The Issue The issue is whether Polk County's small scale development amendment (CPA2003S-02) adopted by Ordinance No. 03-03 on January 22, 2003, as later amended by Ordinance No. 03-19 on March 15, 2003, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Berry is the owner of a tract of land located on the southwest corner of the intersection of Eagle Lake Loop Road (County Road 540-A) and Pollard Road in Section 16, Township 29, Range 26 in the eastern part of unincorporated Polk County, Florida. The property lies south of the City of Winter Haven, east-southeast of the City of Eagle Lake, less than a mile south of Lake Eloise (on which Cypress Gardens is located), and west of U.S. Highway 27. Because Berry owns property within the County, and submitted oral and written comments to the County prior to the adoption of the challenged amendment, it has standing to participate in this action. On July 19, 2002, Berry filed an application with the County Planning Department seeking to change the land use on 9.99 acres (or just below the threshold of 10.0 acres for a small scale amendment) from RL-1 to Neighborhood Activity Center (NAC) to include approximately 4.95 acres of various neighborhood specialty shops such as a grocery store, drug store, convenience store, and dry cleaners, with the remaining acreage used as a mini-warehouse self-storage facility. In September 2002, Berry amended its application by seeking to change 3.93 acres from RL-1 to CC and 6.06 acres from RL-1 to BPC-1. The application was assigned Case File No. CPA2003S- 02. Under the County's review process, the application is first reviewed by the County Development Review Committee (Committee), then by the County Planning Commission (CPC), which either accepts or rejects the Committee's recommendation, and finally by the Board of County Commissioners (Board), which either adopts the amendment, adopts the amendment as amended by the Board, or rejects the amendment. After conducting a preliminary review of the application, on September 16, 2002, the Committee conducted a public hearing and voted to recommend approval. The matter was then transmitted to the CPC, which conducted a meeting on October 9, 2002, and recommended that the Board approve the amendment. On January 22, 2003, by a 3-2 vote, the Board adopted CPA2003S-02 changing the designation on the FLUM of the County Comprehensive Plan (Plan) as proposed by Berry. This was confirmed by the County's adoption of Ordinance No. 03-03. On February 21, 2003, Petitioners filed their Petition challenging the Berry amendment. The matter was again placed on the Board's agenda on March 19, 2003, after the County discovered that Ordinance No. 03-03 had inadvertently changed the land use on the entire parcel to CC rather a mix of CC and BPC-1. In addition, there were minor errors in the legal description of both the 3.93 and 6.06-acre parcels. Accordingly, Ordinance No. 03-19 was enacted to correct those errors. A second Petition for Formal Administrative Proceedings (with essentially the same allegations, but also adding an allegation that the same property had been improperly subject to two small scale amendments within a 12- month period) was filed by Petitioners on March 19, 2003, challenging the action taken in Ordinance No. 03-19. At the outset of the final hearing, Petitioners voluntarily dismissed two allegations contained in their Petition. In their Proposed Recommended Order, Petitioners have further narrowed the issues by addressing only the following allegations: that the property which is the subject of this proceeding exceeds 10.0 acres in size and therefore cannot qualify as a small scale amendment; and that the amendment violates Future Land Use Element (FLUE) Policies 2.102-A1, 2.113-B-3, 2.113-B-4, 2.110-C3, and 2.113-B-1 and is thus internally inconsistent with the Plan. These issues will be discussed separately below. All other allegations contained in the second Petition and the parties' Pre-Hearing Stipulation are deemed to have been withdrawn or abandoned. Because the change in the FLUM was filed and approved as a small scale plan amendment under Section 163.3187(1)(c), Florida Statutes (2003),1 a compliance review of the amendment was not made by the Department of Community Affairs (DCA). See § 163.3187(3)(a), Fla. Stat. Standing of Petitioners Durham is a realtor/developer who owns property within 250 feet of Berry's property and resides at 10 Lake Eloise Lane, Southeast, Winter Haven, Florida. He made oral and written comments to the County prior to the adoption of the amendment. As such, he qualifies as an affected person under Section 163.3184(1)(a), Florida Statutes, and has standing to bring this action. CPPI began as an association in November 2002 and was later incorporated in February 2003. Presently, it has around 100 members, all of whom reside in the County. According to its chairperson, its purpose is to "help educate and inform residents of Polk County . . . towards growth matters that may affect their daily lives." The organization "encourages donations" from its members; it was scheduled to have conducted its first annual meeting on January 10, 2004; and members prepared and circulated petitions opposing the amendment to residents of the area in December 2002 and January 2003. At least one member of CPPI made written and oral comments on its behalf to the County prior to the adoption of the amendment in March 2003. There is no evidence, however, that CPPI (as opposed to its individual members) owns property or owns or operates a business within the County. Therefore, it lacks standing to file a petition. The land and surrounding uses Berry owns a triangle-shaped parcel of land (the parent parcel) totaling around 14 acres which fronts on Eagle Lake Loop Road (a 24-foot wide urban collector road) to the north, Pollard Road (a local road) to the east, and a CSX railroad track, with right-of-way, on its western side. (Pollard Road dead ends at Eagle Lake Loop Road, and another collector road, Eloise Loop Road, continues to the north from the intersection). Pollard Road provides access to eight nearby single-family homes, which lie south of the Berry property and front on Pollard Road, and eventually terminates at the City of Winter Haven's Sewage Treatment Plant (an institutional use), which lies slightly more than a mile south of the site. To the west of the site directly across the railroad tracks and fronting on Eagle Lake Loop Road is additional property owned by Berry and on which were once located the original Berry corporate offices. The Berry office buildings are now used, at least partially, by other tenants. Although the land across the railroad tracks is classified as Residential Suburban (RS), the property can be used for offices since the buildings were constructed, and office use began, prior to the adoption of the Plan. Directly across Pollard Road to the east is a vacant 10-acre tract of land owned by the Baptist Ridge Association, which intends to construct a church on the property. Berry's property is now classified as RL-1, a land use classification which "is characterized by single-family dwelling units, duplex units, and small-scale multi-family units." Since at least the 1950s, however, or long before the County adopted its Plan, the property has been used primarily for agriculture purposes (citrus groves); therefore, Berry is grandfathered to continue this non-conforming use on its property. Presently, the entire tract of land is undeveloped and largely covered by an orange grove, which Berry describes as "past maturation and is declining." Citrus trucks and trailers have been parked on the extreme northwestern corner of the parent parcel and are used in conjunction with the citrus operation. Except for the former Berry offices, a nearby beauty salon operating out of a house, and a convenience store about three-quarters of a mile away, which all began operation before the Plan was adopted and are grandfathered as non- conforming uses, and the City of Winter Haven's large tract of institutional land to the south, all of the property within slightly less than a one-mile radius of the Berry property is classified in various residential land use categories with only residential uses. The Amendment As noted above, Berry has owned the subject property for many years. In 1987, Berry (then under the name of Jack M. Berry, Sr.) made application with the County for a zoning change on the property from Rural Conservation (RC) to Commercial (C-3) to allow typical commercial uses. The application was ultimately denied by the County on the ground, among others, that the zoning district being proposed was inconsistent with the Plan, "given the residential development pattern in the area." At least partly on the theory that the area has changed substantially in the last 15 years, Berry has filed (and the County has approved) an application seeking to change the land use on the property to commercial uses. Berry has carved out of the parent parcel two smaller parcels totaling 9.99 acres in size and seeks to change the land use on the northern parcel (3.93 acres) to CC and the land use on the southern parcel (6.06 acres) to BPC-1. The remaining land in the parent parcel, which consists of a 0.43-acre triangle-shaped parcel on the northwestern corner of the parent parcel and now used by citrus trucks, and a vacant 2.74-acre triangle-shaped parcel on the southern end, will remain R-1. (However, all parties agree that if the amendment is approved, these remaining parcels will be unsuitable for residential development.) In addition, strips of land ranging from 22 to 28 feet in width which front on Eagle Lake Loop Road and Pollard Road will be dedicated to the County for right-of-way and have not been included in the 9.99-acre amendment. Presumably, the proposed change is being done in this manner so that the total acreage is less than 10.0 acres, which qualifies the application to be processed as a small scale development amendment rather than a regular plan amendment and subject to DCA review and approval. If the change is approved, the northern part of the parcel (3.93 acres) will be changed to CC to develop convenience commercial uses. Under the Plan, the most typical tenant in this category is a convenience store, while other typical tenants include laundry, dry cleaning, barber, restaurant, gas station, and office uses. The southern (and larger) portion of the tract will be changed to BPC-1. The most typical tenant in this category is "[o]ne or more light- assembly plants, or warehouse facilities," which include a mini-warehouse storage facility. Other typical tenants described in the Plan are offices, distribution centers, research and development firms, and high-density residential, with proper buffering. (Berry says it intends to build a mini-warehouse facility on the southern parcel; however, any of the above described uses could be placed on the property if the change is approved.) Petitioners' Objections In broad terms, Petitioners have contended that the small scale amendment actually involves a use of more than 10 acres since the strips of land being dedicated as right-of-way to the County must be counted as a part of the land being amended. They also contend that the plan amendment violates five FLUE policies and is therefore internally inconsistent with the Plan. A small scale development amendment can only be adopted if "[t]he proposed amendment involves a use of 10 acres or fewer." See § 163.3187(1)(c)1., Fla. Stat. The parties have agreed that the legal description of the parcel subject to the change includes only 9.99 acres, or less than the 10-acre threshold. However, prior to the development of the site, Berry intends to dedicate to the County two strips of land, one fronting on Eagle Lake Loop Road (28 feet wide), and the other on Pollard Road (22 feet wide), for future right-of-way for some public purpose. Petitioners contend that the right-of-way constitutes essential infrastructure for the development and must be included as a part of the amendment. If this land is added to the amendment, the total acreage would obviously exceed 10.0 acres. The dedicated land is not "essential infrastructure" needed for the development activities on the land, since two roadways (Eagle Lake Loop Road and Pollard Road) already exist on the northern and eastern boundaries of the property, and they are sufficient in size to provide ingress to, and egress from, the property. Instead, the County will "bank" the land in the event some form of right-of-way activity is needed in the future. It is noted that Eagle Lake Loop Road was recently widened to 24 feet, and it is not anticipated that a further widening will occur for a number of years. There is nothing in the Plan which requires an applicant for an amendment to include all of its property in a proposed amendment, or prevents an applicant from leaving a residual piece of property out of the application. Therefore, Berry was not required to include in the amendment the right- of-way or the two smaller residual pieces of property that will remain R-1. Finally, assuming arguendo that Petitioners' contention is correct, that is, that an applicant must include right-of-way land dedicated to the local government in the total acreage calculation, Berry could still lawfully comply with the 10-acre threshold by simply reducing the other acreage being changed to CC or BPC by the amount of land being dedicated to the local government for right-of-way. Therefore, it is found that Berry has not improperly excluded from the amendment