05-000787GM Citizens For Proper Planning, Inc. vs. Polk County, Florida Status: Closed Recommended Order on Friday, July 8, 2005.

Summary: Petitioners proved, by a preponderance of the evidence, that the small scale development plan amendment to the Future Land Use Map was inconsistent with the County`s Comprehensive Plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELOISE COMMUNITY REDEVELOPMENT )

AGENCY, BRUCE BACHMAN and )

JOHNNY BROOKS, )

)

Petitioners, )

)

vs. ) Case No. 05 - 0717GM

)

POLK COUNTY, FLORIDA, )

)

Respondent, )

)

and )

)

DON C. SMITH, )

)

Intervenor. )

)

CITIZENS FOR PROPER PLANNING, )

INC., )

)

Petitioner, )

)

vs. ) Case No. 05 - 0787GM

)

POLK COUNTY, FLORIDA, )

)

Respondent. )

)

RECOMMEN DED ORDER

Notice was given and pursuant to Sections 120.569,

120.57(1), and 163.3187(3)(a), Florida Statutes, on April 6 and

7, 2005, the final hearing was conducted by Charles A.

Stampelos, Administrative Law Judge, in Bartow, Florida.

APPEARANCES

For Petitioners:

Robert G. Fegers, Esquire

Law Offices of Robert G. Fegers, P.L.

Post Office Box 7962

Winter Haven, Florida 33883 - 7692

Counsel for Eloise Community Redevelopment Agency

Bruce Bachman, p ro se

946 North Lake Otis D rive, Southeast

Winter Haven, Florida 33880

Johnny Brooks, p ro se

Post Office Box 5465

Eloise, Florida 33880 - 0465

Jean S. Reed, Qualified Representative

Citizens for Proper Planning, Inc.

27 Lake Eloise Lane

Winter Have n, Florida 33884

For Respondent:

Gregory T. Stewart, Esquire

Harry F. Chiles, Esquire

Kyle L. Kemper, Esquire

Nabors, Giblin & Nickerson, P.A.

1500 Mahan Drive, Suite 200

Post Office Box 11008

Tallahassee, Florida 32302

Anne T. Gibso n, Esquire

Senior Assistant County Attorney

Polk County Attorney's Office

Post Office Box 9005 , Drawer AT01

Bartow, Florida 33831 - 9005

For Intervenor:

Michael T. Gallaher, Esquire

Peterson & Myers, P.A.

Post Office Box 1079

Lake Wales, Florida 33859 - 1079

STATEMENT OF ISSUES

The issues in this case are whether the Small Scale

Comprehensive Plan Amendment No. 05S - 01 (the Plan Amendment)

adopted by Polk County (County) through the enactment of

Ordinance No. 05 - 004 is “in compliance,” as that term is defined

by Section 163.3184(1)(b), Florida Statutes, 1 and whether

Petitioner, Citizens for Proper Planning, Inc. (CPPI), has

standing as an “affected person” as defined by Section

163.3184(1)(a), Florida Statutes, in this proceeding.

PRELIM INARY STATEMENT

On February 2, 2005, the Polk County Board of County

Commissioners, Polk County, Florida (the Board), after proper

notice, adopted Ordinance No. 05 - 004, which amends the Polk

County Future Land Use Map (the FLUM). This Ordinance changes

t he designated future land use from “Residential Low - 4” to

“Industrial” for a 9.9 - acre parcel of property located on the

southwest side of County Road 655 (Snively Avenue) between 5th

and 6th Streets located in Section 05, Township 29, Range 26, in

Polk Cou nty, Florida (the Subject Property).

On or about February 25, 2005, Petitioners, Eloise

Community Redevelopment Agency (ECRA), Bruce Bachman, and Johnny

Brooks, filed a Petition Challenging Compliance of Small Scale

Amendment and Request for Formal Hearin g with the Division of

Administrative Hearings pursuant to Section 163.3187(3) (a) ,

Florida Statutes, to contest the Plan Amendment. On or about

March 2, 2005, CPPI filed its Petition Challenging Compliance of

Small Scale Amendment and Request for Formal H earing. The two

cases were consolidated on March 4, 2005.

The petitions allege that the Plan Amendment is not in

compliance with Sections 163.3187(2), 163.3177(2), and

163.3177(6), Florida Statutes; the State's Comprehensive Plan;

the Polk County Compr ehensive Plan (Comprehensive Plan); the

Eloise Community Agency Redevelopment Plan; and Florida

Administrative Code Rule 9J - 5.

On or about March 1, 2005, Don C. Smith, owner of the

Subject Property, filed his Petition for Leave to Intervene,

which w as granted on March 2, 2005.

On March 9, 2005, an Order of Pre - Hearing Instructions and

a Notice of Hearing setting the final hearing for April 6

through 8, 2005, in Bartow, Florida, were entered.

On or about March 11, 2005, Mr. Smith filed Intervenor’s

Motion to Dismiss or Strike Portions of Petitions Challenging

Compliance of Small Scale Amendment. On or about March 16,

2005, Petitioners filed their Response to Intervenor's motion.

Intervenor's motion was denied on March 17, 2005.

On March 14, 2005, Petitioners filed a Motion for Summary

Final Order and a Request for Judicial Notice of several

documents. The Motion for Summary Final Order was supplemented

on March 15, 2005. On March 18, 2005, the County filed a

Response to Petitioners’ Request for J udicial Notice, a Response

to Petitioners’ Motion for Summary Final Order, and the

Affidavit of Merle H. Bishop, A.I.C.P. On March 21, 2005,

Intervenor filed a Response in Opposition to Petitioners’ Motion

for Summary Final Order, a Response to Petitioner s’ Request for

Judicial Notice, and the Affidavit of Dennis R. Ragsdale,

A.I.C.P. Petitioners’ motion was treated as a motion to

relinquish jurisdiction pursuant to Section 120.57(1)(i),

Florida Statutes, and was denied. However, official recognition

was taken of several documents and declined as to others. See

Order, March 24, 2005, n.1.

On April 1, 2005, the County and Mr. Smith filed a

Prehearing Stipulation. On April 4, 2005, Petitioners filed a

unilateral Supplement to Prehearing Stipulation. Agr eement

between the parties was subsequently reached, and an Amended

Prehearing Stipulation was filed on April 6, 2005. The Amended

Prehearing Stipulation was entered into evidence as Joint

Exhibit (JE) 9.

On April 6 and 7, 2005, the final hearing was hel d in

Bartow, Florida. Pursuant to the agreement of the parties,

Joint Exhibits 1 through 9 were admitted into evidence.

Petitioners called Johnny Brooks; Bruce Bachman; Joseph G.

Jarret, Polk County Attorney; Dr. Elba Cherry, Director of

Housing and Ne ighborhood Development; Nicolas Mancuso, a real

estate appraiser and licensed real estate broker; Don C. Smith;

Eric Peterson; George M. Joachim, A.I.C.P., an expert in land

use planning; and Jean Reed. Petitioners’ Exhibits (EE) 1

through 8 were also adm itted into evidence.

The County called Merle H. Bishop, A.I.C.P., Director of

the Growth Management Department for Polk County, Florida, and

an expert in land use planning. County Exhibits (CE) 1 through

6 were admitted into evidence. Intervenor calle d Dennis R.

