03-000593GM Jim Durham And Citizens For Proper Planning, Inc. vs. Polk County Status: Closed Recommended Order on Tuesday, February 24, 2004.

Summary: Small scale amendment which changed use on land from residential to commercial conflicts with two other policies in the Plan and is inconsistent with the Plan and not in compliance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIM DURHAM and CITIZENS FOR )

PROPER PLANNING, INC., )

)

Petitioners, )

)

vs. ) Case No s. 03 - 0593GM

) 03 - 0933GM

POLK COUNTY, )

)

Respondent, )

)

and )

)

JACK M. BERRY, INC., )

)

Intervenor. )

_____________________________ )

RECOMMENDED ORDER

Pursuant to notice, these matters were heard before the

Division of Administrative Hearings by its assig ned

Administrative Law Judge, Donald R. Alexander, on December 18

and 19, 2003, in Bartow, Florida.

APPEARANCES

For Petitioners: Terrell K. Arline, Esquire

3205 Brentwood Way

Tallahassee, Florida 32309 - 2705

For Respondent: Joseph G. Jarret, Esquire

Anne T. Gibson, Esquire

Polk County Attorney's Office

Post Office Box 9005

Bartow, Florida 33831 - 9005

For Intervenor: Jack P. Brandon, Esquire

Michael T. Gallaher, Esquire

Peterson & Myers, P.A.

Post Office Box 1079

Lake Wales, Florida 33859 - 1079

STATEMENT OF THE ISSUE

The issue is whether Polk County's small scale

development amendment (CPA2003S - 02) adopted by Ordinance No.

03 - 03 on January 22, 2003, as later amended by Ordinance No.

03 - 19 on March 15, 2003, is in compliance.

PRELIMINARY STATEMENT

This matter began on January 22, 2003, when Respondent,

Polk County (County), adopted Ordinance CPA2003S - 02, a small

scale amendment, which changed the future land use designation

on the County's Future Land Use Map (FL UM) on a 9.99 - acre

parcel of property owned by Intervenor, Jack M. Berry, Inc.

(Berry), from Residential Low - 1 (RL - 1) to Convenience Center

(CC) and Business Park Center (BPC - 1). This change was

formalized by the adoption of Ordinance No. 03 - 03 the same

d ate.

On February 21, 2003, Petitioners, Jim Durham (Durham)

and Citizens for Proper Planning, Inc. (CPPI), filed their

Petition for Formal Administrative Proceedings (Petition) with

the Division of Administrative Hearings. The Petition alleges

that the am endment was not in compliance for numerous reasons.

This Petition was assigned DOAH Case No. 03 - 0593GM.

On March 6, 2003, the County adopted Ordinance No. 03 - 19,

which amended Ordinance No. 03 - 03 by correcting certain

"scrivener's errors in describing the property subject to the

comprehensive plan amendments."

On March 19, 2003, Petitioners filed a second Petition

for Formal Administrative Proceedings challenging the

amendment adopted by Ordinance No. 03 - 19. Except for one

additional ground, the second Petition contained essentially

the same allegations raised in Case No. 03 - 0593GM and was

given Case No. 03 - 0933GM. Both cases were assigned to

Administrative Law Judge J. Lawrence Johnston. By Order dated

March 20, 2003, the cases were consolidated for h earing.

On March 19, 2003, Intervenor filed its Motion to

Intervene in support of the challenged amendment. An Order

granting intervention was entered on March 19, 2003, subject

to the filing of an objection by another party. On March 24,

2003, Petition ers filed a Response to Motion to Intervene in

which they raised certain minor objections. Those objections

are hereby overruled and the Order granting intervention is

reaffirmed.

By Notice of Hearing dated March 25, 2003, a final

hearing was scheduled on June 23 and 24, 2003, in Bartow,

Florida. On May 29, 2003, the cases were transferred to

Administrative Law Judge Richard P. Hixon. On June 20, 2003,

Petitioners filed an unopposed Motion for Continuance (Motion)

on the ground that their expert witness was unavailable to

testify. By Order dated June 20, 2003, the Motion was

granted, and the cases were temporarily abated pending the

parties' filing of new hearing dates. By Notice of Hearing

dated August 6, 2003, the matters were rescheduled to December

18 and 19, 2003, at the same location. On December 9, 2003,

the cases were transferred to the undersigned.

