01-004845GM Robert J. Denig vs. Town Of Pomona Park Status: Closed Recommended Order on Tuesday, June 18, 2002.

Summary: Town`s Plan Amendment was not supported by data and analysis and was inconsistent with a plan provision. Burden and standard of proof was "preponderance of the evidence" in this de novo proceeding.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT J. DENIG, )

)

Petitioner, )

)

vs. ) Case No. 01 - 4845GM

)

TOWN OF POMONA PARK, )

)

Respondent. )

)

RECOMMENDED ORDER

On March 27, 2002, a f ormal administrative hearing was

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

Johnston, Administrative Law Judge, Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Michael W. Woodward, Esquire

Keyser & Woodward, P.A.

Post Office Box 92

Interlachen, Florida 32148 - 0092

For Respondent: James L. Padgett, Esquire

3 North Summit Street

Crescent City, Florida 32 112 - 2505

STATEMENT OF THE ISSUE

The issue in this case is whether the small - scale

comprehensive plan amendment adopted by the Town of Pomona

Park (Town) through enactment of Ordinance No. 01 - 7 (the Plan

Amendment) is "in compliance," as defined by Section

163.3184(1)(b), Florida Statutes (2001) .

PRELIMINARY STATEMENT

The Town adopted the Plan Amendment on November 13, 2001.

The Plan Amendment changed the future land use designation of

an 8 - acre portion of a 13 - acre parcel ("the Fouts parcel")

from Resid ential to Agricultural. On November 27, 2001,

Petitioner, Robert J. Denig, an adjoining landowner, filed a

Petition for Administrative Hearing under Section 163.3187(3),

Florida Statutes, to contest the amendment. As grounds,

Petitioner contended that th e amendment was not based on

surveys, studies, data, and analyses and was inconsistent with

certain provisions of the Town's Comprehensive Plan.

Petitioner's standing was conceded by the Town.

Final hearing was first scheduled for February 13, 2002,

in Palatka, Florida; but an Agreed Motion for Continuance was

granted, and final hearing was continued to March 27, 2002.

At final hearing, the parties had their prehearing

statements (which, together, comprised their prehearing

stipulation) admitted in evi dence as a Joint Exhibit.

Petitioner testified in his own behalf and called four

additional witnesses, including the present Town Clerk and her

predecessor. Petitioner also had Petitioner's Exhibits A - D,

F - I, K, and M - V admitted in evidence. The Town cr oss - examined

but called no witnesses and introduced no additional exhibits.

After presentation of evidence, Petitioner ordered a

transcript, and the parties requested and were given 20 days

from the filing of the transcript to file proposed recommended

o rders (PROs). The Transcript was filed on May 6, 2002, and

Petitioner timely filed his PRO on May 13, 2002. The Town's

unopposed Motion for Extension of Time to File [Proposed]

Recommended Order was granted, and the time to file the Town's

PRO was extend ed to May 28, 2002. The Town's PRO was filed on

the extended deadline, and both PROs have been considered in

preparing this Recommended Order.

FINDINGS OF FACT

1. The Town's current Future Land Use Map (FLUM)

(Exhibit H) depicts the subject parcel and Petitioner's

adjoining parcel as fronting on the western shore of Lake

Broward and being within a primarily residential land use area

that encompasses most of the Town's land area lying west of

Lake Broward and northeast of Highway 17. The parcels

immedia tely to the north and south of the subject parcel and

Petitioner's adjoining parcel are in Low Density Residential

future land use, which allows densities up to two units per

acre; the lake is to the east. The eastern five acres of the

13 - acre subject par cel, including the lake frontage, were not

included in the amendment; only the western eight acres were

changed to Agricultural land use, which allows densities up to

one unit per five acres (unless occupied only by the owner's

family members, in which cas e densities up to one unit per

acre are allowed).

2. The property owner, Town Council member Barry Fouts,

had previously requested to have the entire 13 - acre parcel

changed to Agricultural land use but withdrew that request.

