04-004590GM Frances Gibbons vs. Department Of Community Affairs And Martin County Status: Closed Recommended Order on Wednesday, February 23, 2005.

Summary: Petitioner failed to prove beyond fair debate that a change in the County`s Future Land Use Map was not in compliance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANCES GIBBONS, )

)

Petitioner, )

)

vs. ) Case No. 04 - 4590GM

)

DEPARTMENT OF COMMUNITY )

AFFAIRS and MARTIN COUNTY, )

)

Respondents, )

)

and )

)

ALDERWOODS GROUP, INC., )

)

Intervenor. )

________________________________)

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 January 26,

2005, in Stuart, Florida.

APPEARANCES

For Petitioner: Frances Gibbons, pro se

5383 Northwest Almond Avenue

Port St. L ucie, Florida 34986 - 3559

For Respondent: Kelly A. Martinson, Esquire

(Department) Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

For Resp ondent: David A. Acton, Esquire

(County) Martin County Administrative Center

2401 Southeast Monterey Road

Stuart, Florida 34996 - 3397

For Intervenor: Thomas E. Warner, Esquire

Carlton Fields, P.A.

222 West Lakeview Avenue, Suite 1400

West Palm Beach, Florida 33401 - 6149

STATEMENT OF THE ISSUE

The issue is whether Plan Amendment No. 04 - 4 adopted by

Ordinance No. 647 on October 5, 2004, is in compliance.

PRELIMINARY STATEMENT

This matter began on October 5, 2004, when Respondent,

Martin County (County), by a 4 - 1 vote, adopted Ordinance No.

647 which, among other things, approved a request to change

the land use on an appr oximate 31 - acre parcel of land owned by

Intervenor, Alderwoods Group, Inc., from Institutional, Public

Conservation to General Institutional. The amendment was

designated as Plan Amendment No. 04 - 4 and was implemented

through a change on the Future Land U se Map (FLUM) of the

County's Comprehensive Plan (Plan). A cemetery is now located

on the southern half of the property.

On November 29, 2004, the Department of Community Affairs

(Department) published its Notice of Intent to Find the Martin

County Compre hensive Plan Amendment in Compliance (Notice).

On December 16, 2004, Petitioner, Frances Gibbons, who resides

outside the County, but alleges that she owns burial lots in

the affected cemetery, filed a Petition for Administrative

Hearing (Petition) under Section 163.3184(9), Florida Statutes

(2004), 1 challenging the plan amendment on a number of

grounds.

The Petition was forwarded to the Division of

Administrative Hearings on December 23, 2004, with a request

that an administrative law judge conduct a hear ing. By Notice

of Hearing dated December 30, 2004, a final hearing was

scheduled on January 26, 2005, in Stuart, Florida.

At the final hearing, Petitioner testified on her own

behalf and offered Petitioner's Exhibits 1 and 2, which were

received in evid ence. The County presented the testimony of

Clyde Dulin, a Senior Planner, and offered County Exhibits 1 -

4, which were received in evidence. The Department presented

the testimony of Roger Wilburn, a Department Principal Planner

and Acting Regional Admin istrator, and offered Department

Exhibits 1 - 4, which were received in evidence. Intervenor

presented the testimony of Edward Libengood, Manager of

Maintenance Construction.

Proposed Findings of Fact and Conclusions of Law were

filed by Petitioner and Resp ondents on February 7 and 9, 2005,

respectively, and they have been considered in the preparation

of this Recommended Order. (On February 9, 2005, Intervenor

filed a Notice of Adopting and Joining in Respondents' Joint

Proposed Recommended Order.) On Feb ruary 8, 2005, Intervenor

filed a Motion to Strike Documents Attached to Petitioner's

Post - Hearing Submittals (Motion). The Motion is ruled upon in

the Conclusions of Law portion of this Recommended Order.

Finally, although the parties announced at the h earing that

the matter would not be transcribed, on February 13, 2005, a

Transcript of the hearing was filed by the Department.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

1. Intevernor owns a 31.4 - a cre tract of land in Martin

County several miles southwest of Jupiter, east of Interstate

95 and the Florida Turnpike, and slightly more than one mile

west of U.S. Highway 1. On the southern half of the property

is an existing cemetery, Riverside Memorial Park, Inc. (the

Cemetery), which has been in place since 1901 and is used for

interments. The northern half of the land is completely

undeveloped and contains native vegetation, including sand

pine scrub and pine flatwoods. (If the land use change is

ap proved, besides continuing in - ground burials and

constructing mausoleum buildings on the vacant part of the

land, Intervenor apparently intends to construct a funeral

home. This intended use, and the possibility of others, has

triggered the filing of the challenge by Petitioner.)