land necessary for essential infrastructure so as to violate Section 163.3187(1)(c)1., Florida Statutes, as alleged by Petitioners. Policy 2.102-A1 requires compatibility between adjacent uses. More specifically, it provides that: Land shall be developed so that adjacent uses are compatible with each other, pursuant to the requirements of other Policies in this Future Land Use Element, so that one or more of the following provisions are accomplished: there have been provisions made which buffer incompatible uses from dissimilar uses; incompatible uses are made to be more compatible to each other through limiting the intensity and scale of the more intense use; uses are transitioned through a gradual scaling of different land use activities through the use of innovative development techniques such as a Planned Unit Development. Therefore, as the Plan is now written, so long as Berry develops the land in a manner which accomplishes at least one of the three "provisions" in paragraphs a - c of the policy, so as to make the adjacent uses compatible, the proposed land use change is permissible. As noted above, except for a few non-conforming uses adjacent to, or near the property, virtually all of the area around the Berry property is designated for residential use. The area to the north and northeast is developed with up-scale (with some homes ranging to as high as $1 million in value), low density, large lot, single-family residential subdivisions, including Harbour Estates, Cedar Cove, Cypress Cove, Gaines Cove, and Valhalla. To the east of the site are more subdivisions, including Eloise Place, Skidmore, Cypress Point, Lake Eloise Estates, Eloise Pointe Estates, a mobile home park, and Little Lake Estates. The lands to the south are primarily agriculture and in active citrus groves, with eight single-family homes on Pollard Road. Finally, a church will be built on the property directly across the street from the Berry property at the southeast corner of the intersection of Eagle Lake Loop Road and Pollard Road. The County Planning Director agrees that a convenience store (which is an authorized use on CC land), standing alone, is incompatible with adjacent single-family residences. Given this acknowledgement, and the fact that a non-binding, proposed site plan submitted by Berry with its application does not provide for any buffering between the commercial uses and the residential areas, Petitioners contend that none of the conditions required for compatibility in paragraphs a through c have been met, and thus the policy has been violated. The County has made clear, however, that when a final site plan is submitted, there must be "provisions [in the site plan] . . . which buffer incompatible uses from dissimilar uses," as required by the policy. Assuming that this is done at the site plan stage, at least one of the three provisions will be accomplished, thereby satisfying the compatibility requirement. This being so, the plan amendment does not violate the policy and in this respect is not internally inconsistent with the Plan. Petitioners next contend that the amendment is inconsistent with Policy 2.110-C3, which contains locational criteria for CC property. One such criterion requires that "Convenience Centers shall be located at the intersections of arterial and/or collector roads." Because the property is at a T-shaped intersection (as opposed to a traditional cross intersection with four directions for traffic to move off the site), Petitioners assert that the property is not located at an "intersection" within the meaning of the policy. Eagle Lake Loop Road, on which the northern boundary of the property fronts, is designated as an urban collector road. That road forms an intersection with Pollard Road (a local road) and Eloise Loop Road (also an urban collector road), which meets Eagle Lake Loop Road from the north at the intersection, and then makes a 90 degree turn to the east. (When Eagle Lake Loop Road continues to the east beyond the intersection, it turns into Eloise Loop Road, and later into Thompson Nursery Road, until it eventually intersects with U.S. Highway 17.) There is no dispute that the two collector roads (Eagle Loop Lake Road and Eloise Loop Road) form a T intersection, rather than a traditional cross intersection. For many years, however, the County has considered a T intersection and a cross intersection to be the same in terms of satisfying Plan requirements. Indeed, at the present time, at least four other CC designated properties within the County are located at T intersections. The County's interpretation of the policy is consistent with sound planning principles, is reasonable and logical, and is more persuasive than the contrary view offered by Petitioners. Accordingly, it is found that the amendment does not conflict with Policy 2.110- C3. Petitioners also contend that the amendment is inconsistent with Policy 2.113-B-3, which provides that "Business-Park Centers shall be located with consideration being given to regional transportation issues, and should be located at the intersections of arterial roads, and preferably on a fixed-route mass-transit line." (Emphasis added.) The use of the word "should" (rather than "shall") is intended to state a preference, but not an absolute requirement, that BPC lands be located at the intersections of arterial roads. According to the County's Planning Director, this is because "most cases that come [before the County] don't meet the ideal situation" of satisfying every requirement, and the County has used this permissive language to give itself some degree of flexibility in handling cases that do not meet every Plan requirement. Therefore, even though it is preferable that BPC land be located at the intersection of arterial roads, this requirement is not mandatory, and the County has the flexibility to approve a BPC land use change at property not sited at the intersection of arterial roads. In contrast to the permissive language described above, Policy 2.113-B-4 provides that development within a Business-Park Center shall conform to certain development criteria, including one that Business-Park Centers shall have frontage on, or direct access to, an arterial roadway, or a frontage road or service drive which directly serves an arterial roadway. Business-Park Centers shall incorporate the use of frontage roads or shared ingress/egress facilities wherever practical. In this case, the closest arterial roadway to Berry's property is State Road 17 to the west, which is four miles away, while State Road 60, another arterial roadway, is approximately six miles to the south. These arterial roads must be accessed, at least at the beginning of the trip, by Eagle Lake Loop Road, a two-lane, 24-foot wide urban collector that runs through predominately residential neighborhoods with some homes having fences within a foot or two from the road. The County interprets the requirement that BPC land have "direct access to an arterial road" to be satisfied if the property fronts on a collector road, which then provides access to an arterial road. Under the County's interpretation, the requirement is met since Eagle Lake Loop Road provides access (albeit 4 to 6 miles away) to State Roads 17 and 60. The County says it has consistently interpreted this provision in this manner for at least ten years, and has approved other applications for changes to BPC when those parcels were located on urban collector roads. (The distance between these other BPC parcels and the arterial roads is not of record, however.) While Policy 2.113-B-1 provides that Business-Park Centers are "not intended to accommodate major commercial or other high-traffic producing facilities," they "are intended to promote employment opportunities within the region by allowing for the establishment of office parks, research and development parks, areas for light-industrial facilities, distribution centers, and mixed-use employment parks." The same policy provides that they must have a usable area of 10 acres or more, have a service-area radius of 20 miles or more, be supported by a population of 150,000 or more people, and have a gross leasable area of 500,000 to 2,000,000 square feet. Given this description of their purpose and characteristics, and the wide range of commercial activities that are allowed on Business-Park Center lands, it is not surprising that Policy 2.113-B-3 provides that BPC lands should be located "at the intersections of arterial roads, and preferably on a fixed-route mass-transit line," while Policy 2.113-B-4 requires that they "have direct frontage on, or direct access to, an arterial roadway, or a frontage road or service drive which directly serves on an arterial roadway." When reading these provisions as a whole, it is unreasonable to conclude, as the County does, that "direct access" contemplates a drive of over 4 miles, partly on a narrow two- lane road, in order to reach an arterial road. Accordingly, on this issue, Petitioners' evidence is the most persuasive, and it is found that the plan amendment conflicts with Policy 2.113-B-4 and in this respect is internally inconsistent with the Plan. Policy 2.110-C3 sets forth the following location criteria for Convenience Centers: LOCATION CRITERIA Convenience Centers shall be located at the intersections of arterial and/or collector roads. There shall be the following traveling distance, on public roads, between the center of Convenience Center and the center of any other Convenience Center, or other higher- level Activity Center, Linear Commercial Corridor, or Commercial Enclave providing for the same convenience shopping needs: One (1) mile within the UDA and UGA Two (2) miles within the SDA and UEA This required separation may be reduced if: The higher-level Activity Center, Linear Commercial Corridor or Commercial Enclave within the required distance separation is over 80 percent developed; or the proposed Convenience Center market- area radius, minimum population support is over 5,000 people. Petitioners contend that this policy has been violated in two respects: the Berry property is not located at the intersection of arterial roads; and there is an existing convenience center located within 0.8 mile of the Barry property, and Berry cannot qualify for a reduction in the required separation, as described in paragraphs a and b. For the reasons stated in Findings of Fact 30-32, it is found that the Berry property is located at the intersection of two collector roads (Eagle Lake Loop Road and Eloise Loop Road) and that a T intersection satisfies the requirements of the policy. As to the second contention, the Berry property is located within an UGA (Urban Growth Area), and an existing convenience store is located at the intersection of Rifle Range Road and Eagle Lake Loop Road, or less than a mile west of Berry's property. The land use on the property on which the store sits was recently changed (in December 2003) to BPC, which does not allow a convenience store. However, the store is a non-conforming use, having been located at that site before the Plan was adopted. The locational requirement in Policy 2.110-C-3 that CC lands within the UGA be located at least a mile apart is not the least bit vague or ambiguous: CC designated lands (and not individual convenience stores, as Petitioners suggest) must be separated by at least a mile, unless one of the two criteria for reducing this separation is met. Because there is no CC land within a one-mile radius of the Berry land, the policy has not been violated. Policy 2.113-B-1 sets forth the following relevant characteristic for Business-Park Centers: General characteristics of Business-Park Centers are: Usable Area 10 acres or more There is no dispute that the useable area for the BPC land is only 6.06 acres, or approximately 60 percent of the required acreage. Petitioners contend that the amendment violates the foregoing policy because the useable area on Barry's property is much less than "10 acres or more." While the former County Planning Director conceded that the 10-acre usable area requirement is "mandatory," he justified the amendment on the ground that the 6.06 acres "approximates" 10 acres, and thus satisfies the policy. In the same vein, the current County Planning Director asserted that if Berry was proposing a stand-alone BPC, it would have been required to have 10 usable acres. In this case, though, he pointed out that the Berry property will be used for a nonresidential mixed use (BPC and CC) totaling almost 10 acres, and therefore Berry has satisfied the requirement. The Planning Director admitted, however, that nothing in the Plan specifically allows this type of exception. He justified the County's action on the theory that the Plan "doesn't anticipate every situation that comes in," and "interpretations have to be made of the comprehensive plan and how it's applied." The requirement that Business-Park Centers have a usable area of 10 or more acres is clear and unambiguous, was characterized as being "mandatory," and is not subject to any exceptions in the Plan. This being so, the County's interpretation is found to be unreasonable and contrary to the plain language in the policy, and in this respect the plan amendment is internally inconsistent with the Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the small scale development amendment (CPA2003S-02) adopted by Polk County by Ordinance No. 03-03, as amended by Ordinance No. 03-19, is not in compliance. DONE AND ENTERED this 24th day of February, 2004, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2004.
