02-003328 C. B. Subrahmanyam; Becky Subrahmanyam; Prem Subrahmanyam; Joy Subrahmanyam; Angela K. Maige; Curtis Turnage; Mrs. Turnage; Edgar T. Bruce; William M. Porter; Peggy Ann Porter; And Carnelia Nelson vs. Leon County And Charles And Linda Wimberly Status: Closed DOAH Final Order on Tuesday, March 4, 2003.

Summary: Site and Development plan for Seminole County Raceway satisfies requirement of Seminole County Comprehensive Plan and relevant provisions of the zoning code.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

C. B. SUBRAHMANYAM; BECKY )

SUBRAHMANYAM; PREM SUBRAHMANYAM; )

JOY SUBRAHMANYAM; ANGELA K. MAIGE; )

CURTIS TURNAGE; MRS. TURNAGE; EDGAR )

T. BRUCE; WILLIAM M. PORTER; PEGGY )

ANN PORTER; and CARNELIA NELSON, )

)

Petitioners, )

)

vs. ) Case No. 02-3328

)

LEON COUNTY AND CHARLES AND LINDA )

WIMBERLY, )

)

Respondents. )

____________________________________)

FINAL ORDER

Pursuant to notice, a formal hearing was held in this case

on December 11 through 13, 2002, in Tallahassee, Leon County,

Florida, before Florence Snyder Rivas, a duly-designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioners: Thomas G. Tomasello, Esquire

Thomas G. Tomasello, P.A.

Post Office Box 13148

Tallahassee, Florida 32317-3148

For Respondent Suzanne H. Schmith, Esquire

Leon County: Leon County

301 South Monroe Street

Tallahassee, Florida 32301

For Respondent Brian Pappas, Esquire

Charles and Linda Post Office Box 416

Wimberly: Flagler Beach, Florida 32136

STATEMENT OF THE ISSUE

The issue for determination is whether Seminole Raceway, as

proposed in Charles and Linda Wimberlys' Site and Development

Plan and approved with conditions by the Leon County Development

Review Committee (DRC), is consistent with the requirements of

the 2010 Tallahassee-Leon County Comprehensive Plan

(Comprehensive Plan) and is a permissible land use under

applicable provisions of Chapter 10, Leon County Code (the

Code).

PRELIMINARY STATEMENT

On July 17, 2002, Respondent Leon County (Leon County),

acting through the DRC, granted approval of Respondents' Charles

and Linda Wimberly's (the Wimberlys) Site and Development Plan

for the Seminole Raceway Reconstruction and Reopening (Site and

Development Plan or Seminole Raceway).

By Petition for Formal Hearing dated August 15, 2002, C. B.

Subrahmanyam, Becky Subrahmanyam, Prem Subrahmanyam, Joy

Subrahmanyam, Angela K. Maige, Curtis Turnage, Mrs. Turnage

[sic], Edgar T. Bruce, William M. Porter, Peggy Ann Porter, and

Carnelia Nelson (Petitioners) timely challenged the DRC's

approval of the Site and Development Plan.

Exhibits were admitted in accordance with the Prehearing

Stipulation dated December 4, 2002. Petitioners offered the

testimony of Sam Casella (expert in urban planning); Peter

Winter (expert in sound recording, analysis, and measurement);

and Major John Schmidt (Leon County Sheriff’s Office). Becky

Subrahmanyam testified in her own behalf.

Leon County presented the testimony of David McDevitt,

(Director of Development Services for the Leon County Community

Development Department); David Wayne Tedder (Division Manager of

Current Planning for the Tallahassee-Leon County Planning

Department, also qualified as an expert in state and local

comprehensive planning and land development); Bill Douglas

(professional engineer for the Site and Development Plan); and

Bill Fuller and Elmer Sheffield (local drag racing enthusiasts).

Charles Wimberly testified in his own behalf.

A five-volume transcript of the proceedings was filed on

February 4, 2003. Thereafter, the parties timely filed proposed

orders which have all been given careful consideration in the

preparation of this final order.

Findings of Fact

The Parties:

1. The Wimberlys filed a Site and Development Plan with

Leon County seeking to renovate, upgrade and eventually reopen

on land they own (the Wimberly property) a for-profit facility

to be known as Seminole Raceway.

2. Some of the Petitioners live on or own property which

is immediately adjacent to and physically borders the Wimberly

property. Other Petitioners live or own property within the

immediate area of the Wimberly property. All Petitioners are

opposed to the Site and Development Plan for Seminole Raceway.

3. Leon County is a unit of government having jurisdiction

to regulate land use within its borders pursuant to Chapter 163

of the Florida Statutes.

4. The Wimberlys and Leon County stipulated that

Petitioners have standing in this proceeding to challenge the

Site and Development Plan.

