03-002449GM T &Amp; P Enterprises Of Bay County, Inc., A Florida Corporation, And Edgar Garbutt, Individually vs. Bay County, Florida Status: Closed Recommended Order on Friday, January 23, 2004.

Summary: Small scale comprehensive plan amendment which changed 12 lots from a seasonal resort to a residential zone was "in compliance" with Chapter 163, Florida Statutes, and Rule 9J-5, Florida Administrative Code.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

T & P ENTERPRISES OF BAY )

COUNTY, INC., a Florida )

corporation, and EDGAR GARBUTT, )

individually, )

)

Petitioners, )

)

vs. ) Case No. 03 - 2449GM

)

BAY COUNTY, FLORIDA, )

)

Respondent, )

)

and )

)

BARBARA S. HARMON, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its designated Administrative Law Judge, Richard A.

Hixson, held a final hearing in the above - styled case on

October 30 - 31, 2003, in Panama City, Florida.

APPEARANCES

For Petitioners: Gary K. Hunter, Jr., Esquire

Jennifer A. Tschetter, Esquire

Hopping, Green & Sams

123 South Calhoun Street

Post Office Box 6526

Tallahassee, Florida 32314

For Respondent: Terrell K. Arline, Esquire

3205 Brentwood Way

Tallaha ssee, Florida 32309

For Intervenor: Sherry A. Spiers, Esquire

Law Office of Robert C. Apgar

320 Johnston Street

Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

The issue for determination in this case is whether the

Small Scale Comprehensive Plan Amendment No. SSA 03 - 07 (Plan

Amendment) adopted by Bay County (County) through the enactment

of Ordinance No. 03 - 06 is "in compliance" as that term is defined

by Section 163.3184(1)( b), Florida Statutes.

PRELIMINARY STATEMENT

The County adopted the Plan Amendment on June 3, 2003. The

Plan Amendment changed the future land use designation on the

County's Future Land Use Map (FLUM) of an approximately 2.35 - acre

parcel from Seasonal R esort (SR) to Residential (R). On July 3,

2003, Petitioners filed a Petition for Administrative Hearing

with the Division of Administrative Hearings (DOAH) under Section

163.3187(3), Florida Statutes, to contest the Plan Amendment.

On September 2, 2003, Barbara S. Harmon was granted leave to

intervene in this proceeding as an additional party respondent.

On October 20, 2003, Intervenor's Motion to Strike the

portion of the Petition alleging that the Plan Amendment was not

in compliance for failure to com ply with certain buffer

requirements of the Land Development Code was granted.

On October 22, 2003, the parties filed a Pre - Hearing

Stipulation.

On October 27, 2003, the parties filed a Joint Stipulation

in which Petitioners dismissed their claim that t he Plan

Amendment should be invalidated based upon "spot zoning"

allegations. Also on October 27, 2003, Petitioners' Motion to

Amend the Petition was granted. As amended, the Petition

alleges: (1) the Plan Amendment is internally inconsistent with

the B ay County Comprehensive Plan; and, (2) there is inadequate

data and analysis to support the Plan Amendment.

At hearing, Petitioners presented the testimony of

Allara Mills Gutcher, Terry Jernigan, and Wendy Grey, who was

qualified as an expert in the area of local government

comprehensive planning and compliance determinations under

Chapter 163, Part II, Florida Statutes. The County presented the

testimony of Tony Arrant, who was qualified as an expert in the

area of local government comprehensive plannin g and compliance

determinations under Chapter 163, Part II, Florida Statutes.

Intervenor Barbara S. Harmon testified on her own behalf.

Joint Exhibits A through F were admitted into evidence.

Petitioners' Exhibits C - 1, C - 2, C - 6, E, F, I, J, L, M, and N were

admitted in evidence. The County's (Respondent's) Exhibits A,

A - 1, E, H, I, and L were admitted into evidence. Intervenor's

Exhibit's A, B, X and Y were admitted into evidence.

The transcript of the final hearing was filed with DOAH on

December 3, 2003. Proposed recommended orders were initially due

on January 4, 2004; however, the County's Motion for Additional

Time was granted on December 16, 2003, and the parties were

allowed until January 12, 2004, in which to file proposed

recommended orders. All of the parties filed Proposed

Recommended Orders, which along with the Pre - Hearing Stipulation,

have been considered in preparing this Recommended Order. All

citations are to the Florida Statutes (2003) unless otherwise

indicated.

