01-004890 Bay Point Club, Inc. vs. Bay County Status: Closed Recommended Order on Wednesday, December 11, 2002.

Summary: Because Notice of Proposed Changed to development order to allow construction of 12-story condo project was not consistent with Bay County comprehensive plan, application denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BAY POINT CLUB, INC., )

)

Petitioner, )

)

vs. ) Case No. 01 - 4890

)

BAY COUNTY, )

)

Respondent, )

)

and )

)

K. EARL DU RDEN; DAVID ALLEN )

SPENCER; HARRY B. SIPPLE, III; )

UNAL TUTAK; DAVID W. HILL; )

LUCY N. HILTON; WILLIAM F. )

FUSSELMAN; and BAY POINT )

COMMUNITY ASSOCIATION, INC., )

)

Intervenors. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on May 13 - 15

and September 11, 2002, in Pan ama City and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Kenneth D. Goldberg, Esquire

1725 Mahan Drive, Suite 201

Tallahassee, Florida 32308 - 5201

For Respondent: Michael S. Burke, Esquire

Burke & Blue

221 McKenzie Avenue

Panama City, Florida 32401 - 3128

For Intervenors: Robert C. Apgar, Esquire

(Durden et al.) Sherry A. Spiers, Esquire

L aw Offices of Robert C. Apgar

320 Johnston Street

Tallahassee, Florida 32303 - 6214

For Intervenor: Richard W. Moore, Esquire

(Association) Amundsen and Gilroy, P.A.

Post Office Box 1759

Tallahassee, Florida 32302 - 1759

STATEMENT OF THE ISSUES

The issues are whether Petitioner's application for a

Notice of Proposed Change to its Development of Regio nal

Impact constitutes a substantial deviation from the criteria

in Section 380.06(19)(b)1. - 15., Florida Statutes, and whether

the proposed change is consistent with Bay County's

Comprehensive Plan.

PRELIMINARY STATEMENT

This matter began on September 11, 2001, when Respondent,

Bay County, by a 2 - 2 tie vote, denied a Notice of Proposed

Change to a previously - approved Development of Regional Impact

filed by Petitioner, Bay Point Club, Inc., on the ground that

the proposed change constituted a substantial dev iation. On

October 12, 2001, Petitioner filed a Notice of Appeal and

Petition to Appeal DRI Development Order with the Florida Land

and Water Adjudicatory Commission. Petitions to Intervene in

opposition to the Petition were then filed by Intervenors,

K. Earl Durden, David Allen Spencer, Harry B. Sipple, III,

Unal Tutak, David W. Hill, Lucy N. Hilton, William F.

Fusselman, and Bay Point Community Association, Inc. In an

Order of Transmittal rendered by the Florida Land and Water

Adjudicatory Commission on December 19, 2001, intervention by

those parties was authorized. By the same Order, the matter

was referred to the Division of Administrative Hearings, with

a request that an Administrative Law Judge be assigned to

conduct a hearing.

By Notice of He aring dated January 18, 2002, and by

agreement of all parties, a final hearing was scheduled on

May 13 - 15, 2002, in Panama City, Florida. A continued hearing

was held on September 11, 2002, in Tallahassee, Florida.

Intervenors' Joint Emergency Motion for Continuance of Final

Hearing was denied on May 10, 2002.

At the final hearing, Petitioner presented the testimony

of Gary Ament, Bay County planning and zoning manager;

Robert F. Henry, III, its president; Dan Garlick, an

environmental consultant an d accepted as an expert; Gail

Easley, a land planning consultant and accepted as an expert;

Tom Beck, a land use planner and accepted as an expert; Steve

Marshall, a real estate appraiser and accepted as an expert;

Joseph F. Chapman, III, chairman of the b oard of the holding

company which owns Petitioner; Raymond Powell, president and

chief executive officer of Peoples First Community Bank; and

William F. Spann, a former owner and developer of Bay Point.

