07-005107GM County Of Volusia; Thomas Stevens; Alma Mae Buckhalt; And Margaret Bennett Raulerson vs. Department Of Community Affairs And Putnam County Status: Closed Recommended Order on Tuesday, September 22, 2009.

Summary: Petitioners failed to prove beyond fair debate that Putnam County's comprehensive plan amendment was not "in compliance."

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COUNTY OF VOLUSIA, THOMAS )

STEVENS, ALMA MAE BUCKHALT,and )

MARGARET BENNETT RAULERSON, )

)

Petitioners, )

)

vs. ) Case No. 07-5107GM

)

DEPARTMENT OF COMMUNITY AFFAIRS )

and PUTNAM COUNTY, )

)

Respondents, )

)

and )

)

WAL-MART STORES EAST, LP, )

)

Intervenor. )

)

RECOMMENDED ORDER

The final hearing in this case was held on March 30 through

April 3, 2009, in Palatka, Florida, before Bram D. E. Canter, an

Administrative Law Judge of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioners Thomas Stevens, Alma Mae Buckhalt, and

Margaret Bennett Raulerson:

Michael W. Woodward, Esquire

Keyser & Woodward, P.A.

501 Atlantic Avenue

Interlachen, Florida 32148

For Petitioner County of Volusia:

Bruce D. Page, Esquire

Larry Smith, Esquire

County of Volusia

123 West Indiana Avenue

Deland, Florida 32720

For Respondent Department of Community Affairs:

Lynette Norr, Esquire

Department of Community Affairs

2555 Shumard Oaks Boulevard

Tallahassee, Florida 32399-2100

For Respondent Putnam County:

Russell D. Castleberry, Esquire

Putnam County Attorney’s Office

518 St. Johns Avenue

Palatka, Florida 32178

For Intervenor Wal-Mart Stores East, LP:

David A. Theriaque, Esquire

S. Brent Spain, Esquire

Theriaque Vorbeck & Spain

433 North Magnolia Drive

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

The issue in this case is whether the amendment to the

Putnam County Comprehensive Plan adopted pursuant to Ordinance

2007-27, as modified by Ordinance 2008-32, is “in compliance,”

as that term is defined in Section 163.3184(1)(b), Florida

Statutes (2008). 1/

PRELIMINARY STATEMENT

In August 2007, Putnam County adopted Ordinance 2007-27, 2/

which amended the text of the Putnam County Comprehensive Plan

to create a new distribution warehouse planning area, and

amended the Future Land Use Map (FLUM) to change the land use

designation of a 220-acre tract of land from Agriculture I to

Industrial. The owner of the affected property is Wal-Mart

Stores East, LP (Wal-Mart). The affected property is located on

the southern border of Putnam County, adjacent to lands in

Volusia County.

In October 2007, following its review of the amendment, the

Department of Community Affairs (Department) issued a Notice of

Intent to find the ordinance “not in compliance.” In November

2007, the Department filed a petition for hearing with DOAH.

Wal-Mart petitioned to intervene in support of Putnam

County’s amendment. Thomas Stevens, Alma Mae Buckhalt, and

Margaret Bennett Raulerson (Individual Petitioners), Lake

Crescent Citizens for Responsible Growth, Inc., and Volusia

County petitioned to intervene in opposition to the amendment.

All the petitions to intervene were granted. Subsequently, Lake

Crescent Citizens for Responsible Growth, Inc., voluntarily

dismissed its petition.

The case was placed in abeyance to allow for settlement

negotiations and in September 2008, the Department, Putnam

County, and Wal-Mart entered into a settlement agreement which

identified the remedial measures that, if adopted by the County,

would satisfy the Department’s objections to the amendment.

Upon notice of the settlement agreement, the case was stayed.

On September 23, 2008, Putnam County adopted Ordinance

2008-32, which amended the comprehensive plan to implement the

remedial measures called for in the settlement agreement. On

October 30, 2008, the Department published its Cumulative Notice

of Intent to find the amendment adopted by Ordinance 2007-27, as

remediated by Ordinance 2008-32, “in compliance.” The parties

were then realigned.

Upon the motion of Volusia County, it was permitted to

amend its petition at the final hearing to add claims that the

amendment was not supported by appropriate data and analysis and

that there was no demonstrated need for additional industrial

lands in Putnam County.

At the final hearing, Joint Exhibits 1 through 38 were

admitted into evidence. Individual Petitioners presented the

testimony of Alma Mae Buckhalt, Brian Hammons, Margaret Bennett

Raulerson, and Thomas Stevens. Individual Petitioners Exhibits

4 and 5 were admitted into evidence.

Volusia County presented the testimony of Mack Cope, James

Bennett, Jon Cheney, and Lea Gabbay. Volusia County also

presented the testimony of John Weiss through the introduction

of his deposition transcript. Volusia County Exhibits 2 through

4, 7, 8, 10, 11, 13, 13A through 13G, 20, 24, 27, 36, 41, 46,

48, 50, and 52 were admitted into evidence.

