03-004283GM Charles Heston, Oak Haven Preservation Association, Harold Mosley, James Coleman, Michael Langton, Laura Langton, Mary Ann Saadeh, Robert Gardener, Virginia Gardner, And Marie Schuller vs. City Of Jacksonville Status: Closed Recommended Order on Thursday, July 22, 2004.

Summary: Because change in land use to more intensive commercial use conflicted with Future Land Use Element policies, small-scale amendment not in compliance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES HESTON; OAK HAVEN )

PRESERVATION ASSOCIATION; )

HAROLD MOSLEY; JAMES COLEMAN; )

MICHAEL AND LAURA LANGTON; )

MARY ANN SAADEH; ROBERT AND )

VIRGINIA GARDNER; and MARIE )

SCHULLER, )

)

Petitioners, )

)

vs. ) Case No. 03 - 4283GM

)

CITY OF JACKSONVILLE, )

)

Respondent, )

)

and )

)

BARTRAM ATLANTIC, LLP, and )

WAL - MART STORES EAST, L.P., )

)

Inte rvenors. )

______________________________)

REVISED RECOMMENDED ORDER

This cause came before the undersigned after an Order of

Remand was issued by the Administration Commission on June 25,

2004. (A copy of the Order of Remand was faxed to t he Division

of Administrative Hearings on June 30, 2004.) The issue in this

case is whether a small scale development amendment adopted by

Respondent, City of Jacksonville (City), on October 27, 2003, is

in compliance. That amendment authorizes a change in the land

use category in the Future Land Use Map (FLUM) on an 8.5 - acre

parcel of property owned by Intervenor, Bartram Atlantic, LLP

(Bartram), from Residential Professional Institution (RPI) to

Neighborhood Commercial (NC), a more intensive commercial use.

Intervenor, Wal - Mart Stores East, L.P. (Wal - Mart), has a

contract to purchase the property from Bartram and intends to

construct a 40,000 square - foot freestanding Wal - Mart grocery

store and a 7,500 square - foot outparcel for limited retail uses.

The amendment is opposed by Petitioners, who are an association

of homeowners and other individual homeowners who reside

adjacent to, or near, the Bartram property.

On March 5, 2004, the undersigned entered a Recommended

Order determining that the amendment wa s not in compliance

because it conflicted with Future Land Use Element (FLUE)

Policies 1.1.7, 1.1.8, 3.2.1, and 3.2.5 of the City's

Comprehensive Plan (Plan).

On June 25, 2004, the Administration Commission entered its

Order of Remand for the purposes of :

(1) accept[ing] "additional evidence solely

on the issue of whether the City of

Jacksonville has amended its Highway

Functional and Classification Map to change

the designation of Bartram Road from a local

road to a collector road[,]" and "to make

any additional Findings of Fact and/or

Conclusions of Law as [the administrative

law judge] deems appropriate in light of

this additional evidence."

(2) mak[ing] any additional Findings of

Fact and/or Conclusions of Law based on the

existing record that [ the administrative law

judge] deems appropriate to clarify [an]

internal inconsistency" regarding the

"amendment's compliance (or lack thereof)

with Policy 1.1.7 in the City's Future Land

Use Element" [since it appeared that

Petitioners had not raised this issue].

(Order of Remand, paragraphs 9 and 10)

The Order of Remand further required that the undersigned

"file a Revised Recommended Order, consistent with the

directives herein, within 30 days of the date of this Order of

Remand," or by July 26, 2004. 1

On July 8, 2004, the parties filed a Stipulation of

Supplemental Record Evidence (Stipulation), which contained

stipulated findings that the City had amended its Highway and

Functional Classification Map (Map) to change the classification

of Bartram Road from a local road to a collector. Also, on

July 9, 2004, Petitioners filed a Voluntary Consent to Issue

Preclusion as to Policy 1.1.7 of the City of Jacksonville

Comprehensive Plan, in which they voluntarily agreed that Policy

1.1.7 "is not in issue." On the same day, a telephonic

conference call was conducted with all parties to discuss the

parties' view as to what further findings, if any, were

necessary to conform the Revised Recommended Order with the

directives of the Order of Remand. On July 12, 2004,

Petitioners filed a Memorandum of Law on Remand, while on

July 13, 2004, the City and Intervenors filed a Memorandum of

Law on Legal Import of Supplemental Evidence on Remand.