Fouts testified that, in r equesting the same change for only

eight acres of his parcel, he took into consideration that

keeping the request under 10 acres would avoid review by the

Department of Community Affairs (DCA).

3. Several parcels near the Fouts parcel, including some

of the parcels across the street to the west, are designated

for Agricultural future land use. However, those parcels

across the street to the west of the subject parcel are

actually being used for residential rather than agricultural

purposes. The nearest parcel that might be considered to be

in actual use for agricultural purposes is a horse farm

located approximately one quarter mile to the north. However,

the present Town Clerk testified in her capacity as Town

zoning officer that a horse farm (or an e xotic bird breeding

operation) is not to be considered an agricultural use because

the animals are not being raised for human consumption.

4. Fouts has voluntarily provided some visual buffering

along his property line, but there is no requirement in th e

Plan Amendment that it be maintained in the future, nor would

visual screening be particularly effective in protecting

nearby Residential properties against noises and odors

produced by some common types of agricultural livestock.

5. The Plan Amendmen t was not initiated by the Town;

rather, it was requested by the subject parcel's owner, Barry

Fouts, whose request for a change in land use stated that his

purpose was to bring his "established agricultural activities,

which include horse and bird breedin g" into conformity with

"Putnam County [sic] zoning recommendations." Fouts gave no

other reasons for wanting the change. The former Town Clerk

(and zoning officer) testified that there were no restrictions

on keeping any type or number of animals in Res idential future

land use, that Fouts could engage in horse and bird breeding

without changing the future land use or zoning, and that there

was no need for the land use change.

6. No survey, study, or analysis of the Plan Amendment

is reflected anywhere in the Town's files relating to the Plan

Amendment, and it is found that there were none. When the

Plan Amendment was presented to the Town Council for

consideration, all that the former Town Clerk and present Town

Clerk presented to the Town Council was a one - page note

prepared by the former Town Clerk relating Fouts' desire to

continue with his agricultural activities, including horse and

bird breeding.

7. At final hearing (with the assistance of leading

questions on cross - examination by the Town's a ttorney), the

present Town Clerk and former Town Clerk testified that,

notwithstanding the absence of any written survey, study, or

analysis, they made a site visit and recalled reviewing the

Plan Amendment in relation to the Town's Comprehensive Plan,

inc luding the FLUM, as well as analyzing and considering the

need for more agricultural land use within the Town's

municipal boundaries and the desirability of keeping

residential development and septic tanks away from the lake,

in arriving at a recommendatio n to approve the land use

change. Regardless whether any such analyses actually

occurred by the time of adoption of the Plan Amendment, they

clearly were presented as part of the evidence at final

hearing.

8. The analysis presented at final hearing th at the

Town's Comprehensive Plan calls for more land area to be

designated for Agricultural future land use was based on an

erroneous reading of the Comprehensive Plan adopted by the

Town in 1991. The analysis presumed that, under the plan,

1220.3 acres o f agricultural land use was "desired" (compared

to less that 600 acres in actual agricultural use in 2001).

This presumption was based on parenthetical references to

1220.3 acres next to the word "Agricultural" in two places in

the plan. But it is clear from a fair reading of the plan

that, in designating Agricultural future land use, the plan

transferred all 648.6 acres in the "Vacant or Undeveloped"

existing land use category to the Agricultural future land use

category "for lack of a better land use de signation," in

addition to the 571.7 acres of existing agricultural land use,

for a total of 1220.3 acres. (Other future land use

designations mirrored 1991 existing land use.) There was no

intention to indicate a need for 1220 acres of agricultural

land use in the Town. To the contrary, the plan projected a

need for 170 additional housing units through 2001 and stated

that "[m]ost of the Town's . . . agricultural and

vacant/undeveloped land is suitable for development."

Consistent with that, the eviden ce showed that in the vicinity

of the subject parcel most if not all of the parcels

designated for Agricultural land use are actually being used

for residential purposes and not for agriculture. If

anything, it would seem that in 1991 the Comprehensive Pl an

anticipated a need to designate more acreage for Residential

future land use and less for Agricultural.

