02-001069GM Frances Z. Parsons vs. Putnam County And Department Of Community Affairs Status: Closed Recommended Order on Friday, May 2, 2003.

Summary: The amendment to Putnam County`s Future Land Use Map, changing the site from "Rural Residential" to "Commercial," is not "in compliance" with Chapter 163, Part II, Florida Statutes, and this conclusion is not fairly debatable.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANCES Z. PARSONS, )

)

Petitioner, )

)

vs. ) Case No. 02 - 1069GM

)

PUTNAM COUNTY and DEPARTMENT )

OF COMMUNITY AFFAIRS, )

)

Respondents, )

)

and )

)

FLORIDA RACING OF PUTNAM )

COUNTY, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Notice was given and on January 22 and 23, 2003, a final

hearing was held in this case. Pursuant to Sections 120.569,

120.57(1), and 163.3184(9)(b), Florida Statutes, the hearing

was conducted by Charles A. Stampelos, Administrative Law

Judge, in Palatka, Putnam County, Florida.

APPEARANCES

For Petitioner Frances Z. Parsons:

Michael W. Woodward, Esquire

Keyser & Woodward, P.A.

Post Office Box 92

Interlachen, Florida 32148 - 0092

For Respondent Department of Community Affairs:

Shaw P. Stiller, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

For Respondent Putnam County:

Russell D. Castleberry, Esquire

Post Off ice Box 758

Palatka, Florida 32178 - 0758

For Intervenor Florida Racing of Putnam County, Inc.:

James L. Padgett, Esquire

Law Office of James L. Padgett

Three North Summit Street

Crescent City, Florida 32112 - 2505

STATEMENT OF THE ISSUE

Whether the am endment to the Future Land Use Map (FLUM)

of the Putnam County Comprehensive Plan (Plan) adopted by

Ordinance No. 2001 - 33 on December 11, 2001, which changes the

future land use designation on the FLUM of an approximately

29 - acre site from "Rural Residenti al" to "Commercial," is "in

compliance" as that term is defined in Section 163.3184(1)(b),

Florida Statutes, for the reasons set forth in the Petition

for Administrative Hearing.

PRELIMINARY STATEMENT

On December 11, 2001, Putnam County (County) adopted

O rdinance No. 2001 - 33. This Ordinance contains one amendment

(Amendment) to the FLUM of the Putnam County Comprehensive

Plan. The Amendment changes the future land use designation of

an approximately 29 - acre parcel (Property) from Rural

Residential to Comm ercial. The Putnam County Speedway

(Speedway) is currently operating on the Property proposed for

this change.

The Department of Community Affairs (Department) reviewed

the Amendment and caused to be published a Notice of Intent to

find it "in compliance. " This Notice of Intent was published

on February 13, 2002.

On or about February 28, 2002, counsel for Petitioner,

Frances Z. Parsons, filed a Petition for Administrative Hearing

with the Department, regarding this Notice of Intent. The

County and Depart ment were named as Respondents in the

Petition. In June 2002, Florida Racing of Putnam County, Inc.

(Florida Racing), filed for and was granted leave to intervene

in this case in support of the Department and County.

Prior to the final hearing, Petitioner filed a Pre -

Hearing Statement. Putnam County and Florida Racing joined in

the Pre - Hearing Statement. Florida Racing also filed a Motion

in Limine to prevent Petitioner from introducing evidence

regarding any illegal activity or unpermitted construction at

the raceway property. After hearing argument of counsel at

the outset of the final hearing, the motion was denied.

This case proceeded to final hearing on January 22 and

23, 2003. At the final hearing, Petitioner called the

following witnesses: Dr. Fr ances Z. Parsons, the Petitioner;

Robert Joseph Potter, Vice - President and Comptroller of

Florida Racing; John P. Salmons, county planner for Putnam

County; Raymond J. Spofford, A.I.C.P., senior planner for

Putnam County; Russell Paul Darst, planner for th e Department;

James D. Stansbury, a principal planner for the Department;

Fred Goodrow, A.I.C.P., an urban planning consultant and

qualified expert in land use planning; and Brant Fegter, a

resident of Putnam County.

Petitioner offered the following exhib its which were

accepted into evidence: A and B; D - F; H - J; L; and O - S.

At the final hearing, Florida Racing called Raymond J.

Spofford, A.I.C.P., senior planner for Putnam County. Florida

Racing offered Intervenor Exhibit 1 into evidence.

At the final hear ing, the Department called no witnesses

and offered no exhibits for admission into the record. Putnam

County similarly did not call any witnesses. Putnam County

offered Exhibit 1 which was admitted into evidence.

The two - volume Transcript of the final hea ring was filed

February 26, 2003. After granting an unopposed motion to

extend the time for filing proposed recommended orders,

Proposed Recommended Orders were filed on April 7, 2003, by

Petitioner, Florida Racing and Putnam County, filing jointly,

and t he Department. The Proposed Recommended Orders have been

considered in this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Frances Z. Parsons, lives at 215 Woodbury

Trail, Satsuma, Putnam County, Florida, which is approximately

one mile from the racetr ack (on the site subject to the

Amendment, see Findings of Fact 14 and 15) and has resided

there for over seven years. Dr. Parsons understood at the

time she purchased the house that a racetrack had been in

existence, but was not operational and that no e vidence of a

racetrack could be seen from the road.

2. A couple of years ago, Dr. Parsons noticed

construction - type activity ( e.g. , earth - moving machines and

erection of stadium - type bleachers and lights) occurring on

the Property (racetrack site)ees al ong the road were

"bulldozed down," the site cleared, and a fence erected, after

which, Dr. Parsons could see the racetrack from the road and

racing commenced. Dr. Parsons also stated that the racetrack

is operational and the noise level bothers her at he r home.

3. Dr. Parsons described Satsuma as "about a half a mile

wide" and "fairly settled for a rural areas, but not for --

it's certainly not downtown." Dr. Parsons stated that the

community character has not changed in the last five years.

