03-001500 City Of Clearwater, For The Use And Benefit Of Lawrence H. Dimmitt, Iii, And Lawrence H. Dimmitt, Jr., As Trustee vs. Pinellas County Board Of County Commissioners As Countywide Planning Authority Status: Closed Recommended Order on Monday, September 8, 2003.

Summary: City plan amendment adversely impacted adjoining County land by changing character of the neighborhood and was therefore inconsistent with County plan; amendment denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF CLEARWATER, for the use )

and benefit of LAWRENCE H. )

DIMMITT, III, and LAWRENCE H. )

DIMMITT, JR., as Trustee, )

)

Petitioners, )

)

vs. ) Case No. 03 - 1500

)

PINELLAS COUNTY BOARD OF )

COUNTY COMMISSIONERS as )

COUNTYWIDE PLANNING AUTHORITY, )

)

Respondent. )

________________________ ________)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on July 10,

2003, in Clearwater, Florida.

APPEARANCES

For Petitioners: Stephen O. Cole, Esquire

MacFarlane Ferguson & McMullen

Post Office Box 1669

Clearwater, Florida 33757 - 1669

For Respondent: David S. Sadowsky, Esquire

Assi stant County Attorney

315 Court Street

Clearwater, Florida 33756 - 5165

STATEMENT OF THE ISSUE

The issue is whether a proposed amendment to the Pinellas

County Countywide Future Land Use Plan (FLUP) changing t he

land use designation on a 22.18 - acre parcel located at 2301

Chautauqua Avenue in the City of Clearwater (City) from

Residential Suburban/Preservation to Residential

Low/Preservation should be approved.

PRELIMINARY STATEMENT

This matter began on Februar y 21, 2002, when Petitioner,

Lawrence H. Dimmitt, III, and Lawrence H. Dimmitt, Jr., as

Trustee (the Trustee) for an Amended Revocable Living Trust

Agreement dated December 1, 1998, which owns certain real

property in the City, filed an application (which was later

amended) with the City seeking to change the land use on a

22.18 - acre parcel of property from Residential Suburban (RS)

and Preservation (P) to Residential Low (RL) and P. The

effect of the change will be to increase the density of

development allowed on the property from no more than 2.5

residential units per acre to 5.0 units per acre. Under the

process established by Chapter 88 - 464, Laws of Florida, that

change requires an amendment to the FLUP, which is

administered by Respondent, Pinellas County Board of County

Commissioners, sitting as the Countywide Planning Authority

(CPA). The special act also sets out the process for review

and approval of the amendment, beginning with review and

approval by the City, then an intermediate review and a pproval

by the Pinellas Planning Council (PPC), a countywide land

planning agency, and ending with a review and final decision

by the CPA.

By virtue of the City's approving the amendment on June

20, 2002, the City became the nominal party in this appeal ,

acting on behalf of the Trustee. The matter was then

considered by the PPC on September 18, 2002. After the PPC

recommended denial of the application by a 6 - 5 vote, mainly

because of traffic concerns, the case was forwarded to the

CPA. At the request of the Trustee and the City, the proposal

was remanded back to the PPC to reconsider the matter after

new traffic mitigative measures were proposed. Thereafter, by

a 9 - 3 vote, the amendment was approved by the PPC on March 19,

2003. Finally, on April 1, 2003, by a 7 - 0 vote, the CPA

denied the proposed change because of adverse impacts on

transportation and the character of the neighborhood.

Under Section 5.1.3.9 of the Countywide Plan Rules

(Countywide Rules), the Trustee filed its Petition for

Administ rative Hearing with the PPC on April 18, 2003,

requesting a hearing to contest the CPA's decision. Pursuant

to a contract with the Division of Administrative Hearings

(DOAH), the matter was forwarded to DOAH on April 28, 2003,

with a request that an Admin istrative Law Judge be assigned to

conduct a hearing.

By Notice of Hearing dated May 8, 2003, a final hearing

was scheduled on July 10 and 11, 2003, in Clearwater, Florida.