Ragsdale, A.I.C.P., an expert in land use planning.

Intervenor’s Exhibits (IE) 1 through 3 were admitted into

evidence.

The Transcript (Tr.) (Volumes I through IV) of the final

hearing was filed with the Division on May 9, 2005.

Petitioners, Respondent, and Intervenor each filed a Proposed

Recommended Order in a timely fashion. Subsequent to the

hearing, Intervenor filed the deposition of Mr. Joachim. As the

deposition was not admitted in evidence, it was excluded from

consideration.

FINDIN GS OF FACT

A. The Parties

1. The ECRA is a local special district governmental

agency established pursuant to Chapter 163, Part III, Florida

Statutes, and is composed of a seven - member board of directors.

The boundaries of the Eloise Community Redevelopment Area

include an area consisting of approximately 665 acres within the

unincorporated Eloise area of Polk County (the Redevelopment

Area). The Subject Property is located within the Redevelopment

Area. See JE 8A.

2. The ECRA meets once a month, except July, when they do

not normally meet. Its purpose is to discuss and implement the

ECRA Redevelopment Plan’s six objectives within the

Redevelopment Area.

3. The ECRA opposed the Plan Amendment by and through its

attorney and submitted oral and written comments,

r ecommendations, and objections to the County regarding the Plan

Amendment during the Plan Amendment adoption proceedings. As a

part of its presentation to the County regarding the Plan

Amendment, the ECRA delivered to the County, ECRA Resolution No.

R - 05 - 01, objecting to the Plan Amendment. The parties agree

that the ECRA has standing in this proceeding.

4. Petitioner, Bruce Bachman (Mr. Bachman), resides in

Winter Haven, Polk County, Florida. His residence is located

outside of the Redevelopment Area and i s approximately three (3)

miles from the Subject Property. He is employed as the operator

(since 1980) and general manager of Phoenix Industries, LLP,

(Phoenix), located at 621 Snively Avenue, County Road (CR) 655

in Eloise, which is adjacent to and acros s the street from the

Subject Property. Mr. Bachman has served as the Chairman of the

Board of Directors of the ECRA since 1998.

5. Phoenix operates a warehousing and distribution complex

for dry, refrigerated, and frozen food products east of Snively

Avenue and across the street from the Subject Property . The

Phoenix property stretch es north and south within an elongated

area within the Redevelopment Area, and is open 24 - hours a day,

seven days a week. 2 See JE 8A at "30". (The railroad ,

designated with a red line , runs north and south through the

Phoenix property. JE 8A.)

6. Phoenix has spent approximately $115,000 changing the

angles of its buildings and moving docks so that trucks could

maneuver on the property, and not have to enter Snively Avenue

to do so.

7. Mr. Bachman is involved with the Eloise residential

area and the Redevelopment Area generally and his contributions

to the Eloise area are well - noted in the record. His work with

the community includes working with the students at Snively

Elementar y School.

8. Individually, and on behalf of the ECRA, Mr. Bachman

submitted oral and written comments, recommendations, and

objections to the County during the Plan Amendment adoption

proceedings. The parties agree that Mr. Bachman has standing in

this pro ceeding.

9. Petitioner, Johnny Brooks ( Mr. Brooks), resides at 143

8th Street, Eloise, Polk County, Florida, approximately three

(3) blocks southwest from the Subject Property. His home is

located within the main residential component of the

Redevelopment Ar ea. He was born in Eloise (on 5th Street) and

has lived, with his wife, at the 8th Street address for 41

years. Mr. Brooks also serves as Vice - Chairman of the Board of

Directors of the ECRA.

10. Although disabled, Mr. Brooks is an active member of

the Eloi se Community. For example, he and his wife conduct a

“homework club” at the Eloise Community Resource Center (opened

in 2002) located between 7th and 8th Streets and Snively Avenue,

which is east and down the block from his residence. JE 8A at

"2". They also use the computer lab at the resource center for

adult education. They use the neighborhood Snively/Brooks Park,

JE 8A at "4", approximately one block south of the Brooks'

residence and west of the Snively Elementary School, JE 8A at

"3", for, among other activities, Easter egg hunts and Christmas

parties.

11. Mr. Brooks is also involved in the Eloise Neighborhood

Association, which offers adult computer classes, GED classes,

and classes in English as a Second Language. He and his family

use other reso urces within the Redevelopment Area, such as the

Snively Elementary School, and a post office, JE 8A at "1",

which is located approximately one block north of the Subject

Property between 4th and 5th Streets, near Snively Avenue.

12. Mr. Brooks attends the E loise United Methodist Church

(built in 1966 - 1967), which is located on land designated as

Industrial (IND) on the FLUM. 3 JE 8A at "10". This church is

located on the southwest side of Snively Avenue, and

approximately five or six blocks south of the Su bject Property

and approximately two blocks south of the Snively Elementary

School and the Snively - Brooks Park. 4

13. Mr. Brooks submitted oral comments, recommendations,

and objections to the County during the Plan Amendment adoption

proceedings. The parties agree that Mr. Brooks has standing in

this proceeding.

14. CPPI is an organization comprised of approximately two

hundred members, located throughout Polk County, Florida. CPPI

has been an existing corporation since 2002. No application,

request to join or p ayment of dues is currently required for

membership. According to its executive chairperson, Jean Reed,

its purpose is to "better plan for our growth in Polk County."

Ms. Reed lives approximately one mile east of Eloise and four of

five of the CPPI Board of Directors live within a mile of

Eloise. All CPPI members live in the County. CPPI had been

involved in County hearings and an administrative hearing

involving a small scale comprehensive plan amendment. The

organization currently encourages donation s and plans to charge

dues next year. CPPI submitted oral comments, recommendations

and objections to the County during the Plan Amendment adoption

proceedings. No evidence was presented to show that CPPI owns

real property within the County. The County and the Intervenor

dispute CPPI’s standing in this proceeding.

15. The County is a political subdivision of the State of

Florida, empowered to adopt, implement, and amend its

Comprehensive Plan in accordance with the laws of Florida.

16. Intervenor, Don C. Smit h (Smith or Intervenor), owns

the Subject Property . He purchased the Subject Property of 9.9

acres, which is part of a contiguous 20 - acre site, in May of

2003. Mr. Smith learned that the Subject Property had an RL - 4

land use designation just prior to his purchase of the Subject

Property. The parties agree that Mr. Smith has standing in this

proceeding.

B. The Eloise Community Redevelopment Area

17. The Redevelopment Area consists of approximately 665

acres. EE 2, Plan at 30. It is generally bounded by the CSX

railroad to the north of US 17; by Lake Lulu and Shell Road on

the east; by Snively Avenue (CR 655) on the south; and by

Wahneta Canal and a portion of Wahneta farms on the west. JE

8A. 5 (Snively Avenue is a four - lane undivided, major collector

high way , but is not a buffer. )

18. Both historically and presently, the Redevelopment

Area has been composed of mixed uses in an urban area. Under

the FLUM, there are eight separate land uses within the

Redevelopment Area: Industrial (IND), Business Park Center ( BPC -

2), High Impact Commercial (HIC), Institutional (INST - 1),

Community Activity Center (CAC), Residential Suburban (RS),

Residential Low - 1 (RL - 1), and Residential Low - 4 (RL - 4). JE 8A.