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 before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Petition to Establish the Arborwood Community Development District (Petition), dated November 17, 2003. The local public hearing was conducted for the purpose of gathering information in anticipation of rulemaking by FLWAC.
The Issue The issue is whether Leon County Project ID No. LSP160001, conditionally approved on February 5, 2016, is consistent with the Leon County Land Development Code (Code) and the Tallahassee-Leon County 2030 Comprehensive Plan (Plan).
Findings Of Fact The Parties Floresta is a limited liability corporation that proposes to develop property located at 5044 Blountstown Highway (State Road 20), approximately one-half mile west of the intersection of Capital Circle Northwest and State Road 20. The Association is comprised of residents of the Wolf Creek Subdivision (Subdivision), and numbers around 200 residential town homes on State Road 20 just west of the proposed development. The parties agree that a substantial number of members of the Association would otherwise have standing to bring this action in their own right. J.P. Lepez lives in the Subdivision directly adjacent to, and west of, the development proposed by Floresta. Michael and Elizabeth Urban reside in Deer Tree Hills Condominium Community adjacent to, and west of, the Subdivision, and in close proximity to the proposed development. Carol Smith resides just south of Deer Tree Hills Condominium Community on the opposite side of Blountstown Highway, and in close proximity to the proposed development. The Approval Process On January 12, 2016, the County received a site and development plan application filed by Floresta regarding a proposed project called the Residential Condominiums on Blountstown Highway, a principal arterial roadway. The application consisted of an application; a permitted use verification; an applicant's affidavit of ownership and designation of agent; a school impact analysis form; an application for concurrency determination; a natural features inventory approval; a site plan narrative; a site and development plan; a concept utility plan; a concept water and sewer plan; and fire flow calculations. The applicant also submitted an environmental impact analysis application, consisting of the application, an environmental impact analysis narrative, a proposed conservation easement, a conservation easement management and maintenance plan, a stormwater analysis, and an environmental impact analysis plan. See Ex. 3a.-g., 4, 8a.-e., 9, 13, 14, and 16. The project is Phase I of a multi-phase development. Floresta proposes to develop around 4.09 acres of the total 33.52-acre parcel. As explained in more detail in the site plan narrative prepared by Floresta's consultant on January 13, 2016: The residential condominium project is limited to the front +/- 4 acres along Blountstown Highway and will include the entry drive with guest parking, a stormwater pond and 24 residential units. Each unit is a small footprint unit for low- income residents. It is anticipated that not all residents will rely upon a vehicle for transportation and therefore not all units will have driveways. Units will range in size, but will be less than 500 gsf [gross square feet], single story dwellings. The units will be placed within the identified area and located among the existing trees of the property to retain a wooded development. Future phases of construction may include community buildings and additional units based on market conditions. Ex. 3g. Because of the small size of the units -- gross square footage represents the overall footprint of the building -- they were referred to at times by members of the public as "tiny homes." Petitioners' PRO alleges that information obtained at a public meeting conducted by the County on January 27, 2016, revealed that the project will in all likelihood function as a homeless shelter. While no County or Floresta representative testified to confirm or deny this fact, testimony by public commenters suggest this may be true, and their testimony was not challenged by Respondents at hearing. The project is located on a parcel zoned R-3, Single- and Two-Family Residential. It is designated Urban Residential 2 on the Future Land Use Map of the Plan. The R-3 zoning and Urban Residential 2 Future Land Use category allow for a wide range of single-family dwelling units, including single-family detached dwellings, single-family attached dwellings, two-family dwellings, and zero-lot line single-family detached dwellings. See § 10-6.637, L.D.C.; Land Use Element Policy 2.2.24(L). The project consists of small condominium units as single-family detached dwellings. These are a permitted use in the R-3 zoning district and in the Urban Residential 2 Future Land Use category. Because the project is located on a parcel zoned R-3 and consists of 24 units, it qualifies for a Type "A" review under section 10-7.402 of the Code. Under Type A review, an applicant can select from two development review tracks. See § 10-7.402(5), L.D.C. The project was reviewed under the concept plan approval track. This review track option is intended to expedite the review process by reducing the requirement for permitting-level information while providing assurance that the development entitlements reflected on the concept plan can be realized on the subject site. See § 10-7.402(5)(a), L.D.C. An applicant is still required to complete the environmental permitting process for the project prior to construction. A point of entry is available to third parties to challenge any state, but not County, environmental permit required for the project. Under Type A review, an Application Review Committee (Committee), composed of City and County technical staff, reviews the site and development plan application for compliance with the applicable regulations. See § 10-7.403(e), L.D.C. The Committee then renders a recommendation to the County Administrator or designee recommending approval, approval with conditions, or denial of the application. Id. The County Administrator or designee renders a Written Preliminary Decision. Id. That decision becomes final unless an appeal is timely filed. See § 10-7.403(h), L.D.C. For this project, the County's Administrator's designee is the Director of the Department. On January 27, 2016, the County held a noticed Application Review Meeting, whereby the Committee convened to review the application for the project and receive public comment. Pursuant to section 10-7.403(g), notice of the public hearing was mailed at least seven calendar days prior to the meeting to all property owners within 600 feet of the proposed project. The notice euphemistically described the project as a 24-unit "Residential Condominium Project." Although Petitioners assert the notice was misleading, they attended the January 27 meeting, and they were given an opportunity to present witnesses, introduce evidence, and to otherwise participate in the instant case. No evidence of prejudice was shown. At the meeting, the Committee presented a staff report, which included memoranda from the Tallahassee-Leon County Planning Department, Leon County Environmental Services Department, City of Tallahassee Utilities Department, City of Tallahassee Fire Department, and Leon County Public Works Department. See Ex. 7. The staff report and each memorandum included comments regarding deficiencies in the application that the applicant must address in order for the project to be consistent with the Code and Plan. County and City staff determined, however, that the deficiencies were "minor" in nature and agreed to recommend approval of the site and development plan with the condition that the applicant must correct the deficiencies identified in the staff report. See § 10-7.403(f), L.D.C., which allows approval of a Type A application, with conditions. Because they considered the deficiencies to be minor, the staff took the position they did not require a substantial, or even moderate, alteration in the layout or geometry of the site plan. Some of the deficiencies are related to notes that are required to be added to the site plan simply for clarification purposes. On February 2, 2016, the County, through a Department Planner II, issued a Notice of Application Deficiency Letter (Notice). See Ex. 2. The Notice outlined many of the conditions raised in the staff report. The Notice did not impose any additional conditions. On February 5, 2016, the Director of the Department issued a Written Preliminary Decision, approving the project subject to the conditions outlined in the staff report presented at the meeting on January 27, 2016. See Ex. 1. The approval required the applicant to submit a revised site and development plan demonstrating compliance with all conditions within 90 days, or by May 6, 2016. It further cautioned that unless a timely extension was requested by the applicant, a failure to comply with that requirement by the May 6 deadline would render the approval expired. The revised site and development plan was not made a part of the record, and the staff's final compliance determination was not disclosed at hearing. Under the County's approval process, an administrative challenge to the staff's final determination is not available to third parties. On February 17, 2016, Petitioners timely filed a Notice of Intent to File a Petition for Formal Proceedings Before a Hearing Officer. See Ex. 17. On March 7, 2016, Petitioners timely filed their Petition for Formal Proceeding (Petition). Except for one ground voluntarily dismissed at hearing, the Petition alleged that the application was inconsistent with the Code and Plan for the same reasons cited in the staff report dated January 27, 2016, and reiterated in the Notice issued on February 2, 2016. Petitioners' Objections Petitioners' PRO asserts generally that any one of the conditions noted by the staff constitutes grounds for denial of the application. However, based upon the exhibits and testimony of members of the public, in their PRO, they focus on only four items regarding the project. Setbacks Petitioners first allege that the project is inconsistent with development standards for the R-3 zoning district. See § 10-6.637, L.D.C. Development standards for single-family detached dwellings in zoning district R-3 are found in the site data table of section 10-6.637 and require a minimum lot or site size of 5,000 square feet (or 0.11 acres); minimum lot widths of 50 feet; minimum lot depths of 100 feet; minimum front setbacks of 20 feet; minimum side-interior lot setbacks of 7.5 feet on each side; or any combination of setbacks that equals at least 15 feet, provided that no setback shall be less than five feet; minimum side-corner lot setbacks of 15 feet; minimum rear lot setbacks of 25 feet; and no building exceeding three stories in height. In assessing whether the applicant complied with these standards, the staff made the following comments on the project's compliance with setbacks and building height and size requirements: Finding #4: The project appears to meet the applicable building setbacks, height and size requirements; however, please annotate the height of the building (in feet) in the site data table alongside the minimal requirements. Please clarify that the setbacks provided in the site data table are the perimeter setbacks for the development. The applicant will need to also provide the proposed setback between structures to ensure compliance with the Florida Building Code requirements. Ex. 7, p. 000004. This comment became a condition of approval in the Department's Notice to ensure that Floresta was meeting those requirements. As a condition, Floresta