At the final hearing, Petitioners presented the testimony of

David P. Healy, Exe cutive Director of the PPC;

Michael Willenbacher, president of Rottlund Homes of Florida;

Cynthia Tarapani, City Planning Director and accepted as an

expert; and Robert C. Pergolizzi, a certified planner and

accepted as an expert. Also, they offered Petit ioners'

Exhibits 1 - 36, which were received in evidence. Respondent

presented the testimony of Steven B. McConihay, who resides

near the subject property; Brian K. Smith, Director of the

Pinellas County (County) Planning Department and accepted as

an exper t; and Paul T. Cassel, Director of the County

Development Review Services Department and accepted as an

expert. Also, it offered Respondent's Exhibits 1 - 19, which

were received in evidence.

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

August 11, 2003. Proposed Findings of Fact and Conclusions of

Law were filed by Respondent and Petitioners on August 12 and

14, 2003, respectively, and they have been considered by the

undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

a. Background

1. In 1988, the Legislature provided the County with

countywide planning authority ( see Chapter 88 - 458, Laws of

Florida). That same year, the Legislature ena cted Chapter 88 -

464, Laws of Florida, which amended Chapter 73 - 594, Laws of

Florida, and required the County to develop "a countywide

future land use plan" and "other [necessary] elements," also

known as the Countywide Comprehensive Land Use Plan of

Pinell as County. Among other things, Chapter 88 - 464

prescribes the process by which changes to land use

designations are made within the County. Under that process,

all local government comprehensive plans, including the

City's, are required to be consistent w ith the FLUP.

Presumably, the laws were enacted because of the County's

dense development (it is one of, if not the most, densely

developed counties in the State), the large number of

incorporated cities and towns (24) within the County, and the

desire to have some degree of countywide uniformity in land

use planning decisions. The law goes on to provide that

amendments to the FLUP "relating to land use designation for a

particular parcel of property may be initiated only by a local

government that has ju risdiction over the subject property."

In this case, the subject property lies within the City;

therefore, the proposed change was initiated by the City.

2. Under the review process in place for adopting an

amendment to the FLUP, the proposed amendment is first

presented to the City, then to the PPC, which consists of 13

representatives from various towns and cities in the County,

the School Board, and the County, and finally to the Pinellas

County Board of County Commissioners, sitting as the CPA.

3. The subject property is located at 2301 Chautauqua

Avenue, Clearwater, Florida. Chautauqua Avenue (also

identified as Main Street on some maps) runs for a short

distance in a north - south direction parallel to, and just east

of, U.S. Highway 19 in the northeastern part of the City.

Except for two houses, some tennis courts, and assessory

buildings, the 22.18 - acre tract of land is largely

undeveloped. The land also includes a small pond located in

the northwest quadrant and wetlands along its eastern s ide,

which fronts on Lake Chautauqua (the Lake). Mr. Lawrence H.

Dimmitt, III, one of the two co - trustees, acquired ownership

of the southern half of the property in January 1986, while

the remainder of the parcel was not acquired by the Trustee

until Dec ember 2001. In June 2002, the property was annexed

by the City pursuant to a request by the Trustee (to enable

City water and wastewater services to be extended to the

property). The property is now under contract to be sold to a

developer (The Rottlund Company, Inc.), who desires to

construct 90 town homes in 34 buildings, assuming the

amendment is approved.

4. Since July 21, 1982, the upland portion of the

property (16.22 acres) has been classified as RS, which allows

2.5 residential units per acre. The wetlands and some

adjacent land totaling around 4.6 acres on the eastern portion

of the property next to the Lake are classified as, and must

remain, Preservation. In addition, a small pond (1.35 acres)

on the property is classified as Water/Drainage Feature. The

proposed amendment does not affect the classifications of the

wetlands and pond.

5. All of the surrounding property (except the property

immediately to the west between Chautauqua Avenue and U.S.

Highway 19, which is classified as Commer cial Limited) also

carries an RS land use designation. The other nearby property

along U.S. Highway 19 is classified as some form of commercial

or mixed office/residential use. Countrywide Mall, the

County's only regional shopping mall, is situated on U. S.