FINDINGS OF FACT

Parties

1. Petitioner, T & P Enterprises of Bay County, Inc.

(T & P), is a Florida corporation authorized to do business in

this state, and operates such business at 20016 Front Beach Road

in Panama City Beach, Florida.

2. Petitioner, Edgar Garbutt, is a resident of Bay County,

Florida, and is the President of T & P, which operates a

seasonal resort at 20016 Beach Front Road in Panama City Beach,

Florida.

3. Petitioner, Edgar Garbutt, submitted written comments

in opposition to the Small Scale Comprehens ive Plan Amendment at

issue before the adoption of SSA 03 - 07.

4. Intervenor, Barbara S. Harmon, owns a house located at

190 16th Street in Panama City, Florida. Mrs. Harmon and her

husband purchased their house in 1994. The Harmon property is

located i n the Laguna Beach subdivision. Mrs. Harmon was one of

the property owners who petitioned the County for adoption of

SSA 03 - 07.

The Property

5. The property affected by SSA 03 - 07 consists of twelve

separate parcels of land totaling approximately 2.35 acr es

located in unincorporated Bay County. The property lies within

a two - block area generally situated south of First Avenue, East

of Wisteria Lane, and along both sides of 16th Street, which is

west of the municipal boundaries of Panama City Beach in what is

commonly known as the West Beaches. Two of the parcels subject

to the Plan Amendment are located on the Gulf of Mexico south of

Front Beach Road.

6. The twelve parcels are not contiguous. The predominant

type of structure on these parcels are one - st ory housing

structures used primarily for residential purposes. Some of the

structures are used as short - term or long - term rentals. Others,

including the Harmons' house, are used as second homes during

the summer season, or on weekends.

7. Mrs. Harmon and her husband purchased their house in

Bay County in 1994. They reside there six to nine months a

year. They also have a residence in Gadsden, Alabama. The

Harmons bought their house in Bay County because they wanted a

house close to the beach in a cl ean, quiet neighborhood.

8. The area affected by the Plan Amendment is

predominantly residential in character. The area is generally

built - out as residential land use. The area has not

substantially changed since the Harmons purchased their house in

199 4.

Background

9. Bay County adopted a Comprehensive Plan in 1990. The

1991 existing conditions map accompanying the Comprehensive Plan

shows that most of the property in the West Beaches Area was

"predominantly medium density residential with low density

residential also being a majority land use category."

Mrs. Harmon testified that her house on 16th Street was

designated Residential under the County's Comprehensive Plan at

the time she purchased it in 1994.

10. In 1994 - 1995, as part of its Comprehensi ve Plan

evaluation and appraisal process, Bay County's planning staff

undertook a "windshield survey" of the West Beaches Area. The

windshield survey indicated that Laguna Beach 1st through 7th

additions were platted or developed between 1938 and 1954, an d

consisted primarily of a mix of older single - family houses,

mobile homes, multi - family buildings, and church buildings. The

windshield survey reflected seasonal resort uses on the south

side of Front Beach Road on the Gulf of Mexico. The windshield

sur vey shows that the predominate land use in the West Beaches

Area in 1994 - 1995 continued to be residential, as it was at the

time of the 1991 existing conditions map.

11. In December 1999, Bay County adopted amendments to its

Comprehensive Plan in which it created the SR FLUM category.

Under the Plan, the purpose of the SR FLUM category is "to

provide areas for a functional mix of compatible seasonal/resort

land uses where the clientele are predominantly seasonal or

temporary visitors and tourists." The u ses allowed include

beach houses, cottages, condominiums, townhouses, apartments or

other similar multi - family structures, motels, lodges,

restaurants, convenience stores, retreats, and lounges, bars,

and other similar uses and public utilities." The crit eria for

designating areas as SR are "areas with concentrations of

accommodations and businesses that are used for non - residential,

tourist - oriented purposes." The Plan further provides that

"Year - round, permanent residences should not be located in this

area."

12. The County's Evaluation and Appraisal Report (EAR),

which was the data and analysis relied upon by Bay County for

the 1999 plan amendments, defined these seasonal or temporary

visitors and tourists as people who visit Bay County for an

average 5.385 days. Terry Jernigan, the former Bay County

Planning Director, testified that in developing the SR category,

the County focused primarily on "typical summertime tourists"

who stay for weekend, weekly, and monthly rental periods and

attempted to iden tify areas that were tourist areas or were

likely to become transient in nature in the future. Second

homeowners and seasonal visitors were not considered when the SR

category was developed.

