01-004914GM Mary J. Bartlett; Robert S. Inglis; Helen Thomas; Paul Lussier; Joan Lussier; And Wanda Negron vs. Marion County Status: Closed Recommended Order on Friday, June 7, 2002.

Summary: Petitioners failed to prove that small-scale amendment was not "in compliance."

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY J. BARTLETT, ROBERT S. INGLIS, )

HELEN THOMAS, PAUL LUSSIER, JOAN )

LUSSIER, and WANDA NEGRON, )

)

Petitioners, )

)

vs. ) Case No. 01 - 4914GM

)

MARION COUNTY, )

)

Respondent, )

)

and )

)

DINKINS AND DINKINS, INC., )

)

Intervenor. )

____________________________________)

RECOMM ENDED ORDER

On April 30, 2002, a formal administrative hearing was

held in this case in Ocala, Florida, before J. Lawrence

Johnston, Administrative Law Judge, Division of Administrative

Hearings.

APPEARANCES

For Petitioners: Mary M. Bartlett, pro se

8080 Northwest 2nd Street

Ocala, Florida 34482

Robert S. Inglis, pro se

8078 Northwest 2nd Street

Ocala, Florida 34482

Helen Thomas, pro se

8130 Northwest 2nd Street

Ocala, Florida 34482

Paul and Joan Lussier, pro se

8071 Northwest 2nd Street

Ocala, Florida 34482

Wanda Negron, pro se

8076 Northwest 2nd Street

Ocala, Florida 34482

For Respondent: Thomas D. MacNamara, Esquire

Marion County's Attorney's Office

601 Southeast 25th Avenue

Ocala, Florida 34471

For Intervenor: Steven Gray, Esquire

Hart & Gray

125 Northeast First Avenue, Suite 1

Ocala, Florida 34470

STATEMENT OF THE ISSUE

The issue in this case is whether Marion County's small -

scale comprehensive plan amendment 01 - S27 is "in compliance,"

as defined by Section 163.3184(1)(b), Florida Statutes (2001) .

Specifically, Petitio ners contend that the amendment is: (1)

inconsistent with goals, objectives, and policies of the

County's Comprehensive Plan -- specifically, Future Land Use

Element (FLUE) Objectives 1 and 2, and Policies 2.7 and 2.8;

and (2) inconsistent with Florida Admi nistrative Code Rule 9J -

5.006(5), which requires that proliferation of urban sprawl be

discouraged. (Other contentions are inapplicable. See

Conclusions of Law, infra .)

PRELIMINARY STATEMENT

On December 11, 2001, Marion County adopted small - scale

compr ehensive plan amendment 01 - S27, which changed the land

use designation of a 2.375 acre parcel of land on the

northwest corner of the intersection of State Road 40 and NW

80th Avenue near Ocala, Florida. On December 24, 2001,

Mary J. Bartlett and Robert S. Inglis filed a Request for

Hearing on Small Scale Amendment to Marion County

Comprehensive Plan. On January 11, 2002, final hearing was

scheduled for March 1, 2002, in Ocala, Florida; and the

parties were required to meet to prepare and file a prehear ing

stipulation.

During a meeting on February 6, 2002, to prepare the

prehearing stipulation, Bartlett and Inglis expressed their

intention to add petitioners; and Dinkins and Dinkins, Inc.

expressed its intention to intervene. In light of those

develop ments, the parties moved for a continuance; and on

February 14, 2002, final hearing was continued to April 30,

2002.

As the record reflects, there were numerous filings on

and after February 6, 2002. Many of them were confusing, some

were mislabeled, an d some were not authorized by the rules of

procedure. Without detailing all the rulings required to sort

out and dispose of these filings, suffice it to say that leave

was granted to Dinkins and Dinkins, Inc. to intervene; and an

Amended Request for Heari ng on Small Scale Amendment to Marion

County Comprehensive Plan was filed on March 8, 2002, naming

Helen Thomas, Paul and Joan Lussier, and Wanda Negron as

additional P etitioners.

Petitioners and the County filed a Prehearing Stipulation

on February 27, 2002 (although final hearing already had been

continued to from March 1 to April 30, 2002). Intervenor

apparently participated in conferences held for purposes of

preparing the Prehearing Stipulation but did not sign and

apparently did not participate in preparation of the

Prehearing Stipulation itself. This Prehearing Stipulation

was not amended prior to final hearing.

At final hearing, each Petitioner testified; Petitioners

also called two additional witnesses and had Petitioners'

Exhibits 1, 5 - 7, 8A - B, 9, 10, 13 - 16, and 18 - 22 admitted in

evidence. The County called two witnesses, including its

Planning Department Director, who testified as an expert, and

had Respondent's Exhibits 1 - 8 admitted in evidence.

Intervenor cross - examined witnesses and ado pted the County's

presentation but called no witnesses and offered no exhibits.

After presentation of evidence, the parties were given

ten days (until May 10, 2002) to file proposed recommended

orders (PROs); subsequently, the County's unopposed letter

r equest to extend the time for filing PROs to May 15, 2002,

was granted. Petitioners timely filed a Synopsis of

Petitioners' Case; the County and Intervenor timely filed a

joint PRO. The post - hearing filings have been considered in

preparing this Recommen ded Order.