At the final hearing, Petitioners presented the testimony

of Dr. Earl J. Starnes, a planner and accepted as an expert;

Jean S. Reed, who resides n ear the project and is chairperson

of the Board of Directors of CPPI; Jim Durham, a realtor and

local property owner; and Reverend Arnold Brown, director of

missions for Ridge Baptist Association, which owns property

across the street from Berry's property . Also, they offered

Petitioners' Exhibits 14A, 26A - F, 27A - D, 36, 37, 40A and B,

and 43, which were received in evidence. The County presented

the testimony of Merle H. Bishop, County Planning Director and

interim Growth Management Department Director an d accepted as

an expert, and offered County Exhibit 1, which was received in

evidence. Intervenor presented the testimony of Warren K.

Heath, II, a former Berry employee; David Carter, a

professional engineer and accepted as an expert; and G.

Michael Joac him, a planning consultant (and former County

Planning Director) and accepted as an expert. Also, it

offered Intervenor's Exhibit 9, which was received in

evidence. Finally, the parties offered Joint Exhibits A - C,

consisting of three volumes of documents (Exhibit A) and two

maps (Exhibits B and C), which were received in evidence.

The Transcipt of the hearing (two volumes) was filed on

January 7, 2004. By agreement of the parties, the time for

filing proposed findings of fact and conclusions of law was

e xtended to February 9, 2004. The same were filed jointly by

Respondent and Intervenor on February 6, 2004, and by

Petitioners on February 9, 2004, and they have been considered

by the undersigned in the preparation of this Recommended

Order.

FINDINGS OF F ACT

Based upon all of the evidence, the following findings of

fact are determined:

a. Background

1. Berry is the owner of a tract of land located on the

southwest corner of the intersection of Eagle Lake Loop Road

(County Road 540 - A) and Pollard Road i n Section 16, Township

29, Range 26 in the eastern part of unincorporated Polk

County, Florida. The property lies south of the City of

Winter Haven, east - southeast of the City of Eagle Lake, less

than a mile south of Lake Eloise (on which Cypress Gardens is

located), and west of U.S. Highway 27. Because Berry owns

property within the County, and submitted oral and written

comments to the County prior to the adoption of the challenged

amendment, it has standing to participate in this action.

2. On July 19 , 2002, Berry filed an application with the

County Planning Department seeking to change the land use on

9.99 acres (or just below the threshold of 10.0 acres for a

small scale amendment) from RL - 1 to Neighborhood Activity

Center (NAC) to include approxim ately 4.95 acres of various

neighborhood specialty shops such as a grocery store, drug

store, convenience store, and dry cleaners, with the remaining

acreage used as a mini - warehouse self - storage facility. In

September 2002, Berry amended its application by seeking to

change 3.93 acres from RL - 1 to CC and 6.06 acres from RL - 1 to

BPC - 1. The application was assigned Case File No. CPA2003S -

02.

3. Under the County's review process, the application is

first reviewed by the County Development Review Committe e

(Committee), then by the County Planning Commission (CPC),

which either accepts or rejects the Committee's

recommendation, and finally by the Board of County

Commissioners (Board), which either adopts the amendment,

adopts the amendment as amended by the Board, or rejects the

amendment.

4. After conducting a preliminary review of the

application, on September 16, 2002, the Committee conducted a

public hearing and voted to recommend approval. The matter

was then transmitted to the CPC, which conducted a meeting on

October 9, 2002, and recommended that the Board approve the

amendment.

5. On January 22, 2003, by a 3 - 2 vote, the Board adopted

CPA2003S - 02 changing the designation on the FLUM of the County

Comprehensive Plan (Plan) as proposed by Berry. T his was

confirmed by the County's adoption of Ordinance No. 03 - 03.

6. On February 21, 2003, Petitioners filed their

Petition challenging the Berry amendment.

7. The matter was again placed on the Board's agenda on

March 19, 2003, after the County disc overed that Ordinance No.

03 - 03 had inadvertently changed the land use on the entire

parcel to CC rather a mix of CC and BPC - 1. In addition, there

were minor errors in the legal description of both the 3.93

and 6.06 - acre parcels. Accordingly, Ordinance N o. 03 - 19 was

enacted to correct those errors.

8. A second Petition for Formal Administrative

Proceedings (with essentially the same allegations, but also

adding an allegation that the same property had been

improperly subject to two small scale amendments within a 12 -

month period) was filed by Petitioners on March 19, 2003,

challenging the action taken in Ordinance No. 03 - 19.

9. At the outset of the final hearing, Petitioners

voluntarily dismissed two allegations contained in their

Petition. In their P roposed Recommended Order, Petitioners

have further narrowed the issues by addressing only the

following allegations: that the property which is the subject

of this proceeding exceeds 10.0 acres in size and therefore

cannot qualify as a small scale amendm ent; and that the

amendment violates Future Land Use Element (FLUE) Policies

2.102 - A1, 2.113 - B - 3, 2.113 - B - 4, 2.110 - C3, and 2.113 - B - 1 and is

thus internally inconsistent with the Plan. These issues will

be discussed separately below. All other allegations

contained in the second Petition and the parties' Pre - Hearing

Stipulation are deemed to have been withdrawn or abandoned.

