95-005051GM Jack Hamilton vs. Jefferson County And Department Of Community Affairs Status: Closed Recommended Order on Thursday, October 17, 1996.

Summary: Plan amendment in compliance; local government authority to defer specific land uses to Land Developement Region, rather than its plan; flexible review for small, rural counties allowed

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACK HAMILTON, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5051GM

)

DEPARTMENT OF COMMUNITY )

AFFAIRS and JEFFERSON COUNTY, )

)

Respondents. )

_______________________________)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of

Administrative Hearings by its assigned Hearing Officer, Donald R. Alexander, on

July 11, 1996, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Vance W. Kidder, Esquire

149 Carr Lane

Tallahassee, Florida 32312-9032

For Respondent: Sherry A. Spiers, Esquire

(DCA) 2555 Shumard Oak Boulevard, Suite 315

Tallahassee, Florida 32399-2100

For Respondent: David La Croix, Esquire

(County) 521 West Olympia Avenue

Punta Gorda, Florida 33950-4851

STATEMENT OF THE ISSUE

Whether Ordinance No. 95-07 adopted by the County on July 20, 1995, is

supported by adequate data and analysis, contains adequate standards, and is

internally consistent with the County comprehensive plan.

PRELIMINARY STATEMENT

This matter began on September 27, 1995, when petitioner, Jack Hamilton,

the owner of property and a business in Jefferson County, Florida, filed a

petition for administrative hearing with respondent, Department of Community

Affairs, alleging that a plan amendment adopted by respondent, Jefferson County,

on July 20, 1995, was not in compliance. More specifically, petitioner

contended that the amendment was not based on "relevant appropriate data and

analysis." Thereafter, the matter was referred by the agency to the Division of

Administrative Hearings on October 5, 1995, with a request that a Hearing

Officer be assigned to conduct a hearing.

On motion of the parties, this case and Case No. 95-5776GM, which involves

an appeal by petitioner of a related land development regulation, were

consolidated for hearing purposes. Because Case No. 95-5776GM requires the

issuance of a Final Order, separate orders are being rendered in the two

matters.

By notice of hearing dated November 22, 1995, a final hearing was scheduled

on January 23, 1996, in Tallahassee, Florida. Thereafter, the agency's

unopposed motion for continuance was granted and both cases were rescheduled to

April 23, 1996. A second unopposed motion for continuance by the agency was

granted, and the cases were rescheduled to May 8, 1996, at the same location.

The agency's third unopposed motion for continuance was granted, and the cases

were finally heard on July 11, 1996.

On January 5, 1996, petitioner moved to amend his petition in Case No. 95-

5051GM by adding grounds that (a) the Future Land Use Amendment "lacks

(sufficient) standards" to "ensure the compatibility of adjoining uses within a

given land use category" as called for by Section 163.3177(6)(a), Florida

Statutes, and (b) the Agriculture 2 land use in the plan amendment is internally

inconsistent with Objective 6 of the Housing Element, Policy 1-3 of the Future

Land Use Element, and the data and analysis that supports the original

comprehensive plan. Over the objection of respondents, petitioner was granted

leave to amend his petition on January 10, 1996.

At final hearing, petitioner testified on his own behalf and presented the

testimony of John Durst, County planner; Susan Anderson, an agency planner; and

Jackson E. Sullivan, a planner and accepted as an expert in growth management

and land use planning. Also, he offered petitioner's exhibits 1, 3, 7-10, and

12-18. All exhibits were received in evidence. Respondent Jefferson County

presented the testimony of John Durst, county planning director. Also, it

offered County exhibits 1 and 2. Both exhibits were received in evidence.

Respondent Department of Community Affairs presented the testimony of Susan

Anderson, a planner and accepted as an expert in comprehensive land use

planning. Also, it offered DCA exhibits 1 and 2 which were received in

evidence. Finally, the parties offered joint exhibits 1-6 which were received

in evidence.

The transcript of hearing (three volumes) was filed on August 6, 1996.

Proposed findings of fact and conclusions of law were originally due on

September 6, 1996. At the request of the parties, this time was extended to

September 13, 1996, and then again to September 16, 1996. Proposed recommended

orders were timely filed by all parties and have been considered by the

undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, including the stipulation of counsel, the

following findings of fact are determined:

A. Background

a. The parties

1. Respondent, Jefferson County (County), is a local governmental unit

subject to the land use planning requirements of Chapter 163, Florida Statutes.