FINDINGS OF FACT

1. Petitioners all reside in the Sherman Oaks

subdivision in Marion County, Florida. Sherman Oaks is

adjacent to and northwest of the parcel which is the subject

of the County's small - scale comprehensive plan amendment 01 -

S2 7 (Plan Amendment). This "Amendment Parcel" consists of

2.375 acres located at the northwest corner of the

intersection of State Road 40 (oriented east - west at that

location) and NW 80th Avenue (oriented north - south at that

location) (the Intersection) ne ar Ocala, Florida. The Plan

Amendment changes the land use designation for the Amendment

Parcel from Urban Reserve to Commercial.

Pertinent History of the County's Comprehensive Plan .

2. The County originally adopted its Comprehensive Plan

in January 1 992. Because of an objection by the Department of

Community Affairs (DCA) that the original Comprehensive Plan

allocated too much land area to the Urban area, the County

adopted remedial amendments on April 7, 1994, which added a

new land use classificati on, Urban Reserve.

3. The Comprehensive Plan defines the Urban Reserve land

use classification as follows:

This classification provides for the

expansion of an urban service area or an

urban expansion area in a timely manner.

The underlying land uses i n this

classification shall be those of the rural

lands until, through the Plan Amendment

process, these areas are designated as

Urban Expansion Area or Urban Service Area

on the Future Land Map series.

Commercial land use designation falls within the gen eralized

Urban Area category in the County's Comprehensive Plan.

4. From the date of the adoption of remedial amendments

in 1994 through this date the Amendment Parcel has had a land

use designation of Urban Reserve. The Amendment Parcel is

part of a l arger parcel of land designated Urban Reserve which

extends for approximately a mile to the west of the Amendment

Parcel, half a mile to the south of the Amendment Parcel, and

greater than two miles to the north of the Amendment Parcel.

(There also is som e Medium Density Residential, which falls

with the generalized Urban Area land use category,

approximately two miles north of the Amendment Parcel; this is

a major residential development called Golden Ocala). All of

the property on the east side of the I ntersection for

approximately half a mile on either side of State Road 40 has

had a land use designation of Urban Expansion, which allows

urban and commercial uses, since 1992.

5. Marion County has extensive areas in the western half

of the County desig nated as Rural Land. Approximately a mile

west of the Amendment Parcel, the property along the north and

south sides of State Road 40 changes land use designation from

Urban Reserve to Rural Land.

6. Prior to adoption of the County’s Comprehensive Plan

in 1992, the Amendment Parcel had a general retail zoning

classification of B - 2 (Community Business), which has remained

in place since the date of the Comprehensive Plan adoption.

The Plan Amendment would allow the Intervenor to make

immediate use of th e Amendment Parcel under its existing

zoning classification of Community Business.

7. The County’s Comprehensive Plan also contains a land

use classification of Rural Activity Center (RAC) for existing

commercial nodes in the Rural Land area. According t o the

definition in the Comprehensive Plan, this classification:

provides for the utilization of mixed - use

areas and the infilling of those areas

under appropriate circumstances. Rural

Activity Centers provide for a nodal - type

development pattern.

When the Comprehensive Plan was originally adopted in 1992,

the County identified a number of RACs and included them on

the Future Land Use Map in the Comprehensive Plan. The

Intersection was not made a RAC in 1992 because it was

surrounded by Urban Expansion lands that were changed to Urban

Reserve in 1994. Otherwise, it probably would have been

designated a RAC because there already was commercial

development on the east side of the Intersection in 1992.

Designation as a RAC would have allowed Intervenor t o make use

of its B - 2 (Community Business) zoning classification from

1992 forward.

8. The evidence was not clear why Castro's Corner at the

intersection of U.S. Highway 27 and County Road 225A was

designated a RAC. It is not now surrounded by Rural La nds;

however, from the evidence presented, it is possible that

Castro's Corner was surrounded by Rural Lands at the time it

was designated a RAC.

Pertinent History of the Amendment Parcel

9. In light of the see - saw history of decision - making on

applicat ions for comprehensive plan amendments affecting the

Amendment Parcel since 1998, it is not surprising that

Petitioners are perplexed by this Plan Amendment.

10. In 1998 application was made to change the land use

designation from Urban Reserve to Comme rcial on a parcel that

included the Amendment Parcel and approximately seven

additional acres lying immediately to the west of the

Amendment Parcel, for a total of 9.9 acres, with the entire

application parcel having frontage on State Road 40. The

County' s Planning Department recommended approval of the land

use amendment. Staff's report stated that the proposed

Commercial land use designation would "continue the formation

of a commercial node at the intersection . . . consistent with

FLUE Policy 2.7"; wo uld "coordinate development with

sufficient roadway capacity and access management procedures,

and available water and sanitary sewer facilities as required

by FLUE Policy 2.8"; was "compatible with the existing

commercial uses on the east side of the inte rsection"; and was

"generally compatible with the areas's [sic] topography, soils

and environmental features." Staff's report concluded that

the recommendation for approval was based on findings that the

request would "not adversely affect the public inte rest"; was

"consistent with the identified objectives and policies in the

Marion County Comprehensive Plan"; and was "compatible with

the surrounding land uses." The County's Planning Commission

agreed with planning staff's recommendation and voted 7 - 0 fo r

approval, but the County Commission denied the application.