4. Dr. Parsons submitted oral or written comments and

objections regarding the disputed Amendment during the period

of time beginning with the transmittal hearing for the

amendment and ending with the adoption of the amendment.

5. Respondent, Putnam County, is a political subdivision

of the State of Florida. Section 7.54, Florida Statutes. The

County is the local government that adopted the Amendment.

6. Respondent, Department of Community Affairs, is the

state land planning agency and has the authority to administer

and en force the Local Government Comprehensive Planning and

Land Development Regulation Act, Chapter 163, Part II, Florida

Statutes, which includes a determination of whether

comprehensive plan amendments are "in compliance."

7. Intervenor, Florida Racing, is a pr ivate corporation

and is the owner of the approximately 29 acres that are the

subject of the challenged Amendment. Oral or written comments

and regarding the disputed Amendment were submitted on behalf

of Florida Racing during the period of time beginning with the

transmittal hearing for the Amendment and ending with the

adoption of the Amendment. Robert Joseph Potter is the Vice -

President and Comptroller for Florida Racing.

The Amendment

8. In April 2001, Florida Racing submitted to the County

an "Applicat ion for Amendment to the Putnam County Future Land

Use Map" (Application). This Application requested that the

land use designation for an approximately 29 - acre site,

consisting of five contiguous parcels under the same

ownership, be changed from "Rural R esidential" to "Commercial"

on the FLUM.

9. The Amendment was approved and transmitted to the

Department for review under Section 163.3184(6)(a), Florida

Statutes. The Department conducted this review, and raised no

objections to the proposed FLUM change.

10. On December 11, 2001, the Putnam County Board of

County Commissioners (Board) adopted the proposed Amendment by

Ordinance No. 2001 - 33.

11. The Department timely caused to be published a

Notice of Intent to find the Amendment "in compliance."

12. On or about Febr uary 28, 2002, Petitioner filed a

Petition for Administrative Hearing regarding the Department's

Notice of Intent. This Petition alleges that the Amendment

should be found not "in compliance" on several grounds.

13. This challenge involves an existing develop ment, a

racetrack, on the Property. However, the Amendment would

allow commercial development on the approximately 29 acres,

subject to compliance with applicable Plan and Putnam County

Zoning Ordinance (Zoning Ordnance) provisions. (In the

Application, Florida Racing advised that proposed uses

included a raceway, mobile home park, restaurant, and related

amenities.)

The Putnam County Speedway, the Surrounding Area, and the

Review Process

14. The approximately 29 - acre site (five parcels total

(Property)) sub ject to the Amendment is the site of an

existing dirt automobile racetrack with bleachers, a press

box, associated structures, and a masonry building/house. A

commercial mini - warehouse building (personal storage) is

located on the westernmost parcel.

15. The racetrack is currently known as the "Putnam

County Speedway" (Speedway).

16. The Property is located on the west side of U.S.

Highway 17 South between the Dunn's Creek Bridge and Buffalo

Bluff Road (County Road 309B).

17. The land surrounding the Property on th e west,

south, and east are designated as "Rural Residential" on the

FLUM, the same as the Property prior to the proposed FLUM

change.

18. The land to the north is designated as

"Conservation" on the FLUM and designated as vacant and

wetlands as existing lan d uses. The zoning is "A." See

Endnote 8. The land to the east is zoned "A" and is vacant as

the existing land use. The land to the north and east of the

Property is part of the 1,707 - acre Murphy Creek Conservation

area owned and managed by the St. Joh ns River Water Management

District.

19. The land to the west is zoned "C - 2; A" and has an

existing land use of commercial, but a future land use

designation on the FLUM of Rural Residential. There is also

additional land to the west of the Property within t he Murphy

Creek Conservation Area, a couple of residences and a vacant

subdivision that has been determined not to be vested for

development. There is a parcel of land to the west that is

also owned by Florida Racing.

20. The land to the south is zoned "C - 4, C - 1, C - 2, [and]

A" and is designated as vacant and commercial residential as

existing land uses, and has a Rural Residential future land

use designation on the FLUM. See Endnote 8. The land south

of the Property across U.S. 17 includes an existing commer cial

establishment that includes a mini - warehouse building with

outside storage of equipment and semi - trailers. (The mini -

warehouse was rezoned in 1986.) Also, further south and west

along U.S. 17, there are two or three additional commercial

businesses. Mr. Spofford referred to this area as "a

commercial cluster." However, most of the uses are

nonconforming uses as to the existing Rural Residential future

land use, and they would not be able to change to anything

more intensive or that would have more adverse impacts on the

surrounding residential uses. 1

21. Behind the mini - warehouse building are two

residential neighborhoods with two subdivisions, one with 22

lots of approximately one acre in size and the other with 19

lots, with most of the lots being si gnificantly larger than

those in the former subdivision. Another residential area

further west than the two subdivisions consists of

approximately 40 parcels of land which have been subdivided

over time and never platted. About four of these parcels on

U .S. 17 are zoned for commercial use. There is also an

existing aluminum business west with a C - 4 zoning. It appears

that almost all of these residential lots and parcels were

created after the racetrack was established.

22. The racetrack was in operation p rior to the adoption

of the Plan and zoning regulations. There is evidence that a

racetrack existed before 1975, but has not remained in

continuous use throughout that time. The record does not

detail the history of the racetrack from its initial approva l

some time prior to 1975 to the date of the adoption of the

Amendment. There is inference that the racetrack was not

actively or frequently used in the mid - 1990s. (It is noted in

the County Staff Report that "[a]n aerial from the Florida

Department of T ransportation dated February 1972 shows the

subject property cleared with what appears to be an oval dirt

track. A 1964 aerial photograph did not show a racetrack on

the subject property. A review of property appraisal data

indicate the racetrack was est ablished around the 1970 to 1972

period.")

23. At some point after approximately 1995, and prior to

the adoption of the Amendment, racing returned to the

Speedway.

24. An automobile racetrack is not an allowable or

conforming use on land designated "Rural Residen tial."