Highway 19, less than a mile away.

6. The property is located approximately 700 feet east

of U.S. Highway 19 between Second Avenue South and Second

Avenue North. U.S. Highway 19 is six lanes wide, was

described by witnesses as being the most heavily t raveled

roadway in the County, and has intense commercial or mixed use

development on both sides of the highway. Immediately to the

west of the property (between U.S. Highway 19 and Chautauqua

Avenue) is a Chevrolet automobile dealership and repair

facili ty owned by the Dimmitts. A Cadillac dealership (also

owned by the Dimmitts) is just south of the Chevrolet

dealership. The entire eastern boundary of the property

fronts on the Lake, while perhaps a dozen or so single - family

homes, mainly constructed in the 1990s, sit on large lots

scattered throughout the area immediately north of the

property. From that area to Enterprise Road, a major arterial

east - west roadway approximately 2,000 feet north of the

Trustee's property, the land is largely undeveloped. The

property immediately to the south is also classified as RS and

is also largely vacant at the present time, except for a few

single - family dwellings. The land which lies southeast of the

property and the Lake is also designated RS and consists of a

s eries of upscale, large, single - family residential

subdivisions.

7. The local roads adjacent to and near the property are

substandard and do not meet the City or County standards. The

main access to the property (from the west) is from U.S.

Highway 19 us ing First Avenue North, which intersects with

U.S. Highway 19 next to the car dealership. Because of a

median in the middle of U.S. Highway 19, however, cars

entering U.S. Highway 19 from First Avenue North can only turn

right (northbound). 1 The only acc ess from the property to an

intersection allowing vehicles to turn north or south on U.S.

Highway 19 is provided by traveling south on a series of

narrow, meandering, residential County roads ( e.g. , Third

Avenue South, Second Street East, Fourth Avenue Sou th, Union

Street, and Soule Road) and eventually reaching Sunset Point

Road (State Road 588), an east - west roadway intersecting with

U.S. Highway 19 to the west. There is no access to the

property from the north. The evidence shows that partly

because of the poor road access, the nearby car dealerships

and other commercial development, and the commercial lighting

at the car dealerships which remains on throughout the night,

the property has never been developed. Another contributing

factor is that the fo rmer long - time owners of the northern

half of the property (until it was sold to the Dimmitts in

December 2001) had no wish to develop the property while they

retained ownership.

b. The Land Use Categories and History of the Area

8. When the County's fir st comprehensive plan was

adopted in 1974, three residential categories were

established: low density (up to 7.5 units per acre); medium

density (up to 15 units per acre); and high density (up to 30

units per acre). At that time, the Trustee's property a nd

most of the surrounding residential properties were designated

the least intensive residential use category and remained

unchanged until 1982. In response to the state Growth

Management Act, in 1980 the PPC developed more specific

residential categorie s to manage population growth. The low

density category was further defined to include five

residential categories: Preservation (0.5 units per acre);

Residential Conservation (1.0 units per acre); Residential

Suburban (2.5 units per acre); Residential L ow (5.0 units per

acre); and Residential Urban (7.5 units per acre).

9. As noted above, in 1982 the County reclassified the

upland portion of the property, as well as the properties to

its north and south, and west of the Lake, as RS. Some other

areas to the southeast and northwest of the Trustee's land

were reclassified at 5.0 dwelling units per acre, which

category is now known as RL.

10. In September 1984, two zoning requests "in the

neighborhood [of the Trustee's property]" to allow

"multifamily development at 5.0 units/acre" were denied by the

County, mainly because the area contained "very low density

single - family housing, with houses sitting on large lots

(mostly about 2 acres in size), used in a

residential/agricultural manner." At the same time, the

County instructed its staff to "review zoning and Land Use

Plan designation in the area to insure protection of the

existing character of the land." That same year, the County

amended the land use classification on these properties from

RL, whic h permitted 5.0 units per acre, to RS, which permitted

only 2.5 units per acre.

