnected from existing development and infrastructure. The parcels on the east side of Highway 29 have similar zoning and land uses as the subject property and are interspersed with commercial development. Therefore, future development on the subject property would not be "disconnected from existing development and infrastructure," and it would not leap-frog into non-developed areas. It is fairly debatable that the plan amendment does not encourage urban sprawl. Petitioner contends the underlying zoning on the parcel is incompatible with the land use in her neighborhood. Although the County considered this issue, it points out that the Sector Plan and Comprehensive Plan have different development standards, and therefore there is no requirement that it consider the compatibility of non-Sector Plan property with property in the DSAP. Moreover, to restore the property rights that an owner once had, when the withdrawal application is approved, the property should revert to the underlying zoning in existence when the Sector Plan was established. Notwithstanding the foregoing, LDC section 2-7.4(a)5. requires that when reviewing an opt-out application, the County must consider "[t]he underlying existing zoning category and its compatibility with surrounding DSAP land use designations." To this end, the County addressed this factor by assigning a less intense MU-S land use to the parcel so that more intense uses allowed by HC/LI would be prohibited or minimized. It is fairly datable that the underlying zoning will be compatible with the neighboring area. Petitioner contends the amendment is not supported by data and analysis, as required by section 163.3177(1)(f). Prior to adopting the amendment, the County staff made a qualitative and quantitative analysis of impacts on natural resources, wetlands, historically significant sites, the environment, and adjacent lands. Because Highway 29 is a state road, the County has limited planning responsibilities for traffic impacts. Even so, a limited analysis of traffic impacts is found in County Exhibit 17. In addition, the Department of Transportation performed a more complete analysis of traffic impacts attributable to the amendment. Because the parcel is currently vacant, traffic impacts on Neal Road cannot be fully analyzed until a site plan is filed. A review of school concurrency issues was performed by the Department of Education and no adverse comments were submitted. The County verified that Emerald Coast Utility Authority had available water, sewer, and garbage capacity to serve the parcel. Finally, the County took into account the fact that removal of such a small parcel from the edge of the eastern side of the Sector Plan would have minimal, if any, effect on the Sector Plan goals and objectives. It is fairly debatable that the amendment is supported by relevant and appropriate data and analysis. All other contentions not specifically discussed have been considered and rejected.
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 Ordinance No. 2017-53 is in compliance. DONE AND ENTERED this 10th day of May, 2018, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 2018.
The Issue The Appellants raise several issues on appeal, including: whether Ordinance 003-2015 did not comply with the constitutional single subject rule and did the County’s application of the Ordinance violate the Florida Constitution; whether the County exceeded its police power in enacting Ordinance 003-2015 and failed to follow the essential requirements of the law when it applied the ordinance to the Appellants’ property; (3) whether the Planning Commission’s decision violated its obligations to support, protect, and defend the Unites States and Florida Constitutions; and (4) whether the Appellants were deprived of their fundamental due process rights during the Commission hearing.
Findings Of Fact The Parties Petitioner Kathleen Burson owns property and resides at 2950 Knox McRae Drive in Titusville. Her residence is located near the land affected by the FLUM amendment. Petitioner submitted comments and objections regarding the amendment to the Titusville City Commission. The City of Titusville is a municipality of the State of Florida and has adopted a comprehensive plan that it amends from time to time pursuant to Section 163.3167(1)(b), Florida Statutes. Intervenor Ravi Shah was the applicant for the comprehensive plan amendment and a companion zoning change. He signed a contract to purchase the property affected by the amendment. At the time of the hearing, the contract's expiration date had passed. However, Intervenor is pursuing mediation under the terms of the contract to contest and prevent the termination of his right to purchase the property. The Amendment The amendment changes the FLUM designations for a portion of a 18.17-acre parcel of land ("the property") located at the intersection of State Road 405 (South Street) and Fox Lake Road. The amendment was formally approved by Ordinance 72- 2007, issued by the City on December 11, 2007, and was designated Small Scale Amendment 15-2007. The property had two FLUM designations before the amendment, Residential High Density and Conservation. The amendment changes a portion of the Residential High Density area to Conservation. It changes an area formerly designated Residential High Density and Conservation to Commercial Low Intensity. It changes an area formerly designated Conservation to Residential Low Density. Respondent's Exhibit 10 and Petitioner's Exhibit 50, respectively, depict the "before" and "after" land use designations. Concurrent with the comprehensive plan amendment, the City approved a rezoning of the property. Petitioner and the City presented evidence related to the rezoning and to Intervenor's proposed development of a drug store and other retail shops on that portion of the property now designated Commercial Low Intensity. However, most of this evidence was irrelevant to the issue of whether the comprehensive plan amendment is "in compliance." The Property and Surrounding Land Uses The property is currently vacant. A wetland covers 3.71 acres in the southern portion of the property. The boundaries of the wetland were used to define the area designated Conservation by the amendment. It was the City's intent for the amendment to place in the Conservation designation on any part of the wetland that was not previously designated Conservation and to remove from the Conservation designation any land that was not part of the wetland. The upland portion of the property is used by wildlife, but it is not known to be used by any threatened or endangered wildlife species other than the gopher tortoise, which is a threatened species. Several gopher tortoise burrows were found and at least one burrow was "active." Petitioner claims that the amendment would destroy the rural character of the area. The City disputed that the area has much rural character. The property is bounded on the west by South Street, which is an arterial road. The land across South Street to the west includes commercial and industrial uses. The land on the northwest corner of the intersection of South Street and Fox Lake Road is designated Commercial Low Intensity and the City has approved a gas station/convenience store for the site. The property is bounded on the north partly by Fox Lake Road, a collector road, and partly by a small parcel which is designated Residential High Density. This small parcel has existing dwellings and has non-conforming density. Across Fox Lake Road to the north is land which is designated Residential High Density. To the east of the property, between the property and the neighborhood where Petitioner resides, is land which is designated Residential Low Density and is zoned for single- family homes on lots of at least one acre. Petitioner's neighborhood comprises 14 homes on lots that generally range in size from one acre to 4.5 acres, with one 10-acre lot. No other homeowners in Petitioner's neighborhood challenged the amendment, even those persons who live closer to the property than Petitioner. The southern border of the property is bounded by Commercial High Intensity, Conservation, and Educational land uses. The Education designation covers the site of Apollo Elementary School. The property has access to urban services, including public utilities. The land uses designations created by the amendment are compatible with the surrounding land uses. More specifically, the Commercial Low Intensity designation is compatible with Petitioner's neighborhood because the neighborhood is separated from the commercial use by almost 300 feet, with other residential land uses between. The Conservation Designation Petitioner's challenge to the amendment focuses primarily on the change in the area previously designated Conservation. She contends that the area should remain Conservation because she relied on the designation, and the former Conservation designation protects upland wildlife. When it adopted its first comprehensive plan in 1988, the City designated Conservation