2. The Cemetery is bordered on the east by a developed

residential neighborhood, Tropic Vista; on the north by a

platted but largely undeveloped residential area, Hyland

Terrace, and the Jonathan Dickinson State Park (State Park) ;

and on the south by Southeast County Road, which runs along

the Martin County - Palm Beach County boundary line. Another

residential neighborhood lies just south of that road in Palm

Beach County.

3. The County's existing Plan was adopted in 1990.

Since that time, the Cemetery has been designated on the FLUM

as Institutional, Public Conservation, which is defined in

Section 4.4.M.1.h.(2) of the Future Land Use Element (FLUE) of

the Plan as follows:

The Public Conservation category recognizes

those public ly owned areas designed for

conservation uses. Only development

compatible with conservation and passive

recreation uses shall be permitted in the

Public Conservation category. This may

include access, parking, and other

facilities which make possible th e

management of the resource and the public's

enjoyment of the resources. Conservation

areas include, but are not limited to, the

DuPuis Preserve in south Martin County and

the Savannas in north Martin County.

Enviromentally sensitive lands acquired by

t he County shall be reclassified to the

Institutional - Conservation land use

designation during the next plan amendment

cycle.

4. The State Park and most of the platted residential

property to the north of the Cemetery ( e.g. , Hyland Terrace)

are currently designated Public Conservation on the FLUM. The

remainder of the property to the north and the neighborhoods

to the east and west of the property are designated Low

Density Residential on the FLUM, which allows a maximum of

five dwelling units per acre. The residential property to the

south in Palm Beach County is also designated Low Density

Residential under that County's future land use map.

5. By application filed with the County in September

2003, Intervenor, who purchased the Cemetery in 1997,

requ ested that the FLUM designation on the property be changed

to General Institutional. That land use category is defined

in Section 4.4.M.1.h.(3) of the FLUE as follows:

The General Institutional category

accommodates public and not - for - public

facilities su ch as, but not limited to,

schools, government buildings, civic

centers, prisons, major stormwater

facilities, fire and emergency operation

center facilities, public cemeteries,

hospitals, publicly owned public water and

sewer systems, dredge spoil managem ent

sites, and airports. Investor owned

regional public water and sewer systems and

private cemeteries may be allowed in

General Institutional . Lands acquired by

the County for General Institutional uses

shall be reclassified to the Institutional -

General land use designation during the

next plan amendment cycle. Lands or

property rights acquired by the Florida

Inland Navigation District as future dredge

spoil management sites shall be

reclassified to the Institutional - General

land use designation during the next plan

amendment cycle.

(Emphasis added) Concurrently with this change, Intervenor

also requested a zoning change on the parcel from Public

Service to Public Service - 2 (PS - 2). However, the County

denied that requested change in zoning.

6. On February 19, 2004, the Local Planning Agency (LPA)

voted 5 - 0 to recommend approval of Intervenor's request. On

April 4, 2004, the County voted to accept the LPA's

recommendation. On May 7, 2004, a transmittal package

consisting of 13 amendments, includi ng Plan Amendment No. 04 -

4, was transmitted to the Department for its review.

7. In an Objections, Recommendation, and Comments Report

(ORC) issued on July 9, 2004, the Department had no objections

to, or recommendations for, Plan Amendment No. 04 - 4 an d made

only the following brief comments regarding that amendment:

The change would correct an inappropriate

designation given the site previously and

would allow the continued use of the site

for cemetery use. Adjacent properties will

be protected throug h buffering,

landscaping, and screening requirements.

The proposed change is being made to

correct an inappropriate land use

designation on a well - established existing

land use.

8. After receiving the ORC, and making changes to

certain amendments (but n ot Plan Amendment No. 04 - 4) to

satisfy the Department's concerns, in a report dated August

10, 2004, the County staff recommended to the County that the

modified package of amendments be approved. As to Plan

Amendment No. 04 - 4, the County staff noted that "[t]he

requested land use amendment meets the criteria to correct an

inappropriate land use designation."

9. The County scheduled the package of amendments for

consideration at a meeting in September 2004. Due to

Hurricanes Frances and Jeanne, however , the matter was

rescheduled to the following month. On October 5, 2004, by a

4 - 1 vote, the County enacted Ordinance No. 647, which adopted,

among others, Plan Amendment No. 04 - 4. The revised package

was then forwarded to the Department for its complianc e

review.