11. In 1987, the City annexed a 17.4 - acre vacant tract

of land directly south of the Lake (and southeast of the

Trustee's property). Before annexation, the property was

class ified as Residential/Open Space. According to a PPC

recommendation presented to the County, the City filed an

application with the County seeking to amend the CLUP (now

known as the FLUP) by changing the land use to RS so that the

vacant land would "be co mpatible with the existing land use

pattern in this vicinity." The change was approved by the

County.

12. In all, at least thirteen parcels in the Lake

Chautauqua area have been reclassified since 1980. Many of

these are downzoning changes which merely reflect what had

actually been planned, developed, and built pursuant to the

dictates of the marketplace. In other words, the change

reflected existing development of not more than 2.5 units per

acre. There are also two instances when the Commission

upzo ned parcels in the area, that is, increased the allowable

density from Recreation/Open Space to a higher category (7.5

units per acre), but these properties are outlying parcels and

not in the immediate area.

13. Most recently (early 2003), a developer proposed

(and has pending a request) to develop six lots 130 feet by

600 feet in depth with single - family dwellings on property

lying on the western shore of the Lake just north of the

Trustee's property. These large lots would be consistent with

the deve lopment now existing immediately to the west (and just

north of the Trustee's property).

14. It is fair to infer from the evidence that the

County's intent over the last 25 years or so has been to

restrict development in the area around the Trustee's prop erty

to single - family residences with a density of no more than 2.5

units per acre.

c. The Application

15. On February 21, 2002, the Trustee filed an

application with the City for a change in land use designation

on its property from RS and P to RL and P (so as to increase

density from 2.5 to 7.0 units per acre). Although not a part

of this proceeding, the Trustee also filed an application

seeking to rezone the property from Rural Residential to Low

Medium Residential and Preservation.

16. The City's Zoning Department reviewed the

application, found that all applicable criteria had been met,

and recommended approval. The application then proceeded to a

public hearing before the City's Community Development Board

(CDB) on May 21, 2002. Following the public hearing, the CDB

recommended approval of both applications.

17. On June 20, 2002, the matters were taken up by the

City Commission. The staff's detailed report recommending

approval is found in Petitioners' Exhibit 2. Because of

neighborhood oppo sition, however, the Trustee agreed to amend

the application by reducing the density from 7.5 units per

acre (RL) to 5.0 units per acre (RS). Thereafter, the City

approved the application. This approval was formalized

through the adoption of Ordinance No . 6978 - 02. At that point,

the City became the nominal applicant for the amendment.

18. A copy of the amendment was then forwarded to the

Department of Community Affairs (DCA). The DCA's review was

completed on October 3, 2002, when it advised the City by

letter that it had "no objections to the proposed amendment"

and that its letter would serve as the DCA's Objections,

Recommendations and Comments.

19. The application was submitted to the PPC on August

13, 2002. Following its review, the PPC staff , together with

the staff of the Professional Advisory Committee (PAC), which

is composed of professional planning staff members from the

various municipalities throughout the County, recommended that

the application be approved.

20. On September 18, 20 02, the PPC, by a 6 - 5 vote,

recommended denial of the application, mainly because of

traffic issues. Under the review process, the matter then

came before the CPA. However, the City and the Trustee

requested that the matter be remanded to the PPC to enab le the

Trustee to address the traffic issues. A remand was approved

by the CPA on October 15, 2002.

21. After reconsideration of the matter, which included

proposed changes by the City to mitigate the traffic impact,

the PPC staff and PAC unanimously recommended approval of the

application. The application then proceeded to the PPC, and

by a 9 - 3 vote on March 19, 2003, the PPC recommended approval.