Also, it offered Petitioner's Exhibits 1 - 18, which w ere

received in evidence. Respondent, Bay County, offered

Composite Exhibit 1, the record of the proceeding before Bay

County, which was received in evidence. Intervenors presented

the testimony of Edward R. "Ted" Mack, a land use planner and

accepted as an expert; Harry B. Sipple, III, a realtor and

accepted as an expert; Libby Sipple, a realtor and accepted as

an expert; James Gardner, a realtor and accepted as an expert;

Richard DeVed, a past president of the Bay Point Community

Association, Inc.; and Karen G. Durden, K. Earl Durden, and

William F. Fusselman, all property owners. Also, they offered

Intervenors' Exhibits 1 - 23, 31 - 35, 37, 38, 42, and 43. A

ruling on Exhibits 4 and 5 was reserved. All exhibits are

hereby received in evidence except Exhi bits 23, 31 - 35, and 38.

Finally, at Petitioner's request, the undersigned took

official recognition of a Final Judgment entered in the case

of Durden et al. v. Bay Point Club, Inc. , Circuit Court Case

No. 00 - 1119 (Fla. 14th Cir. 2001), aff'd 810 So. 2d 92 2 (Fla.

1st DCA 2002). Although Petitioner also requested that the

case of Edgewater Beach Owners Association, Inc. v. Walton

County et al. , 27 Fla. L. Weekly D1880 (Fla. 1st DCA,

August 22, 2002), be officially recognized, that case is not

final as de cisions on petitions for rehearing, rehearing en

banc , and certification to the Florida Supreme Court are still

pending. Therefore, official recognition is premature.

The Transcript of the hearing (6 volumes) was filed on

September 25, 2002. At the reque st of the parties, the time

for filing proposed findings of fact and conclusions of law

was extended to November 8, 2002. The same were filed by all

parties except Bay County, and they have been considered by

the undersigned in the preparation of this Rec ommended Order.

Finally, on November 15, 2002, Petitioner filed a Motion to

Strike Portions of [Intervenors'] Proposed Recommended Order.

Responses in opposition to the Motion were filed by

Intervenors on November 19 and 20, 2002, and a Reply to the

Resp onses was filed by Petitioner on November 25, 2002. This

dispute is ruled upon in the Conclusions of Law portion of

this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

A. Background

1. Petitioner, Bay Point Club, Inc. (Petitioner), is the

owner of Parcels F, 9, 10, and 12 located within the Bay Point

Yacht and Country Club Resort Development of Regional Impact

(Bay Point DRI) in Panama City, Florida. The Bay Point DRI

was approved by Respondent, Bay County (County), on July 22,

1986, and authorized the development of 2,161 residential

units, 200 hotel units, 123 marina slips, and recreational

facilities on approximately 946 acres. The County is

responsible for issuing development ord ers for projects that

are to undergo development of regional impact review,

including amendments to development orders of previously

determined DRIs, in conformity with the requirements of

Section 380.06, Florida Statutes.

2. When the original Development Order was issued in

1986, Bay Point Yacht & Country Club was the sole developer of

the Bay Point DRI. Since that time, the ownership and control

of the properties within the Bay Point DRI has changed, and

there are now multiple owners and developers of t he 36

separate development areas or parcels included within the Bay

Point DRI, including Petitioner, who owns the above four

parcels.

3. The Bay Point DRI was approved by the County prior to

the adoption of its Comprehensive Plan (the Plan). When the

fir st Plan was adopted in 1991, the County recognized and

incorporated the Bay Point DRI through the adoption of an

overlay to the Future Land Use Map (FLUM) which delineates the

boundaries of the property. As stated in Future Land Use

Element Policy 3.4.5, the overlay was adopted to ensure the

consistency and compatibility of the Bay Point DRI with the

County's FLUM. Parcels F and 12 were designated as

"Seasonal/Resort" and Parcels 9 and 10 were designated as

"Residential" on the FLUM. These designations r emain in

effect as of the date of the final hearing. A Seasonal/Resort

classification allows a broad range of uses such as beach

houses, multifamily housing, condominiums, hotels, lodges,

restaurants, and other similar uses, while a Residential

classifica tion permits those land uses typically associated

with residential occupancy.

4. The Bay Point DRI has been amended 15 times, which

amendments cumulatively reduced by 145 the total number of

residential units. None of these amendments constituted a

sub stantial deviation from the approval given in the original

Development Order, and the County has never required a

corresponding amendment to its Plan, FLUM, or DRI overlay as a

condition for approval for any of these changes to the DRI.