11. In 2000 the Amendment Parcel was included in another

application for a land use designation change from Urban

Reserve to Commercial on 13.88 acres in the northwest quadrant

of the Interse ction. This time, the Planning Department

recommended denial. As to compatibility with the goals,

objectives, and policies of the County's Comprehensive Plan,

staff's recommendation was based on findings that the proposed

amendment was "not compact and c ontiguous to the Urban Area

(FLUE Policy 2.18)"; did "not preserves [sic] the county's

rural areas while allowing the provision of basic services by

directing growth to existing urban areas and commercial nodes

(FLUE Objective 3.0)"; "does not coordinate d evelopment with

availability of public facilities such as centralized potable

water and sanitary sewage facilities (FLUE Policy 2.18)";

"does not promote the efficient use of resources and

discourage scattered development and sprawl because it is not

locat ed in an area of increasing urban residential development

and commercial development (FLUE Policy 2.7)"; and "does not

encourage development that is functional and compatible with

the existing land uses adjacent and in the surrounding area

(FLUE Policy 1.2 1)." As to consistency with Florida

Administrative Code Rule 9J - 5 urban sprawl indicators, staff

found that the proposed amendment "promote[d] the development

of low - intensity, low - density, or single use development";

"promote[d] urban development in radi al, strip, isolated or

ribbon patterns generally emanating from existing urban

development"; did "not protect adjacent agricultural areas and

activities"; allowed "for land use patterns or timing which

disproportionately increases the cost in time, money a nd

energy, of providing and maintaining facilities and services,

including roads, potable water, sanitary sewer, stormwater

management, law enforcement, education health care, fire and

emergency response, and general government"; did "not

encourage develop ment which would, by it's [sic] location,

provide a clear separation between rural and urban uses"; did

"not encourage an attractive and functional mix of uses"; and

"encourage[d] development which would result in the loss of

significant amounts of open sp ace." The report concluded that

it was based on findings that "[g]ranting the amendment will

adversely affect the public interest"; the "proposed amendment

is not compatible with land uses in the surrounding area"; and

"[g]ranting the amendment is not con sistent with Chapter 163,

Florida Statutes, Rule 9J - 5, F.A.C., and the Marion County

Comprehensive Plan." The Planning Commission voted 6 - 1 to

recommend denial. The application was withdrawn prior to the

transmittal hearing before the County Commission.

12. In August 2001, Intervenor submitted an application

to change the land use on the property it owns at the

Intersection (containing 2.85 acres) from Urban Reserve Area

to Commercial. The southern boundary of the original

application parcel consisted of 275 feet of frontage on the

north side of State Road 40. The eastern boundary of the

original application parcel fronted on NW 80th Avenue, with

459 feet of frontage.

13. The County's Planning Department recommended that

Intervenor's application be denied. The stated basis for the

recommendation was that the proposed plan amendment

represented "an extension of urban type land use into the

rural area" and that "[d]evelopment of the property as

commercial was not compatible with adjacent land uses."

Planning staff took the position that the proposed Commercial

land use designation did "not encourage compact, contiguous

development (FLUE Objective 2)"; did "not preserve the

County's rural character (FLUE Policy 2.7)"; did "not

coordinate development w ith sufficient roadway capacity (FLUE

Policy 2.8)"; and was "not compatible with the existing

adjacent uses (FLUE Objective 1)." Staff also took the

position that the proposed Commercial land use designation

application would "promote urban sprawl as spec ified in the

Urban Sprawl Rule 9J - 5.006(5)(g)" because it was "not

compatible with surrounding land use designations";

"discourage[d] a functional mix of uses"; and "discourage[d]

[sic?] a land use pattern that disproportionately increases

local government 's fiscal burden of providing necessary public

services." In conclusion, staff based its recommendation on

findings that the application would "adversely affect the

public interest"; was "not consistent with the identified

objectives and policies in the M arion County Comprehensive

Plan"; and was "not compatible with the surrounding land

uses." The Planning Commission heard Intervenor's

presentation and comments from objecting property owners,

including Petitioners, and voted 4 - 3 to deny the application.

14. At a public hearing conducted on December 11, 2001,

the County Commission heard Intervenor's presentation and

comments from objecting property owners, including

Petitioners. During the hearing, at the suggestion of the

Commission, Intervenor agreed to amend the application to

reduce the total amount of property for which the land use

change was requested from the original entire parcel of 2.85

acres to a smaller 2.375 acre parcel (now the Amendment

Parcel). The purpose of the reduction in the size o f the

Amendment Parcel was to exclude a heavily treed area on the

north boundary of the original application parcel to create a

buffer for residential property owners residing to the north

and northwest of the Amendment Parcel. Intervenor also agreed

to a llow parallel access across the back (north) of the

Amendment Parcel to the property fronting State Road 40 to the

west, in the event of future development of those properties.

After amendment of the application, the County Commission

voted 5 - 0 to approve .

Amendment Parcel Characteristics and Surroundings .

15. Both State Road 40 and 80th Avenue in the area of

the Intersection are heavily traveled and frequently

congested. The Intersection is signalized, and traffic backs

up for long distances during bu sy times when the light is red.

16. The Amendment Parcel and the land to the west

between State Road 40 and Sherman Oaks to the north is vacant.

17. The property in the northeast quadrant of the

Intersection has a land use designation of Urban Expan sion,

which allows commercial usage. The property in this quadrant

of the Intersection is already commercially developed. There

is a combination convenience store/restaurant building at the

immediate Intersection. To the north of that parcel along

80th Avenue is Golden Hills Mobile Home Park and the sewage

treatment facility serving the mobile home park.