According to the Plan's Future Land Use Element (FLUE), "[t]he

Rural Residential land use category depicted on the [FLUM]

consists of water front development and developed areas

interspersed within the active agricultural areas. These

areas are so mewhat isolated from the urban areas and rural

centers. The development is situated primarily on large lots

in the one to five - acre range and is either a homestead or a

second home for people who seek the quiet enjoyment of living

in a rural environment."

25. As a nonconforming use, the Speedway (racetrack) is

subject to County land use and zoning provisions that limit or

restrict the ability to undertake improvements. For example,

according to the Putnam County Zoning Ordinance 88 - 1, as

amended by Ordinanc e 91 - 31 (collectively referred to as County

Zoning Ordinance or Zoning Ordinance), the racetrack, as a

nonconforming use, is restricted from being extended or

enlarged, and repair of its structures is limited. For

example, work may be done in any 12 - conse cutive month period

on ordinary repairs, or on repair or replacement of 15 percent

of the current assessed value of the particular structure if a

nonconforming structure is involved, provided the cubic

content of the structure as it existed on the date it became

nonconforming shall not be increased in size. 2

26. The intent of these nonconforming use restrictions

is to "permit these nonconformities to continue until they are

removed, but not to encourage their survival," and it is

intended that such uses would become extinguished over time as

a result of being prevented from expanding or extensively

renovating their structures. See , e.g. , County Zoning

Ordinance, Sections 2 - 701 - 2 - 708.

27. On March 20, 1998, John Salmons, the Putnam County

Planner, advised Tim Key ser, Attorney, that the nonconforming

status of the Speedway was still in effect. Mr. Keyser was

also informed, in part, that the "Putnam County Speedway may

continue to operate under the provisions of the nonconforming

use section of the Zoning Ordinance ."

28. At the time Florida Racing purchased the racetrack

in the 1990's (the specific date is uncertain), some of the

existing structures had deteriorated and were in need of

repair and/or replacement. To accommodate the renewed

activity in racing and the nee d to upgrade the racetrack,

seating at the racetrack was rearranged, new seating was added

for children, and a second access driveway was installed north

of the existing driveway.

29. In 2000, in a series of letters to Mr. Potter,

County staff raised concern s regarding plans to significantly

upgrade the racetrack.

30. On September 26, 2000, Mr. Salmons advised Mr.

Potter "that the current zoning status for the [S]atsuma

racetrack is Nonconforming. As a nonconforming use, the

zoning ordinance acknowledges their existence, but does not

encourage their survival. As such, there are very strict

rules for repairing or maintaining a nonconforming use." Mr.

Salmons also informed Mr. Potter that the Property had been

designated "Rural Residential" on the County's FLUM at some

point subsequent to the racetrack's initial operation. (The

racetrack on the Property pre - dates the Plan, including the

FLUM land use categories, including "Rural Residential.")

31. Mr. Salmons understood at the time that Mr. Potter

had plans to "significantly upgrade the racetrack" and advised

Mr. Potter that he "would not be able to proceed with [his]

plans." In order to upgrade, Mr. Salmons advised Mr. Potter

that he would need to have the Property rezoned and given the

current land use design ation for the Property, Mr. Potter

would need to obtain an amendment to the FLUM to change the

Property's land use designation from "Rural Residential" to

"Commercial." However, Mr. Salmons further advised that

without doing an analysis of the proposed ch ange, he suspected

that "it would be difficult for staff to support such a

change" "based upon what Future Land Use patterns surround the

property." Finally, Mr. Potter was told that he could

continue operations "as they were in the past." But, he could

not "add seating, restaurants, structures, pave the track or

do much more than do some minor maintenance at this time."

32. On December 27, 2000, Mr. Salmons sent Mr. Potter

another letter similar in content to the September 26, 2000,

letter. Apparently, Mr. Salmons was advised by Mr. Potter

that he had already spent in excess of the 15 percent allowed

in the Zoning Ordinance. Mr. Potter was advised to stop

making improvements until the land use designation was changed

and rezoning approved. (There have not been any legal

proceedings initiated to determine whether the 15 percent

threshold was crossed.)

33. On April 16, 2001, Florida Racing submitted the

Amendment Application and requested the FLUM change suggested

by County staff for the Property. 3 (Florida Raci ng also

requested rezoning of the Property which is not the subject of

this proceeding.)

34. Deficiencies in the applications were noted and

additional information requested.

35. The County's FLUE of the Plan was adopted on

December 12, 1991, and amended on Aug ust 24, 1993. Policy

A.1.9.3.A.5. of the FLUE describes the "Commercial" land use

category and provides in part:

The Commercial land use areas depicted on

the [FLUM] are current locations of

commercial development in the County with

expansion areas provid ed and are intended

to serve as the primary commercial

locations for the next 10 years.

Secondary commercial locations are

provided for in the policies for

development in the urban service, urban

reserve and rural center land use

categories. Commercial l and uses include

activities that are predominantly

associated with the sale, rental, and

distribution of products or performance of

service. Future development shall be

allowed as follows:

a. The maximum permitted floor area

for a site shall be 1:1.

b. The maximum permitted impervious

surface shall be 70 percent of the site. 4

36. The Staff Report dated July 11, 2001, was prepared

by Mr. Spofford, A.I.C.P., a senior planner with Putnam

County. As noted in the Staff Report, the purpose of the land

use "c hange is to bring a non - conforming automobile racetrack

into compliance with the" Plan.

37. Mr. Spofford testified that the scope of the Staff

Report was broader than examining the racetrack. However, the

primary focus of the Staff Report is the Proper ty being used

as a racetrack and not another commercial use.

38. It was determined that the automobile racetrack is a

commercial attraction because it attracts spectators for a fee

and further noted:

As such, the use is not appropriate for

the Agriculture I and II and Rural

Residential future land use categories.

The site and surrounding area do not meet

the intent and description of an Urban

Service or Urban Reserve future land use

category because urban type infrastructure

does not currently exist and is n ot likely

within the next 10 years. This means that

the use is most appropriate for a

Commercial future land use category. The

subject site meets the intent of the

Commercial category because it is a

current location of a commercial -

recreational - entertai nment type use.