5. In July 1993, P FP One, Inc., Petitioner's parent

company, entered into a Purchase and Sale Agreement with the

Federal Deposit Insurance Corporation, as manager of the FSLIC

Resolution Trust Fund, to purchase Parcels F (a waterfront lot

adjacent to the Bay Point Marina), 10, and 9 for $235,000. At

that time, Parcels 9 and 10 were vacant, and they remain

vacant today. A private membership tennis facility was

operating on Parcel F through a lease agreement Petitioner

inherited as a part of the purchase. These tennis facil ities

were closed on April 1, 2000, due to a lack of membership

support. Parcel 12 was purchased by PFP One, Inc. in 1994.

It contained a private clubhouse facility which had once been

operational prior to the approval of the DRI, but was closed

at the t ime of the sale. The clubhouse was remodeled by

Petitioner shortly after the Parcel was purchased and reopened

the same year. Due to a lack of membership support, however,

the clubhouse was closed in 1996. The single - family

residential portion of Bay Po int begins within a few hundred

feet west of the above Parcels.

6. The Development Order currently provides the

following descriptions for Parcels F, 12, 10, and 9:

Parcel F:

Located adjacent to the Bay Point

Clubhouse, this 4.8 acre site currently

suppo rts the Bay Point Tennis Center. As a

part of Bay Point's long term plan, the

Tennis Center is scheduled to be moved to

Area 9 in 1986. In 1987, a 70 - unit

condominium project designated as Port

Towers is planned to be built on this

waterfront site. [A] total of 97,000 - sq.

ft. of heated and cooled space are planned.

Included will be a pool and recreation

center. Building height would be

restricted to not more than five stories

with a majority of the project being of the

two and three story height.

Four , 2100 sq. ft. penthouse units, eight

(8) 1,800 sq. ft. three - bedroom units,

forty (40), 1400 sq. ft. two - bedroom units

and eighteen (18), 1000 sq. ft. one - bedroom

units are planned. There would be no

restrictions of resort rental use, although

it is assu med that, like Marina Club

Village, the vast majority of these units

will be primary and secondary homes because

of pricing. Restrictive covenants for this

project would be developed similar to those

currently in force at Bay Point.

Parcel 12:

A 4 - acre main clubhouse site, which is

adjacent to the swimming pool, snack bar,

health club and real estate facilities, is

in the vested area and was substantially

completed prior to July 1, 1973.

Parcel 10:

This one acre site is the planned location

of the ne w Sport Center Clubhouse which

will serve Bay Point's member golf

facilities and the resort's tennis and

health facilities. Included in the 14,000

square ft. Clubhouse will be a 90 - seat

restaurant and snack bar area, a health

club, exercise and massage ro oms, men and

women's locker rooms, offices for the

Director of Tennis and Golf Professional

and a classroom. Additional space will

house the club's sports retail center which

sells both hard and soft goods associated

with golf, tennis and physical exercis e.

Parcel 9:

This 6 acre site has been set aside as the

future location of the Bay Point Tennis

Center. When completed, it will consist of

up to 14 tennis courts, one of which will

be the center court with stadium stands.

7. The original description of Parcels F and 12 reflects

that the acreage of the two sites combined is 8.83 acres. A

survey completed just before the NOPC was submitted determined

that the combined acreage of the two parcels was actually 9.67

acres. Petitioner has stipulated that i n the event the

smaller acreage number is correct, the density that will be

developed on the property will be in conformity with the

limitations imposed by the smaller acreage.

8. On May 14, 2001, Petitioner filed with the County a

Notification of Propose d Change to a Previously - Approved

Development of Regional Impact (NOPC) under Section

380.06(19), Florida Statutes. Copies were also provided to

the Department of Community Affairs (DCA) and the West Florida

Regional Planning Council (Council). Under the NOPC,

Petitioner proposes to change the Development Order as to

Parcels F and 12 as follows:

The proposed project will be a 136 - unit

condominium project with approximately 58

units on Parcel F and 78 units on Parcel

12. The number of units on both parcel s

will increase from the current 70 units

authorized on Parcel F to 136 units on

Parcels F and 12 combined, a cumulative

increase of 66 units. Three concrete

structures are planned. The center

building, which is the farthest from any

existing development , is 11 stories in

height with a step increase to 12 stories.