The Wimberly Property and Surrounding Area:

5. The Wimberly property consists of two parcels on land

located on the south side of State Road 20, Blountstown Highway,

approximately six miles west of Tallahassee, and 2,400 feet west

of Whispering Pines Drive.

6. The parcels are located in the Urban Fringe Zoning

District (Urban Fringe) under the Code and the Comprehensive

Plan.

7. The parcel with Tax I.D. number 22-33-20-602-0000 is

the more westerly of the two parcels and is approximately 10.1

acres in size (“West Parcel”). The parcel with Tax I.D. number

22-33-20-605-0000 lies to the east of the West Parcel and is

approximately 111.23 acres in size (“East Parcel”).

8. The East Parcel touches and is contiguous with an area

zoned Residential Preservation.

The Site and Development Plan for Seminole Raceway:

9. Pursuant to their Site and Development Plan, the

Wimberlys' propose to renovate an abandoned dragstrip which

operated on what is now the Wimberly property in the 1980s. The

Wimberlys propose to substantially upgrade and thereafter reopen

the dragstrip under the name Seminole Raceway, which will be

operated as a for-profit business providing drag racing in Leon

County. Under the Wimberlys' business plan, the dragstrip would

draw most of its customers from within a 100 mile radius.

10. The Site and Development Plan calls for a 2,640-foot

paved dragstrip to be located on the West Parcel, running in a

north-south direction. One-eighth of a mile of the dragstrip

will be used for racing, while the remaining portion will serve

as deceleration lanes. At its closest point, the dragstrip will

be located 400 feet from the closest developed property.

11. Seminole Raceway will have an open-air grandstand

which will, upon completion, seat as many as 1,080 spectators.

The dimensions of the grandstands will be 25 feet by 213 feet.

12. The paved dragstrip measures 2,640 feet by 60 feet.

13. Plans call for six paved lanes leading to the

dragstrip, which will be used as staging lanes where the racing

cars will be paired up to race. These staging lanes are to be

50 feet wide and at least 200 feet long.

14. Plans also include a 600-square foot restroom

building, modern concession facilities, and a gravel parking

area with 383 parking spaces, including spaces for persons with

disabilities. No other buildings are proposed.

15. As many as one hundred trucks and trailers may be used

on any given day to transport race cars to the venue.

16. The Wimberlys propose to operate Seminole Raceway

approximately 110 days per year, or about one third of each

year. They would realize operating revenue from admission fees

paid by members of the general public who wish to watch drag

races, from fees paid by drivers wishing to race their cars, and

by customers purchasing food and beverages at the concession

stands.

17. The Wimberlys will provide off-duty police officers to

maintain traffic and crowd control, and an ambulance will be

stationed on the property during hours of operation in the event

of an accident or medical emergency.

Parties' Positions Regarding Permitted Uses on the

Wimberly Property :

18. Respondents contend that the proposed use of the

Wimberly property, which lies entirely within the Urban Fringe,

as Seminole Raceway, is an expressly authorized "active

recreation" use under the Comprehensive Plan and Section 10-913

of the Code, and is not a "commercial" use as defined in the

Comprehensive Plan and the Code. Respondents argue that Section

10-913(c) of the Code specifically authorizes, through

"schedules of permitted uses" contained in Section 10-1203(a) of

the Code, "commercial sports" in general and "dragstrips" in

particular.

19. Petitioners contend that Seminole Raceway is, on the

contrary, an impermissible commercial use under the

Comprehensive Plan and the Code and is, therefore, not a use

which is permitted in the Urban Fringe.

Commercial Land Use Classification under the Comprehensive Plan:

20. The Comprehensive Plan, in its Future Land Use Element

provision, classifies both proposed and existing land uses into

the following categories: Commercial, Office, Residential,

Recreational, Community Facilities, Light Industrial, and Heavy

Industrial.

21. Petitioners' contention that Seminole Raceway is a

Commercial land use is not persuasive in light of the

definitions of the various types of Commercial uses defined in

the Comprehensive Plan.

22. Commercial land use is defined in the Comprehensive

Plan as “generally, an activity or business involving the sale

of goods and/or services carried out for profit."

23. The Comprehensive Plan Glossary and Future Land Use

Element Policy 3.1.2 further categorize the types of Commercial

land uses as Minor, Neighborhood, Community, Regional and

Highway, setting forth descriptive criteria as follows in

paragraphs 24, 25, and 26.

24. Community Commercial: The major function of the

Community Commercial land use type is to provide for the sale of

retail goods such as clothing, variety items, appliances and

furniture, hardware and home improvement items. Examples of

leading types of tenants in the Community Commercial land use

type are a supermarket, drug store, minor department store, home

improvement center, variety or discount center.