39. Mr. Spofford explained that the data to support the

FLUM change is set forth in the Staff Report. (Mr. Salmons,

Mr. Spofford's superior, believed the data in the Staff Report

was adequate to support the FLUM change.) The Application w as

reviewed for consistency with the Plan and various provisions

of Rule 9J - 5. Staff made the following recommendation:

The existing automobile racetrack must go

through a two step process to become

compliant with the Comprehensive Plan and

Zoning Ordin ance. First, this proposed

map amendment must be approved and adopted

by the County, and found to be in

compliance by the Florida Department of

Community Affairs (DCA). The purpose of

this public hearing is to determine

whether or not the proposed map am endment

should be transmitted for state agency

review. Therefore, the Planning

Commission must recommend to either

transmit the map amendment as proposed,

transmit the amendment with recommended

changes or not to transmit the map

amendment. If the propos ed map amendment

is transmitted, then state agencies will

review the proposed map amendment and

return comments to the County in October.

The County would then likely hold public

hearing[s] to consider actual adoption of

the map amendment in November and

December. When these public hearings are

held to consider the map amendment, a

rezoning application would simultaneously

be reviewed. A rezoning to Planned Unit

Development is a negotiable process where

the County can gain greater control of the

use. If the proposed map amendment is not

transmitted, the a rezoning will not be

necessary and the automobile racetrack

will continue to be a non - conforming use.

As a non - conforming use, code enforcement

action will be taken to have the

improvements removed that consist of an

expenditure greater than 15 percent of the

assessed value of the structure(s), with

the exception of the permitted work that

includes the press box and new lighting.

All other improvements could be subject to

removal. However, as a non - con forming

use, the racetrack would be allowed to

continue operation so long as it does not

expand. This means that the County would

not have much control over the days and

hours of operation and other critical site

design issues.

Although this is not the i deal location

for a racetrack, the fact is it has

existed on the subject property and has

been determined to be a bona fide non -

conforming use. Research of County

records and other known available sources

of information indicates that the

racetrack was es tablished prior to the

residential development in close proximity

south of the subject site. The request

for a large - scale comprehensive plan map

amendment from Rural Residential to

Commercial appears to be consistent with

the Comprehensive Plan. Therefor e, staff

recommends that the proposed map amendment

be transmitted to the Florida Department

of Community Affairs with a request for

their review.

40. On July 11, 2001, the Putnam County Planning

Commission unanimously approved the FLUM change after

receiving comments.

41. On July 24, 2001, the Board held a public hearing to

consider the Amendment and approved same. The FLUM Amendment

was transmitted to the Department.

42. Pursuant to the Department's review of the

Amendment, a Memorandum dated October 4, 2001, was prepared by

Russell Paul Darst, a planner with the Department, and routed

to James Stansbury and Mike Sherman, the section

administrator, and ultimately to Charles Gauthier, A.I.C.P.,

and Bureau Chief, who issued the Department's Notice of

Intent. Mr. Da rst, as well as others at the Department, had

no objections to the Amendment.

43. In the Memorandum, Mr. Darst concluded: "The

proposed FLUM change for this 29 - acre property is from Rural

Residential to Commercial. The property has been used for a

race tra ck since about 1970. The amendment would change the

FLUM designation for the property to reflect the actual and

long - standing use of the property. This use is not allowed in

the Rural Residential FLUM category." This was the crux of

the data and analysi s relied on by Mr. Stansbury of the

Department. The Memorandum also reflected the Northeast

Florida Regional Planning Council comment: "Since the raceway

already exists, the land use change will not create any

additional impacts to regional resources. T he proposed land

use change may even protect regional resources in the future

by granting the County the ability to regulate the property

under the most appropriate zoning classification."

44. Dr. Darst stated that in reviewing a FLUM amendment

for the Departm ent, it would be typical to examine the

existing use of the land before making his recommendation.

45. In reviewing the County's proposed FLUM change,

Mr. Darst believed, based on his discussions with County

staff, that the racetrack was not expected to expand (and not

that it could not) and that the change in the FLUM would give

the County "part of a means of gaining effective control over

[the operation of the racetrack]." He reiterated that the

FLUM change would reflect the actual and long - standing use of

t he Property as a racetrack.

46. On December 11, 2001, during the public hearing, the

Board approved the FLUM Amendment and transmitted the approval

package to the Department.

47. On February 13, 2002, the Department had published

its Notice of Intent to find the A mendment "in compliance."

The Challenges

48. Petitioner alleges that the Amendment is not "in

compliance" on several grounds: first, there is no "need" for

additional land to be designated for a commercial use in

Putnam County; second, the Amendment and propos ed land use is

not compatible with the community character and surrounding

land uses; and, third, the Amendment is inconsistent with

provisions of the Plan, Chapter 163, Part II, Florida

Statutes, and Rule 9J - 5, Florida Administrative Code.

Need

49. The term " need" as used in growth management refers

to the amount of land required to accommodate anticipated

growth. Section 163.3177(6)(a), Florida Statutes. Local

governments are to analyze by acreage how much land within

each land use category 5 they need to ac commodate projected

growth through the planning timeframe, and then base their

comprehensive plan on this estimate. Rule 9J - 5.006(2)(c),

Florida Administrative Code.

50. The calculus of need is rather simple and, for that

reason, inexact. The calculation of how much land is needed

to accommodate the projected population involves comparing

what is available for development under the comprehensive plan

with the projected population over the same planning timeframe

applicable to the plan. An "allocation ratio" to express this

need can be derived by dividing the development potential by

the projected population. For example, if a comprehensive

plan allocated 100 residential dwelling units over the

planning timeframe and the jurisdiction's population was

projecte d to increase by 100 over the same time, there would

be an allocation ratio of 1:1. This ratio would express an

exact match between supply and demand. A ratio of 2:1, on the

other hand, would demonstrate that the jurisdiction had twice

as much land as de signated for use as the projected population

is expected to need.