areas on the FLUM to correspond with wetlands as depicted on a 1988 National Wetland Inventory map prepared for the U.S. Fish and Wildlife Service. From time to time since 1988, the City has modified the boundaries of Conservation areas depicted on the FLUM when, in the process of reviewing land development proposals, the City has received more current and detailed information about the boundaries of particular wetlands. Petitioner claims that it is wrong for the City to use wetlands, alone, as a basis for designating Conservation areas. She cites statements made by the City in 1988 as evidence that the City intended for the Conservation designation to cover some upland areas as well as wetlands. Goal 1, Objective 6, Policy 3 in the Conservation Element states that "at a minimum," the 1988 Wetland Inventory Map will be used to define Conservation areas. Policy 3 allows the City to designate Conservation areas to correspond only with wetlands, and that has been the City's consistent practice. It is reasonable for the City to continue that practice in the adoption of the amendment at issue in this case. The amendment is consistent with this policy. Protection of the Wetland's Functional Values Petitioner contends that the amendment is inconsistent with comprehensive plan policies and with Florida Administrative Code 9J-5.013(3), related to protecting the functional values of wetlands. Petitioner did not present competent evidence that any functional values of the wetland on the property would be adversely affected by the amendment, but she does not think an adequate functional value assessment was done for the wetland. Goal 1, Objective 6 of the Conservation Element is to "encourage preservation/protection of wetlands according to their function." Policy 1, Strategy 1 states that "The protection of wetlands shall be determined by the functional value of the wetland." Other related policies and strategies in the Conservation Element indicate that this objective is to be accomplished in part through land development regulations. For example, Policy 3, Strategy 6 states that "Mitigation for unavoidable impacts to wetlands which possess significant functional value, as determined by a functional value assessment, will be addressed in the land development regulations." Florida Administrative Code 9J-5.013(3)(a) states: Wetlands and the natural functions of wetlands shall be protected and conserved. The adequate and appropriate protection and conservation of wetlands shall be accomplished through a comprehensive planning process which includes consideration of the types, values, functions, sizes, conditions and locations of wetlands, and which is based on supporting data and analysis. The City interprets its comprehensive plan policies as satisfied if wetland impacts are avoided. The wetland analysis conducted for the amendment at issue in this case was adequate because the entire wetland is included in the Conservation designation and, therefore, appropriate planning level protection is provided for the wetland. The adjacent Commercial Low Intensity designation, standing alone, does not mean that adverse impacts to the wetland will occur. Intervenor's proposed development, for example, provides a buffer from the wetland and does not propose to have an impact to the wetland. The City's interpretation and application of the comprehensive plan objectives and policies related to protecting wetland functional values was not shown to be unreasonable. The amendment was not shown to be inconsistent with the comprehensive plan nor with Florida Administrative Code Rule 9J- 5.013(3)(a). Compatibility Petitioner contends that the amendment also violates Florida Administrative Code Rule 9J-5.013(3)(b) because it directs incompatible land uses into wetlands. The amendment places all of the wetlands on the property under the Conservation land use designation. Neither the Residential Low Density designation nor the Commercial Low Intensity designation is placed in the wetlands. The amendment eliminates an incompatible Residential High Density designation that was formerly in the wetlands. Petitioner failed to show that the amendment directs incompatible uses into the wetlands. Petitioner contends the amendment is inconsistent with Objective 1.13 and Policy 1.13.1 of the Future Land Use Element (FLUE), which require compatibility with "environmentally sensitive areas;" and Policy 1.6.1 which requires elimination or minimization of negative impacts to environmentally sensitive areas caused by commercial land uses. "Environmentally sensitive areas" are not defined in the comprehensive plan, but discussed in the Conservation Element are (1) habitat for threatened and endangered species, (2) important natural resources, (3) critical habitat, and (4) streams, lakes, rivers, estuaries, and wetlands. The types of "environmentally sensitive areas" on the property are wetlands and habitat for a threatened species, the gopher tortoise. As found above, the amendment does not direct commercial uses into the wetlands. Petitioner did not show where the gopher tortoise habitat is located on the property but claims that Intervenor’s proposed commercial project fails to protect that habitat. The property has not been designated as critical habitat for the gopher tortoise. In fact, no critical habitat has been designated in Florida for the gopher tortoise because there are many areas in the state that provide suitable habitat for this species. In Florida, it is common for land developers to seek and obtain approval from state and federal regulatory agencies to remove and relocate gopher tortoises to other areas which have suitable gopher tortoise habitat. Developers also have the option to build near the burrows as long as they are not disturbed. Goal 1, Objectives 1 and 2, Policy 3 of the Conservation Element states that "any public or private use of land greater than three (3) acres in area shall require a management plan designed to minimize harm to the species and its habitat.” Such a management plan, however, would be submitted as part of a re-zoning or development proposal and, therefore, the adequacy of any management plan submitted by the Intervenor in this case is not a relevant inquiry. Petitioner argues that the relocation of the gopher tortoises to other suitable habitat would not be consistent with the comprehensive plan's policy to protect habitat. For threatened and endangered species ("listed species") other than the gopher tortoise, relocation might be impracticable or inappropriate, and, therefore, inconsistent with the comprehensive plan. However, for gopher tortoises, their relocation is often determined to be practicable and appropriate, and it has been the practice of the City and of the state and federal regulatory agencies to allow their relocation. There is no policy in the comprehensive plan that clearly requires gopher tortoises and their habitat to be managed differently in Titusville than in other areas of the state. A local government's future land use designation has no effect on the regulation and protection of listed species, including gopher tortoises, afforded under state and federal law. Any land use, including a single-family residence, has the potential to disturb the habitat of gopher tortoises. Although Petitioner is correct in her view that the Conservation designation is more likely to avoid habitat disturbances and the need to re-locate gopher tortoises on the property than the Commercial Low Intensity designation, that factor, standing alone, does not require a finding that the amendment is not in compliance. Restricting Development Petitioner contends that the amendment is inconsistent with FLUE Policy 1.6.1 E because the City did not impose conditions regarding hours of operation, visual impacts, and privacy factors on the Intervenor's proposed development in the Commercial Low Intensity area. This policy only requires that such matters be considered. The City approved the concurrent rezoning of property with a condition that a six-foot wooden fence be placed along the boundary between the commercial project and the adjacent residential area. The City also required Intervenor to place the wetland under a conservation easement, to provide a buffer zone around the wetland, and to prepare and submit a gopher tortoise management plan prior to development of the property. Petitioner failed to show that controls were not considered by the City or that the amendment is incompatible due to the lack of adequate controls. Road Access Petitioner contends the amendment is inconsistent with FLUE Policy 1.6.1 A, which states that sites for commercial development at collector/arterial intersections are appropriate "provided minimal access is necessary on the collector street." The site plan for the proposed commercial development shows a primary entrance on South Street, an arterial road. A secondary, side entrance is on the collector street, Fox Lake Road. Petitioner failed to show how the amendment was inconsistent with Policy 1.6.1 A. Open Space and