Finally, on July 13, 2004, Petitioners filed a Motion to Strike

footn ote 6 of the City's and Intervenors' filing. The filings

of the parties have been considered in the preparation of this

Revised Recommended Order.

FINDINGS OF FACT

In accordance with the Order of Remand, the following

additional findings of fact are mad e:

1. By Ordinance No. 2003 - 1070 - E, the City seeks to change

the land use on Bartram's property from RPI to NC, a more

intensive commercial use. FLUE Policy 3.2.5 imposes the

following requirements for the reclassification of property to

the NC category:

The City shall require neighborhood

commercial uses to be located in nodes at

the intersections of collector and arterial

roads . Prohibit the location of

neighborhood commercial uses interior to

residential neighborhoods in a manner that

will encourage t he use of local streets for

non - residential traffic. (Emphasis added)

2. Under this policy, in order for Bartram's property to

be reclassified, it must be located within a node (as defined in

the Definitions portion of the FLUE), and the node must be at

the intersection of collector and arterial roads.

3. In the Recommended Order dated March 5, 2004, a

determination was made that the plan amendment was inconsistent

with Policy 3.2.5 based on the testimony of the City's Director

of Planning and Develop ment, who testified that at the time of

the hearing in January 2004, Bartram Road (which sits on the

eastern side of Bartram's property and forms an intersection

with Atlantic Boulevard) was still classified as a local road on

the City's Map. See Transcri pt Volume 1, page 100, and Finding

of Fact 28. Therefore, when the amendment was adopted, and even

at the time of the final hearing, the property was not located

at the intersection of a collector and arterial road.

4. The parties' Stipulation indicates that on November 12,

2003, or after the amendment being challenged here was adopted,

the City adopted Ordinance No. 2003 - 1244 - E, which made certain

revisions and modifications to Map T - 2 and related text of the

Plan's Transportation Element. (According to the Stipulation,

the preliminary steps for making this change began in May 2003,

when legislation was filed with the City Council asking that the

City Council consider certain revisions and modifications to the

Map.) Among the revisions approved by Ordin ance No. 2003 - 1244 - E

was the reclassification of Bartram Road from a local road to a

collector. The amendment was then transmitted to the Department

of Community Affairs (Department) for its compliance review.

5. On January 19, 2004, the Department found Ordinance No.

2003 - 1244 - E to be in compliance and on the same date published a

Notice of Intent to Find the Duval/Jacksonville Comprehensive

Plan in Compliance (Notice of Intent). The Notice of Intent

became final agency action on February 9, 2004, when no petition

was filed to challenge the Department's action. Thus, the

change in the classification of Bartram Road became effective on

February 9, 2004, or approximately three and one - half months

after the small scale amendment was adopted.

6. Based on t his post - adoption hearing change, Bartram's

property is now located at the intersection of a collector road

(Bartram Road) and an arterial road (Atlantic Boulevard). As

such, the plan amendment no longer conflicts with that portion

of Policy 3.2.5 which r equires that NC property be located only

at the intersections of collector and arterial roads. 2

7. However, as noted above, FLUE Policy 3.2.5 also

requires that NC property be located "in nodes." A node is

defined in the Definitions portion of the FLUE as follows:

A focal point within the context of a

larger, contiguous area surrounding it. It

is an area of concentrated activity that

attracts people from outside its boundaries

for purposes of interaction within that

area. The developed or developable land

areas at the confluence of collector or

higher classified roadways, which are

suitable for medium to high densities and

intensities of use for either single,

multiple or mixed use developments.