9. Even if the Comprehensive Plan reflected a perceived

need for 1220 acres of actual agricultural use, 1220 acres

already is designated for Agric ultural future land use, and no

reason was given for designating additional acreage for the

category.

10. Finally, this part of the Town's analysis makes no

sense in light of the undisputed testimony of the Town Clerk,

as zoning officer, that "agricultu ral use" consists of the

raising of plants or animals for human consumption. The

evidence was clear that the horses, cows, and exotic birds on

the Fouts property are not for human consumption. It was not

clear from the evidence what the 15 - 20 chickens on the Fouts

property are used for.

11. The analysis that the Plan Amendment was to protect

Lake Broward from septic tanks associated with residential

land use also is shallow and faulty. While it is true that

allowable development densities are lower in the Agricultural

future land use category, the five acres of the Fouts parcel

that were nearest the lake were not included in the amendment

but remained in Residential future land use. Second, the

present Town Clerk testified that there never have been a ny

negative effects on the lake from septic tanks, which are

regulated, whereas she had no way of knowing whether the

unregulated effects of agricultural runoff might be worse than

any effects from septic tanks.

12. Objective A.1.1 provides that the Tow n "shall

coordinate future land uses with . . . adjacent land uses,

. . . through implementing the following policies . . ..". In

this case, the immediately adjacent land uses are designated

on the FLUM as Residential, and most if not all of the nearby

pa rcels that are designated Agricultural are actually being

used for residential purposes. But Petitioner did not allege

that the Plan Amendment was inconsistent with any of the

policies listed under Objective A.1.1, and the evidence did

not prove any such inconsistencies.

13. Policy A.1.3.2 requires that the Town's Subdivision

and Zoning Code shall require buffering and separation between

land uses of different densities or intensities of use

sufficient to ensure compatibility between uses and also

requi res the elimination of non - conforming land uses. In this

case, the Plan Amendment did not provide for separation or

buffering between the newly designated Agricultural future

land use and the directly adjoining Residential properties,

but neither did it h ave any effect on the Policy requiring the

Town's Subdivision and Zoning Code to require such buffering

and separation.

14. Policy A.1.9.3.C.1 provides in pertinent part:

"Residential land use is intended to be used primarily for

housing and shall be protected from intrusion by land uses

that are incompatible with residential density." The Plan

Amendment intrudes a small area of Agricultural future land

use into an area that is primarily designated for Residential

land use and that is in actuality alm ost exclusively used for

residential purposes. The sounds and smells associated with

at least some types of agricultural activity, such as the

pasturing and raising of livestock and poultry, are capable of

adversely affecting nearby residents and are inco mpatible with

residential land use.

15. Policy A.1.9.3.C.4 provides in pertinent part:

"Agricultural land is intended to be used primarily for

pasture, grove operations or silviculture with possibly some

row crops." In this case, the evidence shows th at the primary

purpose of the Plan Amendment was to allow the landowner to

breed horses and operate an exotic bird breeding facility.

The Town Clerk, as zoning officer, has taken the position that

those activities do

not fit within the definition of agr iculture. But the Plan

Amendment itself is not inconsistent with this Policy.

CONCLUSIONS OF LAW

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

Florida Statutes (2001), states:

The local government’s determination that

the small scale develop ment amendment is in

compliance is presumed to 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 codification

of the Florida Statutes.)

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

"In compliance" means consistent with the

requirements of ss. 163.3177, 163.3178,

163.3180, 163.3191, and 163.3245, with the

state comprehe nsive plan, with the

appropriate strategic regional policy plan,

and with chapter 9J - 5, Florida

Administrative Code, where such rule is not

inconsistent with this part and with the

principles for guiding development in

designated areas of critical state co ncern.

Standard of Review and Burden and Standard of Proof

18. The Town contends that the "preponderance of the

evidence" language in Section 163.3187(3)(a) only speaks to

the burden and standard of proof in this proceeding and that

the standard of revie w in this case is to sustain the Plan

Amendment if it is fairly debatable that the Plan Amendment is

"in compliance." In support of its position, the Town cites

Martin County v. Yusem , 690 So. 2d 1288 (Fla. 1997), and

Fleeman v. City of St. Augustine Beac h , 728 So. 2d 1178 (Fla.