Recreation Zoning Petitioner contends the amendment violates the City's land development regulations (LDRs) because the LDRs place an Open Space and Recreation (OR) zoning classification on all Conservation lands on the FLUM, and describe OR as a "permanent" classification. This argument is not persuasive, because the characterization of the OR zoning classification as "permanent" in the LDRs is merely to distinguish OR from certain other classifications which are used as "holding" or temporary classifications. The word "permanent" in this context merely means that the OR classification is treated the same way as normal zoning classifications, which are "permanent" unless there is a re- zoning by the City. The City has modified or eliminated OR districts many times in conjunction with updated wetland delineations. Market Analysis Petitioner contends the amendment in inconsistent with FLUE Policy 1.6.1 I because a market analysis was not conducted. The policy states: Commercial land use shall be limited to those areas designated as commercial or mixed use on the Future Land Use Map except as may be permitted by the Planned Development Regulations. Requests to increase and/or convey commercial land rights to an alternate site must be accompanied by adequate analysis to prove necessity for such request. The applicability of this policy was not shown. The first sentence of the policy appears to be self-evident; limiting commercial uses to land designated for commercial uses. The meaning of “Planned Development Regulations” was not explained. Perhaps it is a typographical error and was intended to refer to “Land Development Regulations.” The meaning intended for the term “commercial land rights” was not explained, nor was it explained how this amendment involves a request to increase or convey commercial land rights to an “alternate” site. A market analysis is more typically associated with a specific development proposal, because that allows the analysis to be focused on a particular service or product. Petitioner argues that the policy requires a market analysis for any FLUM amendment that creates a new commercial land use designation. If she is correct, the market analysis would necessarily be a more general one. The City conducted a general market analysis and determined that the residential development in the surrounding area provided a market for a commercial use on the property. That is a reasonable conclusion. If FLUE Policy 1.6.1 I is applicable to this amendment, the amendment is consistent with the policy. Archaeological Resources Petitioner amended her petition to allege that the amendment was improper because it was incompatible with the protection of an Indian mound on the property. However, no admissible evidence was presented to show that an Indian mound exists on the property, where it is located, or how the amendment would cause it to be disturbed. As with listed species, a local government's land use designations have no effect on the state regulation and protection of archaeological resources.
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 amendment is "in compliance" as defined in Chapter 163, Part II, Florida Statutes. DONE AND ENTERED this 20th day of June, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 2008.
The Issue Whether Respondent, while serving as an appointed member of the Ocoee Planning and Zoning Commission, violated section 112.313(7)(a), Florida Statutes (2015)1/ by having a contractual relationship that conflicted with his official responsibilities; and, if so, the appropriate penalty.
Findings Of Fact At all times material to the complaint, Respondent served as an appointed member of the Ocoee P & Z Commission. Respondent is subject to the requirements of part III, chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees, for his acts and omissions during his tenure on the P & Z Commission. As a member of the P & Z Commission, Respondent is subject to the “Ocoee Florida Land Development Code, Section 3, Planning and Zoning Commission [Land Development Code].” Section 3-2 of Land Development Code provides in part as follows: Establishment and Membership The Planning and Zoning Commission shall consist of nine (9) members appointed by the City Commission and one member appointed by the School Board of Orange County as a non- voting member. The member appointed by the School Board of Orange County shall attend those meetings at which the Planning and Zoning Commission considers comprehensive plan amendments and rezonings that would, if approved, increase residential density on the property that is the subject of the application. No member shall be an employee of the City of Ocoee and all members, except the member appointed by the School Board of Orange County, shall be residents of the City of Ocoee. When selecting members to the Planning and Zoning Commission, the City Commission shall attempt to select persons from different geographical areas within the City so as to create geographical diversity and representation. * * * E. Compliance with Laws The Planning and Zoning Commission, and its individual members, shall comply with all applicable laws relative to public bodies, including disclosure of interests and procedure[s] for refraining from participation [when] a conflict of interest exists. * * * G. Duties and Responsibilities To act as the Local Planning Agency (LPA) of the City of Ocoee, pursuant to Section 163.3174, Florida Statutes, and to prepare on its own initiative recommendations for amendments to the Comprehensive Plan of the City of Ocoee, including text and/or maps, and to forward such amendments to the City Commission for consideration. No such recommendation shall be made except after a public hearing held in accordance with State and local requirements. To review and make recommendations to the City Commission on applications for amendments to the Comprehensive Plan. No such recommendation shall be made except after a public hearing held in accordance with State and local requirements. To prepare on its own initiative recommendations for amendments to this Code, text and/or maps, and to forward such amendments to the City Commission for consideration. No such recommendation shall be made except after a public hearing held in accordance with State and local requirements. To review and make recommendations to the City Commission on applications for amendments to this Code, including applications for annexation or change of zoning. Pursuant to Section 163.3174(4)(c), Florida Statutes, the Planning and Zoning Commission shall also have the responsibility to review and make a finding as to the consistency of the proposed land development regulation with the adopted Comprehensive Plan and to report such finding to the City Commission. No such recommendation shall be made except after a public hearing held in accordance with State and local requirements. To review and make recommendations to the City Commission on applications for various development approvals or permits as provided within this Code, including, but not limited to Planned Unit Developments (PUD), special exceptions, subdivisions, and any other application for which the City Commission requests a report and/or recommendation. Where a public hearing is required by the applicable procedural section, no such recommendation shall be made except after a public hearing held in accordance with State and local requirements. To act in an advisory capacity to the City Commission on land use and land development issues and to make such studies and to conduct such investigations as may be requested from time to time by the City Commission. To review zoning of newly annexed lands when it represents an increase in intensity of use or a conflict with the Comprehensive Plan pursuant to requirements of State law and City ordinance. In addition to serving on the P & Z Commission, Respondent buys and sells commercial real estate. Respondent is a manager and shareholder in W.O.R.Y. INVESTORS, LLC (WORY), an entity that is also in the business of buying and selling commercial real estate. Respondent, in his individual capacity, owned approximately four acres, which abutted six acres owned by WORY. Both properties have an address on West Road in Ocoee, Florida, and will be referred to collectively herein as the “West Road property.” The Contract On or about November 11, 2015, Respondent, in his individual capacity, and as manager for WORY, executed an “Agreement of Sale” wherein the West Road property was to be purchased by Charter Schools Development Group, LLC (buyer), for $1,890,540. According to the Agreement of Sale, the buyer wanted to “develop and construct on the Property a K-8 public charter school.” The Agreement of Sale contained a number of contingencies, referred to in the contract as “Buyer Required Approvals,” that Respondent was required to satisfy prior to finalization of the sale of the West Road property. Paragraph six of the Agreement to Sale sets forth a number of the pre-sale contingencies imposed on Respondent, and the