was required, no later than May 6, 2016, to "clarify" that the setbacks in the site data table are the perimeter setbacks for the development and provide the proposed setback for each structure. Also, the County relies on note 14 of Sheet 6.0 of the plan, which indicates a front setback of 20 feet, a side interior setback of 15 feet, and a rear setback of 25 feet. See Ex. 4. These distances satisfy the Code requirements. Because the units are one-story in height, they do not exceed the three-story limitation. As an added condition, the County required Floresta to provide the setbacks between each structure. Petitioners contend that the County failed to fully apply the R-3 zoning district's building standards for single- family detached dwellings found in section 10-6.637. Specifically, they assert that the 24 units are listed on the site plan as having a total area of approximately 39,000 square feet, or 1,625 square feet per dwelling. They also contend that the lot geometry is not shown and therefore the site and development plan is not consistent with the minimum lot widths, depths, and setbacks required by the Code. Even if lot geometry were shown, they contend that the 39,000 square feet allotted is insufficient to provide for lots for 24 single-family detached dwellings that meet the minimum required lot width of 50 feet and lot depth of 100 feet. The project involves a condominium development with the creation of individual units on a single lot. See Ex. 3g., p. 4. Therefore, the County asserts that the minimum lot sizes found in section 10-6.637 are inapplicable. This is a reasonable interpretation of the Code. Also, due to a typographical error in the staff report, it initially appeared that rear setbacks were not provided. However, the rear setbacks are actually shown on Note 14 of Sheet 6.0 of the site plan. See Ex. 4. Subject to the above conditions, the project is consistent with the requirements of the Code. Parking Requirements Petitioners also contend that the project fails to comply with parking requirements, as the project will have 24 units, but only 18 regular parking spaces and two handicapped parking spaces are proposed. Section 10-7.545 requires that developments in the R-3 zoning district have between 85 percent and 100 percent of the parking standard in schedule 6-2 of the section. Because the schedule requires that conventional detached homes have 1.5 parking spaces per unit, Petitioners assert that 30.6 parking spaces are required. The applicant does not anticipate that all residents will have automobiles. Because the project will serve low- income residents, this is a logical assumption. The applicant also proposes grass parking to be located closer to each unit. Section 10-7.545(a) allows a deviation from the range of required parking established in Schedule 6-2 upon approval or an approval with conditions from the Parking Standards Committee (Committee). See Ex. 1, p. 000007. That Committee is comprised of the Planning Director, the Department Director, and the Public Works Director, or their designees. As a condition, the applicant will be required to secure approval from the Committee before final approval for the project is given. Id. Subject to Floresta's compliance with this condition, which cannot be administratively challenged by Petitioners, the site plan is consistent with the Code. Transportation Infrastructure Petitioners contend that there is a lack of adequate transportation infrastructure in the area. They also point out that there are no sidewalks on State Road 20, and there is no bus stop adjacent to the project. Therefore, residents or guests in the project will have to walk east along State Road 20 in order to find a bus stop. As a condition of approval, the County required the applicant to extend a stub out from the parking lot to the property line for future interconnection. See Ex. 1, p. 0000010. Mobility Element 1.4.1 requires vehicular, pedestrian, and bicycle interconnection between adjacent, compatible development. The applicant's site plan includes sidewalks within and connecting to the facilities along State Road 20. See Ex. 4; Ex. 1, p. 0000010. Also, a Preliminary Certificate of Concurrency was issued for the project, and a final certificate will be issued upon final site plan approval. See Ex. 1, p. 000005. Subject to compliance with these conditions, the site plan is consistent with the Code. Compatibility For obvious reasons, Petitioners' greatest concern is the intrusion of former homeless persons into the units immediately adjacent to their properties. (By definition, once a person resides in a home, he/she is no longer homeless.) On this issue, they assert that the project is inconsistent with section 10-7.505, which requires that each development shall be designed to be as compatible as practical with nearby development. Petitioners argue that the tiny house community being proposed is not compatible with the "typical" single- family homes found around the project site. The parcel on the west side of the project is also zoned R-3. The parcels on the east side of the project are zoned OA-1 (Airport Vicinity District) and CP (Commercial Parkway District). The OA-1 district does not permit residential uses due to the noise levels from aircraft exceeding the thresholds identified by the Federal Aviation Administration and the State as being compatible with certain land use types. See § 10-6.645, L.D.C. The CP district permits general commercial and community facilities. See § 10-6.649, L.D.C. The project proposes a Type "D" 50-foot buffer on both the eastern and western borders of the property. A Type "D" buffer is the most restrictive buffer provided in the Code. See § 10-7.522, L.D.C. Respondents agree that the project is "small footprint housing for low-income residents." However, there is no prohibition in the Code that restricts low-income housing from occurring in any residential zoning district. Also, the Plan and Code do not regulate the size of dwelling units, outside of minimum housing standards found in the Florida Building Code. While Petitioners' objections are genuine and well-intentioned, there is nothing in the existing Code or Plan that prevents the introduction of extremely small low-income housing units into a residential district, assuming all other requirements are met. The project is compatible with the surrounding area. Public Comments Six members of the public presented comments at the hearing. The public commenters either live in or own typical single-family homes adjacent to or near the project, or operate a commercial business near the project. The undersigned has rejected the County's assertion in its PRO that the comments should be disregarded because a transcript was not prepared. One commenter, who owns a business on State Road 20 less than a quarter mile from the project, is concerned that State Road 20 is inadequate to handle more traffic. He also is concerned with the tiny house development feature of the project and noted that one-half of the project is located within the flood zone. Another commenter who resides in the Subdivision with her disabled daughter expressed concern that low-income housing units occupied by homeless persons sent from the Kearney Center, a nearby homeless shelter, will result in a substantial loss in value to her property and increase safety issues for her daughter who remains home alone during the day while she is at work. Like other commenters, she complained that State Road 20 is already overburdened with traffic without adding another development to the area. A third commenter is also concerned with the level of traffic on State Road 20. During morning rush hours, he cannot turn left onto State Road 20 to go into town and fears the project will cause a further deterioration of traffic conditions. A fourth commenter, who lives in another county, has owned a condominium in the Subdivision since 2007, first used by her daughter while going to college, and now rented. She complained that the notice of the public meeting was misleading as it indicated a condominium project would be built on the parcel, and not tiny homes for former homeless persons. She is concerned that the current level of traffic on State Road 20 will be exacerbated, and that the value of her condominium will be negatively impacted. A fifth commenter who resides in the Subdivision complained that the notice of the public meeting was misleading and vague, and led her to believe that a traditional or multi- story condominium project would be constructed on the parcel, rather than a cluster of tiny homes. She also expressed concerns that a large, low-income population in the neighborhood will raise safety issues for existing residents. The final commenter resides near the project and owns a bail bond business on West Pensacola Street, a mile or so east of the project site and near the Kearney Center. Based upon her experience operating a bail bond business near the Kearney Center, she testified that the number of arrests in that area of town has "skyrocketed" since the shelter opened. She added that there has been an adverse impact on businesses located near the Kearney Center because its residents simply hang out in the area during the day. She fears that an influx of former homeless persons into the tiny homes will lead to a similar increase in the crime rate around the project site. The commenter also serves as a part-time volunteer at the Kearney Center several days a week and noted that no background checks, identification checks, or drug checks are performed on persons entering the shelter. She is concerned that no checks will be performed on the persons who will occupy the tiny homes. She added that many of the shelter residents are drug addicts and do not want to work. If they move into the tiny homes, she believes they will simply hang around the project site and create safety issues for residents in the neighboring properties. She intends to sell her home if the project is approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Leon County Board of County Commissioners enter a final order approving the project, subject to confirming that the applicant's revised site plan satisfies all conditions imposed by the County on February 5, 2016. DONE AND ENTERED this 25th day of May, 2016, 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 25th day of May, 2016. COPIES FURNISHED: Herbert W.A. Thiele, County Attorney Leon County Attorney's Office 301 South Monroe Street, Room 202 Tallahassee, Florida 32301-1861 Vincent S. Long, County Administrator Board of County Commissioners 301 South Monroe Street Tallahassee, Florida 32301-1861 Timothy J. Perry, Esquire Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302-1110 (eServed) Patrick T. Kinni, Esquire Leon County Attorney's Office 301 South Monroe Street, Room 202 Tallahassee, Florida 32301-1861 (eServed) Jessica M. Icerman, Esquire Leon County Attorney's Office 301 South Monroe Street, Room 202 Tallahassee, Florida 32301-1861 (eServed) Claude Ridley Walker, Esquire 2073 Summit Lake Drive, Suite 155 Tallahassee, Florida 32317-7949 (eServed) Shanon Ofuiani 2022 Nena Hills Drive Tallahassee, Florida 32304-3788 Joe Smith 1700 Smitty's Way Tallahassee, Florida 32304-9023 Yolanda Robies 1897 Nena Hills Drive Tallahassee, Florida 32304-3785 Jack Neece 4792 Blountstown Highway Tallahassee, Florida 32304-9005 Dori Cordle 34 Cordle Road DeFuniak Springs, Florida 32433-5845 Teresa Ramsook Post Office Box 5352 Tallahassee, Florida 32314-5352
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.
The Issue The issue is whether the Type B site plan for the 78-unit townhome/condominium project known as Park Terrace Townhomes should be approved.