19. Beginning at the northern portion of the Redevelopment

Area and moving from west to east, south of the CSX railroad and

approximately one block south of US 17, the land uses designated

on the FLUM are HIC, CAC, and HIC. Moving southward and east of

Snively Avenue, the land use designation for a triangular

portion of land is BPC - 2. The land use designation adjacent to

and immediately south of the BPC - 2 designation and east of

Snively Avenue is designated as IND. The IND designation covers

the land in a southerly direction until Snively Avenue

intersects with Croton Road. T he land to the east and adjacent

to the BPC - 2 and IND designations is designated as RL - 1.

20. There is a small portion of land near Shell and Croton

Roads at the southern boundary of the Redevelopment Area

designated as Residential Suburban (RS). (The RS des ignation

continues to the east outside of the Redevelopment Area. Lake

Lulu is to the east of the eastern RL - 1 and RS designations.)

There is also land designated as RL - 1 west of Snively Avenue,

bisected by Unnamed Street, extending west of Wahneta Canal and

south - southwest of the Snively Elementary School/Snively - Brooks

Park area, to the southwestern boundary of the Redevelopment

Area. 6

21. The Snively Elementary School and the Snively - Brooks

Park are located in the I NST - 1 land use designation. 7 JE 8A.

App roximately 150 children walk to and from this elementary

school (with another 60 to middle and high schools outside the

Redevelopment Area), utilizing the sidewalk bordering the

western portion of Snively Avenue. The majority of the children

attending the elementary school reside in the RL - 4 designated

area (mainly between 1st and 9th Streets). Mr. Smith agreed

that the elementary school was in close proximity to the Subject

Property.

22. Mr. Smith testified that after meetings with the ECRA,

he moved the fen ce in front of the Subject Property and business

back ten feet so that the children could have more room to walk

down the street. He also instructed his drivers of big trucks

and heavy equipment not to enter the Subject Property during

times when the chil dren are going to and from school.

23. There are several school crossings, crossing Snively

Avenue. There is a bus stop at 5th Street and Snively Avenue

for children attending middle and high school. JE 8A at "6".

There are also bus stops on 7th Street and in front of the

elementary school. JE 8A at "5" and "7".

24. Except for the residential portions of the CAC and

BPC - 2 areas, the primary residential area of the Redevelopment

Area is generally bounded by US 17 and 1st Street on the north,

the Wahneta Canal on the west, and to just north of Snively

Elementary School and 9th Street on the south. JE 8A; EE 2,

Plan at 6 and Figure 2.

C. The Eloise Community Redevelopment Area Uses

1. In General

25. The Redevelopment Area, for at least the last 40

years, has suppor ted a wide variety of industrial, commercial,

institutional, and residential uses.

26. Mr. Brooks and Mr. Smith testified that the

Redevelopment Area has supported these mixed uses and has

historically been defined by the interrelationship of these

vario us uses with the predominant industrial activities within

its boundaries. In the past, the established residential area

(RL - 4) was once a successful working - class neighborhood which

primarily provided homes to those workers who were employed in

the citrus plants located within the industrial classified

areas. That residential area is now blighted and provides

housing for low and moderate income families. Though well

established, the RL - 4 residential area contains a substantial

number of vacant lots withi n that residential designated area.

2. Redevelopment Area Problems and Redevelopment

27. During the early 1980’s, Eloise was a troubled

community, suffering, for example, from theft and vandalism.

The community had difficulty finding minority contractors

w illing to work at Phoenix because of the problems associated

with the community.

28. By the early 1990s, the residential area of the

Redevelopment Area had deteriorated to such an extent that the

Housing and Neighborhood Development Division (HND), an agenc y

of the County, became actively involved in the redevelopment of

the community.

29. In 1992, the Eloise Neighborhood Association was

formed. In 1996, a Neighborhood Revitalization/Redevelopment

Plan was commissioned by HND. This plan was prepared by Count y

staff. Also in 1996, the HND and the Eloise Neighborhood

Association prepared the Eloise Neighborhood

Revitalization/Redevelopment Plan, which “focused on the 138

acres generally bounded by the CSX Railroad on the east, the

railroad and US 17 on the nor th, the Wahneta Canal on the west,

to just south of the Snively Elementary School. Its

recommendations included improved social services, land use

changes, housing programs and infrastructure improvements.”

30. In 1998, a Declaration of Slum and Blight was adopted

by the Board through Resolutions Nos. 98 - 08 and 98 - 66, which ,

respectively, made a finding of blighting conditions in Eloise

and adopted a redevelopment plan for E loise . As a result, the

ERCA was created pursuant to Section 163.356, Florida Statut es,

to rehabilitate, conserve, and/or redevelop the Redevelopment

Area.

31. In 2000, the Board, pursuant to Section 163.360,

Florida Statutes, adopted Ordinance No. 00 - 33, approving of the

Eloise Redevelopment Plan as the Community Development Plan for

the Red evelopment Area. It was the purpose and intent of the

Board that the Eloise Redevelopment Plan be implemented in the

Redevelopment Area.

32. The Board made numerous findings in Ordinance No. 00 -

33 including a determination that “[t]he Plan conforms to the

g eneral plan of the county as a whole” and that “[t]he Plan

conforms to the Polk County Comprehensive Plan.” The Board also

determined that “[t]he need for housing accommodations has

increased in the area.”

33. T he Eloise Redevelopment Plan has not been adopte d as

part of the County's Comprehensive Plan. Thus, the Plan

Amendment need not be consistent with the Eloise Redevelopment

Plan to be “in compliance.”

34. The May 2000, Eloise Redevelopment Plan describes the

then existing ownership patterns such that “[t]he existing

Eloise residential neighborhood between 1 st and 9 th Streets is

subdivided into platted, fifty - foot wide lots. Most are 100 - 125

feet in depth. Lots along 9 th Street abutting the school are

platted as 70 - foot wide lots. The ownership pattern in this

area typically follows the lot lines. Most are individually

owned lots. (See Figure 6).” EE 2, Plan at 16. Particularly

relevant here, it is also stated: “Lots 33 and 34 [part of the

Subject Property] are each approximately 9 acres and are owned

b y Alterman Transport Corporation (ATC). The site is currently

used for storage and, in the past, was zoned GI [General

Industrial] and R - 3. In the current Comprehensive Plan,

however, this site is planned for Residential Suburban (RS) to

be compatible wi th the surrounding neighborhood. The trucks are

a legal - nonconforming use and may continue but any future

development shall comply with the RS land use district.” EE 2,

Plan at 16.

35. The Eloise Redevelopment Plan also recommended that

the Alterman Truck ing Annex, also known as the Alterman

Transportation Corporation, be developed for up to 75 single -

family homes by the end of 2004. EE 2, Plan at 32; JE 3 at 3 of

27. (The Subject Property was also formerly known as the

Alterman Motor Freight Terminal. JE 2, 8/10/2004 site map.)

36. In 2001, the County also changed the classification of

the Subject Property from RS to RL - 4 pursuant to Ordinance No.

01 - 45. See Finding of Fact 5 4 .