The Department presented the testimony of Jonathan

Frederick. Department Exhibit 1 was admitted into evidence.

Putnam County participated in the examination of witnesses,

but did not call a witness or offer an exhibit into evidence.

Wal-Mart presented the testimony of David Cooper, Laura

Dedenbach, James Emerson, Thomas Fann, Christopher Hatton,

Patrick Kennedy, Wes Larsen, and Michael McDaniel. Wal-Mart

also presented the testimony of Jon Cheney and Gregg Stubbs

through the introduction of their deposition transcripts. Wal-

Mart Exhibits 2, 9, 17, 24, 26 through 28, 31, 32, 36, 41, 42,

47, 51 through 56, 58 through 63, 66 through 69, 75 through 77,

85 through 88, and 90 were admitted into evidence.

The 10-volume Transcript of the final hearing was prepared

and filed with DOAH. The parties filed Proposed Recommended

Orders, which were carefully considered in the preparation of

this Recommended Order.

FINDINGS OF FACT

The Parties

1. The Department is the state land planning agency and is

statutorily charged with the duty of reviewing comprehensive

plan amendments, and determining whether the amendments are “in

compliance” as that term is defined in Section 163.3184(1)(b),

Florida Statutes.

2. Putnam County is a political subdivision of the State

of Florida and has adopted a comprehensive plan that it amends

from time to time pursuant to Section 163.3167(1)(b), Florida

Statutes.

3. Wal-Mart is a Delaware limited partnership authorized

to do business in the State of Florida. Wal-Mart owns the 220-

acre tract of land that is affected by the amendment (the Wal-

Mart property). Wal-Mart submitted comments and recommendations

to Putnam County concerning the amendment during the time

beginning with the transmittal hearing and ending with the

adoption of the amendment.

4. Thomas Stevens owns property and resides in Putnam

County approximately one mile to the east of the Wal-Mart

property. Mr. Stevens submitted comments, recommendations, or

objections to Putnam County during the period of time beginning

with the transmittal hearing for the amendment and ending with

the adoption of the amendment.

5. Alma Mae Buckhalt owns property and resides in Putnam

County east of the Wal-Mart property. Ms. Buckhalt submitted

comments, recommendations, or objections to Putnam County during

the period of time beginning with the transmittal hearing for

the amendment and ending with the adoption of the amendment.

6. Margaret Bennett Raulerson owns property in Putnam

County. She resides in Volusia County on property that is

contiguous to the Wal-Mart property. Ms. Raulerson submitted

comments, recommendations, or objections to Putnam County during

the period of time beginning with the transmittal hearing for

the amendment and ending with the adoption of the amendment.

7. Volusia County is a political subdivision of the State

and is adjacent to Putnam County to the south. The Wal-Mart

property is contiguous to Volusia County’s northern boundary.

The Amendment

8. The amendment adopted by Ordinance 2007-27 changes the

future land use designation for the Wal-Mart property from

Future Land Use Element of the comprehensive plan to create a

planning district known as the South Putnam Distribution

Warehouse Special Planning Area (SPDW Special Planning Area).

The SPDW Special Planning Area applies exclusively to the Wal-

Mart property.

9. Ordinance 2007-27 amended Policy A.1.9.3.6 of the

Future Land Use Element of the Putnam County Comprehensive Plan,

which addresses industrial land uses, to add a new subsection

“h”:

In order to strengthen the planning process,

the industrial property described below

shall be subject to the special conditions

and development standards set forth in the

following provisions:

1. The industrial property described below

is hereby designated as the South Putnam

Distribution Warehouse Special Planning Area

(SPDW Special Planning Area”):

[metes and bounds description of the Wal-

Mart property]

2. The SPDW Special Planning Area shall be

subject to the following special conditions:

(i) The SPDW Special Planning Area

shall be limited to a water treatment plant

and ancillary facilities and distribution

and warehouse uses, including ancillary uses

of truck maintenance garage with truck wash;

fuel islands; fire services facilities; and

security gatehouses.

(ii) Prior to any development

activity, a delineation of the extent of

wetlands and a survey to determine the

presence or absence of protected species

shall be completed. If the environmental

assessment identifies the presence of any

protected species, proper protection for the

species shall be provided in accordance with

the requirements of the U.S. Fish and

Wildlife Service, the Florida Fish and

Wildlife Conservation Commission, and the

County. If the wetlands delineation

identifies the presence of any

jurisdictional wetlands, the requirements of

the applicable environmental agency and the

County shall be complied with.

(iii) Potable water and sanitary sewer

utilities to the SPDW Special Planning Area

shall be provided by a centralized,

community or regional level water and sewage

system capable of serving all proposed uses

within the SPDW Special Planning Area at the

time of development.

(iv) Access to the SPDW Special

Planning Area shall be provided from US 17

by a paved road to be constructed south of

the road known as Crawford Road (“Connector

Road”).