same provides as follows: 6. Development The Buyer intends to develop and construct on the Property a K-8 public charter school and adjacent commercial development acceptable to Buyer consisting of buildings and other improvements including, but not limited to recreation fields, related landscaping, open space, storm water, and appropriate parking (the "Project"). Buyer's obligation to complete the purchase of the Property from Seller in accordance with the terms of this Agreement is contingent upon the satisfaction of each of the following conditions with regard to the Property (each of which may be waived in whole or in part in writing by Buyer): Buyer has obtained final, unappealed and unappealable approvals from all necessary governmental authorities (including governmental agencies), for zoning, utilities and any other approvals (including necessary parking requirements) Buyer deems necessary, in its sole discretion, permitting the construction and use of the improvements comprising the Project, including but not limited to any required special exception. Buyer has obtained final, unappealed and unappealable approvals and/or permits required by any and all governmental authorities (including governmental agencies) so that the Property shall have immediate and adequate access to water, sewer and all other utilities in accordance with the final approved site development plan. Buyer has obtained final, unappealed and unappealable approvals and/or permits required by any and all governmental authorities (including governmental agencies) for storm water management; including easements and agreements for constructing and maintaining storm water basins; all wetlands studies and approvals in such form that wetlands, if any, shall not preclude construction of roads, utilities, storm water management facilities, any other required improvements for erection of buildings on the Property. Buyer has obtained all permits and approvals, and all conditions thereof shall have been satisfied, so as to allow for recording of the final plan and issuance of building permits subject only to satisfaction of the following requirements by Buyer at or after Closing (i) submission of construction drawings in accordance with applicable law, (ii) execution by the Buyer of the necessary development agreements, (iii) execution and funding by Buyer of the necessary escrow agreements for municipal improvements, and sewer and water improvements, and (iv) payment by the Buyer of all municipal fees and charges associated therewith. Subject to Seller's obligation set forth in Section 6(f) below, Buyer has obtained any and all other easements, approvals and/or permits that may be necessary to construct and use the improvements comprising the Project. Buyer shall obtain, at no additional cost to Seller, all easements and roads that in Buyer's sole reasonable discretion are necessary for property access, utilities and signage to the Property in accordance with Buyer's final approved site development plan. The items referred to in subsections 6(a) through 6(f) hereof shall hereafter be referred to as the "Buyer Required Approvals." After the end of the Inspection Period, Buyer shall diligently proceed with the filing of all applications necessary for obtaining the Buyer Required Approvals. Seller agrees, at no expense to Seller, to cooperate with buyer in connection with the Buyer Required Approvals to the extent of signing all applications necessary for obtaining the buyer Required Approvals and appearing and testifying at the various hearings. Seller's cooperation as aforesaid shall not entitle Seller to any additional compensation. All permit fees, studies, deposit and investigation costs incurred in connection with the Buyer Required Approvals shall be the sole responsibility of buyer and buyer agrees to affirmatively use its good faith efforts to obtain all of the Buyer Required Approvals without delay and as expeditiously as reasonably possible. Seller hereby grants to Buyer a power of attorney to file, on Seller's behalf, all applications related to the Buyer Required Approvals; provided, however, that the Land shall not be rezoned prior to the expiration of the Inspection Period. Seller acknowledges that buyer will likely contact, meet with and/or obtain consents for the Project from neighboring property owners during the Inspection Period and in the process of obtaining the Buyer Required Approvals. (emphasis added). None of the provisions of paragraph six of the Agreement of Sale were waived by either party. Paragraph 15(b) of the Agreement of Sale provides as follows: (b) If Seller shall violate or fail (in breach of its obligations hereunder) to fulfill or perform any of the terms, conditions or undertaking set forth in this Agreement within ten (10) days written notice from Buyer or (five (5) days written notice in the event of a monetary default), Buyer shall be entitled to: (i) terminate this Agreement and receive the return of the Deposit and reimbursement of Buyer's documented out-of-pocket due diligence expenses up to $15,000.00, and, thereupon, the parties hereto will be released and relieved from all provisions of this Agreement, or (ii) pursue specific performance. Paragraph 17 of the Agreement of Sale states that “[b]uyer and Seller agree to cooperate with each other and to take such further actions as may be requested by the other in order to facilitate the timely purchase and sale of the Property.” Paragraphs 6, 15(b) and 17 of the Agreement of Sale obligated Respondent to take all steps necessary, including “appearing and testifying at the various hearings,” for ensuring that the “Buyer Required Approvals” were satisfied, which in turn would allow Respondent to receive his share of the purchase price for the West Road property. Section 112.311(1), provides in part that “[i]t is essential to the proper conduct and operation of government that public officials be independent and impartial and that public office not be used for private gain other than the remuneration provided by law.” Rezoning and Respondent’s Role In order for a charter school to be built on the West Road property, it was necessary to rezone the existing planned unit development land use plan covering the property. Ocoee City Planner Michael Rumer testified that there are two types of rezoning. There is a straight rezoning to a zoning category listed in the land development code and there is rezoning to a planned unit development (PUD). Both types of zoning use the following process: an application is filed; then there is a review process by a development review committee, which is a staff level review; that review is forwarded to the P & Z Commission for a recommendation; and then it goes to the Ocoee City Commission for two readings of an ordinance for rezoning if the rezoning is approved. This is the process that was followed for the West Road property PUD. On February 9, 2016, the issue of whether to recommend rezoning of the West Road property to allow for the charter school referenced in the Agreement of Sale came before the P & Z Commission. Respondent was present for the meeting. During the meeting, Respondent spoke in favor of the rezoning request for the West Road property. When a fellow commissioner made a request for more time to review the rezoning issue, Respondent opposed the delay by stating “[i]f you don't give them a go now, you basically kill the deal because it's a time sensitive thing that they want the kids in there in August.” During the meeting, the commissioners struggled with whether to recommend denial of the West Road property zoning request, recommend approval of the request without conditions, or recommend approval of the request with conditions. After two previous motions regarding the zoning request died for lack of a “second,” a third motion was made wherein approval was recommended “with the condition that we’re all going to look at the traffic movement with the final site plan design.” When it appeared as though this motion was also likely to fail for lack of a “second,” Respondent encouraged the chairman of the P & Z Commission to voice a “second” for the motion since Respondent was unable to do so.2/ Respondent’s actions during the meeting of February 9, 2016, were consistent with his obligations under the Agreement of Sale to assist the buyer of the West Road property with securing the “Buyer Required Approvals.”
Recommendation Based on the Findings of Facts and Conclusions of Law, it is RECOMMENDED that a civil penalty of $10,000.00 be imposed against Respondent due to his violation of section 112.313(7)(a) and that Respondent also be publicly censured and reprimanded. DONE AND ENTERED this 10th day of April, 2017, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 10th day of April, 2017.
The Issue The issue is whether Village Ordinance No. 01-08, which regulates sexually oriented businesses, is inconsistent with the Principles for Guiding Development in the Florida Keys Area of Critical State Concern, pursuant to Section 380.0552, Florida Statutes.