10. Because the change in the FLUM was filed and

approved as a small scale plan amendment under Section

163.3187(1)(c), Florida St atutes (2003), 1 a compliance review

of the amendment was not made by the Department of Community

Affairs (DCA). See § 163.3187(3)(a), Fla. Stat.

b. Standing of Petitioners

11. Durham is a realtor/developer who owns property

within 250 feet of Berry's property and resides at 10 Lake

Eloise Lane, Southeast, Winter Haven, Florida. He made oral

and written comments to the County prior to the adoption of

the amendment. As such, he qualifies as an affected person

under Section 163.3184(1)(a), Florida St atutes, and has

standing to bring this action.

12. CPPI began as an association in November 2002 and

was later incorporated in February 2003. Presently, it has

around 100 members, all of whom reside in the County.

According to its chairperson, its pur pose is to "help educate

and inform residents of Polk County . . . towards growth

matters that may affect their daily lives." The organization

"encourages donations" from its members; it was scheduled to

have conducted its first annual meeting on January 10, 2004;

and members prepared and circulated petitions opposing the

amendment to residents of the area in December 2002 and

January 2003. At least one member of CPPI made written and

oral comments on its behalf to the County prior to the

adoption of the amendment in March 2003. There is no

evidence, however, that CPPI (as opposed to its individual

members) owns property or owns or operates a business within

the County. Therefore, it lacks standing to file a petition.

c. The land and surrounding uses

13 . Berry owns a triangle - shaped parcel of land (the

parent parcel) totaling around 14 acres which fronts on Eagle

Lake Loop Road (a 24 - foot wide urban collector road) to the

north, Pollard Road (a local road) to the east, and a CSX

railroad track, with rig ht - of - way, on its western side.

(Pollard Road dead ends at Eagle Lake Loop Road, and another

collector road, Eloise Loop Road, continues to the north from

the intersection). Pollard Road provides access to eight

nearby single - family homes, which lie sout h of the Berry

property and front on Pollard Road, and eventually terminates

at the City of Winter Haven's Sewage Treatment Plant (an

institutional use), which lies slightly more than a mile south

of the site.

14. To the west of the site directly across the railroad

tracks and fronting on Eagle Lake Loop Road is additional

property owned by Berry and on which were once located the

original Berry corporate offices. The Berry office buildings

are now used, at least partially, by other tenants. Although

t he land across the railroad tracks is classified as

Residential Suburban (RS), the property can be used for

offices since the buildings were constructed, and office use

began, prior to the adoption of the Plan. Directly across

Pollard Road to the east is a vacant 10 - acre tract of land

owned by the Baptist Ridge Association, which intends to

construct a church on the property.

15. Berry's property is now classified as RL - 1, a land

use classification which "is characterized by single - family

dwelling units, duplex units, and small - scale multi - family

units." Since at least the 1950s, however, or long before the

County adopted its Plan, the property has been used primarily

for agriculture purposes (citrus groves); therefore, Berry is

grandfathered to continue this non - conforming use on its

property. Presently, the entire tract of land is undeveloped

and largely covered by an orange grove, which Berry describes

as "past maturation and is declining." Citrus trucks and

trailers have been parked on the extreme no rthwestern corner

of the parent parcel and are used in conjunction with the

citrus operation.

16. Except for the former Berry offices, a nearby beauty

salon operating out of a house, and a convenience store about

three - quarters of a mile away, which all b egan operation

before the Plan was adopted and are grandfathered as non -

conforming uses, and the City of Winter Haven's large tract of

institutional land to the south, all of the property within

slightly less than a one - mile radius of the Berry property is

classified in various residential land use categories with

only residential uses.

d. The Amendment

17. As noted above, Berry has owned the subject property

for many years. In 1987, Berry (then under the name of Jack

M. Berry, Sr.) made application with the County for a zoning

change on the property from Rural Conservation (RC) to

Commercial (C - 3) to allow typical commercial uses. The

application was ultimately denied by the County on the ground,

among others, that the zoning district being proposed was

inconsistent with the Plan, "given the residential development

pattern in the area." At least partly on the theory that the

area has changed substantially in the last 15 years, Berry has

filed (and the County has approved) an application seeking to

chang e the land use on the property to commercial uses.