Findings Of Fact Parties Skipper is the applicant for the Type B site plan at issue in this proceeding, No. TSP060026. Skipper owns the property on which the project will be developed, Parcel ID No. 21-23-20-417-000-0 (the project site). The City is the local government with jurisdiction over the project because the project site is located within the City limits. The Association is a voluntary neighborhood association encompassing 343 lots in an established single-family residential neighborhood generally located to the northeast of the Tharpe Street/Old Bainbridge Road intersection, adjacent to the project site. The purpose of the Association is to “preserve and enhance the quality of life in [the] neighborhoods by taking coordinated action on matters which advance the common good of all residents,” and one of the Association’s objectives is to “protect[] the neighborhood from incompatible land use and rezoning.” The Project Site (1) Generally The project site is located to the north of Tharpe Street, to the east of Old Bainbridge Road, and to the west of Monticello Drive. The project site is bordered on the south by the Old Bainbridge Square shopping center. It is bordered on the north, east, and west by the residential neighborhood represented by the Association. The project site consists of 13.91 acres. The western 11.11 acres of the project site are zoned R-4, Urban Residential. The eastern 2.8 acres of the project site are zoned RP-1, Residential Preservation. The project site is roughly rectangular in shape. It is 300 feet wide (north to south) and approximately 2,100 feet long (east to west). The project site is located within the Urban Service Area (USA) boundary. The Tallahassee-Leon County Comprehensive Plan specifically encourages infill development within the USA. The project site is designated as Mixed Use A on the future land use map in the Comprehensive Plan. Residential development of up to 20 units per acre is allowed within the Mixed Use A land use category. The project site has been zoned R-4/RP-1 since 1997 when it was rezoned from Mixed Use A as part of the City-wide rezoning of all mixed use properties. Multi-family residential was an allowable use under the Mixed Use A zoning district, as was small-scale commercial. The R-4 zoning is intended to function as a “transition” between the commercial uses to the south of the project site and the single-family residential uses to the north of the project site. The R-4 zoning district allows a wide range of residential development at a density of up to 10 units per acre. (2) Surrounding Zoning and Uses The property to the north, east, and west of the project site is zoned RP-1, and is developed with single-family residences. The neighborhood adjacent to the project site is stable and well established. Most of the homes are owner- occupied, and many of the residents are retirees. The property to the south of the project site is zoned UP-1, Urban Pedestrian, and is developed with commercial uses, namely the Old Bainbridge Square shopping center. There is an existing stormwater pond located on the northwest portion of the shopping center parcel, adjacent to the southern boundary of the project site. (3) Environmental Features on the Project Site The project site is vacant and undeveloped, except for several concrete flumes and underground pipes located in the drainage easements that run north/south across the site. The project site has been impacted by the surrounding development in that household and yard trash has been found on the site. The vegetative community on the project site is considered to be upland hardwood forest. There are a number of large trees on the project site, including pecan, cherry, pine, gum, and various types of oak trees. There are also various exotic plants species on the site, such as kudzu. The vegetative density is consistent throughout the project site. The land in the general vicinity of the project site slopes from south to north. The elevations along Tharpe Street to the south of the project site are in 220 to 230-foot range, whereas the elevations in the neighborhood to the north of the project site approximately one-quarter of a mile north of Tharpe Street are in the 140 to 160-foot range. The elevations across the R-4 zoned portion of the project site range from a high of 214 feet on the southern boundary to a low of 160 feet on the northern boundary. The southern property boundary is consistently 30 to 40 feet higher than the northern property boundary across the entire R-4 zoned portion of the project site. The slopes are the main environmental feature of significance on the project site. There are a total of 7.32 acres (319,110 square feet) of regulated slopes -- i.e., severe or significant grades -- on the project site, which is more than half of the total acreage of the site. There is a ravine that runs in a northwesterly direction across the RP-1 zoned portion of the project site. The ravine is considered to be an altered wetland area and/or altered watercourse. The regulated slopes and altered wetland/watercourse areas on the project site were depicted on a Natural Features Inventory (NFI) submitted in September 2005, prior to submittal of the site plan. The City’s biologists reviewed the original NFI, and it was approved by the City on October 13, 2005. A revised NFI was submitted in March 2007. The revised NFI removed the man-made slopes from the regulated slope areas, and made other minor changes based upon comments from the staff of the Growth Management Department. The City’s biologists reviewed the revised NFI, and it was approved by the City on August 24, 2007. The Association questioned the change in the amount of regulated slopes identified on the project site, but it did not otherwise contest the accuracy of the NFIs. Roger Wynn, the engineer of record for the project, testified that the amount of regulated slopes on the project site changed because the man-made slopes were initially included in the calculation but were later removed. That testimony was corroborated by the James Lee Thomas, the engineer who coordinated the Growth Management Department’s review of the project. The Project (1) Generally The project consists of 78 townhome/condominium units in 14 two-story buildings. It was stipulated that the density of the project is 7.02 units per acre, which is considered “low density” under the Comprehensive Plan and the LDC. The stipulated density is calculated by dividing the 78 units in the project by the 11.11 acres on the project site in the R-4 zoning district. If the entire acreage of the project site was used in the calculation, the project’s density would be 5.61 units per acre. All of the buildings will be located on the R-4 zoned portion of the project site. Five of the buildings (with 21 units) will have access to Monticello Road to the east by way of Voncile Avenue. The remaining nine buildings (with 57 units) will have access to Old Bainbridge Road to the west by way of Voncile Avenue. There is no vehicular interconnection between the eastern and western portions the project. There is no vehicular access to the project from the north or south. However, pedestrian interconnections are provided to the north and south. The only development on the RP-1 zoned portion of the project site is the extension of Voncile Avenue onto the site. The remainder of the RP-1 zoned property will be placed into a conservation easement. The Voncile Avenue extension will end in a cul-de-sac at the eastern boundary of the R-4 zoned portion of the project site. The extension will be constructed to meet the City’s standards for public roads, and it will comply with the City’s Street Paving and Sidewalk Policy. The other streets shown on the site plan are considered private drives because they are intended to serve only the project. Those streets and the internal cul-de-sacs have been designed to allow for the provision of City services - – e.g., trash, recycling, fire -– but they do not have to meet the City’s Street Paving and Sidewalk Policy. It was stipulated that the project is consistent with the City’s Driveway and Street Connection Regulations, Policies and Procedures. It was stipulated that the project is consistent with the City’s Parking Standards. The City’s Parking Standards Committee approved tandem parking spaces and an increase in the number of parking spaces in the project. It was stipulated that the project is consistent with the City’s concurrency policies and regulations. A preliminary certificate of concurrency was issued for the project on March 9, 2007. It was stipulated that the project is consistent with the City’s requirements for utilities -- e.g., water, sewer, stormwater, electricity, gas, cable -- and infrastructure for those utilities. However, the Association still has concerns regarding various aspects of the project’s stormwater management system. See Part D(3), below. (2) Site Plan Application and Review On August 4, 2005, the City issued Land Use Compliance Certificate (LUCC) No. TCC060219, which determined that 94 multi-family residential units could be developed on the R-4 zoned portion of the project site. The LUCC noted that the RP-1 zoned portion of the project site “is not eligible for multi-family development,” and that the “[a]ttainment of the full 94 units on the R-4 zoned property may be limited by the presence of regulated environmental features that will be determined via an approved Natural Features Analysis [sic].” On March 10, 2006, Skipper submitted a Type B site plan application for the project. The initial site plan included 82 multi-family units in 13 buildings; an extension of Heather Lane onto the project site to provide vehicular access to the north; vehicular access to the west by way of Voncile Avenue; and no vehicular access to the east. The Tallahassee-Leon County Planning Department (Planning Department) and other City departments expressed concerns about the initial site plan in memoranda prepared in advance of the April 10, 2006, DRC meeting at which the site plan was to be considered. A number of neighboring property owners submitted letters to the DRC and other City departments detailing their concerns about the project. A number of neighboring property owners also sent “petitions” to Skipper urging him to reduce the density of the project and to construct single-family detached units rather than multi-family units. The DRC “continued” -- i.e., deferred consideration of -- the site plan at its April 10, 2006, meeting as a result of the concerns expressed by the City departments. The site plan was also “continued” by the DRC at each of its next 10 meetings. Skipper submitted a revised site plan in February 2007 that reduced the number of units in the project from 82 to 78; eliminated the extension of Heather Lane onto the project site; added the connection to Voncile Avenue on the east; and made other changes recommended by City staff. It is not unusual for a site plan to be revised during the DRC review process. Indeed, Mr. Wynn testified that it is “very uncommon” for the initial version of the site plan to be approved by the DRC and that the approved site plan is typically an “evolution” of the initial site plan. That testimony was corroborated by the testimony of Dwight Arnold, the City’s land use and environmental services administrator. The City departments that reviewed the revised site plan -- growth management, planning, public works, and utilities -- each recommended approval of the site plan with conditions. A total of 21 conditions were recommended, many of which were standard conditions imposed on all site plans. The DRC unanimously approved the site plan with the 21 conditions recommended by the City departments at its meeting on March 26, 2007. The DRC was aware of the neighborhood’s objections to the project at the time it approved the site plan. Mr. Arnold, testified that the Growth Management Department was “extraordinarily careful” in its review of the site plan as a result of the neighborhood’s concerns. The site plan received into evidence as Joint Exhibit J13 is an updated version of the revised site plan submitted in February 2007. It incorporates all of the DRC conditions that can be shown on the site plan. For example, the updated site plan shows the “stub-out” at the southern property boundary and the pedestrian interconnections requested by the Planning Department as well as the appropriately designated handicapped parking spaces requested by the Public Works Department. The site plan review process typically takes six months, but Mr. Arnold testified that the process can take longer depending upon the number of issues that need to be addressed. Mr. Arnold testified that there is nothing unusual about the one-year period in this case between the submittal of the site plan and its approval by the DRC. Issues Raised by the Association The primary issues raised by the Association in opposition to the project are the alleged incompatibility of the proposed multi-family development with the surrounding single- family neighborhood; concerns about increased traffic in and around the neighborhood; concerns relating to the design of the project’s stormwater management system and the potential for stormwater run-off from the project to cause flooding in the neighborhood; and the alleged inadequate protection of the environmentally sensitive features on the project site. The public comment presented at the final hearing generally focused on these same issues, but concerns were also raised regarding the potential for increased crime and decreased property values in the neighborhood if college-aged students move into the proposed multi-family units on the project site. Compatibility Protecting the integrity of existing residential neighborhoods from incompatible development is a specifically emphasized “growth management strategy” in the Land Use Element of the Comprehensive Plan. Policy 2.1.1 [L] of the Comprehensive Plan promotes the protection of “existing residential areas from encroachment of incompatible uses that are destructive to the character and integrity of the residential environment.” Paragraph (c) of Policy 2.1.1 [L] requires the adoption of land development regulations to limit future higher density residential development adjoining low density residential areas. Such limitations “are to result in effective visual and sound buffering (either through vegetative buffering or other design techniques) between the higher density residential uses and the low density residential uses; [and] are to discourage vehicular traffic to and from higher density residential uses on low density residential streets.” These Comprehensive Plan provisions are implemented through the buffering requirements in LDC Section 10-177, which requires landscaping and fencing to be installed between potentially incompatible land uses. The width of the buffer and the amount of the landscaping required vary depending upon the proposed and existing land uses. The multi-family development proposed in the project at 7.02 units per acres is not inherently incompatible with the existing single-family neighborhood surrounding the project site. Indeed, as noted above, both uses are considered low density under the LDC and the Comprehensive Plan. Multi-family residential development on the project site furthers the intent of the R-4 zoning district in that it provides for a “transition” between the commercial uses in the Old Bainbridge Square shopping center to the south of the project site and the single-family residential neighborhood to the north of the project site. The Planning Department expressed concerns about the initial site plan’s compatibility with the surrounding neighborhood in its March 24, 2006, memorandum to the DRC. The memorandum recommended that the project be redesigned -- with a lower density and/or clustered single-family lots or townhomes - - in an effort to make it more compatible with the surrounding neighborhood. The Planning Department does not have the authority to require a project to be redesigned; it can only recommend that the developer consider alternative designs. The Planning Department does not have compatibility concerns with the revised site plan. Indeed, Mary Jean Yarbrough, a senior planner with 10 years of experience with the Planning Department, testified that “the site plan has changed significantly from the first submittal” and that it now “meet[s] the compatibility requirements of the comprehensive plan.” Similarly, Wade Pitt, an expert in local land use planning, testified that the project meets the compatibility requirements in the Comprehensive Plan and the LDC. Mr. Pitt also testified the project furthers the intent of the R-4 zoning district by providing a transition between the commercial uses to the south of the project site and the single-family residential uses to the north of the project site. Some of the changes in the site plan mentioned by Ms. Yarbrough that led to the Planning Department no longer having compatibility concerns with the project were the elimination of the Heather Lane interconnection; the reduction in the number of units in the project; the reduction in the size of the eastern stormwater pond; the inclusion of buffers in the project; and the elimination of the road through the project, which allowed for more extensive conservation areas in the central portion of the project site. A Type D buffer is required where, as here, the existing use is single-family and the proposed use is multi- family. The width of a Type D buffer can range from 30 to 100 feet, but the wider the buffer, the less landscaping that is required. The site plan includes a 30-foot wide buffer along the project site's northern and western property lines, as well as along the eastern border of the R-4 zoning