(v) The following transportation

improvements shall be completed prior to the

issuance of a certificate of occupancy:

a. a northbound to eastbound right-

turn lane at the intersection of US 17 and

the Connector Road;

b. a southbound to eastbound left-turn

lane at the intersection of US 17 and the

Connector Road; and

c. an exclusive westbound to

southbound left-turn lane and an exclusive

westbound to northbound right-turn lane at

the intersection of US 17 and the Connector

Road.

(vi) If determined to be needed by the

Florida Department of Transportation, a

traffic signal at the intersection of US 17

and the Connector Road shall be installed.

(vii) Any needed infrastructure

improvements shall be funded through state

economic development grants or by a private

party.

3. The SPDW Special Planning Area shall be

subject to the following development

standards:

(i) The maximum Floor Area Ratio for

all development within the SPDW Special

Planning Area shall be 0.125:1.

(ii) The total impervious surface

including all paved surfaces shall not

exceed 40 percent.

(iii) A minimum of 10 percent of the

SPDW Special Planning Area shall remain as

undisturbed open space. Buffer areas shall

be considered open space for purposes of

this development standard.

(iv) The maximum building height of

any building shall not exceed 112 feet from

the exterior grade at the highest point of

the roof structure.

(v) Buildings and loading areas shall

be a minimum of 300 feet from the north

boundary line, with the exception of a guard

house to provide security along the northern

internal access way, which shall be 150 feet

from the north boundary. Building and

loading areas shall be a minimum of 100 feet

from the east and west boundary lines of the

SPDW Special Planning Area. Parking lots

shall be a minimum of 50 feet from the east

and west boundary lines of the SPDW Special

Planning Area. Buildings, loading areas and

parking lots shall be a minimum of 300 feet

from the south boundary line of the SPDW

Special Planning Area.

(vi) A buffer consisting of trees

planted every 50 feet within 8 feet from the

boundary line of the SPDW Special Planning

Area shall be installed and maintained on

the east and west boundary lines of the SPDW

Special Planning Area, except within

preserved wetland areas. A vegetative

buffer shall be installed and maintained on

the southern boundary line of the SPDW

Special Planning Area, except within the

preserved wetland areas. An 8 foot high

masonry wall and a vegetative buffer at

least 9 feet in width shall be installed and

maintained along the north boundary line of

the SPDW Special Planning Area adjacent to

the Clifton Road right-of-way.

4. In the event of a conflict between the

special conditions and development standards

established in Policy A.1.3.6.h. and any

goal, objective, or policy in this

comprehensive plan, the more strict

provisions shall control.

10. Ordinance 2007-27 also added a new Policy H.2.1.4 to

the Capital Improvements Element of the Putnam County

Comprehensive Plan:

Potable water, fire protection water, and

sanitary sewer service shall be provided to

the South Putnam Distribution Warehouse

Special Planning Area, established in Policy

A.1.9.3.6 of the Future Land Use Element of

the Putnam County Comprehensive Plan, by the

City of Crescent City in accordance with the

Utility Agreement between the City of

Crescent City and Wal-Mart Stores East, LP

dated April 11, 2006, and the Addendum to

Agreement dated April 12, 2007.

11. The Department issued its initial Notice of Intent to

find Ordinance 2007-27 “not in compliance” because the Capital

Improvement Element of the comprehensive plan did not address

the traffic improvements required by the ordinance. Pursuant

the settlement agreement between the Department, Putnam County,

and Wal-Mart, the County adopted Ordinance 2008-32, which

amended Table HH-2 of the Capital Improvements Element to

include the transportation improvements in Putnam County’s FY

2011-2012 road projects.

12. Petitioners did not express a specific objection to

Ordinance 2008-32, but whether this remedial ordinance is “in

compliance” is dependent on whether Ordinance 2007-27 is

determined to be “in compliance.” Unless otherwise specifically

noted, references to “the amendment” in the Findings of Fact and

Conclusions of Law address the amendment adopted by Ordinance

2007-27, which created the SPDW Special Planning Area, modified

the FLUM, and added a new policy regarding the provision of

water and sewer services to the planning area.

The Wal-Mart Property and Surrounding Land Uses

13. The Wal-Mart property is located about 3.5 miles south

of Crescent City, a small municipality in Putnam County. The

property is located .7 miles east of U.S. 17, which is a two-

lane undivided road in this area of Putnam County. The property

lies on the south side of Clifton Road, a two-lane local road.

The Wal-Mart property is currently in active agricultural use to

grow potatoes.

14. The area surrounding the Wal-Mart property is rural in

character, dominated by agriculture and low density single-

family residences. Most of the residences along Clifton Road

are on the north side of the road, east of the Wal-Mart

property. The residences are served by private wells and septic

tanks.

15. North of the Wal-Mart property, across Clifton Road,

is land designated Rural Residential. It is currently being

used as a plant nursery. The nursery is part of an approved

planned unit development (PUD), referred to as the Skinner PUD,

that authorizes 600 acres of nursery, 50,000 square feet of

commercial, 270 residences, a 500-unit RV park, and a grass air

strip. Only the plant nursery operation and grass airstrip

exist today. The other PUD uses have not yet been undertaken.