Findings Of Fact On June 14, 2001, Respondent Islamorada, Village of Islands (Village), adopted Ordinance No. 01-08 (Ordinance). The Ordinance generally regulates the "location and separation" of "sexually oriented businesses." On June 19, 2001, Respondent Department of Community Affairs (DCA) entered a final order determining that the Ordinance is consistent with Section 380.0552, Florida Statutes (Principles for Guiding Development). In particular, the Ordinance applies to "regulated business[es]." These are defined as "[s]exually oriented bookstore[s]," "[s]exually oriented domination/submission parlor[s]," "[s]exually oriented mini motion picture theater[s]," "[s]exually oriented motel[s]," "[s]exually oriented motion picture theater[s,]" [e]ncounter studio/modeling studio[s]," and "[n]ude entertainment establishment[s]." The Ordinance defines a "[n]ude entertainment establishment" as: any establishment which does or does not offer alcoholic beverages for sale or consumption but does feature male or female entertainers, performing partially clothed, or completely nude, displayed in a setting, stage, or cubicle within a business, which has as its principal and incidental purpose the offering for viewing to adults of performances which have as their dominant or primary theme matters depicting, describing or relating to "specified sexual activities" or "specified anatomical areas," as defined below. The Ordinance defines "specified sexual activities" as: Human genitals in a state of sexual stimulation, arousal, or tumescence; or Acts of human anilingus, bestiality, buggery, cunnilingus, coprophagy, coprophilia, fellatio, flagellation, masochism, masturbation, recrophilia, pederasty, pedophilia, sadism, sadomasochism, sexual intercourse or sodomy; or Fondling or other erotic touching of human genitals, pubic region, buttock, anus, or female breast; or Excretory functions as part of or in connection with the activities set forth in subsections (1) through (3). The Ordinance defines "specified anatomical areas" as: Less than complete and opaquely covered: Human genitals and pubic region; or Cleavage of the human buttocks; or That portion of the human female breast encompassed within an area falling below the horizontal line one would have to draw to intersect a point immediately above the top of the areola, including the areola; this definition shall include the entire lower portion of the human female breast, but shall not include a portion of the cleavage of the human female breast exhibited by a dress, blouse, shirt, leotard, bathing suit or other wearing apparel, provided the areola is not so exposed; and Human male genitals in a discernible turgid state, even if completely and opaquely covered. The Ordinance provides that "regulated businesses" are permitted within the Industrial "I" Future Land Use category, subject to several restrictions. These restrictions include a 400-foot setback from the property line of any property designated on the future land use map, zoned, or used for residential purposes; or a 100-foot setback from the property line of any property used for a place of worship, park, or school. The Ordinance requires that, within 90 days of the effective date, all legal nonconforming "regulated businesses" shall conform to the provisions of the Ordinance, or the use shall be terminated. The Ordinance explains the legislative intent underlying its passage as follows: It is the intent and purpose of this [Ordinance] to regulate the location and separation of sexually oriented businesses, referred to herein as "regulated businesses," which, because of their very nature, are recognized as having serious objectionable operational characteristics, particularly when they are located near properties designated, zoned or used for residential purposes or used for places of worship, parks or schools, thereby having a deleterious effect upon the adjacent areas. Further, it is recognized that the location of even one regulated business near such an area causes such deleterious effects on that area. Special regulation of these businesses is necessary to ensure that these adverse effects will not contribute to the blighting or downgrading of the surrounding neighborhood, as provided herein. . . . Petitioner operates a restaurant and nightclub known as Woody's in Islamorada. Originally a roadhouse, Woody's has been in business since 1987. During the time that it has been in business, Woody's has offered adult entertainment featuring the band known as "Big Dick and the Extenders." Jack Snipes, the large man who is the "Big Dick" of "Big Dick and the Extenders," is a part owner of Woody's. The double entendre implicit in the name of the band exemplifies the sexual content that laces the band's show, which relies heavily on sexually explicit language, sexual props, and occasional baring of female breasts and male and possibly female buttocks. Historically, most of the nudity was occasional, largely spontaneous, and displayed by the crowd, rather than the band or employees of Woody's (Mardi Gras-Style Nudity). In May 2001, Woody's abandoned Mardi Gras-Style Nudity in favor of live nude dancing performed by dancers hired by Woody's. The dancers performed for the entire crowd or, for a tip, performed for a specific customer. However, Woody's allowed only dancing on the stage or table and prohibited physical contact between any dancer and any customer. Woody's is unobtrusive, although it abuts U.S. Route A1A. Surrounding Woody's are restaurants, boat yards, marinas, and stores. Woody's is not a notorious focal point of drug activity or prostitution. To the contrary, Mr. Snipes and his band have given freely of their time for charitable fundraising, according to the pastor of a local Methodist church. Some island residents view Woody's as an essential ingredient of their community and would not require Woody's to relocate. Other residents, such as those serving on the Village Council, probably do not view Woody's as an essential ingredient of their community and certainly would require Woody's to relocate. Woody's is not presently in an Industrial future land use category. The two areas designated Industrial on Islamorada's future land use map are on Plantation Key and comprise 24 acres, of which ten acres would be unavailable to a regulated business such as Woody's due to buffering requirements. DCA overcame all of Petitioner's objections to the Ordinance. Petitioner claimed that the Ordinance lacked specificity, such as floor-area ratios. However, the Ordinance applies an overlay of a new permitted use--regulated businesses--in areas designated Industrial. Other provisions of the comprehensive plan and land development regulations governing land uses in Islamorada will provide more specific guidelines concerning permitted land uses, including regulated businesses. Petitioner claimed that Woody's would be forced by economic necessity to relocate, if it had to revert to Mardi Gras-Style Nudity and that Woody's could not find an economically viable site within the Industrial areas in Islamorada. DCA proved that these claims were ungrounded. Petitioner claimed that the relocation of Woody's to an Industrial area would take it out of the commercial area in which it is presently located and place it in closer proximity to a church, park, and school. However, DCA proved that this relocation represented no more than a potential for incompatibility of land uses. More importantly, DCA proved that this relocation produced no meaningful inconsistency between the Ordinance and the comprehensive plan and land development regulations governing land uses in Islamorada such that would jeopardize Islamorada's planning capabilities. The Ordinance is not inconsistent with the principle of strengthening Islamorada's capabilities for managing land use and development, so that the local government may achieve these objectives without the ongoing designation of a critical area of state concern. An inconsistency with this criterion of the Principles for Guiding Development must be sufficiently significant to jeopardize the ability of the local government to engage in effective land use planning so as to protect the natural environment of the Florida Keys. DCA has proved that possible inconsistencies, if any, between the Ordinance and any provision of the comprehensive plan or land development regulations governing land uses in Islamorada would be insubstantial. The Ordinance is not inconsistent with the principle of ensuring the maximum well-being of the Florida Keys and its citizens through sound economic development. Neither the Ordinance nor the disappearance or relocation of Woody's and "Big Dick and the Extenders" will have any measurable impact on the economy of the Florida Keys. The Ordinance is not inconsistent with the principle of protecting the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource. Neither the Ordinance nor the disappearance or relocation of Woody's and "Big Dick and the Extenders" will have any measurable impact on the public health, safety, and welfare of the citizens of the Florida Keys or the maintenance of the Florida Keys as a unique Florida resource. The Ordinance and the disappearance or relocation of Woody's and "Big Dick and the Extenders" will have no impact whatsoever on the natural resources and public facilities typically within the scope of the Principles for Guiding Development.