37. In addition to the creation of the ECRA, the County,

through the HND, has atte mpted to revitalize the Redevelopment

Area. Since 1993, HND has spent approximately $4.4 million

dollars in these efforts. These funds have been spent on

community policing ($424,790), slum and blight clearing

($47,428), housing rehabilitation ($186,807) , parks and

recreation ($149,982), water/sewer/drainage ($1,094,677),

construction of the Eloise Community Center ($2,147,037),

replacement of five homes ($314,138), and rehabilitation and

repair of five homes ($46,819).

38. As part of the Eloise Redevelopme nt Plan, many

additional infrastructure improvements have been proposed, such

as fire hydrants, turnaround areas for emergency vehicles and

fire trucks, storm water installation, and sewer for the

Residential Area of Eloise between 1st and 9th Streets and

between Snively Avenue and the canal. The proposed projects for

water, sewer, and storm water include 350 parcels to be served

in this Residential Area.

39. The construction of the Eloise Community Center has

been the most costly expense in these efforts. Af ter the County

obtained this parcel from Phoenix Industries, it was discovered

that the land was contaminated and more than $400,000 was spent

on environmental clean - up costs for this property.

40. The ECRA and the County have made progress in the area

of code enforcement. Furthermore, crime has been cut in half

and a drinking ordinance was passed by the County upon request

of the ECRA and the Eloise Neighborhood Association. Eloise,

with the County's cooperation, also initiated a Community -

Oriented Policing program. There has been an increase in

construction in the area, both on the residential and

commercial/industrial side of Snively Avenue.

41. The ECRA has also been working on a beautification

strategy. For example, Phoenix spent $35,000 for landscaping,

re moving barbed wire, installing an irrigation system, and

installing an attractive entrance to its facilities. Further

beautification is planned for other areas along Snively Avenue,

the main gateway to the area from US 17, and improvements to

Snively Elem entary School, for which the ECRA allocated up to

$10,000.

42. Currently, the socio - economic status of the families

living within the residential portion of the Redevelopment Area

is low and moderate income. But, as noted above, the area is

being revitalized, including the addition of several Habitat for

Humanity - built homes. Mr. Bachman confirmed that "[t ] hings have

changed now," including the employment of minorities and an

increase in diversity at the elementary school.

D. The Subject Property

43. The Subject Property is located within the

Redevelopment Area on the southwest side of Snively Avenue

between 5th and 6th Streets. JE 8A. The Subject Property

consists of approximately 9.9 acres, which is part of a 20 - acre

parcel owned by Mr. Smith. 261. (The re is a vacant parcel

not subject to the Plan Amendment, also acquired by Mr. Smith at

the same time, adjacent to and west of the Subject Property,

which appears to be within a flood zone area. JE 8A at “46”.

The canal serves as the western border for th is parcel.)

44. Currently, there are ten to eleven residences along

5th Street, north of the Subject Property, and ten residences

between the Subject Property and 6th Street, south of the

Subject Property. See EE 7. There does not appear to be any

apprecia ble distance between these residences and the Subject

Property.

45. Aside from the residential homes north and south of

the Subject Property, there are also retail, auto repair, and

other commercial uses which border on Snively Avenue. See ,

e.g. , IE 1, aeri al with 15 photographs; JE 3 at 5 of 27; Tr.

295 - 297; JE 8A.

46. According to Mr. Smith, he requested the land use

designation change to cure the non - conforming status of the

Subject Property. All operations on the Subject Property had

ceased for less than on e year when he purchased the Subject

Property.

47. The Subject Property has historically and, except as

noted above, continuously been utilized since the late 1960’s

for industrial - type purposes, including motor freight activities

which include loading and unl oading citrus trucks, racking,

truck repair, and truck weighing . T hese activities would not

necessarily be restricted to an Industrial land use designation ; 8

t he current use of the Subject Property as a motor freight

terminal is also permitted within a B PC - 2 land use designation.

There has been no substantial change in the use of the Subject

Property since 1980. 9

48. Mr. Brooks testified that while he was growing up in

Eloise, the Subject Property "was primarily truck parking for

the citrus plant." He "wo rked for the scale house back in the

late 60's before the plant went down and all [they] did was like

park the trucks there for unloading and which would be in the

citrus plant itself." However, he never knew the Subject

Property "to be an industrial park itself," during the late

1960's.

49. Historically, Mr. Snively, who died in 1957, owned

several different businesses across the street from the Subject

Property, including a fresh fruit packing house, JE 8A at "20",

juice plant, JE 8A at "21", concentrate p lant, JE 8A at “22 ” .

The plant closed in 1969 or 1970.

50. In and around 1972, during the summer, Mr. Smith

worked for the Snively operation when they parked their citrus

trucks on the Subject Property and then for the Alterman

operation on - site when he load ed and unloaded trucks.

51. Under the County's zoning ordinance adopted in

November 1970, the Subject Property, along with the Phoenix

Industries Property, its adjoining property, and the property

southeast and adjacent to Snively Elementary School, were zoned

as General Industrial (GI). Like the Subject Property, this

industrial area is located east and immediately adjacent to

property classified as residential (RS) (although the property

is presently undeveloped).

52. By an amendment to the FLUM adopted by O rdinance No.

91 - 06 on April 19, 1991, the Subject Property was classified as

RS, rather than IND. 10 At the same time, the Phoenix Industries

Property, its adjoining property, and the property immediately

adjacent to Snively Elementary all maintained their Industrial

classification.

53. The May 2000 Eloise Redevelopment Plan recommended, in

part, consideration of "a plan amendment from RS to RL - 4 for the

properties north of Snively [Elementary] School and west of

Snively Avenue" which included the Subject Prop erty. EE 2, Plan

at 38.

54. On July 11, 2001, the County adopted Ordinance No. 01 -

45, which changed the land use designation on the FLUM from RS

to RL - 4, for all of the property (including the Subject

Property) between 1st Street and just south of 9th Stree t and

between Snively Avenue on the east and the canal on the west.

EE 1 at map page 2. The land use designation for the Snively -

Brooks Park was also changed to INST - 1 from IND. Other land use

designations were changed pursuant to Ordinance No. 01 - 45.

EE 1. See also Tr. 130 - 136, 139 - 140. The FLUM changes

implemented strategies set forth in the Eloise Redevelopment

Plan and adopted recommended changes to the FLUM. See Tr. 163.

55. The RL - 4 designated property is located immediately

adjacent to and on the north, west, and south sides of the

Subject Property. JE 8A. Across Snively Avenue from the RL - 4

property is the industrial area which was previously used in the

citrus industry and which is currently used by Phoenix

warehousing and trucking activities. JE 8A.

56. "The purpose of the [RL - 4] District is to provide

areas for low density residential needs of residents in urban

areas who desire areas with smaller lots, a minimum of 6,000

square feet." § 204A7., Land Development Code (LDC).

57. The County and Mr . Smith contend that the Subject

Property was mistakenly or erroneously classified as RS in 1991

and RL - 4 in 2001. However, the preponderance of the evidence

indicates that no mistake or error was made in 1991 or 2001

based, in part, on the chronology of events regarding the land

use changes mentioned above.