The plant nursery would remain where it is now located, across

Clifton Road from the Wal-Mart property.

16. East of the Wal-Mart property is land designated

Agriculture I and is also being used to grow potatoes, but

includes some wooded and wetland areas.

17. South of the Wal-Mart property, is land designated

Conservation and owned by the St. Johns River Water Management

District. Also to the south, in Volusia County, is property

owned by the Raulersons, with some agricultural uses and a

residence.

18. Farther south, in Volusia County, are lands designated

for agricultural use. The Haw Creek Preserve State Park and the

Haw Creek Conservation Area are also south of the Wal-Mart

property.

19. West of the Wal-Mart property are two parcels

designated Agriculture I. One parcel is another potato farm.

The other parcel is a semi-wooded area that has been used as a

fern farm.

20. Further west about a half-mile from the Wal-Mart

property and abutting U.S. 17, is a tract of land designated

Rural Center. The Rural Center designation allows agricultural,

residential, neighborhood commercial, community commercial, and

industrial uses. The industrial uses are restricted to no more

than 25 percent of the total land area.

Rural Area of Critical State Concern

21. In 2003, Governor Jeb Bush designated Putnam County a

Rural Area of Critical Economic Concern (RACEC). Governor

Charlie Christ extended the RACEC designation in 2008 and it

remains in effect.

22. The purpose of a RACEC designation is to promote

economic development in rural communities that are suffering

from unusually depressed economic conditions, including high

levels of unemployment, underemployment, and poverty compared to

the State as a whole. In addition to the adverse effect these

economic conditions have on individuals and families, the

conditions adversely affect the ability of a local government to

generate adequate revenues for education and other important

government services.

23. In 2006, 15.8 percent of the families in Putnam County

were below the poverty level, compared to 9.0 percent for the

State as a whole. In southern Putnam County, 41 percent of the

population was below the poverty level in 2006.

24. It is estimated that a distribution warehouse facility

on the Wal-Mart property would create about 600 primary jobs and

more than 100 secondary jobs. The increase in wages paid for

these jobs would result in millions of dollars in increased

purchases of local goods and services.

25. The Office of Tourism, Trade, and Economic Development

of the Governor’s Office has certified that this amendment meets

the goals and objectives of the RACEC.

26. The Wal-Mart property is also located in a Florida

Enterprise Zone. The Florida Enterprise Zone is a designation

that provides additional incentives for businesses to locate in

economically distressed areas of the State.

Data and Analysis

27. Petitioners assert that the data and analysis

associated with the amendment do not demonstrate a need for more

industrial lands in Putnam County. In support of this

assertion, Petitioners refer to the Evaluation and Appraisal

Report (EAR) and the EAR-based amendments adopted by Putnam

County in 2006, which made no provision for industrial uses on

the Wal-Mart property.

28. However, relevant data and analysis are not confined

to the EAR or the documentation associated with the EAR-based

amendments. They also include the data and analysis submitted

in conjunction with the amendment application, all other data

available at the time of the adoption of the amendment, and all

subsequent analyses presented through the date of the final

hearing.

29. Volusia County points out that the data and analysis

for the EAR-based amendments identifies actions to promote the

development of distribution facilities in Putnam County,

including identifying sites along four-lane corridors and

“targeting highway 207 as a center for distribution and

transportation facilities.” Volusia County contends that by

targeting Highway 207 and other four-lane roads for distribution

center sites, the “EAR-amended plan” indicates that distribution

centers cannot go elsewhere.

30. There was no evidence presented that Putnam County has

abandoned its desire to locate distribution facilities along

Highway 207 or other four-lane roads. However a statement of

desire or preference is not the same as a prohibition against

any alternative. Putnam County responded to a specific proposal

by Wal-Mart and determined that the proposal meets the goals,

objectives, and policies of the Comprehensive Plan when the plan

is considered in its entirety.

31. Industrial uses are treated differently than other

land uses with regard to demonstrations of need. Section

163.3177(6)(a), Florida Statutes , provides:

In addition, for rural communities, the

amount of land designated for future planned

industrial use shall be based upon surveys

and studies that reflect the need for job

creation, capital investment, and the

necessity to strengthen and diversify the

local economies, and shall not be limited

solely by the projected population of the

rural community.

32. The undisputed evidence shows that there is a critical

need for new jobs and capital investment in Putnam County.

There is a critical need to strengthen and diversify the local

economy.

33. The utility agreement and other steps taken by Wal-

Mart establish a reasonable expectation by Putnam County that

the Wal-Mart property will be developed in a timeframe that can

substantially reduce current unemployment, underemployment, and

poverty levels in Putnam County. It is also likely to benefit

Volusia County.