18. Berry has carved out of the parent parcel two

smaller parcels totaling 9.99 acres in size and seeks to

change the land use on the northern parcel (3.93 acres) to CC

and the land use on the southern pa rcel (6.06 acres) to BPC - 1.

The remaining land in the parent parcel, which consists of a

0.43 - acre triangle - shaped parcel on the northwestern corner of

the parent parcel and now used by citrus trucks, and a vacant

2.74 - acre triangle - shaped parcel on the s outhern end, will

remain R - 1. (However, all parties agree that if the amendment

is approved, these remaining parcels will be unsuitable for

residential development.) In addition, strips of land ranging

from 22 to 28 feet in width which front on Eagle Lak e Loop

Road and Pollard Road will be dedicated to the County for

right - of - way and have not been included in the 9.99 - acre

amendment. Presumably, the proposed change is being done in

this manner so that the total acreage is less than 10.0 acres,

which qual ifies the application to be processed as a small

scale development amendment rather than a regular plan

amendment and subject to DCA review and approval.

19. If the change is approved, the northern part of the

parcel (3.93 acres) will be changed to CC t o develop

convenience commercial uses. Under the Plan, the most typical

tenant in this category is a convenience store, while other

typical tenants include laundry, dry cleaning, barber,

restaurant, gas station, and office uses. The southern (and

larger) portion of the tract will be changed to BPC - 1. The

most typical tenant in this category is "[o]ne or more light -

assembly plants, or warehouse facilities," which include a

mini - warehouse storage facility. Other typical tenants

described in the Plan are o ffices, distribution centers,

research and development firms, and high - density residential,

with proper buffering. (Berry says it intends to build a

mini - warehouse facility on the southern parcel; however, any

of the above described uses could be placed o n the property if

the change is approved.)

e. Petitioners' Objections

20. In broad terms, Petitioners have contended that the

small scale amendment actually involves a use of more than 10

acres since the strips of land being dedicated as right - of - way

t o the County must be counted as a part of the land being

amended. They also contend that the plan amendment violates

five FLUE policies and is therefore internally inconsistent

with the Plan.

21. A small scale development amendment can only be

adopted if "[t]he proposed amendment involves a use of 10

acres or fewer." See § 163.3187(1)(c)1., Fla. Stat. The

parties have agreed that the legal description of the parcel

subject to the change includes only 9.99 acres, or less than

the 10 - acre threshold. Howe ver, prior to the development of

the site, Berry intends to dedicate to the County two strips

of land, one fronting on Eagle Lake Loop Road (28 feet wide),

and the other on Pollard Road (22 feet wide), for future

right - of - way for some public purpose. Peti tioners contend

that the right - of - way constitutes essential infrastructure for

the development and must be included as a part of the

amendment. If this land is added to the amendment, the total

acreage would obviously exceed 10.0 acres.

22. The dedicated land is not "essential infrastructure"

needed for the development activities on the land, since two

roadways (Eagle Lake Loop Road and Pollard Road) already exist

on the northern and eastern boundaries of the property, and

they are sufficient in size to p rovide ingress to, and egress

from, the property. Instead, the County will "bank" the land

in the event some form of right - of - way activity is needed in

the future. It is noted that Eagle Lake Loop Road was

recently widened to 24 feet, and it is not anticipated

that a further widening will occur for a number of years.

23. There is nothing in the Plan which requires an

applicant for an amendment to include all of its property in a

proposed amendment, or prevents an applicant from leaving a

residual piece of property out of the application. Therefore,

Berry was not required to include in the amendment the right -

of - way or the two smaller residual pieces of property that

will remain R - 1.

24. Finally, assuming arguendo that Petitioners'

contention is c orrect, that is, that an applicant must include

right - of - way land dedicated to the local government in the

total acreage calculation, Berry could still lawfully comply

with the 10 - acre threshold by simply reducing the other

acreage being changed to CC or B PC by the amount of land being

dedicated to the local government for right - of - way.

25. Therefore, it is found that Berry has not improperly

excluded from the amendment land necessary for essential

infrastructure so as to violate Section 163.3187(1)(c)1.,

Florida Statutes, as alleged by Petitioners.

26. Policy 2.102 - A1 requires compatibility between

adjacent uses. More specifically, it provides that:

Land shall be developed so that adjacent

uses are compatible with each other,

pursuant to the requirements of other

Policies in this Future Land Use Element,

so that one or more of the following

provisions are accomplished:

a. there have been provisions made which

buffer incompatible uses from dissimilar

uses;

b. incompatible uses are made to be more

compati ble to each other through limiting

the intensity and scale of the more intense

use;

c. uses are transitioned through a gradual

scaling of different land use activities

through the use of innovative development

techniques such as a Planned Unit

Development .