8. Under this policy, then, a node exists if the

deve lopable land area (the vacant Bartram property) is at the

confluence of a collector or higher classified roadway (the

intersection of Bartram Road and Atlantic Boulevard), and the

land is "suitable for medium to high densities and intensities

of use for ei ther single, multiple or mixed use developments."

9. This issue was resolved against the City and

Intervenors in Findings of Fact 29 - 33 of the Recommended Order

dated March 5, 2004. More specifically, the evidence supported

a finding that a node does n ot exist at the southwest corner of

the intersection of Bartram Road and Atlantic Boulevard, where

Bartram's property is located. See Finding of Fact 33 ("[T]he

node . . . extends from the intersection [of University and

Atlantic Boulevards] westward in a lineal fashion along the

southern side of Atlantic Boulevard until the end of the

existing development, that is, the Publix shopping center [or

the southeast quadrant of the intersection of Bartram Road and

Atlantic Boulevard], where virtually all commerc ial uses on both

sides of the roadway end."). Therefore, the node ends on the

eastern side of the intersection of Bartram Road and Atlantic

Boulevard and does not extend across Bartram Road to the Bartram

property. The reclassification of Bartram Road t o a collector

does not affect this finding. 3

10. In addition, the Bartram parcel is currently

classified as RPI, consistent with its historical institutional

use and the character of the neighborhood. As noted in Findings

of Fact 11 - 17, 35, and 37 of the Recommended Order dated

March 5, 2004, the adjacent use to the west of the Bartram

property remains a historic church, which abuts the mainly

undeveloped lands to the west of the church; the lands to the

south and southwest remain decades - old single fa mily residences;

and the lands to the north likewise remain largely decades - old

residences. Given this character of the neighborhood, the

Bartram property is not suitable for medium or high densities or

intensities of the type authorized under the NC land use

category. Therefore, even though Bartram Road has been

reclassified as a collector, the plan amendment still conflicts

with Policy 3.2.5 since the Bartram property is not within a

node, as that term is defined in the Plan.

11. As noted in Findings o f Fact 29 through 36 of the

Recommended Order dated March 5, 2004, the plan amendment also

conflicts with FLUE Policies 1.1.8 and 3.2.1. The

reclassification of Bartram Road does not affect these findings,

and they are reaffirmed. Therefore, the plan am endment

continues to be inconsistent with FLUE Policies 1.1.8 and 3.2.1.

12. Because Policy 1.1.7 was not specifically raised by

Petitioners in their pleadings, and they have consented to the

exclusion of that issue, any finding that the plan amendment is

inconsistent with that policy is not relevant and need not be

considered in the disposition of this matter.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Section 163.3187(3), Florida Statutes (2003).

14. Section 163.3187(3)(a), Florida Statutes (2003),

provides as follows:

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 compliance with the

requirements of this act.

15. Under this statute, the City's determination that the

plan amen dment is in compliance must be accepted as being

correct unless the preponderance of the evidence establishes

otherwise. Therefore, the test is whether the evidence supports

or contradicts the City's determination. Denig v. Town of

Pomona Park , Case No. 01 - 4845GM, 2001 WL 1592220 (DOAH June 18,

2002; Admin. Comm. Oct. 23, 2002).

16. By a preponderance of the evidence, Petitioners have

shown that the plan amendment conflicts with Policies 1.1.8,

3.2.1, and 3.2.5. Therefore, in these respects, the evide nce

contradicts the City's determination, and it is concluded that

the plan amendment is internally inconsistent with the Plan.

Because the FLUM will not be consistent with other elements of

the Plan, the plan amendment is not in compliance. Coastal

Deve lopment of North Fla., Inc. et al. v. City of Jacksonville ,

788 So. 2d 204, 208 (Fla. 2001)("the FLUM must be internally

consistent with the other elements of the comprehensive plan.").

17. Petitioners' Motion to Strike footnote 6 of the City's

and Interv enors' Memorandum of Law on Legal Import of

Supplemental Evidence on Remand is granted. 4

RECOMMENDATION

Based on the Findings of Fact and Conclusions of Law

contained in the Recommended Order dated March 5, 2004, as

revised by the foregoing Findings of Fac t and Conclusions of

Law, it is

RECOMMENDED that the Administration Commission enter a

final order determining that the small scale development

amendment adopted by the City of Jacksonville in Ordinance No.