The two exterior buildings are six stories

in height with step increases to ten

stories. All improvements to the project

will be built by year end 2004, which is

the current build - out date for the Bay

Point DRI, as amended. The existing tennis

courts located on Parcel F will be reduced

to four hard surface courts with separate

restroom facilities. The residential units

will consist of 1, 2, 3 and 4 bedroom

condominiums, approximately 900 to 2 ,400

sq. ft. in size.

Thus, the proposed change in Parcels F and 12 will increase

the number of condominium units from 70 to 136, change the

height limitation from 5 stories to 12 stories, and eliminate

the existing tennis facility. In addition, Petition er

proposes to eliminate the swimming pool and clubhouse now

located on Parcel 12 and replace them with condominiums.

9. The NOPC also proposes to change the Development

Order as to Parcels 9 and 10 in the following manner:

The designations for Parcels 9 and 10 will

be changed from "Tennis Complex" and

"Sports Center/Clubhouse," respectively, to

Recreation. These changes are sought

because of the historical absence of

community or public support for the

existing private tennis and clubhouse

facilities pr esently located on Parcels F

and 12. Funded through annual memberships

by residents of Bay Point and the public,

support for these facilities has been

insufficient to economically sustain them

and justify their continued operation.

Consequently, due to l ack of membership

support, the Clubhouse on Parcel 12 was

closed in 1996. For the same reason, the

tennis courts on Parcel F were closed April

1, 2000. Changing the designation on

Parcels 9 and 10, from Tennis Complex and

Clubhouse to Recreation[,] will afford the

Applicant with the flexibility needed to

develop new or expanded active and/or

passive recreational opportunities which

the residents of Bay Point are willing and

able to support, and which are economically

feasible. In no event, however, will the

Applicant develop, or allow others to

develop, recreational facilities on Parcel

9 or Parcel 10 which exceed the intensity

standards authorized for the development of

these properties by the original Bay Point

DRI.

Under these proposed changes, Parc els 9 and 10, which are

predominately wetlands, will remain undeveloped and constitute

a passive recreation area.

10. The changes proposed in the NOPC will require

corresponding changes to the uses originally approved for

Parcels F, 12, 10, and 9 in the B ay Point DRI Development

Order, including changes to Map H, the Master Development Plan

Map.

11. The changes proposed by the NOPC for the DRI

Development Order, including the changes to Map H, will not

require a corresponding amendment to the underlying l and use

designations for Parcels F and 12 (Seasonal/Resort) and

Parcels 9 and 10 (Residential).

12. The NOPC was reviewed by the Council for conformity

with the requirements of Section 380.06(19)(f)4., Florida

Statutes. On June 11, 2001, the Council advi sed the County

that the changes proposed for Parcels F, 9, 10, and 12 did not

appear to constitute a substantial change from the previously -

approved Bay Point DRI. The DCA did not submit a written

objection to the proposed NOPC.

13. On August 7 and S eptember 7, 2001, the County held

quasi - judicial public hearings on the NOPC. At the latter

meeting, the County denied the NOPC on the basis of a 2 - 2 tie

vote regarding the question of whether the proposal

constituted a substantial deviation. The County did not make

any determination with respect to the question of whether the

NOPC was consistent with its Comprehensive Plan. This finding

was confirmed in a letter from the County Attorney's Office

dated September 7, 2001, and transmitted to Petitioner on

September 11, 2001.

14. On October 11, 2001, Petitioner filed its Petition

to Appeal DRI Development Order with the Florida Land and

Water Adjudicatory Commission (Commission). On November 7,

2001, Intervenors, K. Earl Durden, David Allen Spencer,

Harr y B. Sipple, III, Unal Tutak, David W. Hill, Lucy N.

Hilton, and William F. Fusselman, who all own property within

the Bay Point DRI and have standing to participate, filed a

Petition to Intervene. On November 8, 2001, Intervenor, Bay

Point Community Asso ciation, Inc., which is the homeowners'

association for the approximately 1,300 residences within the

Bay Point DRI and likewise has standing to participate, filed

its Petition to Intervene. These Petitions were granted by

the Commission on December 19, 2 001. Although the Petitions

to Intervene contended that the NOPC constituted a substantial

deviation requiring further DRI review by the County, that

issue has been abandoned. Remaining at issue is the

contention that the NOPC is inconsistent with the Co unty's

Comprehensive Plan (Plan) by generally failing to protect

residential property values, promote viable neighborhoods, and

maintain the community character in residential areas, as

required by various Plan Objectives and Policies. Intervenors

also co ntend that the NOPC lacks a needed stormwater plan. In

more simple terms, however, Intervenors object to any high -

rise development in an area surrounded by single - family

residential homes and in a community (Bay Point) where no

other buildings exceed seve n stories in height.