13. The SR Future Land Use Map category has also been

applied i n the beach areas of unincorporated Bay County located

east of the municipal boundaries city of Panama City Beach.

Development in that area includes large high - rise condominiums

and hotels, bars, T - shirt shops, and night clubs.

14. The SR category was al so applied to a number of

properties in the West Beaches Area that are indicated as

residential uses in the County's official windshield survey,

including the parcels that are the subject of the amendment at

issue. Mr. Jernigan testified that an indicator of an area that

was transient in nature was the large number of signs indicating

that the properties were for rent. Mrs. Harmon testified that

since she purchased her property in 1994, she had observed no

signs advertising rentals in the area in which th e properties

subject to the amendment are located.

15. Mrs. Harmon was motivated to seek the FLUM amendment

from SR to Residential to prevent high - rise development, bars,

T - shirt shops, and noise increases that she has observed in the

SR category east of Panama City Beach. The applicants for the

subject amendment are concerned that the SR category may

adversely affect the character of the neighborhood.

Development of the Plan Amendment

16. In the spring and early summer of 2002, Bay County

began receivi ng "grass roots petitions" from property owners in

the West Beaches Area requesting that either their future land

use designation or zoning be changed from SR back to

Residential. The petitions stated that the FLUM designations

were changed without notice to the property owners. These

petitions initially involved 400 - 500 parcels of land.

17. In response to the grass roots petitions, the County

identified several "target areas" where there were a large

number of parcels generally contiguous to each other. At the

direction of the Board of County Commissioners, on August 28,

2002, County staff sent letters to individuals within the target

areas asking them if they wanted the land use designated on

their properties changed from SR to Residential and attachin g a

land use map application form. Allara Mills Gutcher, a County

Senior Planner III, testified that the County wanted assurances

that the petitioning property owners understood the nature of

the change they were requesting.

18. The County's letter dir ected to the property owners in

the target areas not only asked if the owners wanted a land use

designation change, but also indicated that a petitioning

property owner would be required to pay the County a $1,100 fee

to apply for the land use change. Alt hough the letter indicated

that the Board was considering waiving the fee, no evidence was

presented that the Board made a decision on the waiver or that

the approximately 180 property owners to whom the County had

written had received further notice from the County regarding

the $1,100 fee. Some County property owners, including

Mrs. Harmon, complained to the County that the application fee

discouraged a number of property owners from submitting FLUM

amendment applications.

19. The forms accompanying the County's August 28, 2002,

letter also advised the property owners that small scale plan

amendments could only be considered in connection with a

specific plan of development or hardship, restrictions not

contained in either the County's Plan or Chapter 16 3, Part II,

Florida Statutes.

20. Ms. Gutcher testified that only 20 responses to the

County's letter were received. The Plan Amendment Summary Sheet

on the subject amendment, however, indicates that a result of

the mail out was the submittal of an appli cation to change

approximately 30 properties along Front Beach Road in another

area, Sunnyside Beach, from SR to Residential. This amendment

is known as the Centeno amendment, and was adopted by the Board

of County Commissioners in December 2002.

21. One of the target areas of the mail out was the Laguna

Beach Subdivision area where Intervenor Harmon's property is

located. After receiving the County's August 28, 2002, letters

and learning of the Centeno/Sunnyside small scale plan

amendment, Mrs. Harmon s pearheaded an effort to seek the subject

small plan amendment in her neighborhood. She worked with

County staff on the locations of properties to be included in

the proposed amendment.

22. Erroneously included in the first proposed plan

amendment was The Laguna Beach Christian Retreat property on

Front Beach Road, owned by Petitioners. Mrs. Harmon brought

this error to the attention of County staff, and Petitioners'

property was removed from the proposed amendment, leaving 16

lots included in the amendme nt package.

23. County staff initially supported the 16 - lot proposed

small scale plan amendment in Mrs. Harmon's neighborhood in part

because it included properties adjacent to First Avenue on the

north and contiguous to properties currently designated

Residential on the FLUM.

24. Prior to and at the Planning Commission meeting at

which the subject amendment was considered, three individuals

owning four of the 16 lots withdrew from the plan amendment

application. These withdrawals included the two lots on First

Avenue contiguous to the existing Residential FLUM area, a lot

on 16th Street, and a lot on Front Beach Road.