58. Merle H. Bishop, A.I.C.P., t he current Director of

Growth Management for the County , has been an employee of Polk

County for 30 years , and was involved in the adoption of the

original Comprehensive P lan in 1991. In preparing land use

designations for the initial FLUM, he used aerial photographs

primarily and the existing zoning at the time. Since that time,

he and staff have discovered errors in mapping the land uses of

property, including industria l. Typically, the errors have been

corrected when presented to the Board for comprehensive plan

changes to the FLUM.

59. Mr. Bishop testified that pursuant to a policy in the

Comprehensive Plan, the County desired to “recognize industrial

uses.\. 444 - 4 4 5. According to Mr. Bishop, an active

industrial use would only be eliminated with good reason, i.e. ,

such as it was a remote and isolated industrial use. 455.

According to Mr. Bishop, the Subject Property, the

southern parcel by the elementary sch ool, and the Phoenix

Industries property made up a major industrial use area.

Tr. 456.

60. Although Mr. Bishop stated the Subject Property "would

have been" designated as Industrial in 1991 given its use, T r.

511 - 512, Mr. Bishop could not "say whether or n ot [they] missed

this on the map when [they] mapped it. I mean it appears -- I

mean, when you look at the map, it's very general; or whether

there was an intention to not map it." Tr. 483 - 484. Mr. Bishop

did not testify persuasively that the Board, in 1 991 or in 2001,

erroneously designated the Subject Property as RS and then RL - 4.

61. The February 2, 2005, staff report, mentions the

applicant’s contention that a mapping error occurred, but

implicitly rejects this argument. JE 3 at 11 and 12 of 27.

Staf f stated:

The site has recently changed ownership and the

current property owner wants the non - conforming uses

to become conforming uses. Recognizing the existing

use will enable to [sic] owner to continue utilizing

the site as it has historically been used and allow

the redevelopment of the property as needed. In

addition, the use has remained the same since the

early 1970’s according to the applicant. The

applicant also states that Policy 2.113 - A2 of the

Comprehensive Plan states that the [FLUM] Seri es shall

include all major existing industrial areas; since the

property has historically been used for industrial

uses, the recognition of the site will correct the

County’s mapping error. On the other hand, staff and

the ECRA has [sic] indicated, for th is and the prior

requested land use change (CPA 04A - 05), that the

impacts to the residential neighborhood is [sic] more

significant than the redevelopment of the site for

commercial or industrial uses. The County worked with

the residents, business owners , and land owners in the

area to develop a redevelopment plan, in which, the

site was intentionally made non - conforming by the

community and the County in order to create separation

between the industrial uses across the street from the

residential uses on the west side of CR 655 (Rifle

Range Road [sic]). Therefore, the applicant’s primary

argument for recognizing the historical use is not

relevant.

JE 3 at 12 of 27.

62. Mr. Bishop was not directly involved with the staff

review although he participated at the pubic hearing before the

Board.

63. If the Subject Property were vacant, Mr. Bishop would

not recommend an Industrial land use designation. He supports

the land use change because of the existing (at the time) use of

the Subject Property and to ha ve the property be a conforming

use. 506 - 507.

64. The history of industrial - type use on both the Subject

Property and other sites in the Redevelopment Area has been a

subject of significant concern. Although no tests have been

conducted to determine whet her the Subject Property is

contaminated, Dr. Cherry testified that as a result of its long

industrial use, it is likely that contamination will be present,

which would render its use for residential purposes not

realistic. 221 - 2 23. Since the subject property is located

near the property upon which the community center was

constructed and both parcels were part of a larger industrial

area and utilized for similar uses, Dr. Cherry suspects that the

Subject Property will likewise be contaminated. 2 22.

65. If the Subject Property is contaminated, it is Dr.

Cherry's opinion that there will be insufficient funds to clean

the area. 219. Consequently, Dr. Cherry opined that if the

Subject Property could not be used for industrial purposes, it

woul d likely be unable to be developed as residential and most

likely would be abandoned, thereby becoming a “ brownfield. ”

This would significantly burden the redevelopment efforts in the

Redevelopment Area.

66. However, the Subject Property has not been declar ed a

“ brownfield ” and no finding can be made regarding the

environmental condition of the Subject Property based upon the

record of this case .

E. The Small Scale Plan Amendment Application and Adoption

67. On or about August 10, 2004, Mr. Smith filed an

appli cation requesting the County to re - designate the land use

of the Subject Property from RL - 4 to IND . JE 2. According to

the “Narrative Summary,” “[t]his change will provide for the

continuation of historical motor freight uses and provide for

optional ind ustrial uses.” Id.

68. On January 4, 2005, the County published Notice in a

newspaper of local circulation providing that the Board would

consider the adoption of the Plan Amendment at its meeting of

January 19, 2005. At the January 19, 2005, meeting, the County

tabled consideration of the Plan Amendment to its meeting of

February 2, 2005.

69. The Polk County Planning Division Staff report is

dated February 2, 2005. This report contains a detailed

analysis of the application. The Planning Division recommend ed

denial of the Plan Amendment. (The report indicates that the

Planning Commission recommended approval (3 to 1 vote) of the

Plan Amendment.) The Planning Division found, in part, that

"the proposed development request IS NOT compatible with

surrounding land uses and general character of the area of the

residential uses on the southern side of Snively Avenue (CR 655)

and IS NOT consistent with the Polk County Comprehensive Plan

for a land use change to Industrial (IND) because it would

likely intrude int o the existing residential neighborhood, allow

for more intensive uses to be developed next to existing homes,

and not be consistent with the approved Eloise Redevelopment

Plan." (Emphasis is original).

70. On February 2, 2005, the Board voted to adopt the Pl an

Amendment by the adoption of Ordinance No. 05 - 004.

CONCLUSIONS OF LAW

A. Jurisdiction

71. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. §§ 120.569, 120.57(1), and 163.3187(3)(a) , Fla.

Stat.

B. Standing

72. The parties agree that the ECRA, Mr. Brooks, Mr.

Bachman, and Mr. Smith have standing in this proceeding. The

standing of CPPI, however, is in dispute.

73. In order to have standing to challenge a small scale

amendment to a comprehe nsive plan, the party must be an

"affected person" as that term is defined by Section

163.3184(1)(a), Florida Statutes. Relevant here, the statute

provides:

"Affected person" includes . . . persons owning

property, residing, or owning or operating a

busin ess within the boundaries of the local

government whose plan is the subject of the

review . . . . Each person, other than an

adjoining local government, in order to qualify

under this definition, shall also have submitted

oral or written comments, recomme ndations, or

objections to the local government during the

period of time beginning with the transmittal

hearing for the plan or plan amendment and ending

with the adoption of the plan or plan amendment.

Id.

74. CPPI is an organization comprised of approxima tely 200

members. No members reside or own property within the Eloise

neighborhood, but all members live in the County. There is no

evidence, however, that CPPI owns property within the County.

According to its chairperson, Jean Reed, its purpose is to

"better plan for our growth in Polk County." The organization

currently encourages donations and plans to charge dues next

year. Ms. Reed testified that, on behalf of CPPI, she submitted

oral comments regarding the Plan Amendment during the adoption

proc eedings. I t is at least "debatable," based on existing

precedent, that CPPI is operating a business in Polk County.

See The Sierra Club, et al. v. St. Johns County, et al. , Case

No. 01 - 1851GM and 01 - 1852GM, 2002 WL 1592234 (DOAH May 20, 2002;

DCA July 30 , 2002), aff'd , 857 So. 2d 897 (Fla. 5th DCA 2003).