Therefore, as the Plan is now written, so long as Berry

develops the land in a manner which accomplishes at least one

of the three "provisions" in paragraphs a - c of the policy,

so as to make the adjacent uses compatible, the proposed land

use change i s permissible.

27. As noted above, except for a few non - conforming uses

adjacent to, or near the property, virtually all of the area

around the Berry property is designated for residential use.

The area to the north and northeast is developed with up - s cale

(with some homes ranging to as high as $1 million in value),

low density, large lot, single - family residential

subdivisions, including Harbour Estates, Cedar Cove, Cypress

Cove, Gaines Cove, and Valhalla. To the east of the site are

more subdivisions , including Eloise Place, Skidmore, Cypress

Point, Lake Eloise Estates, Eloise Pointe Estates, a mobile

home park, and Little Lake Estates. The lands to the south

are primarily agriculture and in active citrus groves, with

eight single - family homes on Pol lard Road. Finally, a church

will be built on the property directly across the street from

the Berry property at the southeast corner of the intersection

of Eagle Lake Loop Road and Pollard Road.

28. The County Planning Director agrees that a

convenience store (which is an authorized use on CC land),

standing alone, is incompatible with adjacent single - family

residences. Given this acknowledgement, and the fact that a

non - binding, proposed site plan submitted by Berry with its

application does not provid e for any buffering between the

commercial uses and the residential areas, Petitioners contend

that none of the conditions required for compatibility in

paragraphs a through c have been met, and thus the policy has

been violated.

29. The County has made clear, however, that when a

final site plan is submitted, there must be "provisions [in

the site plan] . . . which buffer incompatible uses from

dissimilar uses," as required by the policy. Assuming that

this is done at the site plan stage, at least one of the three

provisions will be accomplished, thereby satisfying the

compatibility requirement. This being so, the plan amendment

does not violate the policy and in this respect is not

internally inconsistent with the Plan.

30. Petitioners next contend t hat the amendment is

inconsistent with Policy 2.110 - C3, which contains locational

criteria for CC property. One such criterion requires that

"Convenience Centers shall be located at the intersections of

arterial and/or collector roads." Because the prope rty is at

a T - shaped intersection (as opposed to a traditional cross

intersection with four directions for traffic to move off the

site), Petitioners assert that the property is not located at

an "intersection" within the meaning of the policy.

31. Eagle Lake Loop Road, on which the northern boundary

of the property fronts, is designated as an urban collector

road. That road forms an intersection with Pollard Road (a

local road) and Eloise Loop Road (also an urban collector

road), which meets Eagle Lake L oop Road from the north at the

intersection, and then makes a 90 degree turn to the east.

(When Eagle Lake Loop Road continues to the east beyond the

intersection, it turns into Eloise Loop Road, and later into

Thompson Nursery Road, until it eventually i ntersects with

U.S. Highway 17.)

32. There is no dispute that the two collector roads

(Eagle Loop Lake Road and Eloise Loop Road) form a T

intersection, rather than a traditional cross intersection.

For many years, however, the County has considered a T

intersection and a cross intersection to be the same in terms

of satisfying Plan requirements. Indeed, at the present time,

at least four other CC designated properties within the County

are located at T intersections. The County's interpretation

of th e policy is consistent with sound planning principles, is

reasonable and logical, and is more persuasive than the

contrary view offered by Petitioners. Accordingly, it is

found that the amendment does not conflict with Policy 2.110 -

C3.

33. Petitioners a lso contend that the amendment is

inconsistent with Policy 2.113 - B - 3, which provides that

"Business - Park Centers shall be located with consideration

being given to regional transportation issues, and should be

located at the intersections of arterial roads , and preferably

on a fixed - route mass - transit line." (Emphasis added.)

34. The use of the word "should" (rather than "shall")

is intended to state a preference, but not an absolute

requirement, that BPC lands be located at the intersections of

arterial roads. According to the County's Planning Director,

this is because "most cases that come [before the County]

don't meet the ideal situation" of satisfying every

requirement, and the County has used this permissive language

to give itself some degree of f lexibility in handling cases

that do not meet every Plan requirement. Therefore, even

though it is preferable that BPC land be located at the

intersection of arterial roads, this requirement is not

mandatory, and the County has the flexibility to approve a BPC

land use change at property not sited at the intersection of

arterial roads.

35. In contrast to the permissive language described

above, Policy 2.113 - B - 4 provides that development within a

Business - Park Center shall conform to certain development

criteria, including one that

a. Business - Park Centers shall have

frontage on, or direct access to, an

arterial roadway, or a frontage road or

service drive which directly serves an

arterial roadway. Business - Park Centers

shall incorporate the use of fro ntage roads

or shared ingress/egress facilities

wherever practical.