51. There is no allocation ratio adopted by statute or

rule by which all comprehensive plans and plan amendments are

judged.

52. There is evidence that the County has more vacant

land designated "Co mmercial" than is needed to accommodate its

projected population. 6 There is data and analysis which

indicates an excess of vacant commercially - designation land on

a County - wide basis. For example, Florida Racing Exhibit 1 is

a copy of data and analysis i n support of the FLUE. This data

and analysis indicates that at least as of 1991, and projected

to 2001, the County has an over - allocation of need for

commercial land of about two times or, stated otherwise, the

County has a 2:1 allocation ratio for comme rcial. This data

is reflected in Petitioner's Exhibit P.

53. Mr. Spofford explained that the population data was

compiled prior to 1991, has not been updated, is not meant to

provide a "detailed analysis," and it is only useful for

providing the acreage for e ach planning district. The

population for each planning district is then compared to the

acreage to determine the allocation of commercial to service

that population.

54. From a very general standpoint, Mr. Spofford

analyzed the FLUM Amendment application i n light of whether

more commercial acreage was needed. Mr. Spofford explained

that because the Property was so close to the edge of the

planning district, it was difficult to compare the commercial

and population need. However, Mr. Spofford opined that t he

Planning District 1 (which includes the Property) and the one

to the northeast are not over - allocated for commercial use.

He also opined that, generally, "more is needed, if --

especially if you're looking out 20, ten or twenty years."

55. Petitioner did n ot come forward with any independent

or up - to - date analysis to demonstrate the County is in fact

over - allocated for commercial land use.

56. On the other hand, Fred Goodrow, A.I.C.P., opined

that the County was over - allocated regarding the need for more

c ommercial in light of the data previously mentioned.

57. The existence and extent of any commercial over -

allocation in Putnam County is, at best, fairly debatable.

Nonconforming Use, Inconsistency, and Incompatibility

58. Petitioner asserts that the Amendmen t is not "in

compliance" because it fails to eliminate or reduce a

nonconforming use in violation of Section 163.3177(6)(a),

Florida Statutes, and Rule 9J - 5.006(3)(b)3. and (3)(c)2.,

Florida Administrative Code. Petitioner also argues that the

Commercial land use designation which would attach to the

Property is incompatible with the character of the community

and adjacent land uses. Petitioner also contends that the

Amendment is inconsistent with several Plan provisions.

Section 163.3177(2), Florida Sta tutes; Rule 9J - 5.005(5),

Florida Administrative Code.

59. Objective A.1.3 of the FLUE requires that "[u]pon

plan adoption, Putnam County shall act to eliminate or reduce

uses inconsistent with the uses identified on the [FLUM] and

associated adopted Goals, Obj ectives and Policies through

implementing the following policies."

60. Policy A.1.3.1 of the FLUE requires revision of the

County's Land Development Regulations, specifically the County

Zoning Code, "to reinforce its current provisions regarding

the eliminatio n of nonconforming land uses by expanding the

definition of nonconforming land uses to include all uses

which are inconsistent with the Future Land Use Map 2001 or

cannot be made compatible with adjacent land uses. The

requirements of this provision shall be enforced upon

application for building permits to repair or improve such

structures." 7

61. The nonconforming use provisions of the Zoning

Ordinance apply to and implement the FLUM.

62. An automobile racetrack is not an appropriate use to

put in a Rural Resid ential future land use category. In

theory, one purpose of this land use designation is to protect

residents from the intrusion of noisy racetracks which can

impact an adjacent residential user.

63. The dispute in this case is clearly framed.

Petitioner c ontends that because the Property was designated

"Rural Residential" when the County's Plan was adopted, the

Speedway (racetrack) is a nonconforming use which must be

restricted and eventually eliminated. Petitioner argues that

the County lacks the author ity to amend its FLUM to make the

Speedway a conforming use under the Plan.

64. Respondents and Florida Racing contend that the

County has the authority to amend the FLUM, and acted properly

in this instance in adopting the Amendment.

65. The County has the auth ority to amend its FLUM,

including the designations of properties as long as the

designations are consistent with other provisions of the Plan

and applicable provisions of Chapter 163, Part II, Florida

Statutes, and Rule 9J - 5, Florida Administrative Code.

66. The persuasive evidence indicates that an automobile

racetrack is an allowable use in the Commercial future land

use category as opposed to the Rural Residential category. If

the Amendment is approved, the raceway would no longer be

considered a nonconfo rming use for Plan purposes, and could

undertake improvements without the restrictions that accompany

such a use, subject to compliance with applicable zoning

requirements. Stated otherwise, the racetrack could expand

without complying with the nonconform ing use restrictions,

subject to compliance with the nonconforming standards in the

Zoning Ordinance because the Property would remain a

nonconforming use under the Zoning Ordinance. (Of course, a

zoning change for the Property, as contemplated in the

Cou nty's Staff Report, would create different considerations

as noted below.)

67. The Property is currently zoned C - 2 and A, with the

bulk of the property zoned agriculture. 8 If the Amendment is

approved, the next step would be for the Property owner to

apply fo r a zoning change, e.g. , special exception, or pursue

a planned unit development. Under either scenario, the County

could impose conditions on the use of the Property such as the

amelioration of off - site impacts.

68. On the other hand, if the racetrack conti nued as a

nonconforming use, the persuasive evidence indicates that the

County would be limited in establishing any further limitation

on the use of the Property, such as duration and frequency of

use, e.g. , hours of operation and other site design issues.

69. There is no persuasive support for the proposition

that all subsequent Boards of County Commissioners are bound

in every instance by the decision of one Board regarding the

land use of a particular parcel.

70. There is some evidence that leads to at least a fair

inference that the designation of the racetrack site as "Rural

Residential" may have been in error. The data and analysis

that was used to support the original designation indicates

the area including the racetrack as being "woodlands." The

County p lanner involved in the preparation of the Plan,

including the FLUM, testified that he did not know there was a

racetrack on the land designated "woodlands." The FLUM was

based "to a great extent" on this data, and very well may have

designated the Propert y as "Rural Residential" by "oversight"

based on the incorrect representation of the area as

woodlands.