10. The data and analyses presented by the County in

support of the Plan Amendment included aerial photographs and

detailed site maps; a review of past changes in future land

use designations in the surrounding area; information about,

and ana lysis of, environmental considerations including soils,

wetlands, overall hydrology, plant and animal species, and

impact on the adjoining State Park; a capital facilities

impact analysis; a transportation analysis; a concurrency

analysis, including impact s on public utilities, parks and

recreation facilities, and fire and public safety facilities;

an evaluation of the potential for contribution to urban

sprawl; and an extensive review of compatibility with numerous

goals, objectives, and policies of the Pl an. Although

Petitioner asserted at hearing that "the documentation of the

applicant . . . [does not] support the purpose to correct

an inappropriate land use designation," none of this data and

analyses was factually contradicted by Petitioner.

11. On November 29, 2004, the Department published its

Notice in the Stuart News , a local newspaper of general

circulation.

12. On December 16, 2004, Petitioner, who resides in St.

Lucie County and says she owns four plots within the Cemetery,

filed her 19 - pa ge Petition raising a number of procedural and

substantive allegations. 2 At hearing, however, her testimony

focused on the issues of whether Intervenor was required to

secure the consent of all of the individual burial plot owners

before it could file the application for a land use change;

whether the plan amendment actually corrects an inappropriate

land use designation, rather than being "a complex change from

an actual passive land use of the historical cemetery";

whether the amendment comports with the requirements in

Chapter 497, Florida Statutes, which governs funeral and

cemetery services; and whether the proposed land use is

compatible with the "passive" nature of the cemetery.

13. Prior to the hearing, Petitioner did not assert that

Intervenor was required to obtain the consent of all plot

owners before filing its application with the County.

Therefore, the issue has not been timely raised. Even it was,

the issue is irrelevant to an in compliance determination, as

defined in Section 163.3184(1)(b ), Florida Statutes. That is

to say, while ownership may bear on the issue of standing, it

is not a consideration in determining whether a land use

change is in compliance. Thus, the County (or even Intervenor

for that matter) can initiate a change in la nd use, regardless

of the ownership of the affected property.

14. Likewise, issues regarding compliance with the

requirements of Chapter 487, Florida Statutes, are not

relevant here. Those matters should be raised with the agency

responsible for admini stering funeral home and cemetery

regulations.

15. In the same vein, Petitioner's concern that the

undeveloped portion of Intervenor's land may be used for a

funeral home or another use allowed in the General

Institutional category is not relevant to th e issue of whether

the amendment is in compliance. Compatibility concerns such

as these can be addressed through relevant zoning and building

code requirements and land development regulations.

16. Finally, Petitioner has contended that the existing

lan d use category, Institutional, Public Conservation, is

appropriate for the Cemetery and that it is unnecessary to

change that designation. To place this issue in proper

perspective, it is necessary to go back to 1982, when the

first County FLUM was adopte d. At that time, there was only

one institutional designation, which was assigned to all

institutional property, both publicly and privately owned,

including the Cemetery. When the 1990 Plan was adopted,

however, the Department required that the County e stablish

three categories of institutional property: Institutional

General, Institutional Recreational, and Institutional, Public

Conservation. Probably because the State Park, a County fire

station, a missile tracking station, a mental health facility,

and the Cemetery were all in the same area, through

"oversight" the Public Conservation designation was

inadvertently assigned to all of those parcels at that time,

even though that designation was inappropriate for the

privately - owned Cemetery.

17. The existing designation, Institutional, Public

Conservation, recognizes those " publicly owned areas designed

for conservation uses." (Emphasis added) See §

4.4.M.1.h.(2). The category is specifically limited to

"development compatible with conservation and passive

recreation uses," such as "[e]nvironmentally sensitive lands."

Id. One of its purposes is to protect natural areas, natural

flora, and fauna.

18. The new land use designation, General Institution,

accommodates public and not - for - profit facili ties, such as

schools, government buildings, and civic centers. It also

specifically includes private cemeteries. See §

4.4.M.1.h.(3).

19. The Cemetery is not owned by any government or other

public entity, but is entirely privately - owned, either by

I ntervenor, by a subsidiary corporate entity, or by the heirs

to the deceased owners of individual cemetery plots.

(Apparently, warranty deeds were given to purchasers of burial

plots prior to 1985, and since that time, certificates of

perpetual interment have been issued.) As such, the Cemetery

appropriately falls within the General Institutional land use

category.