25. Regional Commercial: The Regional Commercial land use

type includes the same functions as Community Commercial, only

on a larger scale, providing a full range and variety of

consumer goods for comparative shopping such as general

merchandise, apparel, furniture and home furnishings. The

example provided in the Comprehensive Plan of a leading tenant

in a Regional Commercial land use is one or more full-line

department stores.

26. Highway Commercial: Highway Commercial land use type

provides for retail services designed for drive-in convenience

to consumers. The examples provided in the Comprehensive Plan

of leading tenants for Highway Commercial land use include:

fast food franchises, liquor stores, automotive service centers,

and convenience stores which may serve the immediate area, and

also rely heavily on passerby traffic, as opposed to destination

trade.

27. The parties correctly stipulated that Seminole Raceway

was not a Minor Commercial land use type nor a Neighborhood

Commercial land use type, and the record supports a finding that

Seminole Raceway does not fall within the Comprehensive Plan's

definition of Community, Regional, or Highway Commercial.

Recreation Land Use under the Comprehensive Plan:

28. The Recreation land use category under the

Comprehensive Plan classifies existing and proposed Recreational

uses as either "passive" or "active." The Comprehensive Plan

defines Active Recreation land use as “those recreation lands

and improvements that are facility-oriented.”

29. The Comprehensive Plan does not define “facility-

oriented,” but Webster’s II New Riverside University Dictionary

defines “facility” as “something created to serve a particular

function.”

30. Petitioners correctly note that Seminole Raceway will

have attributes of what is commonly understood to be a

"commercial operation." It will charge an admission fee for

spectators and a racing fee for race participants. Those

attributes are not, however, included in the definition of

"commercial" under the Comprehensive Plan.

31. In addition to its commonly understood commercial

attributes, Seminole Raceway will also include attributes of

recreational activities to which spectators are drawn. Seminole

Raceway will provide recreational opportunities for amateur drag

racers to race their cars in a controlled competitive

environment and for drag racing fans to watch the competition.

32. These activities, despite their commercial aspects,

are no different than many other recreational type operations

which share the same commercial operation attributes, such as

bowling alleys, pool halls, swimming pools, batting cages, golf

courses, driving ranges, and country clubs.

33. The Comprehensive Plan's drafters recognized that some

land uses have attributes which fall within more than one of the

land use categories outlines in the Comprehensive Plan. Thus,

even though some recreational activities may include attributes

commonly understood to be commercial, those activities had to be

defined as one or the other; the alternative was to adopt yet

another land use category. The drafters of the Comprehensive

Plan elected to include facility-oriented recreational/sports

activities in the recreation land use category. To locate such

activities under Commercial would have been inconsistent with

the definition of Commercial contained in the Comprehensive

Plan.

34. Despite the commercial attributes of Seminole Raceway,

the evidence established that it is not a Commercial land use as

defined under the Comprehensive Plan; instead, it is facility-

oriented recreation and, thus comes within the Comprehensive

Plan's definition of "active recreation."

Commercial classifications under the Code:

35. The Code defines Commercial uses according to the same

subcategories as the Comprehensive Plan: Minor, Neighborhood,

Community, Highway and Regional.

36. The Code definitions for commercial-type uses reflect

the same major function descriptions used for the Commercial

land use subcategories within the Comprehensive Plan as set

forth in Paragraphs 24-27 above.

37. The record does not support a finding that Seminole

Raceway falls within the Code's definition of Community,

Regional, or Highway Commercial, and, the parties stipulated

that it is neither Minor nor Neighborhood Commercial within the

meaning of the Code.

Active recreation under the Code:

38. The Code provides definitions of commercial and active

recreation land uses consistent with those in the Comprehensive

Plan, but also recognizes that active recreation may be provided

as a "service" with attributes of common commercial activity,

but not as defined in the Code.

39. Thus the Code, like the Comprehensive Plan, recognizes

that recreation may be provided by Leon County or by private

enterprise.

40. The definition of "active recreation" in the Code

includes examples of recreational activities which may be

provided by the government or as "services." For example, a

"swimming pool," one of the specific examples of a "recreational

facility, active" included in the Code, is a recreation use

which may be provided by Leon County or as a service by a

private owner of a swimming pool open to the public for a fee.

41. Because recreation can be provided by Leon County or

as a service, the Code provides a definition of "recreation

service:"

Recreation services shall mean a commercial

facility providing recreational activities

to the general public for a fee, including,

but not limited to, swimming pools, tennis

clubs, public gymnasiums, racquetball

courts, baseball hitting ranges, miniature

golf, golf driving ranges, billiards or pool

halls, dance schools or classes, skating

rinks, racetracks, fitness centers, zoos,

and indoor theaters. (Emphasis added)

42. The fact that the active recreation land use category

is further defined in the Code to include "recreation services"

and that the Code recognizes that such recreational activities

can have many aspects of what is commonly understood to be

commercial, does not detract from the DRC's conclusion that

Seminole Raceway is an active recreation land use under the Code

and not a commercial land use.