71. Several other commercial uses exist within the

immediate vicinity of the site of the Property, are similarly

depicted as "woodlands" by the referenced data, and are

designated "Rural Residential" on the FLUM. These parcels,

too, may be nonconforming by error, and not by some deliberate

choice.

72. Whether the original designation of the Property as

nonconforming was erroneous or not, the true question is w hat

is the proper standard by which to weigh a FLUM amendment when

it affects a site on which there exists a nonconforming use.

73. Neither Chapter 163, Part II, Florida Statutes, nor

Rule 9J - 5, Florida Administrative Code, directs the Department

to review a F LUM amendment involving a nonconforming use under

some specific provisions. Such an amendment must be subjected

to the same standards applicable to any FLUM amendment.

74. The Property has been used intermittently as a

racetrack for approximately 30 years. A racetrack has

operated on the Property as a nonconforming use, and has the

right to continue do so under applicable County land use and

zoning regulations. The racetrack is, in fact, eligible to

expand by 15 percent under these regulations. The County

w ould not have some absolute right to cease racetrack

operations if it remained nonconforming, and would not have

unlimited authority to address noise and traffic concerns.

The uncontradicted testimony is that it is likely that the

racetrack would continue to operate even if it remained a

nonconforming use.

75. The County does not lose any authority to address

noise and traffic by virtue of the Amendment. Credible

evidence in the record indicates that the County may actually

have a better ability to address these concerns should the

racetrack be made a conforming use.

76. Nevertheless, the fact that the racetrack, operated

as the Speedway, currently exists in the area as a

nonconforming use does not mean that the use is automatically

compatible with the adjacent land uses and surrounding area or

is otherwise consistent with the character of the community.

The nonconforming use designation only means that the

racetrack can continue to operate, not that the racetrack can

achieve a potentially more useful and elevat ed land use status

by virtue of being an existing raceway and commercial use.

Otherwise, an existing nonconforming use would have greater

rights to a new and more permissive land use designation than

a new entrant into the marketplace. Stated otherwise, the

FLUM Amendment, if approved, will further and encourage the

nonconforming use rather than its eventual elimination as

contemplated by the Plan and Zoning Ordinance.

77. In this case, it is beyond fair debate that if a new

automobile racetrack were propose d on the Property today, it

would be inconsistent with the existing residential and

conservation areas surrounding the property, notwithstanding

the existence of several commercial properties in the

vicinity.

78. The only reasonable conclusion to be reached is that

that the Amendment is not "in compliance."

CONCLUSIONS OF LAW

Jurisdiction

79. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding.

Sections 120.569, 120.57(1), and 163.3184(9)(b), Florida

Statutes.

The Parties

80. The Department is the state land planning agency and

has authority to administer and enforce the Local Government

Comprehensive Planning and Land Development Regulation Act,

Chapter 163, Part II, Florida Statutes.

81. Among the responsibilities of the Department under

the Act is the duty to review plan amendments submitted by

local governments and to determine if the plan amendments are

in compliance with the Act.

82. Petitioner and Florida Racing are "affected

person[s]" within the definition set forth in Section

163.3184(1)(a), Florida Statutes, and have standing in this

proceeding.

Burden of Proof

83. The burden of proof, absent a statutory directive to

the contrary, is on the party asserting the affirmative of the

issue of the proceeding. Young v. Departme nt of Community

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

84. Section 163.3184(9)(a), Florida Statutes, has been

interpreted to impose the burden of proof on the person

challenging a large scale plan amendment that has been

determined by the Department to be "in co mpliance."

85. "In compliance" means consistent with the

requirements of Sections 163.3177, 163.3178, 163.3180, and

163.3191, Florida Statutes, and 163.3245, with the state

comprehensive plan, the appropriate strategic regional policy

plan, and Chapter 9J - 5, F lorida Administrative Code. Section

163.3184(1)(b), Florida Statutes.

86. Because the Department issued a Notice of Intent to

find the Amendment "in compliance," the Amendment shall be

determined to be "in compliance" if Putnam County's

determination of compl iance is "fairly debatable" as set forth

in Section 163.3184 (1)(b) and (9)(a), Florida Statutes.

Petitioner shoulders the burden of demonstrating beyond fair

debate that the Amendment is not "in compliance."

87. The phrase "fairly debatable" is not defined i n

Chapter 163, Part II, Florida Statutes, or Chapter 9J - 5,

Florida Administrative Code. The Supreme Court of Florida

opined, however, that the fairly debatable standard under

Chapter 163 is the same as the common law "fairly debatable"

standard applicable to decisions of local governments acting

in a legislative capacity. In Martin County v. Yusem , 690 So.

2d 1288, 1295 (Fla. 1997), the Court opined: "The fairly

debatable standard of review is a highly deferential standard

requiring approval of a plannin g action if reasonable persons

could differ as to its propriety." Quoting from City of Miami

Beach v. Lachman , 71 So. 2d 148, 152 (Fla. 1953), the Court

stated further: "An ordinance may be said to be fairly

debatable when for any reason it is open to di spute or

controversy on grounds that make sense or point to a logical

deduction that in no way involves its constitutional

validity." 690 So. 2d at 1295.

Need

88. Section 163.3177(6)(a), Florida Statutes, requires

that a local government allocate land uses wit hin its

comprehensive plan based upon anticipated growth.

89. For the reasons set forth herein, Petitioner has

failed to prove beyond fair debate that the County is over -

allocated with land designated for commercial use.

90. Even assuming Petitioner had proven som e over -

allocation, this argument still fails. A numerical land use

over - allocation does not mandate that every future plan

amendment be found not "in compliance" on that basis. See The

Sierra Club, et al. v. St. Johns County, et al. , Case Nos. 01 -

1851GM and 01 - 1852GM, 2002 WL 1592234 (DOAH May 20, 2002; DCA

July 30, 2002). If a jurisdiction is over - allocated for a

particular land use, the local government, in its adoption and

the Department in its review, must exercise heightened caution

and employ a mor e rigorous standard to ensure that further

plan amendments that would expand the inventory of that use do

not exacerbate urban sprawl or other inefficient land use

patterns. Id.