20. It is beyond fair debate that the land use Public

Conservation land use is an inappropriate one for the Cemetery

because the land use des ignation, by definition in the Plan,

is intended only for "publicly owned areas designed for

conservation uses." The Cemetery is neither publicly owned

nor a conservation use of the land.

21. It is beyond fair debate that the land use General

Institution al is the only appropriate one for the Cemetery

because that land use designation, by definition in the Plan,

expressly provides that "private cemeteries may be allowed" in

that category.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569, 120.57(1), and 163.3184(9),

Florida Statutes.

23. In order to have standing to contest Plan Amendment

04 - 4, Petitioner must either reside, own property, or own a

b usiness within the County. She must also have submitted oral

or written comments, objections, or recommendations to the

County prior to the adoption of the amendment. See §

163.3184(1)(a), Fla. Stat. Because it can be reasonably

inferred that Petitioner owns burial plots in the cemetery,

and she submitted oral or written comments, objections, or

recommendations to the County prior to the adoption of the

amendment, she is an affected person and has standing to file

this challenge.

24. Under the statuto ry scheme in place, if a large -

scale plan amendment has been found to be in compliance by the

Department, as it was here, an affected person has the burden

of proving beyond fair debate that the plan amendment is not

in compliance. § 163.3184(9), Fla. Sta t. This means that "if

reasonable persons could differ as to its propriety," a plan

amendment must be upheld. Martin County v. Yusem , 690 So. 2d

1288, 1295 (Fla. 1997). See also Martin County v. Section 28

Partnership, Ltd. , 772 So. 2d 616, 621 (Fla. 4t h DCA

2000)(where there is "evidence in support of both sides of a

comprehensive plan amendment, it is difficult to determine

that the County's decision is anything but 'fairly

debatable'").

25. "'In compliance' means consistent with the

requirements of s s. 163.3177, 163.31776, . . . 163.3178,

163.3180, 163.3191, and 163.3245, with the state comprehensive

plan, with the appropriate strategic regional policy plan, and

with chapter 9J - 5, Florida Administrative Code . . . ." §

163.3184(1)(b), Fla. Stat.

26 . The more persuasive evidence supports a conclusion

that Petitioner has failed to prove beyond fair debate that

Plan Amendment No. 04 - 4 is not in compliance. Accordingly,

because the County's determination of compliance is fairly

debatable, the plan am endment is in compliance. §

163.3184(9)(a), Fla. Stat.

27. Finally, in her filing styled "Chapter 28 - 106.215

Post Hearing Submittals," Petitioner has attached some forty

pages of documents which are not a part of this record. (They

include copies of war ranty deeds, a Florida Master Site File

for the Cemetery, two published articles, a County resolution,

and two papers from a lawsuit between the Cemetery and the

County.) Because the record was closed on January 26, 2005,

Intervenor's Motion to Strike Doc uments Attached to

Petitioner's Post - Hearing Submittals is granted, and the

attached documents have not been considered in the disposition

of this matter.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED t hat the Department of Community Affairs

enter a final order determining that Plan Amendment No. 04 - 4

adopted by Ordinance No. 647 on October 5, 2004, is in

compliance.

DONE AND ENTERED this 23rd day of February, 2005, in

Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative 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

ww w.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of February, 2005.

ENDNOTES

1/ All future references are to Florida Statutes (2004).

2/ Although Petitioner's standing was raised as an issue in

Interv enor's Petition to Intervene, no party pursued that

allegation at hearing. (Petitioner resides in St. Lucie

County, but alleged that she owns four burial lots within the

Cemetery.) In addition, the Department and County (and joined

by Intervenor) have co nceded in their Joint Proposed

Recommended Order that she has standing. Given this

concession, her testimony from which it may be inferred that

she is an owner of burial plots, and the fact that she

submitted written objections to the County prior to the

adoption of Ordinance No. 647, Petitioner is an affected person

and has standing to bring this action.

COPIES FURNISHED:

Thaddeus Cohen, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399 - 2100

F rances Gibbons

5383 Northwest Almond Avenue

Port St. Lucie, Florida 34986 - 3559

David A. Acton, Esquire

Martin County Administrative Center

2401 Southeast Monterey Road

Stuart, Florida 34996 - 3397

Thomas E. Warner, Esquire

Carlton Fields, P.A.

222 West L akeview Avenue, Suite 1400

West Palm Beach, Florida 33401 - 6149

Kelly A. Martinson, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

Heidi M. Hughes, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399 - 2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Orde r should be filed with the agency that

will render a final order in this matter.