Allowance of Seminole Raceway in the Urban Fringe:

43. As noted previously, according to the Comprehensive

Plan, Future Land Use Map, Seminole Raceway will be sited on

property located in the Urban Fringe, a term which is defined

consistently in the Comprehensive Plan's Future Land Use Element

and in Section 10-913 of the Code.

44. The introduction to the Comprehensive Plan's Future

Land Use Element summarizes the location of the district within

Leon County, and generally describes the types, densities and

intensities of development intended to be allowed in the Urban

Fringe. This summary does not exclude or prohibit Recreational

uses; neither is it exhaustive of the uses permitted.

45. The Comprehensive Plan defines intensity of a

development to include the development's use of, or demand on,

facilities and services.

46. The summary further indicates that the Urban Fringe is

appropriate for low density and low intensity developments.

This is so because urban services are not readily available.

47. Examples of urban services include central sewer and

water services.

48. Section 10-913 of the Code defines and describes the

Urban Fringe as follows:

(a) Purpose and intent. The urban fringe

zoning district is intended to provide for

low-intensity development that can be

accommodated without a full complement of

urban services and infrastructure. The

district is primarily intended to allow low-

density residential development of no

greater than one unit on three acres of

land, agricultural, and silvicultural

activities. Residential development will

also be allowed to a net density of one

unit per acre if clustered on 25 percent or

less of the site(allowing a gross density of

up to four units per acre on the developable

portion of the site). The remaining

undeveloped portion of cluster sites shall

be preserved as undisturbed open (green)

space until such time as these sites are

included in the urban service area.

Subsequent to these sites inclusion in the

urban service area, review by the Board of

County Commissioners may be requested to

authorize development of these undisturbed

open(green) spaces.

To conveniently serve area residents,

smaller scale, low-intensity commercial

development is permitted in this district.

To maximize efficiency in the development of

agricultural and silvicultural resources

located within this zoning district and

surrounding areas, agriculturally and

silviculturally related industrial

activities, such as milling, are permitted.

Community facilities are also permitted n

this district to serve the existing

population as well as to accommodate

anticipated population growth in areas

designated for immediate inclusion (within a

period of five years) in the urban service

area.

(b) Allowable uses. For the purpose of

this article, the following land use types

are allowable in this zoning district and

are controlled by the land use development

standards of this article, the comprehensive

plan and schedules of permitted uses.

(1) Low-density residential.

(2) Agricultural.

(3) Silvicultural.

(4) Light industry--Agriculturally and

silviculturally related only.

(5) Passive recreation.

(6) Active recreation.

(7) Minor commercial.

(8) Neighborhood commercial.

(9) Community services.

(10) Light infrastructure.

(11) Heavy infrastructure.

(c) List of permitted uses. See

schedules of permitted uses, section 10-

1203(a). Some of the uses on these

schedules are itemized according to the

Standard Industrial Code (SIC). Proposed

activities and uses are indicated in the

schedules. The activity or use may be

classified as permitted, restricted or

permitted through special exception, or not

allowed.

(d) Development standards. All proposed

development shall meet the commercial site

location standards (section 10-922); buffer

zone standards (section 10-923); the parking

and loading requirements (division 7); and

the land use development criteria as

specified in section 10-1203.

(e) Restricted uses. If uses are

restricted according to the schedule of

permitted uses, they must follow the general

development guidelines for restricted uses

as provided in division 5. Specific

restricted uses are addressed below in

division 8.

(1) Eating and drinking establishments

(SIC 581). No drive-in or drive-thru

facilities are permitted within this

district.

(2) Laundry, cleaning and garment

services (SIC 721). Does not include dry

cleaning plant operations; pick-up stations

only.

(3) Funeral services and crematoriums

(SIC 726). This use requires 100 percent

opacity buffer surrounding perimeter with

exception of access point.

(Ord. No. 92-10, Section 2(4.3), 3-10-92)

49. Petitioners' argument seizes upon the phrase "low

density residential development" in support of their

passionately held view that a dragstrip could not possibly be

consistent with the quiet, country lifestyle they have come to

treasure in the years since the previous dragstrip closed.

Their concern for their way of life is heartfelt and provokes

great sympathy, but it cannot carry the day in these proceedings

unless one overlooks the balance of the Code's definition of

Urban Fringe and its allowable uses.

50. The definition, read as a whole, contemplates that for

purposes of site and development review, it is adequate to

indicate, as the Wimberlys have, that the proposed development's

impact on the requirement for government services, such as water

and sewer, will be of low intensity. The Wimberlys' proposal is

consistent with this requirement because they have shown a

sufficient water supply for Seminole Raceway will be provided by

an on-site well, and that sanitary sewage will be provided by an

on-site septic system, and that these facilities are adequate

for the proposed use.