18. The southeast quadrant of the Intersection also has

an Urban Expansion land use designation and is also already

commercially developed. A prior convenience/general store at

the immediate southeast corner of the Intersection has been

torn down, and a temporary fruit stand currently occupies the

immediate corner. This quadrant of the Intersection also

includes a two - story building with retail busin esses on the

first floor.

19. The property in the southwest quadrant of the

Intersection, lying immediately to the south of the Amendment

Parcel, has an Urban Reserve land use designation but is

currently used as part of an operating horse farm.

20. While it may not completely explain the swings in

the decision - making of the County's planning staff, the County

Planning Commission, and the County Commission with respect to

northwest quadrant of the Intersection, the evidence was that

traffic on both St ate Road 40 and 80th Avenue increased

substantially in the five years preceding the County

Commission's decision to approve Intervenor's amended

application. During this time period, 80th Avenue to the

south of the Intersection was extended farther southw ard to

State Road 200, which was widened to six lanes during the same

time period. In addition, the Marion County school system

constructed a combination high school/middle school on SW 80th

Avenue approximately two to three miles south of the

Intersectio n, generating additional traffic. As a result of

these changes (together with general growth in the County),

80th Avenue has become a major north/south corridor road in

western Marion County, both to the north and to the south of

State Road 40.

21. In addition, there was discussion at the County

Commission hearing on the Plan Amendment about the initiation

by the Florida Department of Transportation (FDOT) of a four -

laning road improvement project on State Road 40, including at

the Intersection and to t he east and west of this

Intersection. It was represented that, while the project was

not within FDOT's three - year work program, FDOT was in the

process of acquiring large parcels for needed drainage

retention areas for the project, including a parcel to the

west of the Amendment Parcel and a parcel encompassing most of

the southeast corner of the Intersection. At final hearing in

this case, written communications from FDOT regarding the

project confirmed that FDOT had initiated the process of

design and right - of - way acquisition for the project but did

not have a finalized project time line. A preliminary project

time line prepared by FDOT showed construction more than two

years away, but the time line also established that the FDOT

four - laning project on State Road 40 is underway. The

prospect of four - laning State Road 40 played a part in the

County Commission's thinking that the timing was right to

change the land use designation of the Amendment Parcel to

Commercial.

Intervenor's Alleged Inaccurate R epresentations

22. The County's application form cautions applicants

that false statements on the application could result in

denial. However, it was not proven that denial is mandatory

in the case of any inaccuracy. Rather, the evidence was that

infor mation in the application can be corrected and

supplemented during the review process.

23. Intervenor's application contained inaccurate

representations as to the proximity of some public facilities

in relation to the Amendment Parcel. Petitioners made no

attempt to prove the significance of those inaccuracies,

except as to centralized water and sewer water facilities.

Intervenor's application stated that the nearest centralized

water and sewer facilities were those at the Golden Hills

Mobile Home Park on the east side of NW 80th Avenue. The

application also stated, as part of its justification, that

private central water and sewer was available. The evidence

proved that the Golden Hills sewage treatment facilities are

presently inadequate for use by the mobile home park itself

and are being upgraded to meet current needs of the park. The

facilities probably would not be available for Intervenor's

use at the Amendment Parcel.

24. While the Golden Hills sewage treatment facilities

likely will not be available for Intervenor's use at the

Amendment Parcel, the evidence was that the County is working

with a large development called Golden Ocala, located

approximately five miles north of the Amendment Parcel, for

construction of a regional wastewater tre atment plant to serve

that development. If built, the regional facility might have

capacity available for Intervenor's use at the Amendment

Parcel.

25. Intervenor's application and presentation to the

County Commission on December 11, 2001, stated that the

Amendment Parcel is undeveloped and that there is no existing

agricultural use on the parcel. While these statements were

not proven to be untrue, Petitioners presented evidence that

hay was grown on the Amendment Parcel from the late 1980's

through spring 2001. Three crops of hay were harvested each

year. Each harvest consisted of approximately 18 - 20 bales;

each bale brought approximately $45.

26. Petitioners questioned the accuracy of

representations as to the natural buffer strip between the

A mendment Parcel and Sherman Oaks. Petitioners did not

dispute the existence of relatively dense trees in the buffer

strip. However, they are concerned that the line of trees

does not extend to the west all the way to the entrance to

Sherman Oaks off Stat e Road 40; if additional commercial

development occurs to the west on State Road 40, there will

not be a similar natural buffer.

27. Petitioners also point out that the trees in the

natural buffer strip are not thick enough to form an

impregnable barrie r to access, light, and sound. They

concede, however, that the natural buffer is helpful and that

there is no similar natural buffer between them and commercial

development to the east across NW 80th Avenue.

28. Petitioners concede that the 75 - foot buf fer strip is

wide enough to contain the entire natural buffer. However,

they thought the buffer strip would have to be 90 feet wide to

contain the drip lines of all the trees so as to protect their

root systems. They conceded that the building setback li ne

probably would prohibit construction of buildings within the

drip line of the trees but were uncertain as to whether the

setback line would apply to parking lots and driveways.

Petitioners' evidence was insufficient to prove that the 75 -

foot buffer was not enough to protect the natural buffer.