25. The Planning Commission recommended approval of the

requested FLUM change from SR to Residential on the 12 remaining

parcels.

26. County staff did not dispute the appropriateness of

the Residential FLUM designation for the subjected properties,

but did not support the plan amendment for the remaining 12 lots

because of the configuration of the map. Ms. Gutcher testified

that her obj ection was not to the actual land use designation of

the subject land parcels, but to the configuration of the Plan

Amendment which interspersed parcels designated SR with the

residential parcels. The 12 lots subject to the Plan Amendment

are not contiguo us to existing Residential lands and there are

SR lots adjacent to lots that were changed to Residential.

Ms. Gutcher, however, stated that adjacency of future land uses

is not a requirement of Chapter 163, Part II, Florida Statutes,

or Chapter 9J - 5, Flo rida Administrative Code.

27. Ms. Gutcher further testified that although she

considered the Plan Amendment "poor planning" and did not

support the Plan Amendment, she did not consider the Plan

Amendment violative of the Bay County Comprehensive Plan,

Cha pter 163, Florida Statutes, or Chapter 9J - 5, Florida

Administrative Code.

28. On June 3, 2003, the Bay County Board of County

Commissioners accepted the Planning Commission recommendation

and voted to adopt small scale amendment No. SSA 03 - 07 amending

the FLUM designation on the 12 lots from SR to Residential.

Internal Consistency

29. Section 163.3177(2), Florida Statutes, and Florida

Administrative Code Rule 9J - 5.005(5), require that all

comprehensive plan amendments, including amendments to the FLUM

be consistent with the other provisions of the applicable

comprehensive plan taken as a whole. Petitioners allege that

the Plan Amendment is internally inconsistent with several

discrete provisions contained in the County's Comprehensive

Plan; however, when taken as a whole, the Plan Amendment is not

inconsistent with the goals and policies of the County's

Comprehensive Plan.

30. Because the Plan Amendment at issue here amends the

FLUM designation from SR to Residential, of particular

significance to the ana lysis of internal consistency in this

case is the County Comprehensive Plan's Residential FLUM

Category. Policy 3.3.1. of the Future Land Use Element in the

County's Plan provides that "criteria for designating land use

categories on the FLUM and attendan t standards for development

shall be as shown on Table 3A."

31. Table 3A contains the following criteria and standards

for the Residential FLUM category:

Purpose : To provide areas for a functional,

compatible mix of residential land uses, and

to protect property values in viable

residential neighborhoods.

Designation Criteria : Existing residential

areas, residential subdivisions recorded

with the Clerk of the Court prior to

adoption of this Plan, areas adjacent to

existing residential areas, "in - fill" o f

vacant areas otherwise surrounded by urban

development, and low density rural community

development.

Allowable Uses : Those land uses typically

associated with residential occupancy

including single - family, duplex, triplex,

quadraplex, and manufactured housing. These

uses are generally coded as 100 to 900 on

the DOR Property Use Code Table for property

tax purposes. Public utilities, recreation,

conservation. Limited public institutional

uses and educational facilities (Policy

2.8.1) may also be allow ed.

32. The County Comprehensive Plan does not define the

terms "residential occupancy" or "residential use." Florida

Administrative Code Chapter 9J - 5, setting out the minimum

criteria for review of comprehensive plans, defines "residential

uses" as "ac tivities within land areas used predominantly for

housing." Fla. Admin. Code R. 9J - 5.003(108).

33. In its compatibility analysis, the County described

the subject area as "primarily developed as a single - family use

today" "similar to current uses in the area." The area is an

existing residential area. The predominant type of structure in

the area is one - story residential structures used for housing.

34. Except for one vacant lot, each property that is the

subject of the amendment contains a one - story s ingle - family

residence. All houses on the amendment properties are used as

homes, second homes or long - term rentals. None of the houses

included in the Plan Amendment are rented on a short - term basis.

35. The evidence demonstrates that the properties in cluded

in the Plan Amendment are now used for housing.

36. All but one of the Plan Amendment properties are coded

100 on the tax code, which is the same as the DOR Property Use

Code Table referenced in the Residential FLUM category in Table

3A of the Plan . One lot included in the Plan Amendment is

vacant and is coded 0000 on the tax code.