51. In other words, the point of the Urban Fringe is not

to protect residents from the crowds and noise generated by an

active recreation facility such as Seminole Raceway, but to

minimize the impact of development on government and the

resulting costs to the taxpayers attributable to each

development. Put another way, the Comprehensive Plan and the

Code operate, with respect to the Wimberly property, to protect

Leon County from having to provide urban infrastructure to

support the types of development which the authors of the

Comprehensive Plan deemed appropriate land uses in the Urban

Fringe.

52. Of greater significance than the finding that Seminole

Raceway is not inconsistent with the intended purpose of the

Urban Fringe is the fact that Seminole Raceway falls within the

criteria for active recreation and is thus one of the listed

allowable uses in the Urban Fringe pursuant to Section 10-913(b)

(6) of the Code. Because it is a defined allowable use,

Seminole Raceway is an acceptable use of the Wimberly property.

53. The proposed use of the Wimberly property is also

found in a more detailed and specific list of permitted uses for

the Urban Fringe found in section 10-1203(a) of the Code.

54. Section 10-1111 of the Code provides specific

requirements for Special Exception uses; there are no specific

requirements applicable to Commercial Sports activities.

55. Section 10-1203(a) of the Code provides a list of more

detailed and specific permitted uses by reference to the

Standard Industrial Code ("SIC"), a code which lists broad land

use types, such as residential, mining, etc., and then, within

each broad category, lists numerous specific types of land uses

by a classification number. These classification numbers are

further broken down into sub-classification numbers.

56. Section 10.1203(a) of the Code goes on to indicate the

type of land use the SIC-coded land use is under the

Comprehensive Plan and whether the use is a "permitted" or

"restricted" use, or a use by "special exception" in the Urban

Fringe.

57. Section 10.1203(a) of the Code lists various SIC code

numbers followed by the SIC's broad land uses and more specific

land uses within those broad land uses which are considered to

come within the allowable Comprehensive Plan land use categories

for the Urban Fringe. For example, under the broad SIC land use

of "Agricultural, Forestry, and Fishing" is listed the land use

of "Agricultural production--Crops" which is designated SIC

code "01." According to Section 10-1203(a), this SIC land use

code is a "permitted" use under the Comprehensive Plan land use

category of Agriculture.

58. Land uses included in the SIC's broad category of

"Recreation" are listed in Section 10-1203(a) of the Code and

are designated as either falling within the Comprehensive Plan's

passive or active recreation land use. All of these SIC

recreation land uses are "permitted" within the Urban Fringe.

59. While a race track or, more specifically, a dragstrip

is not listed under the SIC recreation category, the SIC code,

like the Code, recognizes that recreation may be provided as

"service." Thus, under the SIC broad land use category of

"service" is included recreational activities operated for

profit under the subcategory of "commercial sports," SIC

category code 794. Consistent with the Code's recognition,

through the definition of "recreation services," that

recreational land uses may have commercial attributes, the SIC

code includes commercially operated sports activities under

services rather than under commercial.

60. Section 10-1203(a) of the Code, in including

commercial sports from the SIC broad land use of services,

indicates that such commercial sports are considered to fall

within the active recreation land use allowable in the Urban

Fringe and that they are allowed as a "special exception."

61. Seminole Raceway is a commercial sport within SIC code

category 794 and is, therefore, allowed as an active recreation

use within Urban Fringe. Any doubt about this conclusion is

eliminated when SIC subcategory 7948 is reviewed. That

subcategory, "Racing, Including Track Operations," specifically

includes "Dragstrip Operation" as a commercial sports use.

62. Thus the operation of a dragstrip, even for commercial

ends, is listed in Section 10-1203(a) of the Code as one of the

types of active recreation land use allowable in the Urban

Fringe.

Mitigation Agreed to by Respondents:

63. The parties have not cited any provision of the

Comprehensive Plan or the Code which would require mitigation

under the facts and circumstances of this case. Rather than

require mitigation, public policy "encourages" it. Section 10-

1405 of the Code reads, in pertinent part, as follows:

Applicants are encouraged to design

innovative plats or site and development

plans which, while meeting the requirements

of this article and other applicable

ordinances, take into account the individual

characteristics and location of a particular

piece of land so as to reduce adverse

visual, noise, environmental, and/or traffic

impacts on nearby property owners .

(Emphasis added)

64. In this case, Respondents have agreed to a variety of

steps intended to mitigate the anticipated impacts of Seminole

Raceway, including off-site noise, light, and traffic.

Consideration was given by Respondents to the fact that future

land use categories surrounding Seminole Raceway include Urban

Fringe with a Residential Preservation Overlay, and Rural.