36. In this case, the closest arterial roadway to

Berry's property is State Road 17 to the west, which is four

miles away, while State Road 60, another arterial roadway, is

approximate ly six miles to the south. These arterial roads

must be accessed, at least at the beginning of the trip, by

Eagle Lake Loop Road, a two - lane, 24 - foot wide urban collector

that runs through predominately residential neighborhoods with

some homes having fen ces within a foot or two from the road.

37. The County interprets the requirement that BPC land

have "direct access to an arterial road" to be satisfied if

the property fronts on a collector road, which then provides

access to an arterial road. Under the County's

interpretation, the requirement is met since Eagle Lake Loop

Road provides access (albeit 4 to 6 miles away) to State Roads

17 and 60. The County says it has consistently interpreted

this provision in this manner for at least ten years, and has

approved other applications for changes to BPC when those

parcels were located on urban collector roads. (The distance

between these other BPC parcels and the arterial roads is not

of record, however.)

38. While Policy 2.113 - B - 1 provides that Business - Pa rk

Centers are "not intended to accommodate major commercial or

other high - traffic producing facilities," they "are intended

to promote employment opportunities within the region by

allowing for the establishment of office parks, research and

development p arks, areas for light - industrial facilities,

distribution centers, and mixed - use employment parks." The

same policy provides that they must have a usable area of 10

acres or more, have a service - area radius of 20 miles or more,

be supported by a populatio n of 150,000 or more people, and

have a gross leasable area of 500,000 to 2,000,000 square

feet.

39. Given this description of their purpose and

characteristics, and the wide range of commercial activities

that are allowed on Business - Park Center lands, it is not

surprising that Policy 2.113 - B - 3 provides that BPC lands

should be located "at the intersections of arterial roads, and

preferably on a fixed - route mass - transit line," while Policy

2.113 - B - 4 requires that they "have direct frontage on, or

direct access to, an arterial roadway, or a frontage road or

service drive which directly serves on an arterial roadway."

When reading these provisions as a whole, it is unreasonable

to conclude, as the County does, that "direct access"

contemplates a drive of over 4 miles, partly on a narrow two -

lane road, in order to reach an arterial road. Accordingly,

on this issue, Petitioners' evidence is the most persuasive,

and it is found that the plan amendment conflicts with Policy

2.113 - B - 4 and in this respect is in ternally inconsistent with

the Plan.

40. Policy 2.110 - C3 sets forth the following location

criteria for Convenience Centers:

LOCATION CRITERIA Convenience Centers

shall be located at the intersections of

arterial and/or collector roads. There

shall be the following traveling distance,

on public roads, between the center of

Convenience Center and the center of any

other Convenience Center, or other higher -

level

Activity Center, Linear Commercial

Corridor, or Commercial Enclave providing

for the same co nvenience shopping needs:

a. One (1) mile within the UDA and UGA

b. Two (2) miles within the SDA and UEA

This required separation may be reduced if:

a. The higher - level Activity Center,

Linear Commercial Corridor or Commercial

Enclave within the requ ired distance

separation is over 80 percent developed; or

b. the proposed Convenience Center market -

area radius, minimum population support is

over 5,000 people.

41. Petitioners contend that this policy has been

violated in two respects: the Berry prop erty is not located

at the intersection of arterial roads; and there is an

existing convenience center located within 0.8 mile of the

Barry property, and Berry cannot qualify for a reduction in

the required separation, as described in paragraphs a and b.

4 2. For the reasons stated in Findings of Fact 30 - 32, it

is found that the Berry property is located at the

intersection of two collector roads (Eagle Lake Loop Road and

Eloise Loop Road) and that a T intersection satisfies the

requirements of the policy.

43. As to the second contention, the Berry property is

located within an UGA (Urban Growth Area), and an existing

convenience store is located at the intersection of Rifle

Range Road and Eagle Lake Loop Road, or less than a mile west

of Berry's property . The land use on the property on which

the store sits was recently changed (in December 2003) to BPC,

which does not allow a convenience store. However, the store

is a non - conforming use, having been located at that site

before the Plan was adopted.

44. The locational requirement in Policy 2.110 - C - 3 that

CC lands within the UGA be located at least a mile apart is

not the least bit vague or ambiguous: CC designated lands

(and not individual convenience stores, as Petitioners

suggest) must be separated by at least a mile, unless one of

the two criteria for reducing this separation is met. Because

there is no CC land within a one - mile radius of the Berry

land, the policy has not been violated.