22. Although land use amendments recommended for

approval by the PPC are "rarely" overturned or change d by the

CPA, on April 1, 2003, the Board of County Commissioners,

sitting as the CPA, unanimously rejected the proposed

amendment. The same date, Resolution No. 03 - 55 was adopted

which memorialized this action and indicated that the decision

was based " upon the facts presented at the hearing, which

included the character of the neighborhood and transportation

impacts." According to the parties' Pre - Hearing Stipulation,

the rejection was "due to [the amendment's] incompatibility

with and negative impact on the established character of the

neighborhood and the precedence [sic] of allowing multi - family

development into an overwhelming single - family residential

area." This appeal followed.

d. The issues in the case

23. Under the Countywide Rules, which we re adopted in

1989 and govern changes to the FLUP, depending on their size

and nature, plan amendments are classified into two

categories: subthreshold amendments and general amendments.

The former type of amendment is minor in nature and entails a

less rigid review process while general amendments (those that

do not qualify as subthreshold amendments) must be evaluated

according to six "Relevant Countywide Considerations"

(Considerations) found in Sections 5.3.5.1 through 5.3.5.6.

Because the proposed a mendment falls within the general

amendment category, the six Considerations must be reviewed to

determine if any come into play. If an amendment adversely

impacts a Consideration, it is not consistent with the FLUP.

In denying the amendment, the CPA det ermined that only two

Considerations were relevant and would be impacted - Section

5.3.5.2 (Adopted Roadway Level of Service (LOS) Standard) and

Section 5.3.5.6 (Adjacent to or Impacting an Adjoining

Jurisdiction). All other Considerations were determined to be

inapplicable.

24. Although the County's Resolution indicated that the

traffic Consideration played a part in its decision to deny

the amendment, the parties' Prehearing Stipulation reflects

that the CPA no longer considers that Consideration to be in

issue. However, because evidence concerning traffic was

presented at hearing, albeit more in the context of impacts on

the character of the neighborhood than on LOS standards on

U.S. Highway 19, a discussion of that Consideration is

appropriate.

25. Section 5.3.5.2 provides in part that "the amendment

must not be located on or impact a roadway segment where the

existing Level of Service (LOS) is below LOS 'D', or where

projected traffic resulting from the amendment would cause the

existing LOS to fal l below LOS 'D'." Here, however, the

evidence shows that the portion of U.S. Highway 19 (directly

west of the property) between Enterprise Road and Sunset Point

Road is already operating at LOS "F".

26. Under the existing land use classification (RS), t he

Trustee (or developer) can construct as many as 46 single -

family homes. At hearing, the developer acknowledged that the

property can be successfully developed in that mode. Assuming

that the maximum number of homes would be built, regardless of

which type of development occurs, the traffic impacts would be

essentially the same since a town home generates only 60

percent of the traffic of a single - family home. The evidence

also shows that any additional traffic generated by

development will have a negl igible overall impact (less than

three - tenths of one percent of the existing capacity) on U.S.

Highway 19, which is already at LOS "F". The Florida

Department of Transportation concurs in this finding, and has

concluded that the development will not adver sely impact that

road.

27. As noted above, the plan amendment was initially

rejected by the PPC by a 6 - 5 vote, mainly because of traffic

issues, and a concern that the additional traffic onto U.S.

Highway 19 at First Avenue South might have a negative i mpact

on that roadway. The City and Trustee then requested that the

CPA remand the application to the PPC so that traffic issues

could be further addressed. At that time, the City considered

two alternatives to alleviate traffic concerns and provide a

di fferent access route to the area.

28. First, it considered the possibility of extending

Second Avenue South to the east and southeast to connect with,

and widen, Lake Shore Drive (a County road), which runs around

parts of the northwestern and southwest ern sections of the

Lake, and eventually provides access to Sunset Point Road,

which then runs west to U.S. Highway 19. However, the County

declined to participate in that effort and thus this proposal

was not considered to be feasible.

29. The City al so considered extending Chautauqua Avenue

north (over City right - of - way) to Enterprise Road, a main

arterial east - west roadway that also intersects with U.S.

Highway 19 (and enables the driver to turn either left or

right at that intersection). If the roa d is extended in that

fashion, it would provide residents in and near the subject

property with access to Enterprise Road, and also provide

other area residents with access to a City park that may be

built just south of Enterprise Road. As to this alterna tive,

even though the developer's share of costs (using the City's

calculations) is only 17 percent, the developer has agreed to

pay one - half of the cost of the road improvements. With this

improvement, both parties now agree that the traffic

Consideratio n has been resolved.