65. The purpose of a Residential Preservation Overlay is

to protect existing stable and viable residential areas from

incompatible land use intensities and density intrusions. Here,

Respondents have expended considerable effort in addressing the

impacts of noise, lighting and traffic.

Noise and lighting:

66. Although Leon County has not adopted a noise ordinance

requiring noise generated by any type of development to be kept

at or under maximum decibel levels, one of the conditions

required as part of the Site and Development Plan approval for

Seminole Raceway is:

Operation of the raceway and activities on

its premises shall not create sound pressure

levels in excess of 65 dBA as measured on

residential property located within 1150

feet or further from the dragstrip, or

operations of the raceway are subject to

revocation or suspension by Leon County.

67. A noise study conducted at the request of Leon County

prior to site plan approval found that the highest peak sound

level generated by the track, as recorded on residential

property 1150 feet east of the track, was 63.9 decibels. The

study found that the average sound levels generated by the track

at the same distance to residential property was 54.5 decibels.

68. The noise measurements were taken with two typical

drag racing cars semi-stationery on the starting line with

engines running at typical racing RPMs.

69. The noise study concluded that the anticipated noise

levels from the track are below standards set by the Federal

Housing and Urban Development Department, the Florida Statutes,

and the Occupational Safety and Health Administration.

70. Additionally, as a condition of Site and Development

Plan approval, Seminole Raceway must have an eight-foot high

wooden fence immediately adjacent to and around the vehicle

staging area, track, and pit area, on the eastern side of the

site. This fence will be located between the track and the

location of the noise measurement equipment for the sound study.

71. Noise measurements may also be affected or diffused by

the location of trees or other vegetation between the source of

the noise and the point of measurement. As a condition of

approval, Seminole Raceway must provide a 30-foot wide Type D

vegetative buffer between the parking area and the nearest

property east of the dragstrip as such buffer is described in

Section 10-923 of the Code. Thus, the Wimberlys will be

required to provide for the planting of 12 canopy plants, eight

understory plants and 36 shrubs per 100 linear feet of the

buffer. This is the most dense type of buffer provided for in

the Code.

72. Under the Code, a vegetative buffer is not required to

be planted between existing Residential type land uses and

proposed Recreational land uses; rather, Respondents have agreed

to the Type D buffer to address anticipated noise impacts upon

neighbors, including Petitioners.

73. As a further condition of development, the public

address system for Seminole Raceway shall be limited to

85 decibels at the speaker and shall be directed away from

residential lots.

74. Also, all lighting for Seminole Raceway must be placed

so as not to directly illuminate any residentially developed

property.

Traffic:

75. As a condition of approval, the Wimberlys must

construct, on Highway 20, a left turn lane for traffic traveling

west and a right turn lane for traffic traveling east to

Seminole Raceway, install warning signs one-quarter mile in both

directions from the entrance, and hire off-duty Leon County

Sheriff’s deputies to direct traffic during hours of operation,

all in order to mitigate anticipated traffic impacts.

76. The Wimberlys are further required to perform a

traffic study one year after Seminole Raceway becomes

operational. Leon County may require additional improvements if

warranted by the traffic study.

CONCLUSIONS OF LAW

77. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

this proceeding pursuant to Section 120.65(7), Florida Statutes,

and Section 10-1485 of the Code.

78. Pursuant to subsection (H) of Section 1485 of the

Code, the Site and Development Plan for Seminole Raceway must be

approved if the Wimberlys demonstrate by a preponderance of the

evidence that they are entitled to an approval.

79. For the reasons set forth in the Findings of Fact,

Seminole Raceway is consistent with the Comprehensive Plan and

complies with applicable provisions of the Code. More

specifically, the evidence establishes that Seminole Raceway is

an active recreation use allowable in the Urban Fringe. The

mitigation requirements agreed to by Respondents, although not

required, are intended to and will serve to lessen the impact of

the facility on nearby residential properties, including those

of the Petitioners.

80. The Wimberlys have carried their burden of proof under

Section 10-1485 of the Code to demonstrate by a preponderance of

the evidence that they are entitled to approval, a showing which

Petitioners' evidence fails to overcome.

The Project is a Recreational Land Use:

81. The Local Government Comprehensive Planning and Land

Development Regulation Act (“the Act”), Section 163.3161 et

seq ., governs the adoption, amendment, and implementation of

comprehensive plans by local governments in Florida.

82. The Act requires local governments to adopt and amend

comprehensive plans, or elements thereof, to guide their future

development and growth. Section 163.3167(1)(b), Florida

Statutes (2002).

83. Section 163.3177, Florida Statutes, sets out the

required and optional elements of a local comprehensive plan.

Within the future land use element, a required element, local

governments are required to establish the categories of uses of

land, as well as provide on a map for the general distribution,

location, and extent of the uses of land within the

jurisdiction. Section 163.3177(6)(a), Florida Statutes (2002).