34. The data and analyses, especially the data and

analyses associated with the designation of the area as a Rural

Area of Critical Economic Concern, demonstrate that there is a

need for additional industrial land to accommodate the important

economic opportunity that has been presented to Putnam County.

Internal Consistency

35. The Petitioners contend that the amendment is

inconsistent with several goals, objectives, and policies of the

Putnam County Comprehensive Plan. Each of these goals,

objectives, and policies is identified and discussed below. 3/

36. Future Land Use Element (FLUE) Objective A.1.1 states:

In order to achieve maximum utilization of

land by reducing sprawl and thereby

providing the opportunity for improved use

of resources (both man-made and natural),

the County shall continue to coordinate

future land uses with the appropriate

topography, adjacent land uses, soil

conditions and the availability of

facilities and services through implementing

the following policies:

[policies omitted]

37. The Individual Petitioners contend that the amendment

violates Objective A.1.1 because the amendment does not reduce

urban sprawl. However, because the objective expressly provides

that it is to be achieved through the implementation of Policies

A.1.1.1 through A.1.1.5, the amendment cannot be inconsistent

with the objective unless it is inconsistent with one of its

incorporated policies. Petitioners presented no evidence to

show how the plan amendment is inconsistent with Policies

A.1.1.1 through A.1.1.5.

38. FLUE Policy A.1.4.2 states:

The Land Development Code shall provide

protection measures for the premature

removes [sic] conversion of agricultural

lands. The county shall analyze land use

changes and development activities proposed

adjacent to existing agricultural areas to

ensure compatibility with agricultural uses.

Land uses shall be administered in strict

conformance with the Future Land Use Map and

the specified density, intensity and land

use allocation thresholds.

39. Petitioners contend that the amendment will lead to

the conversion of adjacent agricultural lands to non-

agricultural uses. However, only the first sentence of Policy

A.1.4.2 addresses the conversion of agricultural lands and it is

directed to the Land Development Code. 4/ Petitioners did not

show that Putnam County failed to include protection measures in

its Land Development Code as directed by Policy A.1.4.2.

40. The second sentence of Policy A.1.4.2 addresses

compatibility with adjacent agricultural uses. Florida

Administrative Code Rule 9J-5.003(23) defines compatibility as

follows:

a condition in which land uses or conditions

can coexist in relative proximity to each

other in a stable fashion over time such

that no use or condition is unduly

negatively impacted directly or indirectly

by another use or condition.

Petitioners did not show that a distribution warehouse facility

would interfere with adjacent agricultural uses. The possible

future conversion of adjacent agricultural lands, which

Petitioners concede would be at the request of the owners of the

agricultural lands, is not a compatibility issue.

41. Petitioners did not claim that the amendment was

inconsistent with the last sentence of Policy A.1.4.2, which

requires that land uses be consistent with the prescribed

densities and intensities of the FLUM designations.

42. FLUE Objective A.1.6 states:

Putnam County shall discourage urban sprawl

by immediately implementing the following

policies. Further, regulations in the Land

Development Code shall that [sic] implement

the following policies:

43. Individual Petitioners contend that the amendment

violates Objective A.1.6 because the amendment does not

discourage urban sprawl. However, they misconstrue Objective

A.1.6 in the same manner as Objective A.1.1. Objective A.1.6

expressly provides that it is to be achieved through

implementation of its incorporated policies. The amendment

cannot be inconsistent with this objective unless it is

inconsistent with one of the policies.

44. FLUE Policy A.1.6.1 states:

The County shall encourage infill and higher

density and intensity development within the

Urban Services designated areas of the

County, where services and facilities are

available to accommodate additional growth.

Petitioners contend that the amendment is inconsistent with

Policy A.1.6.1 because the amendment allows an industrial use

outside of the urban services area of Putnam County.

45. The parties disagree about the meaning of the words

“shall encourage” that are used in Policy A.1.6.1 and in two

other comprehensive plan provisions that are at issue in this

case. Petitioners believe that “shall encourage” should be

given a meaning indistinguishable from “shall always require.”

Respondents do not explain what “shall encourage” means, but

assert that it does not mean that the action to be encouraged

must be effectuated with every plan amendment.

46. Petitioners did not show that the amendment is part of

a pattern of Putnam County to allow high density and high

intensity development outside of the County’s urban services

area.

47. The Wal-Mart property is within Crescent City’s

Chapter 180 Utility Service District. The Skinner PUD, just

north of the Wal-Mart property, will be served by the City’s

water and sewer utilities. The City and Wal-Mart have executed

a utility agreement for the extension of water and sewer service

to the Wal-Mart property. Crescent City’s water and sewer

utilities have adequate capacity to serve a distribution center

on the Wal-Mart property. Therefore, the purpose of Policy

A.1.6.1 to encourage the location of high intensity land uses

within areas where urban infrastructure is already available or

planned is achieved or furthered.