Recommendation It is RECOMMENDED that the Department of Community Affairs enter a final order determining that Islamorada Ordinance No. 01-08 is consistent with the Principles for Guiding Development, as set forth in Section 380.0552(7), Florida Statutes. DONE AND ENTERED this 15th day of February, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2002. COPIES FURNISHED: Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100 Steven G. Mason Steven G. Mason, P.A. 1643 Hillcrest Street Orlando, Florida 32803 Karen A. Brodeen, Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 Daniel A. Weiss Weiss Serota 2665 South Bayshore Drive, Suite 420 Miami, Florida 33133
The Issue At issue in this case is whether the Florida Land and Water Adjudicatory Commission (FLWAC) should grant the Petition to Amend the Boundary of the Villages of Westport Community Development District (CDD, or District) filed on December 23, 2005 (Petition), as amended and supplemented.
The Issue The issue in this case is whether Pasco Comprehensive Plan Amendments CPA 09-1(12), adopted by Ordinance 09-25, and CPA 09- 1(10), adopted by Ordinance 09-26, are “in compliance,” as defined by section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact Petitioners, Angelo Iafrate Construction Company and Angelo’s Aggregate Materials, Ltd., own property and operate businesses in Pasco County. Petitioner, Stony Pointe Limited Partnership, owns property in Pasco County. Petitioners submitted oral or written comments, recommendations, or objections to Pasco County Ordinances 09-25 and 09-26 during the time period beginning with the transmittal hearing and ending with the adoption hearing. Pasco County Ordinance 09-25 amended the “Future Land Use Appendix, Section FLU A-6, The Official Future land Use Map, General Application, Paragraph 4.” Before the amendment, that part of the comprehensive plan provided that land use classifications on the Future Land Use Map (FLUM) were identified according to the predominant use or maximum level of intensity intended and that other uses, including “public and semipublic uses, may be permitted in any land use classification consistent with the applicable Goals, Objectives, and Policies of the Future Land Use Element.” As amended, that part of the comprehensive plan provided that other uses, including “minor public/semi public uses may be permitted in any land use classification consistent with the applicable Goals, Objectives, and Policies of the Comprehensive Plan.” The amendment also made it explicit that, while minor public/semi-public (P/SP) uses may be permitted in any land use classification, major P/SP uses require either the P/SP Future Land Use Designation or specific inclusion in the range of potential uses of another Future Land Use classification. Also, by insertion of the adjective “sanitary,” it specified that the landfills included in the general range of potential uses in the P/SP future land use category referred to sanitary landfills. Ordinance 09-25 amended the Glossary to define “Construction and Demolition Debris” and “P/SP Facilities.” It stated that P/SP Facilities “conducted entirely by the public sector shall be considered public; uses not entirely public shall be considered semi-public.” It also gave examples of major and minor P/SP facilities. Major P/SP facilities include: “Power plants, sanitary landfills, wastewater treatment plants larger than 4 mgd, and other similarly scaled uses.” Minor P/SP facilities include: “Roads, sidewalks, libraries, parks, street lights, lift stations, transfer stations, pumping stations, fire stations, police/sheriffs [sic] stations, electric substations, transportation corridors and other similarly scaled uses.” Ordinance 09-25 also states: “In circumstances where this Comprehensive Plan does not establish the major/minor status of a proposed facility, the Growth Management Administrator shall make that determination based on the size, scale, and impact of the proposed facility. Further delineation of major and minor may be provided in the Land Development Code.” Before those amendments, public facilities were defined as: “Publicly owned, operated, franchised, licensed, or regulated facilities which provide water, sewer, solid waste[,] drainage, schools, and transportation services to the residents and visitors of Pasco County.” P/SP facilities were defined as: “Land uses, such as schools, hospitals, and airports, in which government is a major participant and from which the public benefits.” The definition of “landfill” (“Those lands, public and private, which are used for the purpose of disposing sanitary solid waste.”) was deleted. A definition for “sanitary landfill” was added: “Any solid waste land disposal area for which a permit, other than a general permit, is required by s. 403.707 Florida Statutes, and which receives solid waste for disposal in or upon land. The term does not include a land- spreading site, an injection well, a surface impoundment, or a facility for the disposal of construction and demolition debris.” Ordinance 09-25 amended the “Solid Waste Sub-Element of the Public Facilities Element, Summary of Solid Waste Issues, Disposal.” The amendment added a statement that there are private solid waste disposal facilities throughout the County; added Policy SWT 4.1.3, stating that semi-public solid waste management facilities can be integrated into the solid waste management system to achieve the adopted LOS standard; deleted Policy SWT 4.4.5, which prohibited landfills in certain environmentally sensitive areas where they would not be consistent with other elements of the Comprehensive Plan; and amended Policy SWT 4.5.2, which limited the location of landfills, to limit the location of sanitary landfills by prohibiting them in those sensitive areas, consistent with other elements of the Comprehensive Plan. Pasco County Ordinance 09-26 added Future Land Use Objective 1.10.1 on Compatibility and Policies 1.10.1 through on compatibility review, compatibility through appropriate design, residential compatibility/transition, and industrial compatibility and performance measures. It also renamed the “Appropriate Transitional Land Uses” general guide table, which is now called the “Transitional Land Uses General Guide,” and made minor changes in the guide. Principal Effect of Amendments Before Ordinance 09-25, minor P/SP facilities were allowed in any land use classification “consistent with the applicable goals, objectives, and policies of the Future Land Use Element.” Ordinance 09-25 clarifies that such facilities also have to be consistent with applicable goals, objectives, and policies elsewhere in the comprehensive plan. Before Ordinance 09-25, minor P/SP facilities did not have to be mapped; after Ordinance 09-25, minor P/SP facilities do not have to be mapped. Before Ordinance 09-25, sanitary landfills had to be in the P/SP future land use category or another category that specifically allowed them; the County did not consider construction and demolition debris facilities to be landfills, and they did not have to be in the P/SP future land use category or in another category that specifically allowed them; they just had to be consistent with other elements of the comprehensive plan. Ordinance 09-25 clarifies this interpretation of the comprehensive plan. Density and intensity standards for P/SP have not changed as a result of Ordinance 09-25. Before Ordinance 09-25, they were “not applicable”; after Ordinance 09-25, they are “not applicable.” Before Ordinance 