29. Petitioners' evidence was sufficient to prove that,

during the presentation before the County Commission,

Intervenor's representative may have misspoken or exaggerated

on some points ( e.g. , the timing of FD OT's widening of State

Road 40, the distance between the Amendment Parcel and the

entrance to Sherman Oaks, and the extent of past and existing

commercial development at the Intersection). But the evidence

was that the County Commission questioned the inf ormation

presented by Intervenor, and information also was presented by

Petitioners and the County's planning staff; considering all

the information presented, it was not proven that the County

Commission based its decision on misinformation.

30. At the final hearing, Petitioners raised the issue

of stormwater runoff. Petitioners questioned whether

stormwater can be managed on the Amendment Parcel without

adversely impacting Sherman Oaks. Evidence presented by

Petitioners proved that topography would m ake onsite

stormwater management difficult. Natural runoff appears to

flow in a northeasterly direction towards an already - stressed

stormwater facility within Sherman Oaks. Intervenor suggested

that the site could be "tilted" by grading to reverse natura l

runoff flow so as to contain runoff in the southwestern or

western part of the site. Petitioners suggested that

"tilting" may not be permissible due to the relatively shallow

depth to limerock under the Amendment Parcel site, but

Petitioners' evidence w as not sufficient to prove that

drainage could not be addressed onsite through "tilting."

31. Petitioners also questioned the accuracy of traffic

counts presented in the Planning Department's staff report on

Intervenor's application. Staff used 2000 tr affic counts that

did not take into account all of the increased traffic as a

result of the opening of the new school south of the Amendment

Parcel. But the County's Planning Director explained that the

traffic analysis required for a land use designation change

does not have to be as rigorous and accurate as the analysis

required at the time of concurrency determination. At that

time, Intervenor probably will be required to conduct a

detailed and up - to - date traffic analysis that would take into

account a ctual traffic counts related to the new school.

Other Pertinent Comprehensive Plan Provisions .

32. Objective 1 of the County's FLUE states:

Upon Plan adoption, growth and development

will be coordinated by ensuring the

appropriate compatibility wi th adjacent

uses, topography, soil conditions, and the

availability of services and facilities

through the preparation, adoption,

implementation and enforcement of

innovative land development regulations,

including mixed use techniques.

33. Objective 2 of the County's FLUE states:

In order to promote the efficient use of

resources and to discourage scattered

development and sprawl, Marion County shall

establish and encourage development within

Urban Areas. This will discourage the

proliferation of ur ban sprawl, encourage

infill and facilitate the provision of

urban services through:

a. Land Development Regulations

that specify standards which

allow higher intensities of land

use in areas where adequate

services are available and where

specific des ign criteria are met,

and future land uses are

coordinated with appropriate

topography conditions and soil

types.

b. A generalized Future Land Use

Map which designates an

appropriate amount of acreage in

each land use category that

reflects projected n eeds,

existing development patterns,

environmental suitability,

availability of infrastructure,

and community values.

34. Policy 2.7 of the County's FLUE states:

The County shall discourage scattered and

highway strip commercial development by

requ iring the development of such uses at

existing commercial intersections, other

commercial nodes and town centers of mixed

uses.

35. Policy 2.8 of the County's FLUE states:

The following performance criteria shall be

followed when providing for the lo cation of

commercial and industrial land uses within

the designated Urban Area:

a. Protection of the development

from natural hazards by locating

development away from areas that

have natural hazards or that may

contain sensitive natural

resources;

b. Require concurrency be met to

ensure adequate services from

available public utilities and

other urban services;

c. Minimize environmental

impacts by ensuring all

appropriate permits are obtained

and adhered to;

d. Prevent over allocation of

commerci al land by requiring the

adherence to needed acreage based

on population projections; and

e. Provide buffering from other

land uses to minimize conflicts.

36. Objective 4 of the Stormwater Management Sub - element

of the County's Infrastructure Elemen t states:

Marion County's land development

regulations shall implement procedures to

ensure that, at the time a development

permit is issued, adequate stormwater

management facility capacity is available

or the developer will be required to

construct sto rm water facilities within his

development according to County standards.

37. Policy 4.1 of the Stormwater Management Sub - element

of the County's Infrastructure Element provides some detail as

to required content of the procedures, including a

requireme nt:

In addition, developers will comply where

applicable with the Water Management

districts flood control criteria for

stormwater quantity and quality.

(Citations omitted.)

38. Policy 4.3 of the Sanitary Sewer Sub - element of the

County's Infrastruc ture Element provides in pertinent part:

The County's land development regulations

shall provide for issuance of development

permits within the identified wastewater

service areas consistent with the following

guidelines:

* * *

c. Where publ ic wastewater

treatment facilities are

required, they shall be available

concurrent with the impacts of

development. Facilities which

meet county specifications and

the level of service standards

for the service areas will be

provided by the developer in the

interim and will be connected to

central facilities when they

become available . . ..

Internal Consistency .

39. Petitioners presented no evidence that the Plan

Amendment did not adhere to "needed acreage based on

population projections."

40. Con sistent with the pertinent provisions of the

County's Comprehensive Plan itself, the County's Planning

Department Director testified that the County's Comprehensive

Plan encourages the planning concept of nodal commercial

development (allowing commercial d evelopment on all four

corners of an intersection). This planning technique allows

clustered commercial development in commercial nodes, locating

in outlying areas, to provide localized commercial services

for residents. Notwithstanding testimony that Pe titioners

probably would not patronize retail stores at the

Intersection, the expert testimony was that commercial node

development is intended to assist in reducing trips and

average trip lengths by providing limited commercial services

to area residents without necessitating their travel to a

centralized commercial area. In the County’s Comprehensive

Plan, the concept of commercial node development in non - urban

areas is the basis for the RAC land use designation. See

Finding of Fact 7, supra . Both of t he County's witnesses

testified that commercial development of all four quadrants of

the Intersection is consistent with the County’s Comprehensive

Plan policy of encouraging commercial node development because

it has long - existing partial commercial devel opment, is

signalized, and provides access in all directions.