48. “Facility availability” is not defined in the Putnam

County Comprehensive Plan, but it is defined in Florida

Administrative Code Rule 9J-5.003(46) as satisfying the

concurrency management system. The concurrency management

system applies at the time of land development to assure that

public infrastructure can accommodate the development. See Fla.

Admin. Code R. 9J-5.0055. Using this definition, the fact that

water and sewer lines have not yet been extended to the Wal-Mart

property from Crescent City’s existing water and sewer

utilities, does not make these utilities unavailable.

49. FLUE Policy A.1.9.3.A.6.d states in relevant part:

Industrial Uses shall be located on sites

that utilize existing utilities or

resources; utilize one or more

transportation facilities such as air ports,

water ports, collector roads, arterial

roads, and railroads; do not require

significant non-residential vehicular

traffic to pass through established

neighborhoods; and are sufficiently

separated and/or buffered when necessary

from residential and other urban uses to

minimize adverse impacts of noise, glare,

dust, smoke, odor or fumes.

50. Individual Petitioners contend that the amendment is

inconsistent with Policy A.1.9.3.A.6.d because the Wal-Mart

property is not located on a site that utilizes existing

utilities or resources. For the reasons already stated above,

the amendment would further the policy of using existing

utilities.

51. Individual Petitioners contend that the amendment

would cause significant non-residential vehicular traffic to

pass through an established neighborhood. However, the traffic

associated with the distribution warehouse facility would use a

new connector road, which would keep traffic out of the Clifton

Road neighborhood. The amendment also provides for buffering,

which the evidence shows would minimize the adverse impacts of

noise, glare, dust, smoke, odor and fumes.

52. Intergovernmental Coordination Element (ICE) Goal G.1

states:

Improve coordination between Putnam County

and adjacent local governments and local,

regional and state agencies in order to

coordinate all development activities,

preserve the quality of life, and maximize

use of available resources.

53. Petitioners contend that the amendment violates Goal

G.1 because Putnam County failed to coordinate the amendment

with Volusia County. This contention is based primarily on the

fact that Volusia County objects to the amendment. Coordination

is not synonymous with agreement. Goal G.1 cannot be reasonably

interpreted as requiring that Putnam County’s coordination with

other local governments must always result in their agreement

with Putnam County’s ultimate action.

54. Although Petitioners presented evidence to show that

Putnam County’s coordination with Volusia County could have been

better, there was coordination in the form of meetings, shared

information, and responses to input. The evidence fell short of

establishing that Putnam County did not coordinate with Volusia

County with respect to this amendment, or that Putnam County has

not improved its coordination efforts as directed by Goal G.1.

55. ICE Objective G.1.2 states:

Putnam County shall maintain coordinating

relationships with adjacent local

governments to ensure the compatibility of

adjacent land uses, development proposed in

the local comprehensive plan, and the

preservation of wildlife and plant habitats.

56. Petitioners contend that the amendment is inconsistent

with Objective G.1.2 because the amendment causes

incompatibility with adjacent uses in Volusia County.

Petitioners point to the word “ensure” in the policy to argue

that the coordination required by the objective must have an

outcome with which adjacent local governments are in agreement.

This interpretation of the objective is rejected for the reason

previously stated.

57. Petitioners did not show that coordinating

relationships with Volusia County were not maintained.

Petitioners did not show that the amendment creates

incompatibility with adjacent land uses in Volusia County.

58. Economic Development Element (EDE) Policy I.2.1.1

states:

The County and its designated economic

development representative shall continue to

encourage expansion of existing business and

industry and/or development of new business

and industry in appropriate locations within

designated areas, as feasible and

applicable, in order to maximize the use of

existing public services and infrastructure.

Individual Petitioners contend that the amendment is

inconsistent with Policy I.2.1.1 because the amendment allows an

industrial use in a rural area on a site that does not utilize

existing public services and infrastructure.

59. As explained above with regard to FLUE Policy A.1.6.1,

Putnam County’s use of the words “shall encourage” does not

create an absolute prohibition against any contrary action.

Petitioners did not present evidence that Putnam County has

established a pattern of allowing industrial uses where there

are no existing public services or infrastructure.

60. Moreover, as described above, public services and

infrastructure are available to the Wal-Mart property.

61. EDE Policy I.2.1.5 states:

The County, with its designated economic

development representative, shall encourage

clustering of major commercial and

industrial activities in locations that:

a. are in close proximity to principle

[sic] arterials;

b. have access to utilities (water, sewer,

electricity, natural gas, telephone) or

allow for provision of these utilities;

c. have on-site rail facilities, when

appropriate;

d. have access to mass transit routes;

e. minimize impacts to the natural

environment and adjacent land uses;

f. have access to barge port facilities,

when appropriate.

Individual Petitioners contend that the amendment violates

Policy I.2.1.5 because the amendment allows an industrial use

that is distant from other industrial uses and the affected

roads cannot accommodate the traffic that would be generated.

62. The wording “shall encourage” in Policy I.2.1.5 does

not create an absolute prohibition against any new industrial

use that is not clustered with existing industrial uses, or that

would not meet all the other criteria listed in the policy.