5th DCA 1999).

19. Both Yusem and Fleeman prescribe the "fairly

debatable" standard of review to comprehensive plan and plan

amendment challenges; Fleeman was a small - scale plan

amendment. But both those cases involved the stan dard of

review when a court reviews a local government's comprehensive

plan. (In the case of Yusem , at least, the local government

denied the property owner's request for a plan amendment for

the property.) See also Coastal Development of North Florida,

Inc. v. City of Jacksonville Beach , 788 So. 2d 204, 209 (Fla.

2001)(another case in which the local government denied the

property owner's request for a plan amendment for the

property, which noted the availability of administrative

remedies). It does not necessarily follow that the same

standard of review applies in an administrative proceeding.

20. Most administrative proceedings under Sections

120.569 and 120.57(1) are de novo proceedings initiated after

preliminary agency review and notice of the ag ency's intent to

take final action; they are designed to "formulate final

agency action, not to review action taken earlier and

preliminarily." McDonald v. Florida Department of Banking and

Finance , 346 So. 2d 81 (Fla. 1st DCA 1977). However, the

Legisla ture has chosen to treat administrative review of

comprehensive plan and plan amendment cases differently. In

proceedings under Section 163.3184(9), the Department of

Community Affairs (DCA) has preliminarily reviewed a

comprehensive plan or plan amendmen t and found it to be "in

compliance." In these "compliance" proceedings, a different

standard of review is established: "In this proceeding, the

local plan or plan amendment shall be determined to be in

compliance if the local government's determination of

compliance is fairly debatable." On the other hand, in a

"noncompliance" proceeding under Section 163.3184(10) (where

DCA has preliminarily reviewed a comprehensive plan or plan

amendment and found it not "in compliance"), the statute

provides: "The l ocal government's determination shall be

sustained unless it is shown by a preponderance of the

evidence that the comprehensive plan or plan amendment is not

in compliance. The local government's determination that

elements of its plans are related to and consistent with each

other shall be sustained if the determination is fairly

debatable."

21. One might have expected that the Legislature's use

of language normally used to describe a standard of review

(the "fairly debatable" standard) in Section 163. 3184(9) and

language normally used to describe a burden and standard of

proof (the "preponderance of the evidence" standard) in

Section 163.3184(10) would have been a cause of some

confusion, but it is does not appear that the mixing of

standard of review language and burden or standard of proof

language ever has been raised as an issue. Usually, the

language is viewed as simply describing different standards of

proof. In any event, it seems clear that the Legislature did

not intend for the "fairly debata ble" language to apply in

Section 163.3184(10) "noncompliance" proceedings, except as to

internal consistency of plan elements. Instead, the

Legislature's choice of language would suggest a standard de

novo administrative proceeding using the "preponderan ce of the

evidence" burden and standard of proof, except as to internal

consistency of plan elements.

22. Under Section 163.3187(3)(a), there is no DCA

preliminary review and determination (to which the "fairly

debatable" language in Section 163.3184(9) defers in

"compliance" proceedings); the "fairly debatable" language is

omitted; and the "preponderance of the evidence" language is

used. It seems clear from the Legislature's choice of

language that, as in the case of a "noncompliance" proceeding

under Section 163.3184(10), the Legislature intended a

standard de novo administrative proceeding using the

"preponderance of the evidence" burden and standard of proof,

at least for all but internal consistency of plan elements.

23. Section 163.3187(3)(a) o mits the sentence regarding

internal consistency contained in Section 163.3184(10). But

it is unnecessary in this case to determine whether the

"fairly debatable" standard applies to determine whether the

elements of the Town's plan are related to and con sistent with

each other, since Petitioner has not alleged any such

inconsistencies.

Data and Analysis; Demonstration of Need .