41. The evidence did not prove that the County's

Comprehensive Plan requires traffic, sanitary sewer, or

drainage (or any other) concurrency at the time of the

adoption of a plan amendment. Th e County has adopted in its

Land Development Code a concurrency management system

requiring that concurrency be established prior to the

issuance of a development order (such as a building permit).

The evidence was that determining capacity and concurrenc y at

the development order stage in the development process is

standard and customary, and is used in a number of

jurisdictions in the state. Regardless of the land use

classification and zoning classification of the Amendment

Parcel, when the Intervenor initiates application for approval

of an actual development order, the Intervenor will be

required under the County's Land Development Code to establish

concurrency, including traffic, sanitary sewer, and drainage

concurrency.

42. There was some evidenc e to support the contentions

of some Petitioners that commercial development of the

Amendment Parcel would not be compatible with residential and

rural land uses in the area and that that NW 80th Avenue is a

"line of demarcation" between urban uses and rur al uses. But

Petitioners failed to prove those contentions by the greater

weight of the evidence, including the 1998 recommendations of

the County Planning Department staff and Planning Commission

to approve a land use change to Commercial west of NW 80th

Avenue. In addition, the Comprehensive Plan's designation of

land west of NW and SW 80th initially as Urban Expansion in

1992 and as Urban Reserve in 1994 anticipated ultimate urban

development of this Intersection, as well as properties

approximately a mile to the west of the Intersection. In

addition, the Comprehensive Plan designated two RACs to the

west of the Amendment Parcel on State Road 40 (between the

Amendment Parcel and the City of Dunnellon). The first RAC is

three miles to the west of the A mendment Parcel, and the

second RAC is seven miles to the west of the Amendment Parcel.

The evidence was that the Intersection would have been a RAC

had it not been designated Urban Expansion and then Urban

Reserve. Finally, at least one Petitioner conce ded the point

and contested only the timing of commercial development of the

Amendment Parcel.

Alleged Urban Sprawl .

43. Petitioners presented no analysis of urban sprawl

indicators. They also presented no evidence that the Plan

Amendment allocated c ommercial land in excess of demonstrated

need in the County. As found, the Amendment Parcel is across

NW 80th Avenue from existing commercial and other urban

development; in addition, provision of nodal commercial

development is intended to counter at lea st some symptoms of

urban sprawl.

CONCLUSIONS OF LAW

44. For small - scale amendments, Section 163.3187(3)(a),

Florida Statutes (2001), states:

The local government’s determination that

the small scale development amendment is in

compliance is presumed t o be correct. The

local government’s determination shall be

sustained unless it is shown by a

preponderance of the evidence that the

amendment is not in compliance with the

requirements of the Act .

(All cited sections refer to sections of the 2001 codifi cation

of the Florida Statutes.) There is no jurisdiction in this

proceeding to adjudicate anything other than the "compliance"

status of the Plan Amendment at issue.

45. Section 163.3184(1)(b) states:

"In compliance" means consistent with the

require ments of ss. 163.3177, 163.3178,

163.3180, 163.3191, and 163.3245, with the

state comprehensive plan, with the

appropriate strategic regional policy plan,

and with chapter 9J - 5, Florida

Administrative Code, where such rule is not

inconsistent with this par t and with the

principles for guiding development in

designated areas of critical state concern.

(Section 163.3194(1)(b) was raised by Petitioners, but it

relates to consistency of land development regulations with a

comprehensive plan, which is not a " compliance" issue.)

46. Petitioners' reference to urban sprawl in Section

163.3177(11)(d) was inapplicable; that statute applies only to

rural land stewardship areas, and the Amendment Parcel is not

in one of them. Besides being beyond the jurisdiction of this

proceeding, Petitioners' reference to Section 163.3194(1)(b)

also was inapplicable in that it applies only to consistency

of land development regulations with a comprehensive plan.

47. Remaining are Petitioners' contentions that the

County's Pl an Amendment is not "in compliance" for: (1)

inconsistency with goals, objectives, and policies of the

County's Comprehensive Plan -- specifically, FLUE Objectives 1

and 2, and Policies 2.7 and 2.8; and (2) proliferation of

urban sprawl, contrary to Florida Administrative Code Rule 9J -

5.006(5)(g), (i), (j), and (l). (All rule citations are to

the current codification of the Florida Administrative Code.)

48. Notwithstanding issues raised as to the accuracy of

information presented by Intervenor, Petitione rs did not

contend (or prove) that the Plan Amendment was not based on

demonstrated need or was not supported by adequate data and

analysis. See Section 163.3177(6)(a) and (8); Rule 9J -

5.006(2)(c); and Rule 9J - 5.005(2).

Internal Consistency .

49. Secti on 163.3177(2) requires: "The several elements

of the comprehensive plan shall be consistent . . . ." Rule

9J - 5.005(5) repeats this admonition in subparagraph (a), and

subparagraph (b) adds: "Each map depicting future conditions

must reflect goals, obje ctives, and policies within all

elements and each such map must be contained within the

comprehensive plan." Elements of comprehensive plans are

"consistent" if they are not in conflict with each other.

