06-001070GM Larry And Michelle Seal vs. Santa Rosa County Status: Closed Recommended Order on Tuesday, June 6, 2006.

Summary: Petitioner failed to establish that County`s small scale amendment changing land use on parcel was not in compliance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LARRY AND MICHELLE SEAL, )

)

Petitioner s, )

)

vs. ) Case No. 0 6 - 1070 GM

)

SANTA ROSA COUNTY, )

)

Respondent, )

)

and )

)

THE BOARDWALK AT NAVARRE, )

LLC, )

)

Intervenor . )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administra tive Law Judge, Donald R. Alexander, on May 23, 200 6 ,

in Milton, Florida.

APPEARANCES

For Petitioner s: Larry Seal, pro se

7654 East Bay Boulevard

Navarre, Florida 32566 - 7923

For Respondent: Thomas V. Dan nheisser, Esquire

Santa Rosa County Attorney

6495 Caroline Street, Suite C

Milton, Florida 32570 - 4395

For Intervenor: William J. Shepard, Esquire

Morris, Manning & Martin, LLC

1600 Atlanta Financial Center

3343 Peachtree Road, Northeast

Atlanta, Georgia 30326 - 1044

STATEMENT OF THE ISSUE

The issue is whether the small scale development amendment

adopted by Respondent, Santa Rosa County (County), by Ordinance

No. 2005 - R - 70 on February 23, 2006, is in compliance.

PRELIMINARY STATEMENT

O n February 23, 2006, the County adopted a small - scale plan

amendment ( Ordinance No. 20 55 - R - 70 ), which cha nged the future

land use designation on the C ounty's Future Land Use Map (FLUM)

on a 1.15 - a cre parcel from Single - Family Residential to

Commercial. The parcel is owned by Intervenor, The Boardwalk at

Navarre, LLC (Boardwalk or Intervenor.)

On March 24 , 20 0 6 , Petitioner s, Larry and Michelle Seal,

filed with the Division of Administrative Hearings a Petition

for Formal Administrative Hearing (Petition) under Section

163.3187(3)(a), Florida Statutes (200 5 ) . 1 On May 5, 2006,

Boardwalk was authorized to interv ene in this proceeding.

Although t he Petition contained a general allegation that

the map amendment was internally inconsistent with the County's

Comprehensive Plan (Plan), i t also contained numerous

allegations regarding a zoning application which appar ently

accompanied the small scale amendment application. (In

addition, Intervenor's papers were primarily responsive to the

zoning issue. ) Because of this, a telephonic status conference

was held on May 11, 2006, at which time the parties were advised

th at zoning issues were not relevant and that only matters

pertaining to the consistency of the amendment with the Plan

would be considered .

By Notice of Hearing dated April 7, 2006, the final hearing

was scheduled on May 23, 2006, in Milton, Florida. At the final

hearing, Larry Seal, who is a lay person, testified on his own

behalf. Also, he had marked for identification Petitioners '

Exhibit 1, a Special Power of Attorney executed by his wife on

May 22, 2006, which appoints him as her "Attorney - in - Fact

( 'Agent')." That exhibit is received in evidence. The County

and Boardwalk elected not to offer any evidence.

At the outset of the hearing, the County and Intervenor

m ade an ore tenus motion to dismiss Mr. Seal as a party on the

ground he did not own pr operty adjacent to the subject of the

map amendment. The undersigned denied the motion but advised

the parties that the issue would be reconsidered in the

Recommended Order.

The record of the hearing was preserved with electronic

recording equipment. See Fla. Admin. Code R. 28 - 106.214(1)

("[p]roceedings shall be recorded by a certified court reporter

or by recording instruments") . Therefore, there is no

transcript of the hearing. No party has filed proposed findings

of fact and conclusions of law.

FINDI NGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

1. The record in this case is extremely brief, thus

accounting for the brevity of this Recommended Order.

Petitioners, Larry Seal and Michelle Seal, reside at 75 64 East

Bay Boulevard, Navarre, Florida, an unincorporated community

within the County. Although Boardwalk did not present any

evidence at the hearing, for background purposes only, the

parties' pleadings show that Boardwalk is a limited liability

corpora tion which owns a 1. 1 5 - acre parcel in Navarre, Florida,

and is seeking to have the land use designation on that property

changed from Single - Family Residential to Commercial. The

pleadings also show that t he amendment was adopted by the County

on February 23, 2006.