24. Section 163.3177(6)(a) provides in pertinent part:

The future land use plan shall be based

upon surveys, studies, and dat a regarding

the area, including the amount of land

required to accommodate anticipated growth;

the projected population of the area; the

character of undeveloped land; the

availability of public services; and the

need for redevelopment, including the

renew al of blighted areas and the

elimination of nonconforming uses which are

inconsistent with character of the

community.

Section 163.3177(8) also requires all elements of

comprehensive plans to be "based upon data appropriate to the

element involved."

2 5. Florida Administrative Code Rule 9J - 5.006(2)(c)

provides:

(2) Land Use Analysis Requirements. The

element shall be based upon the following

analyses which support the comprehensive

plan pursuant to Subsection 9J - 5.005(2).

* * *

(c) An anal ysis of the amount of land

needed to accommodate the projected

population, including:

1. The categories of land use and their

densities or intensities of use,

2. The estimated gross acreage needed by

category, and

3. A description of the methodology

use d . . . .

(All rule citations are to the current codification of the

Florida Administrative Code.)

26. Rule 9J - 5.005(2) provides in pertinent part:

(a) All goals, objectives, policies,

standards, findings and conclusions within

the comprehensive plan and its support

documents, and within plan amendments and

their support documents, shall be based

upon relevant and appropriate data and the

analyses applicable to each element. To be

based on data means to react to it in an

appropriate way and to the ext ent necessary

indicated by the data available on that

particular subject at the time of adoption

of the plan or plan amendment at issue.

Data or summaries thereof shall not be

subject to the compliance review process.

However, the Department will review each

comprehensive plan for the purpose of

determining whether the plan is based on

the data and analyses described in this

Chapter and whether the data were collected

and applied in a professionally acceptable

manner.

* * *

(e) The comprehensiv e plan shall be based

on resident and seasonal population

estimates and projections. Resident and

seasonal population estimates and

projections shall be either those provided

by the University of Florida, Bureau of

Economic and Business Research, those

pr ovided by the Executive Office of the

Governor, or shall be generated by the

local government. . . .

* * *

2. The Department will evaluate the

application of the methodology utilized by

a local government in preparing its own

population estimates and projections and

determine whether the particular

methodology is professionally accepted.

27. As reflected in the Findings of Fact, Petitioner

proved by a preponderance of the evidence that the Plan

Amendment was not based on demonstrated need and was not

supported by adequate data and analysis, as required by

Section 163.3177(6)(a) and (8), Rule 9J - 5.006(2)(c), and Rule

9J - 5.005(2).

Internal Consistency .

28. Section 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, objectives, and policies within all

elements and each such map must be contained withi n the

comprehensive plan." Elements of comprehensive plans are

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

29. As reflected in the Findings of Fact, Petitioner

proved by a preponderance of the evidence that the Town's FLUM

amendment is in consistent with (future) Land Use Element

Policy A.1.9.3.C.1 in the Town's Comprehensive Plan.

Petitioner did not prove that the Plan Amendment was

inconsistent with other future land use policies.

Disposition .

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

recommended order is submitted to the Administration

Commission for final action if it recommends that a small -

scale amendment be found not "in compliance."

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Administration Commission enter a

final order finding that the Town's small - scale amendment

adopted by Ordinance No. 01 - 7 is not "in compliance."

DONE AND ENTERED this 18th day of June, 2002, in

Tallahassee, Leon County, Florida.

__ _________________________________

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 - 6847

www.d oah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of June, 2002.

COPIES FURNISHED:

James L. Padgett, Esquire

3 North Summit Street

Crescent City, Florida 32112 - 2505

Michael W. Woodward, Esquire

Keyser & Woo dward, P.A.

Post Office Box 92

Interlachen, Florida 32148 - 0092

Barbara Leighty, Clerk

Growth Management and Strategic Planning

The Capitol, Room 1801

Tallahassee, Florida 32399 - 0001

Charles Canaday, General Counsel

Office of the Governor

The Capitol, S uite 209

Tallahassee, Florida 323999 - 0001

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 wr itten exceptions 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.