b. The characteristics of the community

15. Bay Point is a unique, residential resort

development on St. Andrews Bay in Panama City, Florida. A

large portion of the land lying north of Bay Point is owned by

the United States Navy; thus, Bay Point is somewhat isolated

from the unplanned developments which occur in other inland

areas, as well as along the Gulf of Mexico.

16. Residential and commercial development commenced in

Bay Point in 1971. To date, no high - rise buildings have b een

constructed in the community. Most structures are one or two

stories in height, and only four buildings in Bay Point exceed

two stories: the Bay Town commercial and condominium

development (three stories); the Lagoon Towers condominium

with sixty - thr ee units (seven stories), which is the tallest

building in Bay Point; the Marriott Legends Edge timeshare

with twenty - eight units (six stories); and the Marriott Hotel

(five stories). The three tallest buildings are in the

extreme southeast portion of Bay Point a minimum of 1,600 feet

and as far as 3,000 feet from the site of Petitioner's

proposed high rise condominium buildings. When viewed from a

distance, the four buildings which exceed two stories in

height can barely be seen above the tree line.

17. Bay Point is a mixed use development because it

includes residential and nonresidential uses, as well as some

community facilities. However, it is fair to state that Bay

Point is a low - rise, low - density residential development, and

it was planned as a pr edominately residential community under

the 1986 DRI Development Order. Access to the residential

part of the community is controlled through gates and a

security force.

18. Although there are some resort rental activities and

tourist accommodations (a M arriott hotel), Bay Point is

comprised of predominately permanent residents. There are 681

single - family homes on individual lots in the western portion

of Bay Point, which are one and two - story structures

comprising 79.9 percent of the development in Bay Point. The

two - story single - family homes tend to be clustered along the

bay or along the canals running through the development.

19. As originally developed, commercial development made

up only 10.4 percent of the land area of Bay Point. Of that

tota l, 6.6 percent is retail and office development (such as

offices, restaurants, retail shops, and a post office); 1.5

percent is commercial recreation (pro shops and golf and

tennis club); and 1.7 percent is a Marriott Hotel. In

addition, community facilit ies (including a playground for

children) comprise 1.5 percent of the land area. There is

also a 201 - slip marina and a semi - private golf club on the

premises.

20. The "resort core" area of Bay Point refers to

certain development in the Seasonal/Resort la nd use category

containing a mixture of mainly seasonal and tourist

residential, commercial, and noncommercial uses. Of the

almost 1,000 acres in the Bay Point DRI, only about 24 acres

were planned and approved for "resort core," or less than 15

percent o f the 200 acres designated as Seasonal/Resort. The

remaining 85 percent of the Seasonal/Resort area has a

predominately residential character. Petitioner's project on

Parcels F and 12 is far from any development that could be

characterized as "resort cor e," and all of the development in

the immediate vicinity of and surrounding Parcels F and 12 is

residential development with structures not exceeding two

stories in height. Thus, Petitioner cannot rely on any

perceived proximity of Parcels F and 12 to the "resort core"

as a basis for justifying the high - rise structures.

c. Consistency with the Plan

21. Intervenors contend that the NOPC is inconsistent

with Future Land Use Element (FLUE) Policy 3.4.5 (which

allegation is subject to an objection by Petitio ner); Housing

Element Objective 8.5; Housing Element Policy 8.5.1; Housing

Objective 8.9 (which allegation is subject to a Motion to

Strike); Stormwater Management Objectives 5E.9 and 5E.12;

Stormwater Management Policies 5E.9.1, 5E.10.1, and 5E.12.1;

and FLUE Policy 3.3.1. Each of these items will be addressed

separately below.

22. As a part of its 1999 Plan (which amended and

updated the 1991 Plan), the County adopted special treatment

zones (STZs) to be designated on the FLUM in addition to the

future land use categories. The specific STZs are established

pursuant to FLUE Objective 3.4, which provides that the zones

are created "for purposes of dealing with unique or desirable

circumstances." The unique circumstance in this case is the

DRI.