50. As reflected in the Findings of Fact, Petitio ners

did not prove by a preponderance of the evidence that the

County's Plan Amendment is inconsistent with other provisions

of the County's Comprehensive Plan.

Urban Sprawl

51. In pertinent part, Rule 9J - 5.006(3)(b)8 requires

that a plan's FLUE contain one or more specific objectives for

each goal statement which address the requirements of Section

163.3177(6)(a) and which, among other things: "Discourage the

proliferation of urban sprawl . . .."

52. Although Rule 9J - 5.006(5) provides in pertinent

par t:

(g) Primary indicators. The primary

indicators that a plan or plan amendment

does not discourage the proliferation of

urban sprawl are listed below. The

evaluation of the presence of these

indicators shall consist of an analysis of

the plan or plan a mendment within the

context of features and characteristics

unique to each locality in order to

determine whether the plan or plan

amendment:

1. Promotes, allows or designates for

development substantial areas of the

jurisdiction to develop as low - int ensity,

low - density, or single - use development or

uses in excess of demonstrated need.

2. Promotes, allows or designates

significant amounts of urban development to

occur in rural areas at substantial

distances from existing urban areas while

leaping o ver undeveloped lands which are

available and suitable for development.

3. Promotes, allows or designates urban

development in radial, strip, isolated or

ribbon patterns generally emanating from

existing urban developments.

4. As a result of prematur e or poorly

planned conversion of rural land to other

uses, fails adequately to protect and

conserve natural resources, such as

wetlands, floodplains, native vegetation,

environmentally sensitive areas, natural

groundwater aquifer recharge areas, lakes,

ri vers, shorelines, beaches, bays,

estuarine systems, and other significant

natural systems.

5. Fails adequately to protect adjacent

agricultural areas and activities,

including silviculture, and including

active agricultural and silvicultural

activities as well as passive agricultural

activities and dormant, unique and prime

farmlands and soils.

6. Fails to maximize use of existing

public facilities and services.

7. Fails to maximize use of future

public facilities and services.

8. Allows for lan d use patterns or

timing which disproportionately increase

the cost in time, money and energy, of

providing and maintaining facilities and

services, including roads, potable water,

sanitary sewer, stormwater management, law

enforcement, education, health c are, fire

and emergency response, and general

government.

9. Fails to provide a clear separation

between rural and urban uses.

10. Discourages or inhibits infill

development or the redevelopment of

existing neighborhoods and communities.

11. Fails t o encourage an attractive and

functional mix of uses.

12. Results in poor accessibility among

linked or related land uses.

13. Results in the loss of significant

amounts of functional open space.

(h) Evaluation of land uses. The

comprehensive plan must be reviewed in its

entirety to make the determinations in

(5)(g) above. Plan amendments must be

reviewed individually and for their impact

on the remainder of the plan. However, in

either case, a land use analysis will be

the focus of the review an d constitute the

primary factor for making the

determinations. Land use types

cumulatively (within the entire

jurisdiction and areas less than the entire

jurisdiction, and in proximate areas

outside the jurisdiction) will be evaluated

based on density, in tensity, distribution

and functional relationship, including an

analysis of the distribution of urban and

rural land uses. Each land use type will

be evaluated based on:

1. Extent.

2. Location.

3. Distribution.

4. Density.

5. Intensity.

6. Compatibility.

7. Suitability.

8. Functional relationship.

9. Land use combinations.

10. Demonstrated need over the planning

period.

(i) Local conditions. Each of the land

use factors in (5)(h) above will be

evaluated within the contex t of features

and characteristics unique to each

locality. These include:

1. Size of developable area.

2. Projected growth rate (including

population, commerce, industry, and

agriculture).

3. Projected growth amounts (acres per

land use category) .

4. Facility availability (existing and

committed).

5. Existing pattern of development

(built and vested), including an analysis

of the extent to which the existing pattern

of development reflects urban sprawl.

6. Projected growth trends over the

planning period, including the change in

the

overall density or intensity of urban

development throughout the jurisdiction.

7. Costs of facilities and services,

such as per capita cost over the planning

period in terms of resources and energy.

8. E xtra - jurisdictional and regional

growth characteristics.

ansportation networks and use

characteristics (existing and committed).

10. Geography, topography and various

natural features of the jurisdiction.

(j) Development controls. Developmen t

controls in the comprehensive plan may

affect the determinations in (5)(g) above.

The following development controls, to the

extent they are included in the

comprehensive plan, will be evaluated to

determine how they discourage urban sprawl:

1. Open space requirements.

2. Development clustering requirements.

3. Other planning strategies, including

the establishment of minimum development

density and intensity, affecting the

pattern and character of development.

4. Phasing of urban land use t ypes,

densities, intensities, extent, locations,

and distribution over time, as measured

through the permitted changes in land use

within each urban land use category in the

plan, and the timing and location of those

changes.

5. Land use locational crit eria related

to the existing development pattern,

natural resources and facilities and

services.

6. Infrastructure extension controls,

and infrastructure maximization

requirements and incentives.

7. Allocation of the costs of future

development based on the benefits received.

8. The extent to which new development

pays for itself.

ansfer of development rights.

10. Purchase of development rights.

11. Planned unit development

requirements.

aditional neighborhood

developments.