30. Based on the foregoing, it is found that the plan

amendment is consistent with the transportation Consideration

and will not adversely impact LOS standards on U.S. Highway

19. Two of the County witnesses conceded as much at the final

hearing.

31. Section 5.3.5.6 generally provides that if the

property adjoins another jurisdiction, the plan amendment must

not adversely impact that jurisdiction. In determining

whether the plan amendment is consistent with this

Consideration (and does not impact the adjoining County land),

reference to the goals and policies within the Countywide

Comprehensive Plan is necessary. The Land Use Element Goal

provides in part that "[t]he land uses associated with

development should be compatible and r easonable in terms of

both the land, surrounding uses, and the public interest."

Two unnumbered Policies within the same Element further

provide that "land development patterns should recognize and

support coherent neighborhoods," and that "land planning

should weigh heavily the established character of

predominately developed areas when changes of use or intensity

of development is contemplated."

32. In this case, there are enclaves of County land

lying on the northern, southern, and eastern boundaries of the

Trustee's land. The County contends that the proposed change

is inconsistent with the Consideration because it adversely

affects the "character" of the adjoining County land in two

ways: (a) by the creation of a new access road to the north

throu gh a quiet, residential neighborhood, and (b) by the

construction of town homes in an area historically classified

as RS, which only allows the construction of single - family

homes.

33. If the plan amendment is approved, the City has

decided to extend Ch autauqua Avenue to Enterprise Road, giving

the new (and existing) residents an outlet to the north. This

alternative was chosen since the County has declined to

participate in the southern alternative. The extension will

provide access to a new City park , and the developer will pay

more than his fair share to aid in the construction of the

road. According to the City, the extension is necessary to

mitigate the increased traffic from the new project.

34. Currently, the roads in the area around where the

extension will be built can be characterized as secluded and

rural, with only a small amount of traffic. Besides the

automobiles of the existing residents, the only other vehicles

using the roads are those being tested by the nearby Chevrolet

dealership a fter being repaired. If the plan amendment is

approved, and the town homes constructed, the project will

generate hundreds of new trips per day. Understandably so,

existing residents of the area (as well as the County) fear

that if the road is extended, it will become a "cut - through"

street for non - residents traveling north on U.S. Highway 19 to

Enterprise Road and who wish to avoid that intersection.

Given the current level of traffic on U.S. Highway 19 (LOS

"F"), it is fair to infer that this fear is w ell - founded.

Accordingly, by extending Chautauqua Avenue to Enterprise

Road, the character of the existing neighborhood will be

adversely impacted by the increased traffic generated by new

residents seeking an outlet and non - residents using the street

as a cut - through.

35. It is true that some form of traffic mitigation will

still be required if the plan amendment is not approved, and

single - family homes are built on the Trustee's property.

However, when or if the property will be developed, and the

ex tent of such development, is not known, and there is no

indication in the record that the City will still seek to

mitigate this traffic by extending Chautauqua Avenue.

36. The evidence shows that the established character of

the neighborhood is quiet, s ecluded, and low density

residential, with many of the homes having large, oversized

lots. As noted earlier, a proposal is now pending before the

County to develop the area directly north of the Trustee's

property along the Lake with six single - family dwe llings on

"large estate lots behind a gated wall." By doubling the

density on the Trustee's property from 2.5 to 5.0 units per

acre, the character of the area would be changed, and the new

density would be inconsistent with the historic land use and

devel opment pattern of the area.

37. The evidence also shows that the residents who live

immediately north of the Trustee's property purchased their

land, and built their homes, with the expectation that the

area would be "a detached single - family residential community

within the 2.5 units per acre limitation." For more than 20

years, the County's land use decisions have been consistent

with this expectation.