district on the project site.1 The 30-foot Type D buffer is required to contain at least 12 canopy trees, six understory trees, and 36 shrubs for every 100 linear feet of buffer. The northern boundary of the R-4 zoned portion of the project site is approximately 1,600 feet long, which means that there will be approximately 864 plants -- 192 canopy trees, 96 understory trees, and 576 shrubs -- in the buffer between the proposed multi-family units and the neighborhood to the north of the project site. The Association contends that a 60-foot Type D buffer should have been required. However, Ms. Yarbrough persuasively testified that the 60-foot buffer actually provides less buffering because it is not required to be as densely vegetated as the 30-foot buffer provided on the site plan. Portions of the buffer shown on the site plan overlap the designated conservation areas that will be subject to the conservation easement on the project site. Mr. Arnold testified that it is not uncommon for buffers to overlap conservation areas. The conservation areas will be disturbed in those areas where the trees and shrubs are planted to comply with the landscaping requirements for the buffer. An eight-foot high fence will be constructed along the northern and western property lines. The site plan shows the fence several feet inside the property line, within the designated conservation areas. However, Mr. Arnold and City biologist Rodney Cassidy testified that the fence will have to be placed outside of the conservation areas along the property lines. LDC Section 10-177(f)(5) does not impact the placement of the fence on the property line as the Association argues in its PRO. That code section requires planting materials to be located on the outside of the fence “[w]hen residential uses buffer against other uses.” Here, the residential uses on the project are not being buffered against “other uses”; they are being buffered against the same type of use, residential. None of the six buildings on the northern side of the project site directly abut the buffer. Only one of the buildings is closer than 40 feet from the northern property line, and three of the buildings are as much as 80 feet from the northern property line. The only development actually abutting the 30-foot buffer is the retaining walls for the stormwater management ponds. The walls will be covered with vines to minimize their aesthetic impact on the adjacent properties. It is not necessary that the trees and shrubs in the buffer reach maturity before a certificate of occupancy is issued; all that is required is that the appropriate type and number of trees and shrubs are planted. The project is adequately buffered from the existing single-family residences to the north and west of the project site. The buffer requirements in the LDC have been met. In addition to the landscaped buffer and fence, impacts of the project on the surrounding neighborhood have been mitigated by the placement of parking on the interior of the site and by the elimination of the Heather Road interconnection that was in the initial site plan, which would have directed more traffic from the project onto the neighborhood streets. In sum, the more persuasive evidence establishes that the project is not inherently incompatible with the surrounding single-family uses and that its impacts on the surrounding neighborhood have been mitigated as required by the LDC. Thus, there is no basis to deny the site plan based upon the incompatibility concerns raised by the Association. Traffic Concerns There is currently considerable traffic on Old Bainbridge Road, particularly during rush hour. This makes it difficult for residents of the neighborhood north of the project site to turn left onto Old Bainbridge Road from Joyner Drive. The amount of traffic on Old Bainbridge Road is in no way unique. There are many streets in the City that have similar amounts of traffic, particularly during rush hour. Vehicles leaving the project will utilize Voncile Avenue, Joyner Drive, and Monticello Drive to access Old Bainbridge Road or Tharpe Street. Those streets are considered collector roads, not local streets. The number of vehicles expected to utilize the local streets in the neighborhood to the north of the project site will not be significant from a traffic engineering perspective. The initial version of the site plan showed Heather Lane being extended onto the project site and connected with a street running through the project. This interconnection, which is no longer part of the site plan, would have increased the amount of traffic on the surrounding neighborhood streets because Heather Lane runs through the middle of the neighborhood to the north of the project site. There are expected to be less than 50 trips entering the eastern portion of the project during the afternoon peak hour, and less than 20 trips entering the western portion of the project during the afternoon peak hour. The exiting trips during the afternoon peak hour are expected to be about half those amounts. The number of trips generated by the project fall below the one percent or 100 trip threshold in the City’s concurrency regulations. A preliminary certificate of concurrency, No. TCM060026, was issued for the project on March 9, 2007, indicating that there will be adequate capacity of roads (and other infrastructure) to serve the project. No credible evidence to the contrary was presented. LDC Section 10-247.11 requires properties in the R-4 zoning district to have vehicular access to collector or arterial streets if the density is greater than eight units per acre. Where, as here, the density of the project is less than eight units per acre, vehicular access to local streets is permitted. In any event, as noted above, access to the project site is by way of Voncile Avenue, which is considered a collector road. In sum, there is no basis to deny the site plan based upon traffic concerns because the project satisfies the City’s traffic concurrency requirements. Stormwater Management/Flooding Concerns Currently, stormwater run-off from the project site flows uncontrolled across the site, down the slope towards the neighborhood to the north that is represented by the Association. The neighborhood had severe flooding problems in the past. The City resolved those problems by reconfiguring the stormwater management system and constructing several stormwater ponds in the neighborhood. The Association is concerned that the stormwater run- off from the project will cause flooding in the neighborhood. The Association also has concerns regarding the design of the stormwater ponds and their proximity to the neighborhood. The project site is located in the upper reaches of a closed basin. As a result, the project’s stormwater management system is subject to the additional volume control standards in LDC Section 5-86(e), which requires the volume of post- development stormwater run-off from the site to be no greater than pre-development run-off. The project’s stormwater management system provides volume control, rate control, and water quality treatment. The system complies with all of the design standards in LDC Section 5-86, including the additional closed basin standards in paragraph (e) of that section. The project will retain all post-development stormwater run-off on site by capturing it and routing it to two stormwater ponds located in the north central portion of the project site. Stormwater run-off will be captured by roof collectors on the buildings and inlets on the streets and then routed to the stormwater ponds through underground pipes. The two stormwater ponds are designed with retaining walls on their north/downhill sides. The walls will have a spread footing, which was a design change recommended by Mr. Thomas to improve the functioning of the ponds. The walls will be eight to nine feet at their highest point, which is less than the 15-foot maximum allowed by LDC Section 5-86(f)(7), and they will be covered with vegetation as required by that section. Access to the stormwater ponds for maintenance is provided by way of the 20-foot wide “pond access” easements shown on the site plan for each pond. These easements meet the requirements of LDC Section 5-86(g)(2). The stormwater ponds are roughly rectangular in shape, rather than curvilinear. The shape of the ponds is a function of the retaining walls that are required because of the sloping project site. The stormwater ponds have been visually integrated into the overall landscape design for the site “to the greatest extent possible” as required by LDC Section 5-86(f)(10). The south side of the ponds will be contoured with landscaping, and the walls around the ponds will be covered with vegetation. The final design of the stormwater ponds and the retaining walls is evaluated during the permitting phase, not during site plan review. The walls must be designed and certified by a professional engineer, and the construction plans submitted during the permitting phase will include a detailed analysis of the soil types on the site to determine the suitability of the walls and to ensure the proper functioning of the ponds. The project’s stormwater management system will also collect and control the overflow stormwater run-off from the existing stormwater pond on the Old Bainbridge Square shopping center site. That run-off currently overflows out of an existing catch basin on the eastern portion of the project site and flows uncontrolled across the project site, down the slope at a rate of 6.7 cubic feet per second (CFS). After the project is developed, that run-off will flow out of a redesigned catch basin at a rate of 0.5 CFS, down the slope through a conservation area, to a graded depression area or “sump” on the northern property line, and ultimately to the existing stormwater management system along Heather Lane. Mr. Arnold and Mr. Cassidy testified that the reduced flow down the slope will benefit the conservation area by reducing erosion on the slope. Mr. Cassidy further testified that he was not concerned with the flow through the conservation easement forming a gully or erosion feature or otherwise altering the vegetation in that area, and that potential impacts could be addressed in a management plan for the conservation area, if necessary. The stormwater ponds and other aspects of the project’s stormwater management system will be privately owned and maintained. However, the operation and maintenance of the system will be subject to a permit from the City, which must be renewed every three years after an inspection. The City can impose special conditions on the permit if deemed necessary to ensure the proper maintenance and function of the system. The more persuasive evidence establishes that the project’s stormwater management system meets all of the applicable requirements in the LDC. On this issue, the testimony of Mr. Thomas and Mr. Wynn was more persuasive than the stormwater-related testimony presented on behalf of the Association by Don Merkel. Mr. Merkel, a former engineer, “eyeballed” the project site and the proposed stormwater management system; he did not perform a detailed analysis or any calculations to support his criticisms of the project’s stormwater management system. In sum, there is no basis to deny the site plan based upon the stormwater management/flooding concerns raised by the Association. Protection of Environmental Features on the Project Site The NFI is required to depict all of the regulated environmental features on the site, including the regulated slopes. The revised NFI approved by the City in August 2007 accurately depicts the environmentally sensitive features on the project site. The environmental features regulated by the City include “severe grades,” which are slopes with grades exceeding 20 percent, and “significant grades,” which are slopes with 10 to 20 percent grades. The project site contains 5.74 acres (250,275 square feet) of “significant grades” and 1.58 acres (68,835 square feet) of “severe grades.” Those figures do not include man-made slopes in the existing drainage easements across the site, which are not subject to regulation. There are 0.76 acres (33,056 square feet) of severe grades on the R-4 portion of the project site that are regulated as significant grades because of their size and location. Thus, there are a total of 6.50 acres (283,331 square feet) of slopes regulated as significant grades on the project site. LDC Section 5-81(a)(1)d. provides that 100 percent of severe grades must be protected and placed in a conservation easement, except for severe grades that are less than one- quarter of an acre in size and located within an area of significant grades that are regulated as significant grades. LDC Section 5-81(a)(2)d. provides that a minimum of 50 percent of significant grades must be left undisturbed and placed in a conservation easement. LDC Section 5-81(a)(2)d.1. provides that the significant grades to be protected are those areas “that provide the greatest environmental benefit as determined by the director [of growth management] (i.e., provides downhill buffers, protects forested areas, buffers other protected conservation or preservation areas, or provides other similar environmental benefits).” The Environmental Impact Analysis (EIA) included with the site plan shows that 100 percent of the severe slopes that are regulated as such are protected and will be placed in a conservation easement. The EIA shows that a total of 3.05 acres (133,002 square feet) of the significant grades on the project site will be impacted. That figure is 46.9 percent of the total significant grades on the project site, which means that 53.1 percent of the significant grades will be undisturbed and placed into a conservation easement. It is not entirely clear what environmental benefit is provided by some of the smaller conservation areas shown on the site plan, such as those between several of the buildings, but Mr. Cassidy testified that he took the criteria quoted above into consideration in determining that the site plan meets the applicable code requirements and is “approvable." Moreover, Mr. Arnold testified that similar “small pockets” of conservation areas are located in other areas of the City and that fencing or other appropriate measures can be taken to ensure that the areas are not disturbed. The EIA will be approved simultaneously with, and as part of the site plan. The conservation easement is not required during site plan review. Rather, LDC Section 5-81(b) requires the easement to be recorded no later than 30 days after commencement of site work authorized by an environmental permit. LDC Section 5-81(a)(2)d.1. provides that development activity in the area subject to the conservation easement is prohibited, except for “vegetation management activities that enhance the vegetation and are specifically allowed in a vegetation management plan approved by the director [of growth management].” LDC Section 5-81(b) provides that a management plan for the area subject to a conservation easement “may be approved provided the activity does not interfere with the ecological functioning of the conservation or preservation area and the activities are limited to designs that minimize impacts to the vegetative cover.” That section further provides that the management plan is to be approved “during the [EIA].” Mr. Cassidy testified that an approved management plan is required in order to plant trees in a conservation area. He further testified that impacts related to the construction of the buffer fence could be addressed in the management plan, if necessary. No management plan has been prepared or approved for the project even though there will be planting in the conservation areas that overlap the 30-foot Type D buffer. In sum, more persuasive evidence establishes that the regulated environmentally sensitive features on the project site are accurately depicted in the NFI; that the required amounts of regulated slopes are protected on the site plan; and that, subject to approval of a management plan for the plantings in the buffer as part of the EIA, the project complies with the requirements of the LDC relating to the protection of environmentally sensitive features. Other Issues The final hearing was properly noticed, both to the parties and the general public. Notice of the final hearing was published in the Tallahassee Democrat on September 9, 2007. An opportunity for public comment was provided at the final hearing, and 16 neighboring property owners spoke in opposition to the project. A number of the concerns raised by the Association and the neighboring property owners who spoke at the hearing are permitting or construction issues, not site plan issues. For example, issues related to the engineering specifications for the stormwater pond retaining walls and issues related to the protection of the conservation areas from construction impacts will be addressed and monitored as the project moves through the permitting process. Mr. Arnold testified that Association and neighboring property owners are free to provide input and express concerns on those issues to the appropriate City departments as the project moves through permitting and construction.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Planning Commission approve the Type B site plan for the Park Terrace Townhomes project, subject to the 21 conditions recommended by the DRC and additional conditions requiring: the eight-foot high buffer fence to be located on the property lines, outside of the designated conservation areas; and a management plan to be approved for the conservation areas that will be disturbed through the plantings required in the Type D buffer. DONE AND ENTERED this 7th day of November, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 7th day of November, 2007.