23. In the Plan, the County has either adopted or

expressed its intent to adopt distinct land development

regulations or land use controls for each STZ. FLUE Policy

3.4.5 establishes the Bay Point DRI STZ. This policy provides

that:

[t]he Bay Point Development of Regional

Impact (DRI) Special Treatment Zone shall

be established in order to ensure

compatibility and consistency between the

Bay Point DRI Development Order and the

FLUM. Development in this area shall be

governed by the DRI Development Order.

(Emph asis supplied) The last sentence of Policy 3.4.5 was

added by comprehensive plan amendment adopted on July 10,

2001.

24. By virtue of the underscored language, the

conditions and restrictions on the use and development of

Parcels F, 9, 10, and 12 in the DRI Development Order in

effect on July 10, 2001, are incorporated into the County's

Plan. This was confirmed at hearing by the County's Planning

and Zoning Manager. Thus, the maximum five - story height

limitation on Parcel 12 contained in the DRI Develo pment Order

is incorporated into the Plan by reference through Policy

3.4.5.

25. Because all three of Petitioner's proposed high - rise

condominium buildings exceed the five - story height limitation

for Parcel F found in the DRI Development Order in effe ct on

July 10, 2001, the NOPC is inconsistent with Policy 3.4.5.

26. Objective 8.5 of the Housing Element provides that

all projects in the County will "preserve and protect the

character, compatibility, and aesthetics of residential areas

and neighborhoo ds through the enforcement of land use

regulations." Petitioner contends that this Objective cannot

apply to the development on Parcels F and 12 because these

parcels are in a mixed land use category under the FLUM and

therefore are not in "residential ar eas or neighborhood" as

contemplated by the Objective. However, the Objective refers

to "residential areas and neighborhoods," and not to future

land use categories. Thus, the Objective is directed towards

existing residential and multi - family developmen t in Bay

Point, including Intervenors' property, and must be taken into

account when judging the merits of Petitioner's application.

27. "Character" and "aesthetics" are not defined in the

Plan. Rather, they are terms of art in the planning

profession an d are commonly understood by planning

professionals. These terms refer to development as it exists,

not development that could occur based on a land use category.

This is because one cannot protect the character and

aesthetics of a land use designation.

28. The evidence shows that "character" consists of

those attributes that lend a sense of place to an area, which

people in the area can identify with that is distinguishable

from other such areas. It includes such factors as type of

buildings, building height and mass, the relationship of one

building to another, the types of activities that go on in the

area or neighborhood, the presence or absence of vegetation,

the presence or absence of underground utilities, street

design, architectural design, and the preservation of the

long - standing stable nature of a neighborhood. "Aesthetics"

are those attributes that determine whether an area is

visually pleasing.

29. The character of the Bay Point community is that of

a stable, low - rise, low density, reside ntial resort community.

The buildings in Bay Point consist of individual homes and

small villa or townhouse - type buildings clustered on parcels.

There are no high - rise buildings in the community or

beachfront property. The evidence clearly supports a fi nding

that Bay Point is a predominately neighborhood residential

community.

30. Petitioner proposes to construct on Parcels F and 12

three separate high - rise buildings. The outer buildings are

six stories at their exteriors, with step increases to ten

stories at the interiors. The center building will be eleven

stories at the outer edges, with a step up to twelve stories

at the peak. The construction of these high - rise condominiums

will be in stark contrast to, and out of harmony with, the

existing lo w - rise, low - bulk structures which surround the

proposed project and will dramatically change the low - rise,

neighborhood character of Bay Point. Thus, the proposed

condominiums are not consistent with Objective 8.5 in that

they do not preserve the characte r of the existing residential

development within Bay Point.

31. Policy 8.5.1 of the Housing Element requires

compatibility between types of residential structures. The

Policy also requires that specific criteria be included in the

County's Land Use Code "for the preservation and protection of

residential areas." It further provides that these standards

should ensure that "compatibility between types of residential

buildings" will be maintained, and that "residential areas

will be used primarily for resi dential purposes." As of the

date of hearing, however, no standards had been adopted,

although the County is now in the process of developing such

criteria.