2003 - 1070 - E is not in compliance.

DONE AND ENTER ED this 22nd day of July, 2004, in

Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32 399 - 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 22nd day of July, 2004.

ENDNOTES

1/ Because the thirtieth day falls on Sunday, July 25, 2004, the

due date for submitting this Revised Recommended Order is Monday,

July 26, 2004.

2/ Because the change in the reclassification of the road is an

amendment to the Transportation Element of the Plan, it

constitutes a legislative decision by the City . Martin County v.

Yusem , 690 So. 2d 1288, 1294 (Fla. 1997). Therefore, it is not a

piece of information or datum that is subject to the rule that

only data in existence at the time the amendment is adopted can

be considered. See Zemel et al. v. Lee Cou nty et al. , Case No.

90 - 7793GM, 15 F.A.L.R. 2735 (DCA June 22, 1993), aff'd , 642 So.

2d 1367 (Fla. 1st DCA 1994). Absent an exception, which has not

been shown here, the comprehensive plan in effect at the time of

the FLUM change should govern future deve lopment in the City.

Compare Dept. of Comm. Affrs. v. Young and Monroe County , Case

No. 88 - 3451, 1988 WL 617631 at page 15 (DOAH, Recommended Order

Feb. 1 1995, FLWAC Final Order April 13, 1995)("the

[comprehensive plan and land development regulations] t o be

applied [are] the [plan and LDRs] in effect when the permits were

issued").

3/ The undersigned has rejected a contention that deference

should be accorded the City's interpretation (enunciated at the

final hearing) that the node extends west from the intersection

of Atlantic and University Boulevards through the Bartram

property and continues all the way to the Little Pottsburg Creek.

See , e.g. , Dixon v. City of Jacksonville , 774 So. 2d 763, 765

(Fla. 1st DCA 2000)("We reject . . . the City's argu ment that

deference should be given to the City's interpretation of [the

comprehensive land use plan] which it administers, thereby

requiring its approval so long as its construction falls within

the range of possible interpretations."). The City's

interp retation of where the node exists has been previously

rejected. See Finding of Fact 33.

4/ In footnote 6 of the City's and Intervenors' joint filing

dated July 12, 2004, Intervenors, but not the City, contend for

the first time that Policies 1.1.8 an d 3.2.1 have no application

here since they are to be considered only when the property is

actually developed. Besides being untimely, and outside the

scope of the remand, this contention is not supported by the

record.

COPIES FURNISHED:

Barbara Leig hty, Clerk

Growth Management and Strategic Planning

The Capitol, Room 2105

Tallahassee, Florida 32399 - 0001

Raquel A. Rodriguez, General Counsel

Office of the Governor

The Capitol, Room 209

Tallahassee, Florida 32399 - 0001

Robert P. Gardner, Jr., Esquire

1529 Oak Haven Road

Jacksonville, Florida 32207 - 2238

Sidney F. Ansbacher, Esquire

Upchurch, Bailey and Upchurch, P.A.

Post Office Drawer 3007

St. Augustine, Florida 32085 - 3007

Cindy A. Laquidara, Esquire

City of Jacksonville

117 West Duval Street, Suit e 480

Jacksonville, Florida 32202 - 3700

T. R. Hainline, Esquire

Rogers Towers, P.A.

1301 Riverplace Boulevard, Suite 1500

Jacksonville, Florida 32207 - 9700

Karl J. Sanders, Esquire

Edwards, Cohen, Sanders, Dawson

& Mangu, P.A.

Six East Bay Street, Suit e 500

Jacksonville, Florida 32202 - 5405

Heidi M. Hughes, General Counsel

Department of Community Affairs

2555 Shumard Oak Drive, Suite 325

Tallahassee, Florida 32399 - 2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit writte n exceptions within 15

days of the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

render a final order in this matter.