45. Policy 2.113 - B - 1 sets forth the following relevant

ch aracteristic for Business - Park Centers:

General characteristics of Business - Park

Centers are:

Usable Area 10 acres or more

46. There is no dispute that the useable area for the

BPC land is only 6.06 acres, or approximately 60 percent of

the r equired acreage. Petitioners contend that the amendment

violates the foregoing policy because the useable area on

Barry's property is much less than "10 acres or more."

47. While the former County Planning Director conceded

that the 10 - acre usable are a requirement is "mandatory," he

justified the amendment on the ground that the 6.06 acres

"approximates" 10 acres, and thus satisfies the policy. In

the same vein, the current County Planning Director asserted

that if Berry was proposing a stand - alone BP C, it would have

been required to have 10 usable acres. In this case, though,

he pointed out that the Berry property will be used for a

nonresidential mixed use (BPC and CC) totaling almost 10

acres, and therefore Berry has satisfied the requirement. The

Planning Director admitted, however, that nothing in the Plan

specifically allows this type of exception. He justified the

County's action on the theory that the Plan "doesn't

anticipate every situation that comes in," and

"interpretations have to be mad e of the comprehensive plan and

how it's applied."

48. The requirement that Business - Park Centers have a

usable area of 10 or more acres is clear and unambiguous, was

characterized as being "mandatory," and is not subject to any

exceptions in the Plan. T his being so, the County's

interpretation is found to be unreasonable and contrary to the

plain language in the policy, and in this respect the plan

amendment is internally inconsistent with the Plan.

CONCLUSIONS OF LAW

49. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569, 120.57, and 163.3187(3), Florida

Statutes.

50. In order to have standing to file a petition

challenging a small scale development amendment, or to

pa rticipate in the proceeding as an intervenor, the

challenger or intervenor must be an affected person. See

§ 163.3187(3)(a), Fla. Stat. An "affected person" is defined

in Section 163.3184(1)(a), Florida Statutes, as follows:

"Affected person " includes the affected

local government; persons owning property,

residing, or owning or operating a business

within the boundaries of the local

government whose plan is the subject of the

review; and adjoining local governments

that can demonstrate that the plan or plan

amendment will produce substantial impacts

on the increased need for publicly funded

infrastructure or substantial impacts on

areas designated for protection or special

treatment within their jurisdiction. Each

person, other than an adjoi ning local

government, in order to qualify under this

definition, shall also have submitted oral

or written comments, recommendations, or

objections to the local government during

the period of time beginning with the

transmittal hearing for the plan or pl an

amendment and ending with the adoption of

the plan or plan amendment.

Under this straightforward definition, besides having to

submit comments, recommendations, or objections (oral or

written) to the County prior to the adoption of the amendment,

a pe rson (or corporation) must also own property, reside, or

own or operate a business within the boundaries of the County

in order to have standing. Since the word "business" is not

defined, that word should be given its plain and ordinary

meaning. See , e.g . , State, Dep't of Bus. Reg. Div. of

Alcoholic Bev. & Tobacco v. Salvation Limited, Inc. , 452 So.

2d 65, 67 (Fla. 1st DCA 1984)(where a statute does not define

a term, it should be given its plain and ordinary meaning);

State v. J.H.B. , 415 So. 2d 814, 815 (Fla. 1st DCA 1982 ("if a

statute or rule uses a word without defining it, then its

common or ordinary meaning applies"). "Business" means in

part: "The occupation, work, or trade in which one is engaged

. . . A specific pursuit or occupation . . . Comm ercial,

industrial, or professional dealings . . . A commercial

enterprise or establishment." See Webster's II New College

Dictionary , p. 149 (1999). In other words, in order to be

operating a business, the affected person (or corporation)

must be pursui ng some form of a trade, profession, vocation,

or similar endeavor, as those activities are commonly

understood.

51. The evidence shows that Berry and Durham own

property (and operate a business as well) within the County,

and they also submitted oral or written comments to the County

prior to the adoption of the amendment. As such, they qualify

as affected persons within the meaning of the law.

52. As to CPPI, which neither owns property or a

business in the County, one of its members submitted oral or

written objections to the County on its behalf prior to the

adoption of the amendment. While the record shows that CPPI

conducts (or was suppose to conduct) an annual meeting,

encourages donations, helps educate and inform its members on

growth managemen t issues, and prepared and circulated

petitions opposing the challenged amendment, none of these

activities constitutes the operation of a "business," as that

term is commonly understood. Therefore, it is concluded that

the activities described above do n ot equate to the operation

of a business.