91. Petitioner failed to prove beyond fair debate that

the designation of the Pro perty as "Commercial" will

exacerbate urban sprawl or some other inefficient land use

pattern.

Nonconforming Use, Inconsistency, and Incompatibility 9

92. Section 163.3177(6)(a), Florida Statutes, requires

that the future land use plan, "be based upon surveys,

studies, and data regarding the area,. . .including the

renewal of blighted areas and the elimination of nonconforming

uses which are inconsistent with the character of the

community. . . . "

93. Rule 9J - 5.006(3)(b)3. Florida Administrative Code,

requires that the future land use element of a local

comprehensive plan contain one or more specific objectives

which address the requirements of Section 163.3177(6)(a) and

which "[e]ncourage the elimination or reduction of uses

inconsistent with the community's charac ter and future land

uses. " Rule 9J - 5.006(3)(c)2., Florida Administrative Code,

requires the future land use element to contain one or more

policies for each objective which address implementation

activities for the "[p]rovision for compatibility of adjace nt

land uses."

94. Section 163.3177(2), Florida Statutes, requires that

a local comprehensive plan be internally consistent. See

Endnote 9.

95. Objective A.1.3 of the County's FLUE provides:

Upon plan adoption, Putnam County shall act

to eliminate or reduce land uses

inconsistent with the uses identified on

the Future Land Use Map and associated

adopted Goals, Objectives and Policies

through implementing the following policies

. . . .

96. Policy A.1.3.1 of the County's FLUE provides:

Land Development Regulations, sp ecifically the

County Zoning Code, shall be revised to reinforce

its current provisions regarding the elimination of

nonconforming land uses by expanding the definition

of nonconforming land uses to include all uses which

are inconsistent with the Future L and Use Map 2001

or cannot be made compatible with adjacent land

uses. The requirements of this provision shall be

enforced upon application for building permits to

repair or improve such structures.

97. Regarding Objective A.1.2 of the County's FLUE,

which pertains to providing incentive for the redevelopment

and renewal of blighted properties, Policy A.1.2.1 of the

County's FLUE provides:

Land Development Regulations shall be

updated which require the upgrading or

revitalization of deteriorating or

incompat ible commercial sites, in the few

instances where the need may be found to

exist, through methods such as provision of

common parking areas, store front renewal,

[and] sign control. The expansion or

replacement of commercial uses which are

inappropriately located or have adverse

impact on surrounding uses shall be

prohibited through implementing the land

use spatial distribution as depicted on the

County FLUM and the nonconforming land use

construction restrictions of the County

Zoning Code.

98. Nei ther Chapt er 163, Part II, Florida Statutes, nor

Rule 9J - 5, Florida Administrative Code, defines nonconforming

use. The term is generally described as follows:

The phrase "nonconforming use" in the

law of zoning, is usually defined as a

lawful use of premises exist ing on the

effective date of the zoning regulations

and continued thereafter, which does not

conform to such regulations. Usually a

nonconforming use is allowed to continue

subject to certain conditions. This is

done in an effort to secure a reasonable

e xercise of the police power for the

interest of the community against the

interest of the private owner so as not to

interfere with existing conditions more

than necessary for the public welfare.

Zoning regulations, in providing for

nonconforming structur es and uses, look

forward to the eventual elimination of all

nonconforming structures and uses by

attrition, abandonment, and acts of God,

as speedily as is consistent with proper

safeguards for the rights of those persons

affected.

7 Fla. Jur. 2d Buildin g, Zoning, and Land Controls Section 203

(1997). See also 83 Am. Jur. 2d Zoning and Planning Section

555 (2003); Bixler v. Pierson , 188 So. 2d 681 (Fla. 4th DCA

1966)(house trailer maintained prior to enactment of zoning

ordinance prohibiting such use per mitted to remain as a

nonconforming use, but replacement with a new and larger

trailer constituted a prohibited alteration, extension, and

enlargement of a nonconforming use).

99. This is not an enforcement proceeding nor does it

involve consideration of an ap plication for a zoning or

rezoning change. But the nonconforming use provisions of the

Zoning Ordinance apply to the FLUM and the Plan and the Zoning

Ordinance contemplate, as a goal, that nonconforming uses will

eventually be extinguished, notwithstandin g that they may

continue subject to specific requirements. This is consistent

with extant law. 10

100. Further, the County's FLUM is part of the County's

FLUE of the Plan. The FLUM reflects the proposed

distribution, location, and extent of the various land us e

categories which are required to be supplemented by goals,

policies, and measurable objectives in the comprehensive plan.

See Section 163.3177(6)(a), Florida Statutes.

101. This case involves a difficult policy decision. The

record is clear that the Amendme nt was approved in large

measure to allow the County to exercise better control over

the racetrack. The County, like all local government entities

having the authority to make land use decisions, and here

legislative decisions regarding amendments to the County's

Plan, chose to address the FLUE provisions quoted above and

eliminate the Property as a nonconforming use by making it a

conforming use by operation of law.

102. While it may be true that the County may actually

have a better ability to address the i ssues alleged to be

inconsistent with the community character by making the

racetrack a conforming use under the Plan, this is not the

test.

103. The automobile racetrack, a nonconforming use, can

continue to operate on the Property subject to compliance with

t he Zoning Ordinance and other extant law. However, the FLUM

Amendment, purporting to change the legal status of the pre -

existing, nonconforming use of the Property as a racetrack to

a conforming use, does not, ipso facto , convert the use to a

compatible a nd consistent use.

104. It is beyond fair debate that a new racetrack on the

Property would be inconsistent with the character of the

community and the surrounding area. The racetrack on the

Property is also not compatible and is otherwise inconsistent

with th e character of the community and the surrounding area,

but is allowed to co - exist only as a nonconforming use.