13. Land use functional relationship

linkages and mixed land uses.

14. Jobs - to - housing balance requirements.

15. Policies specifying the circumstances

under which future amendments could

designate new lands for the urbanizing

area.

16. Provision for ne w towns, rural

villages or rural activity centers.

17. Effective functional buffering

requirements.

18. Restriction on expansion of urban

areas.

19. Planning strategies and incentives

which promote the continuation of

productive agricultural areas an d the

protection of environmentally sensitive

lands.

20. Urban service areas.

21. Urban growth boundaries.

22. Access management controls.

(k) Evaluation of factors. Each of the

land use types and land use combinations

analyzed in Paragraph (5)( h) above will be

evaluated within the context of the

features and characteristics of the

locality, individually and together (as

appropriate), as listed in Paragraph

(5)(i). If a local government has in place

a comprehensive plan found in compliance,

the Department shall not find a plan

amendment to be not in compliance on the

issue of discouraging urban sprawl solely

because of preexisting indicators if the

amendment does not exacerbate existing

indicators of urban sprawl within the

jurisdiction.

(l) Innovative and flexible planning and

development strategies. Notwithstanding

and as a means of addressing any provisions

contained in rules 9J - 5.006(3)(b)8., 9J -

5.011(2)(b)3., 9J - 5.003(140) and this

subsection, the Department encourages

innovative and fle xible planning and

development strategies and creative land

use planning techniques in local plans.

Planning strategies and techniques such as

urban villages, new towns, satellite

communities, area - based allocations,

clustering and open space provisions,

mixed - use development and sector planning

that allow the conversion of rural and

agricultural lands to other uses while

protecting environmentally sensitive areas,

maintaining the economic viability of

agricultural and other predominantly rural

land uses, and providing for the cost -

efficient delivery of public facilities and

services, will be recognized as methods of

discouraging urban sprawl and will be

determined consistent with the provisions

of the state comprehensive plan, regional

policy plans, Chapte r 163, Part II, and

this chapter regarding discouraging the

proliferation of urban sprawl.

(Only some of these provisions were cited by Petitioners in

support of their contention that the Plan Amendment fails to

discourage urban sprawl.)

53. Although not cited by Petitioners as a basis for

their contention that the Plan Amendment fails to discourage

urban sprawl, Section 163.3177(11), which sets out pertinent

legislative intent, also is pertinent to the "urban sprawl"

issue. It provides in pertinent p art:

(a) The Legislature recognizes the need

for innovative planning and development

strategies which will address the

anticipated demands of continued

urbanization of Florida's coastal and other

environmentally sensitive areas, and which

will accommod ate the development of less

populated regions of the state which seek

economic development and which have

suitable land and water resources to

accommodate growth in an environmentally

acceptable manner. The Legislature further

recognizes the substantial a dvantages of

innovative approaches to development which

may better serve to protect environmentally

sensitive areas, maintain the economic

viability of agricultural and other

predominantly rural land uses, and provide

for the cost - efficient delivery of pub lic

facilities and services.

(b) It is the intent of the Legislature

that the local government comprehensive

plans and plan amendments adopted pursuant

to the provisions of this part provide for

a planning process which allows for land

use efficiencies within existing urban

areas and which also allows for the

conversion of rural lands to other uses,

where appropriate and consistent with the

other provisions of this part and the

affected local comprehensive plans, through

the application of innovative an d flexible

planning and development strategies and

creative land use planning techniques,

which may include, but not be limited to,

urban villages, new towns, satellite

communities, area - based allocations,

clustering and open space provisions,

mixed - use de velopment, and sector planning.

(c) It is the further intent of the

Legislature that local government

comprehensive plans and implementing land

development regulations shall provide

strategies which maximize the use of

existing facilities and service s through

redevelopment, urban infill development,

and other strategies for urban

revitalization.

54. As reflected in the Findings of Fact, Petitioners

did not prove by a preponderance of the evidence that the

County's Plan Amendment is inconsistent wi th these statutes

and rules.

55. Under Section 163.3187(3)(b)1., the ALJ's

recommended order is submitted to DCA if it recommends that a

small - scale amendment be found "in compliance."

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conc lusions

of Law, it is

RECOMMENDED that the Department of Community Affairs

enter a final order finding that Marion County's small - scale

amendment 01 - S27 is "in compliance."

DONE AND ENTERED this 7th day of June, 2002, in

Tallahassee, Leon County, Flor ida.

___________________________________

J. LAWRENCE JOHNSTON

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 - 684 7

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of June, 2002.

COPIES FURNISHED:

Mary M. Bartlett

8080 Northwest 2nd Street

Ocala, Florida 34482

Robert S. Inglis

8078 Northwest 2nd Street

Ocala, Flo rida 34482

Helen Thomas

8130 Northwest 2nd Street

Ocala, Florida 34482

Paul and Joan Lussier

8071 Northwest 2nd Street

Ocala, Florida 34482

Wanda Negron

8076 Northwest 2nd Street

Ocala, Florida 34482

Thomas D. MacNamara, Esquire

Marion County's Att orney's Office

601 Southeast 25th Avenue

Ocala, Florida 34471

Steven Gray, Esquire

Hart & Gray

125 Northeast First Avenue, Suite 1

Ocala, Florida 34470

Steven M. Seibert, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399 - 2100

Cari L. Roth, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399 - 2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exce ptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the final order in this case.