38. Petitioners' witnesses contend, however, that the

town homes will (a) serve as a buffer between the commercial

uses which lie on the western side of Chautauqua Road and the

existing single - family homes which lie on the eastern side,

and (b) provide a transition or gradual stepdown in intensity

from the commercial uses along U.S. Highway 19 to town ho mes

to single - family homes, which practice is consistent with good

land use planning. However, the area maps and site plan

introduced into evidence clearly show that the town homes

would not buffer anything except the Lake, since the town

homes would run from the Lake all the way westward to the rear

of the Chevrolet dealership. In other words, to provide a

buffer, logically it would be necessary that the town homes be

placed between the commercial areas and the single - family

homes. The residential prope rty to the north and south (which

purportedly would be buffered) is already located adjacent to,

and directly east of, the commercial development along U.S.

Highway 19, and the town homes would simply increase the

density of the property between the two re sidential areas by

100 percent. For the same reasons, the construction of town

homes would not provide a transition or step down in the

intensity of development from west to east since they would

not be built between the existing homes and U.S. Highway 19 .

39. Based on the foregoing facts, it is found that the

proposed amendment will adversely affect the character of the

neighborhood (and impact the adjoining County land) and is

therefore inconsistent with Section 5.3.5.6 of the Countywide

Rules.

CONCL USIONS OF LAW

40. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Chapter 88 - 464, Laws of Florida, and Sections

120.569 and 120.57(1), Florida Statutes.

41. Section 5.1.3.9 of the Coun tywide Rules provides

that "[i]f the CPA denies an amendment which was recommended

to be approved by the PPC, any substantially affected person

may apply for an administrative hearing within twenty - one (21)

days of denial." Utilizing that provision, Petit ioners have

filed their request for a hearing.

42. The Countywide Rules are silent as to the standard

of proof to be used in this type of hearing. However, Section

5.1.3.4 provides that all applications for an administrative

hearing "will be in a form fo r consideration under, and

subject to the procedures of, Chapter 120, F.S." Under

Chapter 120, Florida Statutes, a request for a hearing

commences a de novo proceeding, which is intended to formulate

final agency action, not to review action taken earlier and

preliminarily. See , e.g. , Fla. Dep't of Transportation v.

J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

Therefore, Petitioners' suggestion that this case does not

come to DOAH as an appeal or for the review of the CPA's

decision of April 1, 2003, is correct. 2

43. The more persuasive evidence shows that the plan

amendment will be inconsistent with Section 5.3.5.6 by

adversely impacting the character of the adjoining County

land. This being so, the request to amend the FLUP should be

denied .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Board of County Commissioners of

Pinellas County, sitting as the Countywide Planning Authority,

enter a final order determining that the plan amendment is

inconsistent with Section 5.3.5.6 and that the amendment

should be denied.

DONE AND ENTERED this 8th day of September, 2003, in

Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Adminis trative 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 Admin istrative

Hearings

this 8th day of September, 2003.

ENDNOTES

1/ Maps and drawings received in evidence also reflect that

residents of the area can apparently access U.S. Highway 19 by

traveling south on Chautauqua Avenue, to Lake Shore Drive, to

Soule Street, and then turning westbound on McCormick Drive

until it dead ends on U.S. Highway 19. Even if this assumption

is correct, however, vehicles can still only turn right

(northbound) at that intersection.

2/ Respondent's contention that the fairly d ebatable standard

applies to this proceeding has been rejected. Unlike Chapter

163, Florida Statutes, which specifically adopts that standard

for plan amendment hearings arising under that Chapter, the

Countywide Rules provide that this type of hearing is "subject

to the procedures of Chapter 120, F.S."

COPIES FURNISHED:

David P. Healy, Executive Director

Pinellas Planning Council

600 Cleveland Street, Suite 650

Clearwater, Florida 33755 - 4160

Stephen O. Cole, Esquire

MacFarlane Ferguson & McMullen

P ost Office Box 1669

Clearwater, Florida 33757 - 1669

David S. Sadowsky, Esquire

Assistant County Attorney

315 Court Street

Clearwater, Florida 33756 - 5165

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to th is

Recommended Order. Any exceptions to this Recommended Order

should be filed with the Pinellas County Planning Council.