2. Mr. Seal resides within the County. Also, he attended

the County meeting on February 23, 2006, and offered comments in

opposition to the amendment . As s uch, he is an affected person

and has standing to participate in this proceeding. Mrs. Seal

did not attend the final hearing. However, Mrs. Seal's

interests are represented by her husband. See Petitioners'

Exhibit 1. Whether she owns property adjacent to Intervenor's

parcel , as alleged in the Petition, and whether Mr. Seal made

comments on her behalf at the County meeting, was not

established through Mr. Seal's testimony.

3 . Without citing specific portions of the Plan, i n their

Petition, Petitioners alleged only that the small scale

development amendment adopted by the County is inter nally

inconsistent with the Plan. 2 Despite this lack of specificity,

no discovery was taken by the parties prior to the hearing. At

the hearing, Mr. Seal , who is a lay person, asserted that the

amendment was inconsistent with Housing Element Policies 51B 4

and 51B5 and with undisclosed portions of the Future Land Use

Element. (Copies of the Plan itself were not introduced into

evidence.) However, it became evident that the two cited

p olicies in the Housing Element relate to land development

regulations a nd are therefore irrelevant. 3 See , e.g. , Brevard

County v. Dept. of Community Affairs et al. , DOAH Case Nos. 00 -

1956GM and 02 - 0391GM (DOAH Dec. 16, 2002; DCA Feb. 25, 2003)

2003 Fla. ENV LEXIS 20 at *7 (consistency with land development

regulations is not a compliance criterion); Robbins et al. v.

Dept. of Community Affairs et al. , DOAH Case No. 97 - 0754GM (DOAH

Oct. 30, 1997; DCA Dec. 9, 1997 ) 1997 Fla. ENV LEXIS 231 at *18

(land development regulations are not relevant to a plan or plan

amendment complian ce determination). Mr. Seal also asserted

that the amendment contravened a resource extraction policy in

the Conservation Element but later withdrew that assertion.

That policy also appears to have no application to th e map

amendment.

4 . After the Count y's objection to testimony regarding

land development regulations was sustained , Mr. Seal indicated

that he did not intend to present any other evidence since the

remainder of his prepared testimony related to that subject.

Although he was given an opport unity to present further relevant

evidence, he rested his case. The County and Boardwalk elected

not to offer any evidence in response to Mr. Seal's testimony.

Except for a Special Power of Attorney executed by Mr. Seal's

wife, no documentary evidence, s uch as copies of relevant

portions of the Plan, the existing and proposed FLUM, drawings

or aerial photographs of the property and adjacent area, the

application, or the Ordinance which adopted the amendment , was

offered into evidence by any party . 4

5. Be cause Boardwalk did not present any evidence, there

is no basis upon which to determine whether it presented written

or oral comments , recommendations, or objections to the County

during the adoption of the amendment . (In its Motion to

Intervene, Board wal k did allege that such comments were made.)

Therefore, there is no evidence to establish that Intervenor is

an affected person and has standing to participate in this

proceeding .

CONCLUSIONS OF LAW

6 . The Division of Administrative Hearings has

jurisdi ction over the subject matter and the parties hereto

pursuant to Section 163.3187(3), Florida Statutes.

7 . The parties have not stipulated to standing or any

other issue. Th rough an ore tenus motion made at the outset of

the hearing, th e County and Inte rvenor contend that Mr. Seal

does not have standing to participate because he does not own

property which abuts the land on which the use is being changed.

In making this argument t hey rely on Section 163.3184(1)(a),

Florida Statutes, which reads in relev ant part as follows:

(a) " Affected person" includes the affected

local government; persons owning property,

residing, or owning or operating a business

within the boundaries of the local

government whose plan is the subject of the

review; owners of real p roperty abutting

real property that is the subject of a

proposed change to a future land use map ;

and adjoining local governments that can

demonstrate that the plan or plan amendment

will produce substantial impacts on the

increased need for publicly fund ed

infrastructure or substantial impacts on

areas designated for special protection or

special treatment within their jurisdiction.

(Emphasis added)

8. The essence of the County's and Intervenor's argument

is that by amending the law in 2002, the Legisl ature intended

that the underscored language now constitutes the exclusive (and

only) way in which to qualify as an affected person in a map

amendment challenge.

9 . In 2002, t he definition of an affected person was

expanded to include owners of real pro perty abutting other

property that is the subject of a proposed change in the FLUM .