105. By changing the land use designation of the Property

to Commercial from Rural Residential, the Amendment will, by

operation of law, cause the r acetrack, and the entire

Property, to be a conforming use under the Plan. (The

Amendment also authorizes other commercial uses which would

necessarily be conforming uses provided they comply with the

Plan and the Zoning Ordinance.) In this instance, the FLUM

Amendment is furthering and encouraging the existence of a

nonconforming use, not encouraging the elimination or

reduction of a nonconforming use. Stated otherwise, the FLUM

Amendment is not encouraging the elimination or reduction of

uses inconsisten t with the community's character and future

land uses. To this extent, the FLUM Amendment is inconsistent

with the Plan, Section 163.3177(2) and (6)(a), Florida

Statutes, and Rules 9J - 5.005(5) and 9J - 5.006(3)(b)3. and

(3)(c)2., Florida Administrative Code . The existing use of

the Property and potential commercial uses of the Property are

otherwise incompatible with the community's character and

surrounding area and adjacent land uses and this conclusion is

not fairly debatable.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that a final order be issued concluding that

the Amendment adopted by Putnam County in Ordinance No. 2001 -

33 is not "in compliance" as defined in Chapter 163, Part II,

Florida Statutes , and the rules promulgated thereunder.

DONE AND ENTERED this 2nd day of May, 2003, in

Tallahassee, Leon County, Florida.

__________________________________ _

CHARLES A. STAMPELOS

Administrative Law Judge

Division of Administrative He arings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrati ve Hearings

this 2nd day of May, 2003.

ENDNOTES

1 / Under the provisions of the Plan and Zoning Ordinance,

these nonconforming commercial uses cannot change to a more

intensive commercial use. For example, a commer cial

operation used for selling portable storage buildings could

not change the use to a racetrack.

2 / Under the 15 percent provision, an entire structure, such

as the racetrack, could be renovated, i.e. , 150 percent of the

raceway could be replaced in 1 0 years. The Zoning Ordinance

also prohibits the repair or rebuilding of a nonconforming

structure at a point when the structure becomes physically

unsafe or unlawful due to the lack or repairs or maintenance

and is declared to be an unsafe building or st ructure by an

enforcement officer or other competent authority. No

enforcement action has been taken against the racetrack or its

owners.

3 / On April 18, 2001, Thomas J. Rodgers, a building official

with Putnam County, advised Mr. Potter of his site vis it on

March 23, 2001, and observation that several structures had

been built without permits and that no more work should

proceed without obtaining the necessary permits. Mr. Salmons

confirmed that the letter accurately depicted what he also saw

during th e site visit, i.e. , the old grandstands had been

renovated, a small grandstand added, a new driveway installed

which was not historically part of the racetrack. Mr. Salmons

also testified that, for the most part, the seating capacity

of the grandstands ha d not been increased based on what he

saw. On May 22, 2001, Mr. Rogers advised Mr. Potter that

"[n]o further code enforcement action will take place by this

department at this time, as long as you continue to work

towards obtaining what is required by the Zoning Department."

4 / The County has one Commercial land use category. According

to the dated (1985 - Table A - 1) data and analysis for Planning

District 1, which includes the Property, "[t]here are few

commercial uses in this Planning district. Fifty - s ix acres

were reported in this category. Almost all commercial land

use serves the residential population on a retail level and is

located in the three municipalities and on sites along the

main highway."

5 / Land use categories include "residential uses , commercial

uses, industry, agriculture, recreation, conservation,

education, public buildings and grounds, other public

facilities, and other categories of the public and private use

of land." Section 163.3177(6)(a), Florida Statutes.

6 / If the Amendm ent is found to be "in compliance," the use

of the approximately 29 acres is not limited to a racetrack

for any authorized commercial uses may be allowed. Mr.

Salmons testified that he did not like having "the commercial

designation for [the racetrack] be cause they go in and out of

business."

7 / Policy A.1.2.1 of the FLUE provides in part that "[t]he

expansion or replacement of commercial uses which are

inappropriately located or have an adverse impact on

surrounding uses shall be prohibited through im plementing the

land use spatial distribution as depicted on the County FLUM

and the nonconforming land use construction restrictions of

the County Zoning Code."

8 / According to the County's Zoning Ordinance, Article XXI,

"A District," "[t]he A district is intended to apply to

undeveloped or sparsely developed areas which consist of uses

normally found in rural areas. The provisions applicable to

the district are designed primarily to protect areas that are

suitable for agricultural operations from encro achment by

urban development, and to accommodate non - agricultural

pursuits found in the district. Substantial residential,

commercial or industrial development shall not be permitted in

the district."

9 / In this proceeding, "'[c]ompatibility' means a c ondition

in which land uses or conditions can coexist in relative

proximity to each 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." Rule 9J -

5.003(23), Flo rida Administrative Code. See also Rule 9J -

5.005(5), Florida Administrative Code, regarding internal

consistency.

10 / For example, in JPM Investment Group, Inc. v. Brevard

County Board of County Commissions , 818 So. 2d 595 (Fla. 5th

DCA 2002), JPM and it s predecessors in title, sold beer and

wine on land operated as a nonconforming use. JPM wanted to

sell all varieties of alcohol including liquor. This required

appropriate zoning which was denied. The court, after

reviewing the applicable provisions of the Brevard County Code

and extant law, concluded that the proposed change in activity

from the serving of beer and wine to all alcoholic beverages

on the property was an inappropriate expansion of a

nonconforming use.

COPIES FURNISHED:

Russell D. Cast leberry, Esquire

Post Office Box 758

Palatka, Florida 32178 - 0758

Shaw P. Stiller, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

Michael W. Woodward, Esquire

Keyser & Woodward, P.A.

Post Office Box 92

Interlachen, Florida 32148 - 0092

James L. Padgett, Esquire

Law Offices of James J. Padgett

Three North Summit Street

Crescent City, Florida 32112 - 2505

Colleen M. Castille, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 300

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 exc eptions within

15 days from the date of this Recommended Order. Any

exceptions to the Recommended Order should be filed with the

agency that will issue the final order in this case.