09-25, P/SP facilities did not have to be publically owned; rather, they were defined as “publicly owned, operated, franchised, licensed or regulated facilities.” This definition has been interpreted by the County as including private facilities that are franchised, licensed, or regulated. Ordinance 09-25 clarifies this interpretation. Intensity Standards Petitioners contend that Pasco County Ordinance 09-25 makes substantive changes to the Comprehensive Plan and does not include the intensity standards required for P/SP under Section 163.3177(6)(a) and Rule 9J-5.006(3)(c)(7). Even if the changes are considered to be substantive, it is appropriate not to have intensity standards for P/SP. Intensity applies to non-residential use, but logically should only apply to such uses that generate impacts and the need for public services. P/SP responds to impacts and the need for public services generated by other uses. It is logical and appropriate not to have intensity standards for P/SP. Meaningful and Predictable Standards Petitioners allege that Ordinance 09-25 does not establish meaningful and predictable standards and meaningful guidelines for land development regulations (LDRs) because: (1) it does not provide a clear distinction between major and minor P/SP facilities; (2) it does not provide adequate guidance to determine when the P/SP category applies to a particular use; (3) it does not provide meaningful and predictable standards for the growth management administrator; and (4) it does not provide meaningful and predictable standards for private owners. Petitioners’ specific concern is that the amendment does not make clear whether a construction and demolition debris facility will be determined to be major or minor. Before Ordinance 09-25, construction and demolition debris facilities were considered to be minor. Ordinance 09-25 does not require them to be major but leaves open the possibility that they could be considered major, depending on their size, scale, and impact. This determination will require the exercise of judgment. But the requirement that comprehensive plans provide meaningful and predictable standards and meaningful guidelines for LDRs does not prohibit the exercise of judgment. Petitioners contend that Ordinance 09-25 is deficient because its lists of examples of major and minor P/SP facilities are not exhaustive or explicit, and many factors must be taken into account to determine whether a particular facility would be major or minor. In addition, Petitioners point out that libraries, parks, and police stations are listed generally as examples of minor facilities, but those facilities could be considered to be major if regional and of sufficient size, scale, and impact. But those examples of minor facilities were intended to connote typical neighborhood-scale libraries, parks, and police stations. Although the amendment could have been written more clearly, Ordinance 09-25 as a whole gives the growth administrator sufficient guidance to make a judgment whether a particular construction and demolition debris facility is major or minor. The growth management administrator’s exercise of judgment is subject to review by the Board of County Commissioners (BOCC). Petitioners contend that this review procedure removes the standards and guidelines in Ordinance 09- But the BOCC must be guided by the same considerations as the growth management administrator. The procedure for review by the BOCC does not detract from the standards and guidelines that govern both. Petitioners contend that Ordinance 09-26 makes substantive changes to the Comprehensive Plan that do not provide predictable and meaningful standards and meaningful guidelines for LDRs because it does not: (1) provide standards related to the land use classifications to which it applies; (2) specify how the policies are to be integrated into LDRs; and (3) direct that it shall be implemented by the LDRs. The comprehensive plan has residential compatibility standards in Future Land Use Element (FLUE) policies 1.4.2, 1.4.3, and 1.4.4. These have been found to be in compliance. Ordinance 09-26 adds an objective and four policies on compatibility in general. Ordinance 09-26 provides predictable and meaningful standards and meaningful guidelines for LDRs. It is not necessary to name all the future land use classifications to which Ordinance 09-26 applies; it is not necessary to further specify how Ordinance 09-26 is to be integrated into LDRs; and it is not necessary to direct that Ordinance 09-26 shall be implemented by the LDRs. Data and Analysis Petitioner contend that Ordinance 09-25 is not supported by data and analysis demonstrating that solid waste LOS standards will be met and maintained, that there will be adequate land for solid waste facilities and other major P/SP facilities to support future land use needs, and that the County will be able to monitor compliance with the solid waste LOS standards. Ordinance 09-25 does not change the County’s solid waste capacity or its solid waste stream. The solid waste LOS standard in Pasco’s comprehensive plan is for solid waste requiring a sanitary landfill and for other solid waste other than construction and demolition debris. Ordinance 09-25 has no effect on the LOS standard because the amendment does not add to the solid waste stream or subtract from capacity. For the same reasons, it does not affect the County’s ability to monitor compliance. The comprehensive plan designates enough P/SP land to meet the County’s solid waste needs. If needed, more land is available to be added to the County’s solid waste disposal capacity. There also are other ways to handle excess solid waste beside adding P/SP land. Solid waste can be placed under contract to be hauled and disposed of outside the County. Under Ordinance 09-25, as before, minor construction and demolition debris facilities can be sited in any land use category. No additional data and analysis are required. Internal Consistency Petitioners contend that Ordinance 09-25 is internally inconsistent because it fails to coordinate land uses and public facilities, including utilities, and allows premature provision of central water and sanitary sewer, inconsistent with comprehensive plan policies: (1) related to capital improvements; (2) establishing LOS standards for transportation and public facilities; and (3) discouraging the premature provision of central water and sanitary sewer. As indicated, Ordinance 09-25 has no effect on the County’s ability to meet LOS standards. For that reason, it has no effect on the County’s plans for needed capital improvements or the provision of central water and sanitary sewer; and it is not inconsistent with any plan provision on those subjects.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DCA enter a final order finding the comprehensive plan amendments adopted by Pasco County Ordinances 09-25 and 09-26 to be in compliance. DONE AND ENTERED this 22nd day of December, 2010, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2010.
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Petition for Establishment of the Villages of Westport Community Development District (Petition), dated September 4, 2003. The local public hearing was for purposes of gathering information in anticipation of rulemaking by FLWAC.
The Issue The issue in this case is whether the land development regulations (LDRs) adopted by Respondent, City of Sunny Isles Beach (City), by Ordinance No. 2002-165 on December 10, 2002, as amended, are in compliance.