53. While this interpretation may be viewed by some as

being unduly restrictive, had the Legislature intended to

place a more expansive meaning on the term "business," so as

to include these other types of non - t raditional business

activities, it could have easily done so. Accordingly, CPPI

is not an affected person and lacks standing to file a

petition. Even so, CPPI has been allowed to fully participate

in this proceeding and to have its claims addressed in th is

Recommended Order. Further, its co - Petitioner, Durham, has

standing to continue to pursue the common interests of the two

parties.

54. Section 163.3187(3)(a), Florida Statutes, provides

that in a small scale development amendment case, "the local

gove rnment's determination that the small scale development

amendment is in compliance is presumed to be correct. The

local government's determination shall be sustained unless it

is shown that the amendment is not in compliance with the

requirements of this act." The statute requires, then, that

the County's determination be accepted as correct unless the

preponderance of the evidence establishes otherwise. In other

words, the test here is whether the evidence supports or

contradicts the determination of th e County. See Denig v.

Town of Pomona Park , DOAH Case No. 01 - 4845 (Admin. Comm., Oct.

23, 2002). The parties do not dispute this proposition.

55. Petitioners first contend that the plan amendment

violates Section 163.3187(1)(c)1., Florida Statutes, whic h

requires that "the proposed amendment involves a use of 10

acres or fewer." Petitioners assert that the strips of land

being dedicated to the County as right - of - way are "essential

infrastructure" for the amendment and should have been

included in the to tal acreage. As previously found, however,

the dedicated land is not essential infrastructure for the

amendment, there is no provision in the Plan which requires

that an applicant include the right - of - way in the total

acreage, and even if Barry had includ ed the strips in his

total acreage, it could have easily reduced the size of the CC

or BPC parcels, or both, to still meet the 10 - acre threshold.

Cf. Parker v. St. Johns County et al. , DOAH Case No. 02 - 2658,

2003 WL 31846456 (Dept. Comm. Affrs, Feb. 27, 2 003)(inclusion

of future use of public right - of - way in small scale acreage

calculation not required).

56. Petitioners also challenge the consistency of the

amendment with other provisions in the Plan. Internal

consistency is, of course, required by Sec tion 163.3187(2),

Florida Statutes. See also Coastal Development of North Fla.,

Inc. et al. v. City of Jacksonville , 788 So. 2d 204, 208 (Fla.

2001)("[t]he FLUM must be internally consistent with the other

elements of the comprehensive plan").

57. Petiti oners contend that the plan amendment is

contrary to FLUE Policies 2.102 - A1, 2.113 - B - 3, 2.113 - B - 4,

2.110 - C3, and 2.113 - B - 1 and thus the amendment is internally

inconsistent with the Plan, in violation of Section

163.3187(2), Florida Statutes.

58. For th e reasons stated in the Findings of Fact, the

preponderance of the evidence supports the County's

determination that the plan amendment does not conflict with

Policies 2.102 - A1, 2.113 - B - 3, and 2.113 - B - 1. Conversely, the

preponderance of the evidence estab lishes that the County's

determination of the amendment's consistency with Policies

2.113 - B - 4 and 2.110 - C3 was incorrect, and that the amendment

conflicts with those provisions, in violation of Section

163.3177(2), Florida Statutes. This being so, the ame ndment

is not in compliance.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Administration Commission enter a

final order determining that the small scale development

amendment (CPA2003S - 02) adopte d by Polk County by Ordinance

No. 03 - 03, as amended by Ordinance No. 03 - 19, is not in

compliance.

DONE AND ENTERED this 24th day of February, 2004, in

Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrati ve Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administra tive Hearings

this 24th day of February, 2004.

ENDNOTE

1/ Unless otherwise indicated, all future references are to

Florida Statutes (2003).

COPIES FURNISHED :

Barbara Leighty, Clerk

Growth Management and Strategic Planning

The Capitol, Room 2105

Tall ahassee, Florida 32399 - 0001

Raquel A. Rodriguez, General Counsel

Office of the Governor

The Capitol, Room 209

Tallahassee, Florida 32399 - 0001

Heidi M. Hughes, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallaha ssee, Florida 32399 - 2100

Terrell K. Arline, Esquire

3205 Brentwood Way

Tallahassee, Florida 32309 - 2705

Joseph G. Jarrett, Esquire

Anne T. Gibson, Esquire

Office of the County Attorney

Post Office Box 9005

Bartow, Florida 33831 - 9005

Jack P. Brandon, E squire

Michael T. Gallaher, Esquire

Peterson & Myers, P.A.

Post Office Box 1079

Lake Wales, Florida 33959 - 1079

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days of the date of this Recommende d Order. Any exceptions

to this Recommended Order should be filed with the agency that

will render a final order in this matter.