That chapter is administered by respondent, Department of Community Affairs

(DCA). The DCA is charged with the responsibility of reviewing comprehensive

growth management plans and amendments thereto. At issue in this case is a plan

amendment adopted by the County.

2. Petitioner, Jack Hamilton, is a resident of Jefferson County. He owns

and operates a nursery, orchard and cattle operation on his property on the east

side of Highway 19, approximately two miles north of Monticello, Florida. The

land, which is approximately 135 acres in size, is presently designated in a

land use category known as Agriculture 2. For the last twenty years or so, the

Jefferson Nursing Center (JNC), a nursing home, has been situated on a seven

acre parcel of land surrounded on three sides by petitioner's property. Here,

petitioner challenges a plan amendment which allows nursing homes, including

JNC, in the Agriculture 2 category. The parties have stipulated that petitioner

is an affected person within the meaning of the law and thus he has standing to

bring this action.

b. The nature of the dispute

3. The County adopted its comprehensive plan (plan) on July 19, 1990.

Through inadvertence, in the original plan, institutional uses such as churches,

schools, nursing homes, parks and recreation areas were not specifically allowed

as permitted uses in any residential or agriculture district even though such

uses were commonly found in both types of districts. Even so, on an undisclosed

date, the plan was determined by the DCA to be in compliance.

4. On April 1, 1994, the County submitted to the DCA various amendments

relating to a proposed petroleum pipeline project. During the course of

preparing those amendments, the County became concerned for the status of all of

the existing churches, nursing homes, schools, and other institutional uses in

the County, because of their not being specifically mentioned in the plan.

5. To avoid any question about the status of these uses and their

treatment in the Land Development Code, which implements the plan, the County

included an amendment to Future Land Use Element (FLUE) Policy 5-9 to provide

for the adoption of land development regulations to permit all public land uses.

6. On June 8, 1994, the DCA issued its Objections, Recommendations, and

Comments (ORC) Report concerning the proposed public land uses amendment. Among

other things, the DCA determined that the language in the amendment was too

broad.

7. In response to the ORC, on August 3, 1994, the County adopted revised

Ordinance 94-10, which amended the comprehensive plan to add a Public Facilities

Land Use District, adopt a Public Facilities Land Use Map, and adopt a List of

Public Facilities. Under this amendment, only existing public uses were

included within the district, and these were specifically identified on a series

of maps and a List of Public Facilities, both of which were included as part of

the plan amendment.

8. On September 26, 1994, the DCA issued its Notice of Intent to find

Ordinance No. 94-10 not in compliance with Chapter 163, Florida Statutes. This

determination was based in part on the fact that the amendment did not

sufficiently detail what land use regulations and restrictions would apply in

the district.

9. On March 28, 1995, the County submitted to the DCA for its review a

proposed ordinance repealing Ordinance 94-10 and amending the County's

comprehensive plan to add a Public Facilities Land Use Overlay District, adopt a

Public Land Use Map, and adopt a List of Public Facilities. This proposed

amendment provided that the current land use district designation, and all

applicable regulations for that district, would continue to apply to lands

included within the overlay district. It also provided standards for any future

additions to the overlay district. On June 2, 1995, the DCA issued its ORC

Report concerning the proposed Public Facilities Land Use Overlay District

amendment in which it continued to object to the proposed district.

10. In response to the ORC, and after consulting with the DCA, on July 20,

1995, the County adopted Ordinance No. 95-07. That ordinance repealed Ordinance

No. 94-10 and amended the comprehensive plan to allow (a) churches in all land

use categories except Conservation District and (b) adult care facilities, day

care facilities, and nursing homes in any land use district that allows

residential use. Ordinance No. 95-07 was not adopted pursuant to a compliance

agreement. On September 7, 1995, the DCA issued its Notice of Intent to find

Ordinance No. 95-07 in compliance.

11. Petitioner timely filed his appeal of the DCA's determination that

Ordinance No. 95-07 was in compliance. As amended, the petition contends that

the plan amendment is not supported by adequate data and analysis, lacks

standards pertaining to density and intensity of development for nursing homes,

and is internally inconsistent with the plan. As such, he contends the

amendment is arbitrary and capricious, and not fairly debatable. Although the

issues in the case have been framed by petitioner in this manner, in simple

terms his primary concern is that nursing homes, and specifically JNC, are

incompatible with agricultural uses and do not belong in the Agricultural 2 land

use category.