84. Section 163.3202, Florida Statutes, requires local

governments to adopt land development regulations that implement

the adopted comprehensive plan, including regulations for the

use of land and water for those categories established in the

future land use element of a comprehensive plan. Section

163.3202(2)(b), Florida Statutes (2002).

85. Therefore, it is not the function or the purpose of

the land development regulations to establish land use

categories outside of the comprehensive plan. The function of

the land development regulations is to implement the

comprehensive plan. Section 163.3213(1), Florida Statutes

(2002).

86. Seminole Raceway does not meet the criteria

established in the future land use element of the comprehensive

plan for any subcategory of Commercial land use and thus cannot

be categorized as a Commercial land use under the Comprehensive

Plan.

87. The evidence supports a conclusion that Seminole

Raceway will provide a full service facility for use by amateur

drag racing enthusiasts and thus falls within the criteria of

the land use subcategory “Active Recreation” established in the

future land use element of the comprehensive plan.

The Project is allowed in the Urban Fringe:

88. It is a well-settled maxim of statutory construction

that the more specific provisions of a regulation govern over

the more general provisions. McKendry v. State , 641 So. 2d 45

(Fla. 1994). Therefore, the Goals, Objectives and Policies of

the Comprehensive Plan govern over the more general descriptions

or summaries of land use types found in the Future Land Use

Element preceding the Goals, Objectives and Policies.

89. In this case, Seminole Raceway is an allowable use in

the Urban Fringe even under the most general provisions of the

Comprehensive Plan. As a low-intensity use without a demand for

urban services, Seminole Raceway is allowable according to the

general description of the Urban Fringe summarized in the

introduction to that section of the Future Land Use Element.

90. More importantly, the Seminole Raceway is allowable

under the specific policies of the Comprehensive Plan. Future

Land Use Element Policy 1.4.5(d) states as follows:

The determination that a particular land use

is permitted within a zoning district shall

be made based upon a listing of allowable

land uses within a zoning district or that

an unlisted land use is substantially

similar to allowable uses within the same

district.

Comprehensive Plan, page I-43 (emphasis added). Therefore, for

a determination of whether Seminole Raceway is allowed within

the Urban Fringe, one must turn to the listing of allowable uses

within the Code. This is consistent with the requirement of the

Act that the Code establish the regulations governing the

distribution of land use types within the land use districts

established by the Comprehensive Plan. See Section 163.3213(1),

Florida Statutes (2002).

91. Section 10-1203 of the Code, which further defines the

uses allowable in the Urban Fringe pursuant to Section 10-913(b)

of the Code, specifically includes dragstrip operations.

Mitigation of impacts:

92. Section 10-1405 of the Code, pertinent parts of which

are fully set forth in Paragraph 62, above, articulates a public

policy in which site and development plan "Applicants are

encouraged to design innovative plats or site and development

plans which . . . reduce adverse visual, noise, environmental,

and/or traffic impacts on nearby property owners."

93. Neither the architects of the Comprehensive Plan nor

the drafters of the Code required persons proposing to build

active recreation facilities in the Urban Fringe--even

facilities on the ambitious scale of Seminole Raceway--to

eliminate offsite impacts, no matter how troubling they are to

residents who wish for the neighborhood to remain as it has

been.

94. The conditions agreed to by Respondents are plainly

insufficient to satisfy Petitioners' desire to maintain the

relative quiet of their neighborhood, yet they go further than

the law requires to meet the aspirational "encouragement"

standard set in Section 10-1405. More importantly for

Petitioners, the conditions provide aggrieved parties with

recourse in the event they are not fulfilled by the property

owners.

95. In developing the conditions for Seminole Raceway,

this aspect of the Comprehensive Plan is relevant:

Policy LU 2.1.1:

Protect existing residential areas from

encroachment of incompatible uses that are

destructive to the character and integrity

of the residential environment.

Comprehensive Plan provisions and Land

Development Regulations to accomplish this

shall include, but are not limited to:

(a) Inclusion of a Residential

Preservation category on the Future Land Use

Map.

96. The remainder of the Policy speaks to limitations on

future Commercial intensities adjoining low-density residential

areas (paragraph b), limitations on future high density

residential adjoining low density residential areas

(paragraph c), limitations on future light industry adjoining

low to medium density residential areas (paragraph d),

preclusion of future heavy industrial adjoining any residential

area (paragraph e), and additional development requirements for

allowed community facilities adjoining low density residential

areas (paragraph f). None of these provisions applies to

recreational uses adjoining residential areas and therefore they

do not apply to Seminole Raceway.