32. Until specific criteria are adopted and included in

the Land Use Code, Petitioner contends that the Policy cannot

be relied upon by Intervenors. If this proposition were true,

however, no existing project could be measured for

compatibility, and the Policy would be meaningless. The more

persuasive evidence supports a finding that in the absenc e of

specific standards in the Land Use Code, it is appropriate to

rely upon standards used by land use professionals for

determining compatibility between types of residential

buildings. Indeed, every land planning expert who testified

at hearing agreed that a consistency determination should be

made based on the guidance provided in the Objectives and

Policies of the Plan.

33. The County has addressed the subject of

compatibility in Objective 3.9 and Policy 3.9.1 of the Future

Land Use Element. The f ormer provision provides that "[a]ll

proposed land uses shall be compatible with adjacent

conforming land uses," while the latter provision defines

"compatibility" to mean "a condition in which land uses or

conditions can coexist in relative proximity to e ach other in

a stable fashion over time such that no use or condition is

unduly negatively impacted directly or indirectly by another

use or condition."

34. The evidence establishes that land use planners view

compatibility as meaning the relationship b etween buildings,

uses, and activities to one another. Factors to be used in

making this determination are density, building height, scale

and mass, lot configuration, and building orientation. Other

factors used in this determination include established

development patterns, expectations that arise from established

development patterns, character of the neighborhood, and

stability of the neighborhood.

35. The evidence supports a finding that the development

pattern in Bay Point, the expectations of In tervenors and the

community based on that development pattern, and the atypical

height and mass of Petitioner's project render the proposed

project incompatible with Bay Point and thus inconsistent with

Objective 8.5.1 of the Plan. In making this finding, the

undersigned has found that Petitioner's compatibility analysis

is too narrow in scope and ignores the reality that Petitioner

proposes to develop three high - rise buildings, grouped

together in one location, in an established, predominately

low - rise re sidential community.

36. Objective 8.9 of the Housing Element requires that

any project in the County "[p]rotect residential property

values and ensure that each homeowner has the opportunity for

quiet use and enjoyment of their residence." Thus, in orde r

to be consistent with the Plan, Petitioner must demonstrate

that its project will not impact the residential property

values in Bay Point in a negative manner.

37. To demonstrate consistency with the foregoing

Objective, Petitioner's expert opined tha t the proposed

project would infuse new capital and value into the Bay Point

area thereby increasing property values. However,

Petitioner's market study (Petitioner's Exhibit 12) is flawed

in several respects. For example, it incorrectly defines the

Bay Point neighborhood as including an intensely developed

Gulf front tourist district along Thomas Drive and the east

end of Highway 98 in Panama City, within a three to six mile

southern radius of Bay Point, and which includes high - rise

condominiums, motels, and commercial uses that are dependent

on the tourist industry. The study also concludes,

erroneously, that most of the condominium units in Bay Point

are utilized as second homes and rental properties by absentee

owners. Finally, the study uses two "co mparable" projects on

which to base a market analysis, one in Destin and the other

in Seascape. Neither property is really comparable since both

are located on the Gulf of Mexico in neighboring Walton

County.

38. The more credible evidence establishes that the

threat of development of high - rise buildings on Parcels F and

12 has caused a decline in residential property values in Bay

Point. Further, if the NOPC is approved, the property values

will continue to decline. This decline has been exacerbated

by the loss of the Bay Point community center and tennis

courts, which were previously located on the lots in question.

39. Given these considerations, it is found that the

NOPC is inconsistent with Housing Element Objective 8.9, in

that the NOPC does n ot protect property values within the

community.

40. Intervenors further contend that the NOPC is

inconsistent with various Objectives and Policies in the

Stormwater Management Element since the NOPC does not contain

a detailed stormwater plan for the pro posed project. These

Objectives and Policies are designed to reduce and eliminate

flooding, protect surface waters from contamination and

sedimentation caused by the stormwater, and prevent future

problems by regulating development. This contention has b een

rejected since the specific requirements for the stormwater

system necessary to serve Parcels F and 12 are not properly

addressed in the DRI process, but rather will be considered by

the County at the time the actual construction documents for

these pa rcels are submitted for review and permitting.