The Issue There are four issues in this proceeding. Whether the Petitioner, Edgewater Beach Owners Association, Inc. (the Association) has been denied a right to a quasi-judicial proceeding regarding Walton County Resolution 95-82 (the December 1995 Amendment). Whether the December 1995 Amendment improperly revives a development of regional impact development order. Whether the development approved by the December 1995 Amendment is vested from compliance with the local comprehensive plan adopted by the County in April 1993 (the 1993 Comp Plan). If not vested, whether the development approved by the December 1995 Amendment is consistent with the 1993 Comp Plan.
Findings Of Fact Background The Association, a Florida condominium association, is the owner of property developed pursuant to a development of regional impact (DRI) order, Walton County Resolution Number 82-12 (Original D.O.), issued by the County on June 8, 1982. The Original D.O. stated that it would remain in effect for ten years or until development was completed, whichever occurred first. It also stated that, upon application of the developer, the duration of the development order could be extended by the County. The Original D.O. authorized the construction of a six-phase condominium development, to consist of 476 residential units and associated recreational amenities. Phases I and II of the proposed six phase development were completed in 1984 and consist of 175 residential (both ownership and rental) units with associated amenities. Phase I and II consists of one building ranging, in a staircase fashion, from nineteen stories to three stories, with the lower portion of the building being located closest to the beach. This building is located on property now owned by the Association. In 1987, before any construction on the remaining four phases began, the original developer lost its interest in the undeveloped property through foreclosure. The Respondent, KPM, Ltd. Company (KPM), which is a Florida limited liability company, acquired title to the undeveloped property in March 1992. On May 25, 1992, in response to a request from KPM, the County voted to extend the termination date of the Original D.O. However, the Florida Department of Community Affairs subsequently informed the County and KPM that, in order to effect such an extension, the developer would be required to file a formal notice of proposed change and undergo further review pursuant to chapter 380, Florida Statutes. In September 1992, KPM filed a notice of proposed change asking the County to revive the Original D.O. KPM subsequently amended its notice to request a reduction in the number of units to be included in Phase III. In January 1993, the County approved KPM's proposed changes, revived the Original D.O., and extended the duration of the development order to January 1, 1999. This approval was formalized in Walton County Resolution Number 93-2 (the 1993 Amendment) and included the proviso that KPM submit an updated traffic analysis before Phases IV through V could be constructed. The Association filed a Section 380.07 appeal of the 1993 Amendment (EBOAI) and, in that appeal, specifically challenged the County's authority to revive the Original D.O. Following a formal administrative hearing before the Division of Administrative hearing before the Division of Administrative Hearings, FLWAC entered a final order dismissing EBOA's appeal of the 1993 Amendment on October 24, 1995. The FLWAC final order is presently pending on appeal before the First District Court of Appeal. Neither FLWAC nor the court have entered an order staying the effectiveness of the final order. In April, 1993, the County adopted the 1993 Comp Plan. KPM submitted a second notice of proposed change in January 1995, requesting certain changes in the phasing of the project. Included with the materials submitted to the County was the updated traffic analysis required by the county as a precondition to the approval of future phases III and IV to 71 and 124, respectively. The number of units included in Phase V was reduced to 86 and Phase VI was deleted altogether. The net effect was that the total number of units to be included in the undeveloped phases of the project remained at 281. The Association filed a FLWAC appeal challenging the April 1995 Amendment. Since the April 1995 Amendment is pending on appeal to FLWAC, it is not yet effective. The Association also brought two separate suits challenging the April 1995 Amendment in circuit court, one under Section 163.3215, Florida Statues, and the other under common law certiorari. All three actions have been abated and remain pending. In June 1995, KPM transferred its interest in the undeveloped property to the Respondent, Grand Dunes, Ltd. (Grand Dunes). Grand Dunes is a limited partnership, of which KPM is a limited partner. In addition, KPM retains the right to reacquire the undeveloped property should Grand Dunes decide against developing it. On or about October 5, 1995, the Developers jointly filed another notice of proposed change, through which they sought authorization to increase the number of units in Phase III to 89, decrease the number in Phase IV to 89, and delete Phases V and VI altogether. The net effect of the proposed change is a reduction in the total number of units in the undeveloped phases from 281 to 178. The December 1995 Amendment, which is the subject of this proceeding, reflects the County's approval of these proposed changes. Quasi-judicial Proceedings The Association asserts that the County's December 12, 1995, hearing (the County hearing) was deficient in two respects: 1/ 1) the transportation report appended to the notice of proposed change was not competent substantial evidence; and 2) the Association was not afforded appropriate procedural rights. The Transportation Report The transportation analysis submitted by the Developers as part of their notice of proposed change was dated October 7, 1994, and was identical to the report submitted in support of the April 1995 Amendment. No further updated transportation information was provided to the County by either the Developers or the Association prior to or during the County hearing. The author of that report, David Muntean, is an expert in transportation engineering. Muntean explained at final hearing that the purpose of the analysis reflected in the report was to determine whether the development changes being considered by KPM in the fall of 1994--ultimately embodied in the April 1995 Amendment--would have a significant impact on area roadways. Two specific issues are addressed in making this determination: 1) at build-out (1998), whether traffic generated by the proposed development, considered together with the already built Phases I and II and all other traffic on an area roadway, will result in traffic volumes that exceed the traffic capacity recommended for the roadway (i.e. cause a degradation in the level of service); and 2) at build-out, whether the proposed development, together with Phases I and II, will generate five (5) percent or more of the traffic volume recommended for a roadway. In order to determine whether there may be a degradation in the level of service, Muntean made a projection of the volume of traffic that would be generated by sources other than the proposed development (the background traffic) in 1998. He accomplished this by extrapolating between the background traffic reflected in the latest Department of Transportation traffic figures then available (1993) and the projected traffic volume for the year 2015, as calculated in the Fort Walton Beach Urban Area Transportation Update. Since Phase I and II of the Original D.O.-- the Association's buildings-- were completed back in 1984, traffic generated by those phases was included in the calculation of background traffic. Muntean then projected the number of trips that would be generated by the proposed development itself, using data supplied by the Institute of Transportation Engineers (ITE). This source provides a formula for calculating projected numbers of vehicular trips based upon the type of development being proposed. Once a raw figure was calculated using the ITE formula, certain adjustment factors were applied. These included adjustments for household size and for internal capture. Internal capture represents the number of trips that might otherwise be generated by a project if not for amenities available within the project itself that reduce the number of vehicular trips taken off the project premises. The adjustment factor used for internal capture was conservative, in order to ensure that the number of trips generated by the project would not be underestimated. In calculating the number of trips projected to be generated by the project, Muntean included not only those trips that would originate from the proposed new development, but also those trips that could be expected to originate from the already developed Phases I and II. Since the traffic from those completed phases was also included in the calculation of projected background traffic, Muntean's analysis double counts the Phases I and II traffic. The result is another overestimation of the traffic impacts of the project. Based upon a total development of 456 units, the traffic report established that there are projected to be two roadway segments which will operate below their recommended level of service at build-out. However, the trips generated by a 456 unit development was projected to account for less than five percent of the assigned level of service. (i.e. the maximum recommended traffic volume). Similarly, the report projects that, at build-out, trips generated by a 456 unit development would account for more than five percent of the maximum recommended traffic volume for two roadway segments. Those two roadways, however, will continue to operate well within their assigned levels of service. While the initial report projects the traffic impacts of a 456 unit development, the development approved by the December 1995 Amendment will have fewer total units--only 353. (The 175 already constructed units owned by the Association and 178 to be built by the Developers). The Association offered no evidence suggesting that the conclusions reflected in the initial traffic report were faulty or inapplicable to the development at hand. Nor did the Association offer any reports or analysis of its own. While the projections reflected in the report may not predict 1998 traffic with absolute accuracy, it reflects a best estimate of the traffic impacts of the development. Accordingly, the initial traffic report constitutes competent substantial evidence. Absent any evidence to the contrary, the initial report also supplies a sufficient evidentiary basis on which to make a finding regarding traffic impacts. However, the Developers provided further support by commissioning Muntean to prepare a second traffic report, based upon the most up-to-date traffic information. Muntean used basically the same methodology utilized for the previous report. 2/ However, in the second report, Muntean did decrease the total number of units being analyzed for traffic impacts to reflect the 353 that the County actually approved during the County hearing. The conclusions reflected in the second report do not deviate significantly from those reported in the first. At build-out, three roadway segments are projected to operate below their assigned levels of service, but, in each case, the traffic from the 353 unit development will account for less than five percent of the maximum capacity allowable under the assigned level of service. On one other roadway segment, traffic from the total project is projected to account for more than five percent of the maximum allowable volume for the roadway's assigned level of service, but that roadway will continue to operate well within its assigned level of service, even with the build-out development's traffic. The evidence presented by the Developers establishes that the proposed development, even when considered together with the already constructed phases now owned by the Association, will not significantly impact any area roadway. Consequently, the County's determination, that the proposed development does not constitute a substantial deviation, is supported by competent substantial evidence. Procedural Opportunities The County hearing was preceded by notice published in a local newspaper on November 16, 1995. That notice clearly identifies the date and time of the hearing regarding the Developers' proposed changes. The Association has not alleged that it failed to receive said notice. As is the practice of the County for all agenda items, the agenda indicated that ten minutes were set aside for consideration of the Developers' proposed changes. However, the transcript of that hearing indicates that both the Developers and the Association were afforded as much time as they desired to make arguments or present evidence. Both the Association and the Developers were represented at the County hearing by their attorneys, but