See Ch. 2002 - 296 , § 7, at 2278, Laws of Fla. This corrected a

problem that had occurred when property owners in neighboring

jurisdictions were foreclosed from contesting a map amendment

even though they owned property adjacent to the property that

was subject to a change. 5 See Roth and Feagin, 2002 Reforms to

Growth Management , FLA. B. J., July/Aug 2002, at 59. Therefore,

it is concluded that a person or entity may quali fy as an

affected person in a map amendment challenge in one of four

ways: by residing, owning property, or owning or operating a

business within the boundaries of the local government, or by

owning property which is contiguous to the property which is th e

subject of a map amendment. (In addition, they must have

submitted oral or written comments, recommendations, or

objections to the local government during the adoption process.)

As a resident of the County who offered oral objections to the

amendment , Mr. Seal qualifies as a n affected person. 6

10 . Under Section 163.3187(3)(a), Florida Statutes, the

local government's determination that the small scale amendment

is in compliance is presumed to be correct. Further, this

determination will be sustained u nless "it is shown by a

preponderance of the evidence that the amendment is not in

compliance with the requirements of this act." Therefore, the

test is whether the evidence supports or contradicts the

determination of the City. Denig v. Town of Pomona P ark , DOAH

Case No. 01 - 4845GM, 200 2 Fla . ENV LEXIS 220 at *8 - 9 (DOAH June

18, 2002; Admin. Comm. Oct. 23, 2002). This statutory burden of

proof has been applied in this proceeding.

1 1 . In their Petition, Petitioner s ha ve contended, without

reference to an y specific provision, that the map change is

inconsistent with the Plan. At hearing, Mr. Seal (who offered

lay testimony) relied upon two provisions in the Plan which

relate to land development regulations . He also cited an

unrelated provision in the Con servation Element. Because the

cited provisions are not relevant to this matter, Petitioners

have failed to meet their burden of showing by a preponderance

of the evidence that the County's determination should not be

sustained. This being so, it is co ncluded that the challenged

small scale amendment is in compliance.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Community Affairs enter

a final order determining that the small sca le plan amendment

adopted by Ordinance No. 20 0 5 - R - 070 is in compliance.

DONE AND ENTERED this 6th day of June, 2006, in

Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division of Admini strative 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 6th day of J une, 2006 .

ENDNOTES

1 / A ll statutory references are to Florida Statutes (200 5 ).

2 / Mr. Seal's principal objection to the map change is that the

owner allegedly intends to place a water retention pond on the

property after the change becomes effecti ve.

3 / As noted in Finding of Fact 3, the Plan itself was not

offered into evidence. At hearing, however, Mr. Seal testified

that Policy 51B4 requires that the County strictly enforce its

Building and Housing Codes, as well as its Planning and Zoning

Co des, while Policy 51B5 requires that the County continue to

enforce its land development regulations to ensure compatibility

of land uses within established, planned residential areas.

4 / Although the County and Mr. Seal exchanged exhibits before

the h earing, and they briefly referred to them before evidence

was taken, except for Petitioners' Exhibit 1, none were marked

for identification or moved into evidence.

5 / Stated another way, the amendment allows persons who own

property within the boundaries of one local government to

challenge a map amendment for property located within another

local government so long as the two properties are contiguous.

C f. Bradshaw v. City of Midway et al. , DOAH Case No. 93 - 0715GM,

Final Order No. DCA93 - 140 - FOF - CP , Orde r Denying Motion to Dismiss

and Remanding Proceeding to the Division of Administrative

Hearings for Further Proceedings ( May 18, 1993)(allegation that

Petitioner was a landowner whose property was "near to the

property that is the subject of the plan amend ment," but outside

the boundaries of the local government, was sufficient to confer

standing to participate); Pope v. City of Cocoa Beach et al. ,

DOAH Case No. 90 - 3581GM (DOAH Oct. 16, 1990; DCA Nov. 15, 1990)

1990 Fla. ENV LEXIS 183 at *8 - 9 (allegation by Petitioner that

she "owns property that is directly adjacent to the property that

is the subject of the City's plan amendment," but outside the

boundaries of the City, sufficient to confer standing).

6/ Because Mr. Seal is an affected person, the issu e of whether

his wife has standing becomes moot.

COPIES FURNISHED:

Thad d e us Cohen, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard , Suite 100

Tallahassee, Florida 32399 - 2100

David L . Jordan, Acting General Counsel

Department of Co mmunity Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399 - 2100

Larry and Michelle Seal

7564 East Bay Boulevard

Navarre, Florida 32 566 - 7923

Thomas V. Dannheisser, Esquire

Santa Rosa County Attorney

6495 Caroline Street, Suite C

Mil ton, Florida 32 570 - 4592

William J. Sheppard, Esquire

Morris, Manning & Martin, LLP

1600 Atlanta Financial Center

3343 Peachtree Road, Northeast

Atlanta, Georgia 30326 - 1044

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit writ ten 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.