37. The Plan Amendment is consistent with the stated

purpose, designation criteria for existing residential areas,

and allowable uses for the Residential FLUM designati on stated

in the County's Comprehensive Plan.

38. Many properties in the West Beaches area are rented;

however, according to Mrs. Harmon, most properties that are

subject to the Plan Amendment are not rented or are rented on a

long - term basis.

39. Neit her the provisions of Table 3A describing the

Residential FLUM category, nor the definition of "residential

use" in Chapter 9J - 5, distinguish between owner - occupied and

rental housing use.

40. One significance of a land use designation from a

planning per spective is its impact on infrastructure. That

impact is the same whether a house is rented or owner - occupied.

41. Whether the structures are owner - occupied or rented is

not a land use amendment compliance issue.

42. Wendy Grey, Petitioners' expert wi tness, testified

that the configuration of the Plan Amendment is not consistent

with those portions of the Goal Statement in the Future Land Use

Element of the Plan that express the County's goals "to promote

an orderly and efficient pattern of growth and development" and

"to promote compatibility between land uses and reduce the

potential for nuisances." Ms. Grey opined that leaving some

properties designated SR surrounded by Residential properties

does not promote an orderly and efficient pattern of grow th and

development.

43. That portion of the Goal Statement referring to an

orderly and efficient pattern of growth and development was

taken directly from the intent sections of Chapter 163, Part II,

Florida Statutes, and Chapter 9J - 5, Florida Administrat ive Code.

The language governs the overall planning process of allocation

of future land uses based upon infrastructure, natural resource

protection and efficiency in terms of using existing

infrastructure. It is based upon the purpose of the Growth

Mana gement Act to manage the extent, distribution and timing of

future growth, discourage urban sprawl, and maximize existing

infrastructure. These are terms of art under the Growth

Management Act, and have nothing to do with drawing the polygons

on the map.

44. Tony Arrant, the County's expert witness, testified

that the predominance of the small scale amendments he has seen

focus on specific areas that have other land use classifications

next to the parcel amended, just as with the Plan Amendment.

45. Furt her, the Goal Statement also includes a statement

that the plan should "protect viable neighborhoods." The

amendment is consistent with this portion of the goal statement

by designating an existing residential area for residential use.

When read as a who le, the Plan Amendment is consistent with this

Goal Statement.

46. Designating residential properties for residential use

is also consistent with the Goal Statement in the Housing

Element of the Plan and with Housing Element Objective 8.5,

which require s that the County preserve and protect the

character, compatibility, and aesthetics of residential areas

and neighborhoods.

47. To make a land use amendment uniform throughout a

block, connected to existing residential land uses, and

following street righ ts - of - way helps with code enforcement

issues and is easier for the public to understand. However,

these are not compliance issues. The configuration of the Plan

Amendment and the symmetry or lack of symmetry of the future

land use map is not a compliance issue.

48. Policy 3.2.1 of the Future Land Use Element governs

amendments to the FLUM. It does not require any particular map

configuration, or that FLUM boundary lines follow street rights -

of - way. There is no express requirement in the Plan that FLUM

boundaries must always follow roads.

49. Petitioners contend that the Plan Amendment is

internally inconsistent with Policy 3.7.2. of the Future Land

Use Element of the County's Plan. Policy 3.7.2. prescribes the

general criteria for zoning districts sho wn on an Official

Zoning District Map. This policy implements Objective 3.7,

which provides that "By 2001, (the County will) adopt a zoning

code to further the intent, and implement the objectives and

policies of this Plan." The County has not yet adopte d a zoning

code.

50. Petitioners specifically rely on the following

criteria in Policy 3.7.2.:

4. District boundaries will be drawn so as

to follow property lines, road rights - of

way, geographic features, section lines, or

other readily identifiable fea tures.

6. Where possible, district boundaries will

be drawn so as to create buffers between

potentially incompatible land uses.

7. District boundary lines shall be drawn

so as to minimize the potential for

nuisances caused by incompatible land uses.

5 1. Ms. Grey opined that the Plan Amendment is not

consistent with Policy 3.7.2. because the FLUM boundary lines do

not follow roads and other geographic features, making it

difficult to implement Policy 3.7.2. when a zoning code is

adopted. Ms. Grey, how ever, also acknowledged that it would be

possible to draw a zoning map that is consistent with the Plan

Amendment.