neither offered any live testimony, even though the transcript clearly establishes that both the Association and the Developers were afforded that opportunity. Counsel for the Association did have one exhibit admitted into the record. In addition, the only documentary evidence admitted into the record consisted of the documents filed as part of the notice of proposed change itself, supplements to the notice submitted by the Developer prior to the County hearing, the reports and comments of regulatory agencies, and the general warranty deed reflecting transfer of the property from KPM to Grand Dunes. The record is devoid of any evidence establishing that the Association requested either the Developers or the County to make witnesses available at the County hearing for cross-examination. Nor does the record include any evidence that, prior to the County hearing, the Association requested that it be made a party to the proceeding. There can be no question that, even if all appropriate procedural rights were not already offered to the Association at the County hearing, the present proceeding provided ample opportunity for the Association to offer evidence, either in the form of documents or testimony, and to cross-examine the Developers' witnesses. Notably, the exhibits entered into the record before the County, were admitted as joint exhibits in this proceeding, without any limitation as to their weight or relevance. Revival of the Original D. O. Even the closest scrutiny of the December 1995 Amendment reveals the complete absence of any provision extending the termination date of the Original D.O. In essence, the Association attempts, through this proceeding, to obtain review of action taken by the County in January, 1993, while stipulating that the County revived the Original D.O. in January 1993. Since the Original D.O. had already been revived, approval of the December 1995 Amendment did not require the County to revive anything. Vesting and Consistency with the Local Comprehensive Plan The development approved by the December 1995 Amendment will include eighteen stories of living space, with two stories of parking underneath. The resulting density will exceed twelve units per acre. The December 1995 Amendment expressly states that the proposed development is not subject to the height and density requirements of the 1993 Walton County Local Comprehensive Plan (the 1993 Comp Plan). The County has consistently treated DRI developments as vested from compliance with the 1993 Comp Plan, even when there has been a change in ownership. This position has been endorsed by the Department of Community Affairs. When the 1993 Comp Plan was being drafted, the County staff specifically intended that the height and density limitations in that plan not apply to already approved DRI developments. Approved DRIs were seen as sources of tax revenue that would alleviate losses attributable to the development restrictions imposed by the 1993 Comp Plan. The Department of Community Affairs has taken the position, and has consistently advised local governments, that, if a DRI development order is amended to reflect a decrease in the intensity of the project -- a decrease in the number of units, for example -- the development would not lose its statutory vesting. The Association's Purpose for Commencing This Proceeding The association's president repeatedly stated in her deposition that the Association's membership intend to do everything that they can to prevent the revival of the Original D.O. and to ensure that, whatever the Developers build, it is consistent with the 1993 Comp Plan. In addition to the present proceeding, the Association has also initiated six other legal proceedings challenging development proposed for the Developers property, Section 380.07, Florida Statutes appeals of both the 1993 and the April 1995 Amendments, two actions for certiorari challenging both of the April and the December 1995 Amendments, and two actions under Section 163.2115, Florida Statutes, challenging both of the 1995 Amendments.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the Florida Land and Water Adjudicatory Commission enter a final order approving the development proposed by the Developers and dismissing the Association's appeal. DONE and ENTERED this 11th day of December, 1996, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1996.
The Issue The sole issue in this proceeding is whether the rights of W-G Development Corporation in the land known as Future Community, comprising some 3,750 acres in Hillsborough County, have vested within the meaning of F.S. 380.06(12), so as to exempt petitioner from the planning and review requirements of Chapter 380, Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: In March of 1972, petitioner W-G Development Corporation purchased the remaining Del Webb interests in Sun City Center, an existing residential retirement community of some 1,600 dwelling units, and approximately 11,250 acres of surrounding undeveloped land. Almost immediately, through its consultants and representatives, petitioner began preparation to develop a single master plan for the development of its newly acquired property. The undeveloped land was divided into four parcels. Located South of State Road No. 674 is Sundance Recreational Community (3,150 acres), King's Point West (3,000 acres) 1/ and Sun City Center South (1,350 acres). Future Community lies to the North of State Road No. 674 and comprises 3,750 acres. The total development is to accommodate some 36,495 dwelling units, of which 16,125 are to be located within the residential section of Future Community. An additional 250 acres in Future Community are set aside for a regional office and commercial center. The various portions of the total development are more particularly described on pages 2 through 10 of the Stipulation of Facts attached hereto. The majority of the property acquired by petitioner was unzoned at the time of purchase. While most of the property could have been developed with the zoning existing as of the date of acquisition, petitioner determined that it was in the best interests of all concerned that an overall master plan be prepared and approved due to the magnitude of the proposed development, the potential for future public commitment, financing and the need for overall planning. In May of 1972, petitioner retained the services of architects, engineers and planners to prepare a master development plan which included the rezoning of the total area purchased to community unit (C-U) zoning. Such zoning envisions multiple types of land uses and provides flexibility for the developer and a means of continuous control of the development by the municipality. The master plan or overall site plan entails transportation routes, daily traffic flows, a master drainage plan, sewer and water concepts, density distributions and land uses. Prior to the development of such a plan, an analysis must be made of surrounding land uses, topology, zoning and economic feasibility. After the master plan is approved and the area is rezoned to C-U zoning by the County, the individual subdivision site plans must conform to the master plan or the County can reject them. In this case, petitioner's consultants and planners worked closely with County personnel and officials in the development of the master plan and request for C-U zoning. Discussions with the County ensued regarding water and sewage treatment, the donation of school sites, traffic patterns, the conveyance of road right-of-ways, densities of specific areas, etc. Hearings were held by the Board of County Commissioners on petitioner's application for rezoning in May and June of 1973. On June 22, 1973, Hillsborough County adopted petitioner's request for rezoning and accepted petitioner's C-U Plan by a unanimous vote. At this meeting, petitioner made certain concessions and commitments concerning the donation of school sites, conveyance of property for the widening of State Road No. 674, densities of particular areas and ingress and egress areas. In order to preserve in documentary form the actions and agreements of the parties made on June 22, 1973, petitioner, King's Point West, Inc. and the County executed a document memorializing the same on September 7, 1973. The effective date of the zoning actions by the County was June 22, 1973. In order to assure that public services would be available for the total development, petitioner and Hillsborough County negotiated and entered into certain agreements concerning water and sewer service during the course of preparing the rezoning application. Pursuant to an agreement dated November 6, 1972, and an addendum of February 7, 1973, petitioner paid the County $305,850.00 for 2,200 advance sewer and water connection fees to an existing facility authorized for use of residents in Sun City Center. There were no limitations, restrictions or distinctions as to which areas or parts of the total development would be served through these connections. In addition, petitioner agreed to and did construct prior to July 1, 1973, an interim sewage treatment plant at a cost in excess of $300,000.00. This plant is to be used to serve the existing development pending the construction by the County of a regional treatment plant. It is estimated that the regional plant will be built between 1978 and 1981. The County has now assumed the maintenance and operation of the interim facility. No payment for this facility has been made to petitioner by the County. The federal government will fund up to 75 percent of the construction of a regional plant. Petitioner agreed to match the remaining 25 percent representing a commitment by petitioner of $1,000,000.00 to $1,500,000.00. If Future Community were not to be developed, petitioner would not have committed itself for costs of the regional plant. An addition to the existing facility would have served residents of Sun City. As of July 1, 1973, the First National Bank of Chicago had loaned petitioner $8,500,000.00 for use in developing the subject project. Approximately $3.2 million was disbursed prior to November 6, 1972 (the date of the water-sewer agreement), and about $5.3 million was disbursed between that date and July 1, 1973. At the time of the loan commitment, the Bank understood that the property North of State Road No. 674 was to be developed, as well as the property South. The Bank considered the project as a single development. If petitioner's land holding had been only South of State Road No. 674, the Bank would not have committed itself to the loan. Some of the loan money went for planning purposes. No disbursements were made, by the Bank between June 22nd and July 1, 1973. Among the commitments made by petitioner in exchange for the rezoning approval by the County was the conveyance of school sites to the Hillsborough County School Board. Petitioner agreed to convey to the School Board a total of 195 acres to be used for public school facilities based upon the Board's projected need. It was agreed that at least seven of the school sites would be located in the Future Community or Dominion area of petitioner's development. If the projected need exceeded demonstrated need, the sites were to be used as recreation or park areas for the benefit of residents. As of the date of the hearing, petitioner had not executed any conveyances of school sites to the School Board. Petitioner also agreed, prior to July 1, 1973, to convey to the appropriate governmental body a parcel of land for the widening of State Road No. 674, such obligation to terminate on June 22, 1983. No such conveyance was made as of October 4, 1976. At the time of the hearing, as evidenced by Exhibit 9, petitioner was in the process of constructing and dedicating to the County some 85 acres for a major arterial road in the northern portion of its development. Prior to July 1, 1973, petitioner was issued numerous commercial and residential building permits authorizing construction with an estimated value of some eight million dollars. No permits have been obtained for construction within Future Community and no expenditures have been made for physical development, in Future Community, other than for planning. Although petitioner's entire development of some 11,500 acres was zoned, planned, engineered and financed as a single project, petitioner will probably not develop Future Community until Interstate 75 is completed, estimated to be in 1981. Petitioner's senior vice-president testified that petitioner would have had two hundred residential units in Future Community by now had prior approval been obtained from respondent.
Recommendation Based upon the findings of fact and conclusions of law set forth herein, it is recommended that the Division of State Planning issue to W-G Development Corporation a binding letter that it has vested rights to develop Future Community without compliance with Chapter 380 of the Florida Statutes. Respectfully submitted and entered this 13th day of January, 1977, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