Accordingly, CPPI has standing in this proceeding. But see

Durham v. Berry , Case No. 03 - 0593GM, 2004 WL 364174 (DOAH Feb.

24, 2004 )(Administrative Law Judge concluded that CPPI did not

have standing), ( A dmin . C omm . June 24, 2004) (Administration

Commission concluded the issue was debatable, but did not decide

the issue) . 11

C. Burden of Proof and Standard of Review

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

that in cases challenging a small scale d evelopment amendment,

" the local government’s determination that the small scale

development amendment is in compliance is presumed to be

correct. T he local government's determination shall be

sustained unless it is shown by a preponderance of the evidenc e

that the amendment is not in compliance with the requirements of

this act." Thus, t he burden rests on the Petitioners to show by

a preponderance of the evidence that the Plan Amendment is not

"in compliance." See Denig v. Town of Pomona Park , Case No. 01 -

4845GM, 2001 WL 1592220 (DOAH June 18, 2002; A dmin. C omm . Oct.

23, 2002).

76. Relevant here, “in compliance” means consistent with

the requirements of Sections 163.3177, 163.3178, 163.3180,

163.3191, and 163.3245, Florida Statutes, and with Florida

Administ rative Code Chapter 9J - 5. § 163.3184(1)(b), Fla. Stat.

See Amended Prehearing Stipulation, JE 9 at 11 - 14.

D. County's Comprehensive Plan

77. Although the parties agree that the Comprehensive Plan

must be read in its entirety to determine how the provisions

relate to one another, Petitioners raise several provisions of

the Plan as being germane to the consideration of the Plan

Amendment. Specifically, the parties dispute the interpretation

and application of the following provisions: Section 1.103

(Purpose a nd Intent), Division 1.200 (Basic Principles), Policy

2.102 - A1 (Compatibility), Policy 2.102 - A9 (Location Criteria),

Policy 2.102 - A10 (Urban Sprawl), Objective 2.109 - B (Reduction of

Incompatible Land Uses), Section 2.113 (Industrial and Business

Park Cente r), Objective 2.113 - A, Policy 2.113 - A1

(Characteristics), Policy 2.113 - A2 (Designation and Mapping),

Policy 2.113 - A3 (Location Criteria), Objective 2.124 - F

(Redevelopment Districts), Policy 2.124 - F1 (Designation and

Mapping), Policy 2.124 - F3 (Redevelopment District Revitalization

Plans), Policy 2.124 - F4 (Redevelopment Activities), Policy

2.124 - F5 (Adoption of Redevelopment District Revitalization

Plans), and Section 2.129 (Implementation). These provisions

are discussed separately below.

78. Section 1.103 of t he Comprehensive Plan expressly

states that the Comprehensive Plan was developed pursuant to

Florida's growth - management mandate, but the Comprehensive Plan

recognizes that it must consider the unique characteristics of

the County, its historical trends, c urrent conditions, and

“citizen aspirations for a future Polk County with a desirable

quality of Life.” The Plan Amendment is premised on the

County's individual characteristics and historical trends.

Specifically, the evidence shows that the Redevelopme nt Area has

historically been utilized for mixed purposes. In the

Redevelopment Area, one significant use is i ndustrial and the

Subject Property has been a part of that use.

79. The County approved the “Basic Principles” document on

May 2, 1989. Division 1.2 00 lists the “Basic Principles,” which

were approved. Among these "Basic Principles" is Division

1.200(4), which states that "[r]esidential neighborhoods are

collectively recognized as an important asset to be protected."

This and the other basic princip les were used to guide the

establishment of the Comprehensive Plan.

80. Policy 2.102 - A1 provides that "[l]and shall be

developed so that adjacent uses are compatible with each other.

. . . " This policy further sets forth several general

techniques which can be used to mitigate the adverse impacts

between incompatible land use s . However, this section is

inapplicable to this matter, as its express provisions address

the development of property, whereas the Subject Property has

already been developed as an ind ustrial - type use. Even if this

provision applied, the provision does not represent a bar to the

approval of incompatible land uses but, rather, encourages the

utilization of innovative techniques such as buffers, limiting

scale and intensity or transition s to minimize adverse impacts.

81. Policy 2.102 - A9 requires the County to consider

several factors when determining the appropriateness of

establishing or expanding any land use or development area.

Policy 2.109 - A9: a. and c. requires consideration of the

" nearness to incompatible land uses and future land uses, unless

adequate buffering is provided" and “distance from populated

areas.” However, this provision requires that the County

consider these factors and does not constitute a bar to the Plan

Amendmen t. Further, implicit in this criterion is that the

County should consider buffering to minimize adverse impacts.

These are matters which are more properly considered in the

development approval stage. Similarly, Policy 2.109 - A9: e.2.

require s considerat ion of the adequacy of sanitary sewer.

Though sanitary sewer is not presently available to the Subject

Property, it has been approved and will be available within a

reasonable period of time. As expressly written, the County is

bound only to consider the se factors. Therefore, since the se

provisions do not use language that would make these factors

obligatory, the Plan Amendment need not be consistent with each

factor. There was no evidence presented to show that any of

these factors were not considered by the County and, therefore,

the Plan Amendment is not inconsistent with this section.

82. Policy 2.102 - A10 addresses urban sprawl and lists

certain criteria the County must consider when determining

whether to establish or expand any land use or development area.

This provision, however, is inapplicable for several reasons.

First, the Subject Property is already part of an established

urbanized area and consists of a variety of mixed uses,

including an industrial - type use. Second, though Petitioners

argue that the approval does not promote residential infill, for

example, the policy itself does not require that the infill be

residential, only that infill should be promoted, industrial or

otherwise.

83. Objective 2.109 - B states: "Polk County shall provide

for t he reduction and/or elimination of incompatible land uses ,

and shall further control land use intensities, through the

establishment of revised land use regulations as part of the

Land Development Code adopted by the County under Section

163.3202(1), F.S.” Policy 2.109 - B1 state s: “Polk County shall

encourage the elimination or reduction of uses inconsistent with

the County’s character and future land uses by implementing the

provisions included in the “Implementation” section (2.129 -

A2.c.1).” Policy 2.12 9 - A2:c.1 requires the County’s Land

Development Code to incorporate regulations, procedures, and

standards which include “[r]egulations and procedures to address

existing development and potential development, to include, but

not limited to: 1. existing no n - conformities, including uses,

lots, structures, and site characteristics (parking, signage,

access, etc.”

84. The County implemented Policy 2.129 - A2:c.1., by

enacting Section 120 C.1. of the Land Development Code, which

provides, in part, that “[i]t is the intent of this section to

require the cessation of certain non - conformities and to permit

others to continue until they are removed or cease, but not to

encourage their survival.” Section 120 C.2. provides that “[i]t

is further the intent of this section that non - conformity shall

not be used as grounds for addition or expansion, except as

specifically provided by this Section.” Further, Section 120 D.

provides that “[n]on - conforming development may not be

intensified, enlarged, expanded, altered or replac ed except as

provided in this Section.”