B. The Plan Amendment

a. Identification and adequacy of data and analysis

12. When it forwarded Ordinance No. 95-07 to the DCA for review, the

County did not specify in its transmittal letter what data and analyses it was

relying on to support the amendment. In an earlier telephone conversation

between the County planner and the DCA, however, the County indicated that it

was relying on the existing data and analysis originally submitted with its

comprehensive plan. The DCA established that this is not unusual and is an

acceptable practice for smaller counties. Indeed, there is nothing in Chapter

9J-5, Florida Administrative Code, which requires that the identification of the

supporting data and analysis be conveyed to the DCA in writing.

13. Jefferson County is a small, rural county with only one person in its

planning department. For counties with limited technical staff, the DCA

normally provides technical support, and it customarily reviews the plan and

existing data and analysis to identify those portions of the documents which are

relevant to, and support, a plan amendment. Thus, in accordance with its

practice for smaller counties, the DCA did not require the County to make a

complete assessment of the plan and point out various page and reference

numbers, but instead it performed that task. There was no showing that

petitioner, or any other member of the public, was prejudiced in any respect by

the DCA doing this.

14. Besides the existing plan data and analysis, the DCA also had in its

files the map and list specifically identifying each public use existing in the

County and its location, including all churches, day care facilities, and

nursing homes. The map and list were available at the public hearings which

culminated in the adoption of Ordinance 95-07, and identified JNC within the

Agriculture 2 district. Petitioner, who was a long-time member of the County

Planning Commission, attended those hearings. There is no evidence that he, or

any other member of the public, was unable to participate in the amendment

process in a meaningful way.

15. In determining the text amendments to be in compliance, the DCA relied

upon certain data in the plan, including the existing population survey, soil

survey and soil suitability data; a table comparing population composition

showing the population existing and the need for elderly housing; the

silviculture map as a factor in determining site suitability; the land use map

showing the general overview of all land use types in the County; an analysis of

the uses in the different land use categories; and a map plat showing

petitioner's property, the location of the JNC, the proximity of two mixed-use

business/residential areas to the north and south, and the residential densities

in the area.

16. The DCA also considered policies in the traffic circulation and

transportation elements of the plan, a table of existing traffic conditions,

existing housing data, an inventory of group homes, and special housing needs

within the County, including housing for the elderly.

17. Finally, the DCA considered Housing Element Policy 5-3 and Objective

6. The policy provides that the County shall establish nondiscriminatory

standards and criteria addressing the location of group homes and foster care

facilities as well as other special needs housing. The objective calls for

adequate sites for group homes and facilities in residential areas or other

appropriate areas of residential character.

18. Petitioner's expert concedes that nothing prohibits the County from

adopting an amendment which allows nursing homes in an agricultural district so

long as adequate data and analysis are present, and appropriate nonresidential

intensity standards are found in the plan. Given the foregoing data and

analysis, it is found that petitioner has failed to prove to the exclusion of

fair debate that the plan amendment lacks adequate data and analysis.

b. Compatibility of uses

19. Petitioner has also contended that the plan amendment allows uses

(nursing homes) which are incompatible with agricultural uses. In this regard,

petitioner offered his lay opinion that nursing homes are incompatible with

agriculture uses because in the event of a problem during normal agricultural

operations, such as a shift in the wind direction during burning or crop

spraying, bedridden nursing home patients cannot be easily transported out of

harm's way.

20. With appropriate site planning features, petitioner's expert agreed

that nursing homes are not inherently incompatible with agricultural land uses.

The Code contains such site design criteria which are designed to eliminate or

minimize incompatibilities. For example, it contains provisions regarding

setbacks, a site planning process, and screening and buffering requirements.

21. The fact that petitioner's agricultural operation and JNC have

coexisted for more than twenty years is some evidence that the uses are or can

be compatible.

22. The County's proposed amendment to allow adult care facilities, day

care facilities and nursing homes in the Agriculture 2 land use category is not

inconsistent with any other objective or policy, is found to be fairly

debatable, and is therefore in compliance.

c. Density and intensity standards

23. The law (s.163.3177(6)(a), F.S.) requires that comprehensive plans

contain density and intensity standards for each land use. Petitioner contends

that, notwithstanding this statutory requirement, there are no standards in the

amendment or the comprehensive plan for density or intensity of development of

nursing homes in the Agriculture 2 land use category. It is noted that the

Agriculture 2 land use district description in Policy 1-3 of the FLUE provides a

residential density but does not contain an intensity standard.