52. Petitioners contend that the Plan Amendment is

inconsistent with Future Land Use Element Policy 3.9.1. which

defines "compatibility" of land uses. Ms. Grey opined that

interspersing SR with Residential land uses does not promote

compatibility. The Plan Amendment recognizes the current use of

the subject property. Under the broad categories of permissible

uses for the SR designation ther e are many compatible uses.

Moreover, Mrs. Harmon testified that she believes Petitioners

are entitled to engage in their business activity, and that

everyone in the West Beaches Area got along fine until the SR

designation was adopted.

53. The Plan Amen dment can be viewed to support the

compatibility of land uses because it is consistent with the

land uses that are already there. Therefore, the Plan Amendment

may serve to decrease the possibility of future incompatibility.

It will provide a level of se curity for the areas that are

residential in that any redevelopment of other developed

properties will have to be reviewed in light of Comprehensive

Plan policies requiring protection of viable residential areas.

54. Additionally, Petitioners contend that the Plan

Amendment is inconsistent with several of the many policies set

forth in the Comprehensive Plan to implement Objective 1.2.

Policy 1.2.1.2 states that it is the intent of the Comprehensive

Plan to encourage the most appropriate use of land, wate r and

resources consistent with the public interest. The subject

property has historically been residential, the current use of

the property is residential, and the interest of the public is

served in continuing the residential nature of the

property as indicated by the responses to the County's letter of

August 28, 2002.

55. Policy 1.2.1.3 states that a purpose of the

Comprehensive Plan is to overcome "present handicaps." Ms. Grey

opined that if the SR category is a handicap, the Plan Amendment

does no t overcome it because there are still SR parcels around

the subject property. However, the Comprehensive Plan does not

define "present handicap" and there is no evidence that the SR

category is a "present handicap."

56. Policy 1.2.1.4 requires that the P lan deal effectively

with future problems that may result from the use and

development of land because the Plan Amendment does not address

potential incompatible uses between SR and Residential. There

are many permissible land uses, including beach houses ,

cottages, condominiums, townhouses, and apartments in the SR

category that are compatible with the Plan Amendment. Moreover,

Ms. Grey stated that a zoning map could be drawn consistent with

the Plan Amendment.

57. The Plan Amendment recognizes the land uses that

currently exist on the subject property. The Plan Amendment is

consistent with the land uses already there. Taken as a whole,

the Plan Amendment furthers the goals, objectives and policies

of the Comprehensive Plan.

Data and Analysis

58. Peti tioners contend that the amendment is not

supported by adequate data and analysis. Ms. Grey opined that

there was not adequate data and analysis to demonstrate that

residential land use was the most appropriate or suitable for

the subject property and wit hin the public interest. Ms. Grey

stated that the primary purpose for the Plan Amendment was to

respond to individual requests to change the land use

classification. She also believed that the lack of homestead

exemptions for the majority of the area was data that supported

the SR and not the Residential land use classification.

59. Ms. Gutcher, however, testified that she reviewed

appropriate data and the Plan Amendment was supported by the

types of data and analysis typically provided for FLUM

amendmen ts listed in Policy 3.2.1. of the plan. These data

included the national wetlands inventory, the ITE Journal for

the Traffic Counts, and other data contained in the checklist in

Chapter 3 of the Comprehensive Plan.

60. There was sufficient data and analy sis to support the

Plan Amendment, including the following: (a) the fact that the

1990 Plan designated the area as Residential; (b) the 1994

windshield survey identifying the area as residential; (c) the

fact that the actual uses of the properties are for housing; (d)

the existing residential character of the area; (e) the property

owners' desire that their properties be designated Residential;

and (f) the 1991 existing land use map identifying the area that

is the subject of this case as "predominantly me dium density,

residential with low density residential also being a majority

land use category."

61. The population projections in the County's EAR are

required to include both resident and seasonal populations to

arrive at a functional population. This number is then used to

plan for the amount of residential, commercial land use

authorized. Chapter 9J - 5 and Chapter 163, Part II, Florida

Statutes, do not differentiate seasonal housing from permanent

housing in forecasting future land use needs.

62. Th ere is adequate data and analysis to support the

Plan Amendment.

CONCLUSIONS OF LAW

Jurisdiction

63. The Division of Administrative Hearings has

jurisdiction to conduct a hearing on the subject matter of this

proceeding. §§ 120.569, 120.57(1), and 163.31 87(3)(a), Fla.

Stat.