85. The Subject Property is a legally recognized non -

conforming use because the Subject Property was used as an

industrial - type use prior to the adoption of the Comprehensive

Plan. Although the Comprehensive Plan author izes consideration

of, for example, the availability of buffering and other

techniques to mitigate the incompatibility, it does not

authorize the continuation of the present use or an industrial

use with a greater intensity (which could be potentially

allo wed) as a conforming use. Approval of the Plan Amendment is

inconsistent with Objective 2.109 - B and Policy 2.109 - B1 because

it furthers and encourages the continuation of a non - conforming

and otherwise incompatible (with existing residential land uses

to the north and south) industrial - type use. See generally

Parsons v. Putnam County, Department of Community Affairs, and

Florida Racing of Putnam County, Inc. , Case No. 02 - 1069GM, 2002

WL 21019498 (DOAH May 2, 2003; DCA Determination of

Noncompliance June 2 4, 2003; A dmin . C omm . Final Order of

Dismissal Oct. 24, 2003).

86. Section 2.113 sets forth the requirements for the

location of Industrial and Business Park Center land uses within

the County. Objective 2.113 - A requires the Comprehensive Plan

to provide for the development of industrial land through, in

part, “the designation of Industrial lands on the [FLUM]

Series.” Policy 2.113 - A1 describes the characteristics of

industrial land. See Endnote 8 . Policy 2.113 - A 2 pertains to

“designation and mapping.”

87. Policy 2.113 - A2, pertaining to “designation and

mapping,” is at the center of the dispute between the parties

and states:

Industrial areas shall be designated and

mapped on the Future Land Use Map Series as

"Industrial" (IND); shall include all major

exist ing industrial areas; and shall provide

for the projected future industrial

development needs of the County.

Consistent with this policy, the County designated and mapped

“Industrial areas,” such as the Phoenix p roperty, beginning in

1991.

88. Policy 2.113 - A3 provides location criteria for

establishing new industrial areas. Among other factors

considered, “[i]ndustrial facilities should group together in

planned industrial districts on sites capable of being expanded

and developed in stages” and “[i]ndustrial districts shall be

separated significant distances from schools and developed

residential areas.” Policy 2.113 - A3:d. and e. 12

89. Policy 2.113 - A4 provides that “[d]evelopment within an

Industrial area shall conform to” several criteria such as: " a.

Permitted uses include facilities for the processing,

fabrication, manufacturing, recycling, bulk material storage,

and distribution of goods, disposal yards, and limited retail

commercial in accordance with Policy 2.113 - A4.b. Other non -

residential uses that produ ce significant amounts of noise,

odor, vibration, dust, and lighting on and off - site may be

permitted within an industrial district through conditional

approval. Permitted uses also include any use found within a

Business - Park Center.”

90. Ultimately, as no ted by the County in its Proposed

Recommended Order, the crux of this dispute rests on whether the

County erroneously classified the Subject Property as RS and

later RL - 4 on the FLUM.

91. As an initial matter, despite Petitioners' contrary

assertions, there is authority to consider whether the

designations of RS and RL - 4 were made in error. See Island,

Inc. v. City of Bradenton , 884 So. 2d 107 (Fla. 2d DCA 2004).

92. While Policy 2.113 - A2 may have required the County to

designate and map the Subject Property as Industrial on the FLUM

when the Comprehensive Plan was originally adopted, the County

chose not to do so in 1991 or in 2001. Rather, the Subject

Property was designated and mapped RS and then RL - 4 in 1991 and

2001, respectively. There is no persuasive su pport for the

proposition that the designation and mapping of the Subject

Property as RS in the adoption of the FLUM 1991 or RL - 4 as

amended in 2001 was in error.

93. It appears that the County was not made aware of th is

issue until the application process for the Plan Amendment

commenced and it was informed that the classification was

allegedly erroneous. 483. The record contains no specific

finding by the Board regarding its approval of the Plan

Amendment that t he 1991 and 2001 land use designations of the

Subject Property were erroneous and no reasonable inference can

be drawn from the evidence that an error was made in 1991 and

2001.

94. I t is concluded that, for the purpose of designating a

land use for the Subjec t Property, the Plan Amendment is

construed as approval to establish a new i ndustrial area, and,

accordingly, must not be inconsistent with the location criteria

in Policy 2.113 - A3, and, in particular, subparagraphs d. and e.

95. The preponderance of the evide nce establishes that the

Subject Property is not capable of expansion to the west, or

north and south unless the residential property is used.

Further, the Subject Property is within close proximity to the

elementary school and is adjacent to residential areas to the

north and south. The Plan Amendment is inconsistent with Policy

2.113 - A3: d. and e.

96. Petitioners also raise several claims relating to

perceived conflict between the Plan Amendment and the

Redevelopment Plan of ECRA. However, a plan amendment need not

be consistent with a redevelopment plan to be "in compliance,"

as that term is defined.

97. Petitioners also raise several provisions of the

Comprehensive Plan relating to redevelopment efforts. These

include Objective 2.124 - F, which requires the County to address

areas in need of revitalization by creating redevelopment

districts and redevelopment plans to rehabilitate, revitalize,

and/or redevelop these areas, and Policy 2.124 - F1, which

addresses the designation and mapping of redevelopment distr icts

and lists what is intended to be accomplished by the

redevelopment districts and revitalization plans. These

provisions are irrelevant to comprehensive plan amendments.

98. Similarly, Policy 2.124 - F3, which requires the

establishment of revitalization plans for each redevelopment

district and sets forth strategies for the preservation,

rehabilitation, and/or redevelopment of these areas , is also

irrelevant to comprehensive plan amendments.

99. Petitioners cite Policy 2.124 - F4, which requires the

County to implement the purpose and intent of Policy 2.124 - F1

and further sets forth permitted uses within a redevelopment

plan and development criteria. This provision obligates the

redevelopment plan to meet the requirements of the Comprehensive

Plan. These stan dards only apply to the initial development of

the revitalization plan and are irrelevant to comprehensive plan

amendments .

100. Policy 2.124 - F5 states that upon approval by the

Board, the revitalization plan will become the official

revitaliz ation plan for the redevelopment district. This

provision is also irrelevant to comprehensive plan amendments.

101. In sum, based upon the evidence submitted and the

testimony provided, it is concluded that the Subject Property

was not classified in error in t he adoption of the FLUM in 1991

or when amended in 2001 and that t he Plan Amendment is not "in

compliance," as that term is defined by Section 163.3184(1)(b),

Florida Statutes, because it is inconsistent with several

provisions of the Comprehensive Plan. See also

§ 163.3177(2) and (6)(a), Fla. Stat.; Fla. Admin. Code R. 9J -

5.005(5) and 9J - 5.006(3)(b)3 . and (3)(c)2.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Administration Commission enter a

final order concluding that the Plan Amendment adopted by Polk

County Ordinance No. 05 - 004 is not "in compliance" as defined in

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

DONE AND ENTERED this 8th day of July, 2005, in

Tallahassee, Leon County, Florida.

S

CHARLES A. STAMPELOS

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

www .doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of July, 2005.

ENDNOTES

1 / All ci tations are to the 2004 codification of the Florida

Statutes unless otherwise indicated.

2 / The Phoenix Industries’ business property was considered a

majo r industrial area when this property received an Industrial

land use designation in 1991.