24. FLUE Objective 1 provides, however, that "(f)uture growth and

development shall continue to be managed using the County Development Code,"

which was adopted in April 1981. That Code spells out densities and intensities

for each area. The objective further directs that the regulations be revised to

address issues identified in Section 163.3203, Florida Statutes, compatibility

of uses, and incentives to upgrade infrastructure.

25. In addition, FLUE Policy 6-2 provides that the development review and

approval process in the Code be the vehicle for limiting densities and

intensities of development consistent with the availability of infrastructure.

This policy has already been determined to be "in compliance" with Chapter 163,

Florida Statutes.

26. Rule 9J-5.005(8)(j), Florida Administrative Code, authorizes a local

government to include in its comprehensive plan documents adopted by reference

but not incorporated verbatim into the plan. In this case, the County adopted

in its Code specific land development regulations governing growth and

development, including density and intensity standards. There was no evidence

that the Code fails to meet the statutory requirement that densities and

intensities be included in the plan. Indeed, as a general rule, comprehensive

plans in Florida either specifically describe all of the particular uses allowed

in each district, or they generally describe such uses and let the particular

uses to be allowed be determined in land development regulations. Here, the

County has opted for the second type. This being so, it is found that

petitioner has failed to establish to the exclusion of fair debate that the plan

and plan amendment lack appropriate standards governing densities and

intensities.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has jurisdiction over the

subject matter and the parties hereto pursuant to Sections 120.57(1) and

163.3184(9), Florida Statutes.

28. The broad issue in this case is whether the plan amendment is "in

compliance" with Part II, Chapter 163, Florida Statutes, and Chapter 9J-5,

Florida Administrative Code. "In compliance," as defined in Section

163.3184(1)(b), Florida Statutes, means the plan is consistent with the

applicable provisions of Part II of Chapter 163, Florida Statutes, the state

comprehensive plan, the regional policy plan, and Chapter 9J-5, Florida

Administrative Code.

29. This case arose under Section 163.3184(9)(a), Florida Statutes,

following DCA's notice of intent to find the plan amendment in compliance.

Under that statute, the plan amendment must be determined to be "in compliance"

if the local government's determination of compliance is fairly debatable.

Therefore, the action of the County must be approved "if reasonable persons

could differ as to its propriety." B & H Travel Corporation v. Dept. of

Community Affairs, 602 So.2d 1362, 1365 (Fla. 1st DCA 1992).

30. The more persuasive evidence supports a conclusion that petitioner has

failed to prove to the exclusion of fair debate that the challenged amendment is

not supported by adequate data and analysis, is internally inconsistent, or

lacks adequate standards. This being so, the plan amendment adopted by

Ordinance No. 95-07 is determined to be in compliance.

31. Finally, two other matters merit a brief discussion. First, a

contention that the County's inclusion of density and intensity standards in its

land development code, rather than the plan, violates Section 163.3177(6),

Florida Statutes, has been rejected. This is because Rule 9J-5.005(8)(j),

Florida Admini-strative Code, allows a local government to include in its plan

documents adopted by reference, such as land development regulations. It is

also consistent with the accepted practice in the state of adopting plans which

generally describe the uses allowed in each district, but defer the

determination of specific uses to the land development regulations.

32. Second, while Rule 9J-11.007(2), Florida Administrative Code, requires

that, at the time of the amendment submittal, a local government furnish to the

DCA a reference to the specific portions of the previously submitted data and

analysis on which it relies, this rule must be read in pari materia with Rule

9J-5.002(2), Florida Adminstrative Code. The latter rule provides for a more

flexible compliance review of small, rural counties. When the two rules are

read together, clearly the DCA may provide technical assistance, as it did here,

so long as the data and analysis are identified, and no prejudice to the public

occurs. In this case, both criteria were met.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Department of Community Affairs enter a Final Order

determining the County plan amendment adopted by Ordinance No. 95-07 to be in

compliance.

DONE AND ENTERED this 17th day of October, 1996, in Tallahassee, Florida.

____________________________________

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of October, 1996.

COPIES FURNISHED:

James F. Murley, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399-2100

Vance W. Kidder, Esquire

149 Carr Lane

Tallahassee, Florida 32312-9032

Sherry A. Spiers, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 315

Tallahassee, Florida 32399-2100

Stephanie M. Gehres, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325-A

Tallahassee, Florida 32399-2100

David La Croix, Esquire

521 West Olympia Avenue

Punta Gorda, Florida 33950-4851

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended

order. Any exceptions to this recommended order should be filed with the agency

that will issue the final order in this case.