41. Finally, Intervenors assert that the NOPC is

inconsistent with Future Land Use Element Policy 3.3.1, which

designates criteria for designating land use categories on the

FLUM and attendant standards for d evelopment. No credible

evidence was presented on this issue, and therefore the

contention has been rejected. All other matters raised by

Intervenors have likewise been considered and rejected.

CONCLUSIONS OF LAW

42. The Division of Administrative Heari ngs has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

43. Intervenors have standing to participate as parties

because they are substantially affected persons whose

interests wil l be decided in this matter.

44. As the party challenging the development order,

Petitioner bears "both the ultimate burden of persuasion and

the burden of going forward." Young v. Dep't of Comm.

Affairs , 625 So. 2d 831, 835 (Fla. 1993).

45. Intervenors initially contended that Petitioner's

NOPC for Parcels F, 9, 10, and 12 constitutes a substantial

deviation within the meaning of Section 380.06(19), Florida

Statutes, and that the amendment is inconsistent with the

County's Comprehensive Plan. In their Proposed Recommended

Order, however, Intervenors have conceded that the NOPC does

not constitute a substantial deviation. Accordingly, only the

second contention need be considered.

46. Under Section 163.3194(1)(a), Florida Statutes, "all

actions taken in regard to development orders by governmental

agencies in regard to land covered by such plan or element

shall be consistent with such plan or element as adopted."

This means that all local government development orders,

including those related to deve lopments of regional impact and

amendments thereto, such as Petitioner's NOPC, must be

consistent with a local government's comprehensive plan.

Thus, the County is empowered to disapprove an application for

development approval if it is inconsistent with any of the

objectives in the Plan. Franklin County v. S.G.I., Ltd. , 728

So. 2d 1210, 1211 (Fla. 1st DCA 1999).

47. For the reasons stated in the Findings of Fact, it

is concluded that the NOPC is inconsistent with FLUE Policy

3.4.5, Housing Element Obj ective 8.5, Housing Element Policy

8.5.1, and Housing Element Objective 8.9 of the County's Plan.

All other contentions raised by Intervenors have been

considered and rejected. Because of this demonstrated

inconsistency with the Plan, the application for a NOPC should

be denied.

48. Petitioner's Motion to Strike Portions of

[Intervenors'] Proposed Recommended Order pertaining to

Housing Element Objective 8.9 is denied. This issue was

specifically raised by Intervenors in paragraphs 36 and 39 of

the part ies' Joint Prehearing Stipulation, the pleadings gave

Petitioner reasonable notice regarding the issue, and the

matter was the subject of extensive evidence and testimony at

the hearing.

49. Likewise, the issue regarding FLUE Policy 3.4.5 was

raised by I ntervenors in paragraph 12 of the parties' Joint

Prehearing Stipulation, and there was extensive testimony and

evidence on this matter. Therefore, Petitioner's objection to

the consideration of this issue is overruled.

RECOMMENDATION

B ased on the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Florida Land and Water Adjudicatory

Commission enter a final order denying Petitioner's

application for a NOPC on the ground that it is inconsistent

with FLUE Policy 3.4.5, Housing Element Objective 8.5, Housing

Element Policy 8.5.1, and Housing Element Objective 8.9 of the

Bay County Comprehensive Plan.

DONE AND ENTERED this 11th day of December, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doa h.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of December, 2002.

COPIES FURNISHED:

Donna Arduin, Secretary

Florida Land an d Water Adjudicatory Commission

Office of the Governor

The Capitol, Suite 2105

Tallahassee, Florida 32399 - 0001

Kenneth D. Goldberg, Esquire

1725 Mahan Drive, Suite 201

Tallahassee, Florida 32308 - 5201

Michael S. Burke, Esquire

Burke & Blue

221 McKenzie Avenue

Panama City, Florida 32401 - 3128

Robert C. Apgar, Esquire

Sherry A. Spiers, Esquire

Law Offices of Robert C. Apgar

320 Johnston Street

Tallahassee, Florida 32303 - 6214

Richard W. Moore, Esquire

Amundsen and Gilroy, P.A.

Post Office Box 1759

Tallah assee, Florida 32302 - 1759

Raquel Rodriguez, General Counsel

Florida Land and Water Adjudicatory Commission

Department of Legal Affairs

The Capitol, Suite 209

Tallahassee, Florida 32399 - 0001

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the ri ght to submit written exceptions within

15 days of the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will render a final order in this matter.