3 / There are a number of other churches in the vicinity of the

Subject Property. The Pentecost al Church of God, JE 8A at "11",

the Church of God, JE 8A at "12", the Church Of Christ, JE 8A at

"13", and the Southern Baptist Spanish Church, JE 8A at "14",

are located on the southwest side of Snively Avenue,

approximately between 1st and 5th Streets, and northwest of the

Subject Property.

4 / A packing operation is located southeast of Snively

Elementary School within the IND land use designation. JE 8A at

"19". There is a residence located on the corner of the

property designated as RL - 4 land use just north of the church

and packing operation and adjacent to the school. JE 8A at

"33".

5 / According to the Eloise Redevelopment Plan, the foregoing

“boundaries were established in order to address the areas of

concentrated blighting conditions while providing sites for

additional development and future tax base. The area boundary

was expanded beyond the existing Eloise residential neighborhood

in order to protect it [sic] borders form [sic] further

incompatible development.” EE 2, Plan at 6. It is further

stated: “Ten percent of the area is residential and 15% is

industrial and commercial. Most of the area with the CRA

boundary is wetland, vacant or undeveloped (62.2%). The housing

is older stock and is primarily located on the west side of

Snivel y Avenue while the industrial is located on the east side.

The South half of the area is vacant or pastured land.” Id.

6 / It appears that the RL - 1 land use designations cover areas

that are either wetlands and/or in flood prone areas. (EE 2,

Plan at 3 0). (As of 2000, of the 665 acres in the Redevelopment

Area, it was estimated that 225 acres are potential

wetlands/flood plain, 188 acres are developable uplands, with

252 acres of developed area. Id. ) Most of this area is

undeveloped and, as a result of the presence of wetlands,

unlikely to be developed ("Wetlands Area"). Though both the

Residential Area and the Wetlands Area are included within the

Redevelopment Area, the character of each differs significantly.

As such, the determination as to whet her the Plan Amendment is

"in compliance" must be evaluated by the significant differences

of the two areas within the Redevelopment Area. Though the

Wetlands Area is primarily classified as residential, the

impacts of the Plan Amendment are the most sign ificant on the

variety of mixed land uses contained within the Residential Area

and not on the Wetlands Area.

7 / It has been said that the school "is the center of Eloise -

both physically and psychologically. . . . The school was built

in September 1948 and was expanded in 1956." In 2000, the

school "was selected as a 'School of Choice,' with special

emphasis on communications. Technology and work force

preparation." The Snively/Brooks Park is located adjacent and

west of the school and was completed i n approximately 1997. The

park "is used by the school during school hours and is open to

the public during other daylight hours. The park facilities

include a jogging path with exercise stations; a baseball

diamond; two basketball courts; covered picnic tables and

barbeque equipment; playground swing and equipment; and a

storage/bathroom facility."

8 / Mr. Smith testified that on and off - site, the activities on

the Subject Property emit a low amount of noise, no odors, low

amounts of vibration, littl e or no dust, and a medium level of

lighting. However, he also testified that current on - site uses

of the Subject Property include on - site fuel storage and

fueling, on - site truck and equipment repair, and maintenance.

Under the Comprehensive Plan, "[i]nd ustrial lands are

characterized by facilities for the processing, fabrication,

manufacturing, recycling, and distribution of goods, and may

contain any use also found within a Business - Park Center.

However, land use activities that operate externally to e nclosed

structures may be permitted within an Industrial [FLUM]

classification. Industrial districts are also the appropriate

location for land use activities that produce a significant

amount of noise, odor, vibration, dust, and lighting on and off -

site that do not produce a physical product."

9 / The Polk County Division Staff Report provides a chronology

of the use of and land use designations for the Subject Property

as "Findings of Fact" and, in part, states: "The majority of the

homes on the 5th a nd 6th Streets were built between 1922 and

1969, which is prior to the GI zoning [with the adoption of the

Zoning Ordinance on November 1, 1970, via County referendum] and

development of the Alterman Truck Terminal site [part of the

Subject Property] for t he existing uses, based on staff's

research of the surrounding properties utilizing the Property

Appraiser's Office data." (JE 3 at 3 of 27).

10 / It appears that the Comprehensive Plan was adopted on

November 18, 1992. JE 1; but see JE 3 at 1 of 27, stating that

the Comprehensive Plan was adopted on May 1, 1991, and that the

land use designation of the Subject Property was changed on May

1, 1991, on the FLUM, to RL, rather than, as stipulated, Amended

Prehearing Stipulation at 9, to RS on April 19, 19 91. Mr.

Bishop explained that the Comprehensive Plan was initially

adopted in March or April of 1991. It was transmitted to the

Department of Community Affairs. The Department issued a report

finding the plan not in compliance. Thereafter, the

Departme nt’s concerns were satisfied and the County readopted

the Comprehensive Plan in . 503 - 504.

11 / The Final Order in the Durham case struck the portions of

the Recommended Order addressing standing because it was

unnecessary to rule on the issue of CPPI's standing because

another party had standing. The striking of this portion of the

Recommended Order does not impact this case, however, because

the Final Order did not address the merits of CPPI's standing.

12 / Mr. Jarret, County Attorney, opined that Policy 2.113 - A3: e.

“would be dispositive” if the use of the Subject Property is “a

new development,” but the opinion would change if it was “a

preexisting industrial use.\. 176, 178. See also EE 4.

(The Transcript reference to “subparagraph B of the 2.113 - A3”

should be subparagraph e.) When Mr. Jarret wrote his January

27, 2005, Memorandum, EE 4, he believed that the use of the

Subject Property “was new.” Subsequently, he re - examined the

issue and determined that perhaps it could be argued th at it was

not, in fact, new. 183. He believed the issue needed to be

addressed and he was concerned that “this issue was being

ignored totally by both sides.\. 184.

COPIES FURNISHED :

Barbara Leighty, Clerk

Administration Commission

Growth Manag ement & Strategic Planning

The Capitol, Room 1802

Tallahassee, Florida 32399 - 0001

Raquel A. Rodriquez, General Counsel

Office of the Governor

The Capitol, Suite 209

Tallahassee, Florida 32399 - 1001

Heidi M. Hughes, General Counsel

Department of Communit y Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399 - 2100

Robert G. Fegers, Esquire

Law Offices of Robert G. Fegers, P.L.

Post Office Box 7962

Winter Haven, Florida 33883 - 7692

Bruce Bachman

946 North Lake Otis Drive, Southeast

Win ter Haven, Florida 33880

Johnny Brooks

Post Office Box 5465

Eloise, Florida 33880 - 0465

Jean S. Reed, Qualified Representative

27 Lake Eloise Lane

Winter Haven, Florida 33884

Gregory T. Stewart, Esquire

Harry F. Chiles, Esquire

Kyle L. Kemper, Esquire

Nabors, Giblin & Nickerson, P.A.

1500 Mahan Drive, Suite 200

Post Office Box 11008

Tallahassee, Florida 32302

Anne T. Gibson, Esquire

Drawer AT01

Post Office Box 9005

Bartow, Florida 33831 - 9005

Michael T. Gallaher, Esquire

Peterson & Myers, P.A.

Post Office Box 1079

Lake Wales, Florida 33859 - 1079

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 the Recommended Order should be filed with the agency that

will issue the final order in this case.