Petitioners did not show that Putnam County has a pattern of

locating industrial uses in locations that do not meet these

criteria.

63. The roads in the area, particularly U.S. 17, were

shown to have adequate capacity, as discussed later in this

Recommended Order.

Compatibility

64. Petitioners contend that the distribution warehouse

facility would be incompatible with surrounding rural uses.

Their claim of incompatibility is based primarily on visual,

noise, and traffic impacts.

65. As stated above, Florida Administrative Code Rule 9J-

impacts. By using the adverb “unduly,” the definition indicates

that the creation of some negative impacts does not necessarily

make a use or condition incompatible.

66. Although a large distribution warehouse facility would

not contribute positively to the “rural character” of the area,

such facilities are often located in rural areas. This is due,

in part, to the amount of land needed and the difficulty in

meeting LOS standards on roads in urbanized areas.

67. The evidence does not establish that the residents in

the area would encounter any noxious odors, unreasonable noise

levels, or glaring lights associated with the distribution

warehouse facility.

68. The nearest residence is about 1,000 feet from the

Wal-Mart property. Most of the residences in the area are

located east and north of the Wal-Mart property. They are

situated at the far end of long lots to take advantage of their

views of Crescent Lake. Most of the lots are wooded. Only a

few of the residents, when at home, would be able to see the

distribution warehouse facility or hear any activities

associated with the facility. The principal impact to the

residents would be seeing the facility when they drive by it on

Clifton Road and encountering its traffic when they drive on

U.S. 17.

69. Petitioners state that it must be assumed that Clifton

Road would also be used for access to a distribution facility on

the Wal-Mart property, because the amendment does not expressly

state that the new collector road would be the “sole access” to

the property. However, the requirement to construct the

collector road, to make improvements at U.S. 17 to accommodate

vehicle turns onto the collector road, and other evidence in the

record, show that the amendment is intended to make the new

collector road the sole access to the Wal-Mart property, except

perhaps for emergency vehicles.

affic on adjacent arterial roads is generally not a

compatibility issue. Increases in the traffic volume on an

arterial road will be due to land uses all along the road, near

and far from each otheraffic impacts are reviewed against

adopted LOS standards. Compatibility with rural land uses does

not mean that traffic volumes on U.S. 17 must be kept at “rural”

levels.

71. Finally, it must be noted that the land use changes

that have been authorized for the adjacent Skinner PUD and the

Rural Center will change the character of the area when their

allowable uses are developed. These mixed uses will cause the

area to be less rural in character.

72. Compatibility is an objective criterion for the

purpose of a compliance determination. The rural character of

the area will be diminished if the existing potato field is

replaced with a distribution warehouse facility. However, that

impact, taking into account all relevant circumstances, would

not be “unduly” negative.

Urban Sprawl

73. Florida Administrative Code Rule 9J-5.006(5)(g)

identifies 13 “primary indicators” of urban sprawl to be

considered in the review of a comprehensive plan amendment to

determine whether the presence of multiple indicators

“collectively reflect a failure to discourage urban sprawl.”

The several primary indicators for which some evidence was

presented by Petitioners are addressed below. 5/

74. Indicator 1 is the designation for development of

“substantial areas of the jurisdiction” as low-intensity, low

density, or single-use development or uses in excess of

demonstrated need.” Fla. Admin. Code R. 9J-5.006(5)(g)1.

75. Respondents contend that the 220-acre Wal-Mart

property does not constitute a substantial area of Putnam

County. However, the wording of the rule does not make the

indicator applicable exclusively to an amendment that would, by

itself, designate a substantial area of land for low-density

uses. The wording allows for a consideration of whether an

amendment contributes to the local government’s total acreage of

similar land uses in excess of demonstrated need. Neither the

220-acre Wal-Mart property nor the total acreage of industrial

lands in Putnam County constitutes a substantial area of the

jurisdiction designated for a single use.

76. Petitioners contend that the amendment triggers

Indicator 1 because the amendment designates additional acreage

for industrial uses in excess of demonstrated need. Based on

the findings previously made regarding need, especially the

designation of Putnam County as a Rural Area of Critical

Economic Concern, the amendment does not designate additional

acreage for industrial uses in excess of demonstrated need.

77. Indicator 2 is allowing or designating significant

amounts of urban development to occur in rural areas at

substantial distances from existing urban areas while leaping

over undeveloped lands which are available and suitable for

development. Fla. Admin. Code R. 9J-5.006(5)(g)2.

78. The Wal-Mart property is located 3.5 miles from

Crescent City and even farther from the urban areas of Putnam

County. There are substantial areas of undeveloped land between

the urbanized areas and the Wal-Mart property. However, the

Skinner PUD creates a transition of land uses to the Wal-Mart

property, which ameliorates to some degree the “leap frog”

character of the re-designation of the Wal-Mart property to

Industrial.