Findings Of Fact Based upon the record presented by the parties, the following undisputed findings of fact are determined: The City sits between the Intracoastal Waterway and the Atlantic Ocean in northern Dade County just south of the Town of Golden Beach (Town) and just north of the City of Bal Harbour. It was incorporated in 1997. As required by Section 163.3161, Florida Statutes, on October 5, 2000, the City adopted its first Comprehensive Plan. See Exhibit E. The Plan was amended by Ordinance No. 2002-147 on January 17, 2002. See Exhibit B. The Plan's Future Land Use Map contains a land use category known as Mixed Use-Resort/High Density (MU-R), which is "designed to encourage development and redevelopment within the area east of Collins Avenue for resort style developments catering to tourists and seasonal residents (hotel, hotel/ apartments, vacation resorts and resort style apartments) as well as high quality residential apartments." The category also allows associated retail uses such as restaurants and conference facilities that are internal and accessory to hotel/resort development. Pertinent to this dispute is Policy 15B of the Future Land Use Element (FLUE), which establishes density and intensity standards for the MU-R land use category. More specifically, the policy provides the following standards: This category allows an as-of-right density of a maximum one hundred (100) hotel- apartment units per acre and fifty (50) dwelling units per acre for apartments and a floor area ratio (FAR) intensity of 2.5. The allowable number of hotel rooms is controlled by floor area ratio. Additional residential density and FAR intensity may be permitted for developments that comply with bonus program requirements. Residential densities with bonuses may not exceed eighty (80) units per acre for solely apartments and one hundred twenty five (125) units per acre for hotel- apartments, exclusive of lockout units. (Emphasis added) Under the foregoing policy, a maximum density of 100 units per acre is allowed for hotel-apartment units, a maximum density of 50 units per acre is allowed for apartments, and a floor area ratio (FAR) intensity of 2.5 has been established. However, the underscored portion of the policy authorizes a bonus density and intensity program which allows a developer to exceed the prescribed density and intensity standards for developments "that comply with bonus program requirements." If the bonus density program requirements are satisfied, the policy establishes a cap for the density bonus at 125 hotel-apartment units per acre and 80 residential units per acre. While the policy does not establish a similar cap for the intensity bonus, it essentially defers the amount of the intensity cap and the details of the bonus program to the LDRs, which are to be adopted at a later time. Objective 8 of the Plan provides that the City "shall adopt, maintain, update and enhance development regulations and procedures to ensure that future land use and development in the City of Sunny Isles Beach is consistent with the Comprehensive Plan." Objective 15 of the Plan provides that the "land use densities, intensities and approaches [contained in Policy 15B] shall be incorporated in the Land Development Regulations." Finally, Section 163.3202(1), Florida Statutes, requires that local governments, within one year after submission of their comprehensive plans, "adopt or amend and enforce land development regulations that are consistent with and implement their comprehensive plan." On December 10, 2002, the City approved Ordinance No. 2002-165, which adopted a comprehensive set of LDRs to implement the Plan. See Exhibit C. In 2003, the LDRs were further amended in minor respects by Ordinance Nos. 2003-167, 2003-171, 2003-173, and 2003-178. See Exhibit D. In sum, the LDRs consist of more than one hundred pages of regulations, and except for one of these, Section 703.8.4(i)3, none of the other LDRs directly relates to this dispute. Section 703.8.4(i)3 implements Policy 15B by outlining the criteria and requirements necessary to qualify for additional intensity or FAR through the bonus program. It also establishes a cap on FAR intensity. If the bonus program requirements are satisfied,3 the regulation allows a maximum intensity bonus of 1.5 FAR, or a potential total FAR of 4.0, which exceeds the 2.5 FAR contained in Policy 15B. (Intensity bonuses to increase the FAR can also be obtained through the transfer of development rights under Section 515 of the LDRs. However, those bonuses are not in issue here.) Petitioners include a group of twelve City residents; the Town, which lies adjacent to, and just north of, the City; and two Town residents. There is no dispute that Petitioners will be substantially affected by the LDRs and thus they have standing to bring this challenge. In their Cross-Motion, which essentially tracks the allegations in their Amended Request for Hearing, Petitioners assert that they, and not the City, are entitled to a summary final order in their favor for three reasons. First, they argue that it is beyond fair debate that all of the LDRs, including Section 703.8.4(i)3, are inconsistent with Policies 4A and 4C of the Intergovernmental Coordination Element of the Plan because the City failed to solicit comments from the Town prior to the adoption of the LDRs. Second, they argue that it is beyond fair debate that the City violated Florida Administrative Code Rule 9J-5.005(2)(g) when it adopted Section 703.8.4(i)3. Finally, they contend that it is beyond fair debate that in order to achieve consistency with the Plan, the LDR must not establish a FAR that is beyond the intensity standard (2.5) established in the Plan. Policies 4A and 4C of the Intergovernmental Coordination Element provide as follows: 4A. The City will notify and solicit comments from adjacent jurisdictions and the School Board of any requests for land use amendments, variances, conditional uses or site plan approvals which impact property within 500 feet of a public school or within 500 feet of the boundaries of an adjacent jurisdiction. 4C. The City will notify and solicit comments from adjacent jurisdictions and the School Board of its existing standards or proposed regulations being considered for problematic or incompatible land uses. Nothing in the two policies requires that the City solicit comments from adjacent jurisdictions when adopting the LDRs being challenged here. Rather, these policies specifically address notice and comments as to "land use" changes, not the adoption of LDRs, or to "regulations being considered for problematic or incompatible land uses." Even assuming arguendo that the two policies require some type of prior notice, Petitioners do not dispute the fact (as set forth in the Department's Determination) that prior to the adoption of the LDRs, "the City notified the Town both in writing and orally". (Determination, Finding of Fact 6). Florida Administrative Code Rule 9J-5.005(2) contains general data and analyses requirements for comprehensive plans. Paragraph (2)(g), which Petitioners assert was violated by the City when it adopted Section 703.8.4(i)3, provides as follows: (g) A local government may include, as part of its adopted plan, documents adopted by reference but not incorporated verbatim into the plan. The adoption by reference must identify the title and author of the document and indicate clearly what provisions and edition of the document is being adopted. The adoption by reference may not include future amendments to the document because this would violate the statutory procedure for plan amendments and frustrate public participation on those amendments. A local government may include a provision in its plan stating that all documents adopted by reference are as they existed on a date certain. Documents adopted by reference that are revised subsequent to plan adoption will need to have their reference updated within the plan through the amendment process. Unless documents adopted by reference comply with paragraph 9J-5.005(2)(g), F.A.C., or are in the F.S., the F.A.C., or the Code of Federal Regulations, copies or summaries of the documents shall be submitted as support documents for the adopted portions of the plan amendment. This rule sets forth the manner in which local governments may adopt and incorporate by reference documents into their comprehensive plans. If they choose to do so, they must identify the title and author of the document being incorporated by reference, the edition of the document, and the specific portion of the document relied upon. Whenever an amendment or change to the incorporated document occurs at a future time, the local government must readopt those changes in order for them to be valid and effective. On its face, the rule applies exclusively to the use of incorporated documents in comprehensive plans, or plan amendments, and has no application to LDRs. In the case of Town of Golden Beach et al. v. City of Sunny Isles Beach et al., No. 03-472AP (Fla. 11th Cir.Ct., Appellate Division, June 15, 2004), a copy of which has been submitted as Exhibit G, Petitioners unsuccessfully sought by petitions for writ of certiorari to quash a City Resolution which granted Intervenor's application to construct a condominium at 19505 Collins Avenue, Sunny Isles Beach. The application sought approval of a site plan for the condominium and approval of the use of the property as a receiver site for the transfer of 38,847 square feet of transfer development rights in accordance with the City's LDRs. In that proceeding, Petitioners contended that they were denied due process because the City failed to provide proper notice to neighboring property owners under Section 515.7 of the LDRs; and that the City violated the essential requirements of the law by improperly transferring development rights and additional floor area ratio through bonuses to the developer, in excess of the 2.5 FAR expressly permitted by the City's Plan and LDRs. The court ruled in favor of the City on both issues. The parties agree, however, that a motion for rehearing of that decision has been filed by Petitioners, and the decision is not yet final. Further, the decision does not clearly indicate whether the same consistency arguments raised here were adjudicated in that matter. The notice issue is not the same.