97. To the extent, however, that they show an intent to

buffer existing residential areas from the visual and sound

impacts of adjoining uses, the Comprehensive Plan provides that

the primary purpose of the Residential Preservation Overlay

District is to “protect existing stable and viable residential

areas from incompatible land use intensities and density

intrusions.” Comprehensive Plan Page I-12. Recognizing that

the proposed dragstrip was specifically allowed on the Wimberly

property, but also recognizing the proximity to a Residential

Preservation land use district, as well as other residential

areas zoned Urban Fringe and Rural, Leon County sought to

mitigate anticipated impacts by imposing conditions which exceed

the requirements of the Comprehensive Plan and the Code. Those

conditions have been accepted by the Wimberlys.

98. Although Leon County has not adopted a noise

ordinance, the conditions of development require that noise

impacts to surrounding areas be mitigated by requiring a maximum

average decibel level of 65 dBA on property within 1150 feet.

The Site and Development Plan approval limits the days and hours

of operation to, for example, restrict operation on school

nights.

99. Further, Seminole Raceway is required to retain a 30-

foot vegetative buffer between the parking area and the nearest

residential lots and build a noise barrier on the perimeter of

the track surrounding the spectator stands and vehicle staging

area to further buffer noise impacts. Inasmuch as Section 10-

923 of the Code requires no buffer between proposed active

recreation uses and existing residential uses, the conditions of

development exceeds the Code requirement for buffering.

Further, the Type D buffer being required is the most densely

vegetated buffering requirement in the Code.

100. The conditions of development relating to noise

reduction meet the “encouragement” in Section 10-1405 of the

Code to reduce visual and noise impacts of Seminole Raceway on

nearby properties, the intent of Future Land Use Element Policy

2.1.1 to buffer residential areas from the visual and noise

impacts of adjoining uses, and the general purpose of the

Residential Preservation Overlay District to protect existing

residential areas from the impacts of incompatible land use

intensities.

101. Although the does not set standards for lighting, the

Site and Development Plan approval is conditioned upon lighting

which does not directly illuminate surrounding residential

properties. During permitting of Seminole Raceway, Leon County

will develop a more specific requirement, the precise nature of

which is beyond the scope of these proceedings.

102. Section 10-1526 of the Code reads, in pertinent part,

as follows:

(e) No development shall be approved

unless it has been designed so as to

reasonably achieve the following:

(2) The prevention of traffic hazards and

congestion which result from narrow or

poorly aligned streets and from excessive

exit and entrance points along major traffic

arteries.

(3) The provision of safe and convenient

traffic circulation, both vehicular and

pedestrian, and the minimization of traffic

impacts on the surrounding area.

103. Seminole Raceway's approval is further conditioned

upon considerable improvements to Highway 20 to improve safety

and mitigate traffic impacts. Additionally, Leon County has

reserved an option to require additional transportation

improvements based upon the outcome of a required traffic study

to be conducted a year after Seminole Raceway opens.

104. Safety is also addressed by the requirement of off-

duty deputies from the Leon County Sheriff’s Office to assist in

traffic control during hours of operation.

105. The conditions of development relating to traffic are

sufficient to satisfy the aspirational “encouragement” standard

of Section 10-1405 of the Code, and to meet the requirement in

Section 10-1526 that the development be designed to reasonably

achieve prevention of traffic hazards and congestion, safe and

convenient traffic circulation and the minimization of traffic

impacts on surrounding areas.

106. Petitioners are passionate in the belief that their

quality of life will inevitably be diminished if Seminole

Raceway opens as planned. Yet, Respondents have shown by a

preponderance of the evidence that the Site and Development Plan

is consistent with applicable policies of the Comprehensive Plan

and is a permissible land use under applicable provisions of the

Code. It follows that the Wimberlys are entitled as a matter of

law to approval for the Site and Development Plan as approved by

the DRC, with conditions, on July 17, 2002.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the application of Charles and Linda

Wimberly for approval for Seminole Raceway is APPROVED with the

conditions agreed to in the site plan and development plan.

DONE AND ORDERED this 4th day of March, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

FLORENCE SNYDER RIVAS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of March, 2003.

COPIES FURNISHED:

William E. Douglas

DEC Engineering, Inc.

2467 Centerville Road

Tallahassee, Florida 32308

Brian Pappas, Esquire

Post Office Box 416

Flagler Beach, Florida 32136

Suzanne H. Schmith, Esquire

Leon County

301 South Monroe Street

Tallahassee, Florida 32301

Thomas G. Tomasello, Esquire

Thomas G. Tomasello, P.A.

Post Office Box 13148

Tallahassee, Florida 32317-3148

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 10-1485, Leon

County Code of Laws. Review proceedings are governed by the

Florida Rules of Civil Procedure. Such proceedings are

commenced by filing a petition for writ of certiorari with the

clerk to the circuit court not later than 30 days after the

decision of the Administrative Law Judge is filed with the clerk

of the Leon County Board of County Commissioners.