Standing

64. The Petitioners and the Intervenor are "affected

persons" as defined in Section 163.3184(1)(a), Florida Statutes,

and have standing in this proceeding.

Burden of Proof

65. The burden of proof, absent a statutory directiv e to

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

issue of the proceeding. Young v. Department of Community

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

66. Section 163.3187(3)(a), Florida Statutes, imposes the

burden of proof on Petitioners, t he persons challenging the

small scale development amendment. This subsection also

provides in part:

The parties to a hearing held pursuant to this

subsection shall be the petitioner, the local

government, and any intervenor. In the

proceeding, the local government'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 by a

preponderance of the evidence that the

amendment is not in c ompliance with the

requirements of this act.

67. Relevant here, "in compliance" means consistent with

the requirements of Sections 163.3177, 163.3178, 163.3180,

163.3191, and 163.3245, Florida Statutes, the state

comprehensive plan, the appropriate str ategic regional policy

plan, and Florida Administrative Code Chapter 9J - 5.

§ 163.3184(1)(b), Fla. Stat. For the reasons stated herein,

Petitioners did not prove that the FLUM Plan Amendment is not

"in compliance."

The Plan Amendment is "in compliance"

68 . A comprehensive plan is composed of several elements

including but not limited to a future land use element.

§ 163.3177, Fla. Stat. The future land use element designates

"proposed future general distribution, location, and extent of

the uses of land for residential uses, commercial uses,

industry, agriculture, recreation, conservation, education,

public buildings and grounds, other public facilities, and other

categories of the public and private uses of land."

§ 163.3177(6)(a), Fla. Stat. The FLU M is a component of the

future land use element of the plan as "[t]he proposed

distribution, location, and extent of the various categories of

land use shall be shown on a land use map or map series which

shall be supplemented by goals, policies, and measu rable

objectives." Id. In other words, "[t]he FLUM is a pictorial

depiction of the future land use element and is supplemented by

written 'goals, policies, and measurable objectives.' The FLUM

must be internally consistent with the other elements of the

comprehensive plan." Coastal Development of North Florida, Inc.

v. City of Jacksonville Beach , 788 So. 2d 204 at 208. (Fla.

2001)(citations omitted.)

69. A small scale development amendment reviewed under

Section 163.3187(1)(c), Florida Statutes, by a local government,

"does not involve a text change to the goals, policies, and

objectives of the local government's comprehensive plan, but

only proposes a land use change to the future land use map for a

site - specific small scale development activity."

§ 163.3187(1)(c)1.d., Fla. Stat.

70. The Plan, including the FLUM and amendments thereto,

are legislative decisions. Coastal Development of North

Florida, Inc. v. City of Jacksonville Beach , 788 So. 2d at 208 -

209. The Plan should be read as a whole in d etermining the

County's intent with respect to a discrete portion. Id.

71. Taken as a whole, the Plan Amendment furthers the

goals and policies of the Comprehensive Plan by protecting and

preserving a viable historically residential area, while still

a ccommodating the types of uses allowed in an SR category.

72. Further, Petitioner did not prove by a preponderance

of the evidence that the County did not have sufficient surveys,

studies, or data regarding the parcel when the Plan Amendment

was adopted. See § 163.3177(6)(a), Fla. Stat.

73. Based upon the foregoing, Petitioner did not prove

that the Plan Amendment is not "in compliance."

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Community Affairs enter

a final order concluding that the FLUM Plan Amendment No. SSA

03 - 07 adopted by the Board of County Commissioners of Bay County

in Ordinance No. 03 - 06 is "in compliance" as defined in Section

163.3184(1)(b), Florida Statutes.

DO NE AND ENTERED this 23rd day of January, 2004, in

Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahasse e, 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 Administrative Hearings

this 23rd day of January, 2004.

COPIES FURNISHED :

Terrell K. Arline, Esquire

3205 Bre ntwood Way

Tallahassee, Florida 32309

Gary K. Hunter, Jr., Esquire

Hopping, Green & Sams

123 South Calhoun Street

Post Office Box 6526

Tallahassee, Florida 32314

Sherry A. Spiers, Esquire

Law Office of Robert C. Apgar

320 Johnston Street

Tallahassee, F lorida 32303

Colleen M. Castille, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399 - 2100

Heidi Hughes, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallah assee, Florida 32399 - 2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency tha t

will issue the Final Order in this case.