79. Indicator 3 is allowing urban development in radial,

strip, isolated or ribbon patterns. Fla. Admin. Code R. 9J-

5.006(5)(g)3. Petitioners contend that the amendment triggers

Indicator 3 because the water and sewer utility lines for the

Wal-Mart property would be extended from Crescent City to the

property in a ribbon-like manner. The construction of water and

sewer lines within rights-of-way, however, is excluded from the

definition of “development.” See § 163.3164(6), Fla. Stat.

Water and sewer lines do not constitute strip development.

80. Indicator 4 is failing to protect natural resources as

a result of premature or poorly planned conversion of rural land

to other uses. Fla. Admin. Code R. 9J-5.006(5)(g)4. There are

no significant natural resources on the Wal-Mart property and

there was no showing that natural resources would be unprotected

as a result of the amendment. Petitioners did not prove that

the amendment constitutes premature or poor planning.

81. Indicator 5 is failing to protect adjacent

agricultural areas and activities. Fla. Admin. Code R. 9J-

5.006(5)(g)5. Petitioners contend that the amendment triggers

Indicator 5 because the amendment will cause agricultural

parcels adjacent to the new connector road to be converted to

non-agricultural uses.

82. As discussed above, the potential future conversion of

adjacent agricultural lands at the request of the agricultural

landowners is not a compatibility issue. Petitioners did not

show that a distribution warehouse facility would interfere with

adjacent agricultural uses.

83. Indicators 6, 7, and 8 are related to the orderly and

efficient provision of public services and facilities. Urban

sprawl is generally indicated when new public facilities must be

created to serve the proposed use. As discussed above, Crescent

City’s utilities have sufficient capacity to serve the Wal-Mart

property. 6/ Wal-Mart would bear the cost of extending the water

and sewer lines and constructing the collector road to U.S. 17.

The amendment would maximize the use of Crescent City’s existing

water and sewer utilities.

84. Indicator 9 is failing to provide a clear separation

between rural and urban uses. Although the amendment contains

requirements for setbacks, buffers, and site design criteria,

there would not be a clear separation between the industrial use

on the Wal-Mart property and the adjacent rural uses.

85. Indicator 12 is allowing poor accessibility among

linked or related land uses. Petitioners are treating four-lane

and larger roads as land uses for the purpose of their argument

regarding Indicator 12. It is not clear that roads, which are

clearly “links,” can also be land uses for the purpose of an

analysis under Indicator 12. Petitioners did not identify any

linked or related land uses among which the distribution

warehouse facility would have poor accessibility.

86. If the interstate highways, I-95, I-75, and I-10,

qualify as land uses for the purpose of Indicator 12, access to

these land uses is not convenient because they are not close.

Putnam County’s inconvenient location in relationship to the

interstate highways is probably a factor that is contributing to

the County’s poor economy.

87. Evaluating the amendment using the primary indicators

of urban sprawl and the criteria in Florida Administrative Code

Rule 9J-5.006(5)(h) through (j), it is found that Putnam

County’s adoption of the amendment does not constitute a failure

to discourage the proliferation of urban sprawl.

Traffic Impacts

88. The data and analyses related to traffic impacts were

in great detail, resembling what is required for traffic

concurrency at the time of land development. In addition,

Volusia County presented much testimony and evidence on the

evolution of the traffic analysis to support a claim that the

analysis was arbitrarily changed to make the predicted traffic

impacts smaller.

89. The changes in the traffic analysis were due to

requests for additional information by Volusia County and the

Florida Department of Transportation (FDOT), and by the

progressive refinement of the analysis by Wal-Mart’s traffic

engineers to make its predictions more accurate. The more

persuasive evidence established that Wal-Mart’s last (April

2007) traffic impact analysis is the most reliable in estimating

the likely traffic impacts associated with the development of a

distribution warehouse facility on the Wal-Mart property.

90. U.S. 17 is a principal arterial and a part of the

Strategic Intermodal System, which is comprised of highways that

the FDOT considers important to the State of Florida because

they carry the bulk of the State’s traffic. 7/

91. Wal-Mart’s traffic engineer, Christopher Hatton of

Kimley-Horne and Associates, Inc., used the Institute of

Transportation Engineers\ip Generation Manual (ITE Manual)

for his traffic analysis. There are two land use codes in the

ITE Manual that are relevant, Land Use Codes 150 and 152. Land

Use Code 150 pertains to warehousing for the storage of

manufacturers’ goods and Land Use Code 152 pertains to the

storage of manufactured goods prior to their distribution to

retail outlets. The amendment at issue contemplates a type of

land use that is more closely described by Land Use Code 152.

92. FDOT expressed concerns about the use of Land Use Code

152, partly because the code was based on fewer traffic studies

than Land Use Code 150, making Land Use Code 150 statistically

more reliable. However, Land Use Code 150 is only statistically

more reliable to predict the traffic associated with its

particular kind of warehousing operation. Nevertheless,

Mr. Hatton initially used Land Use Code 150 for his traffic

analysis for the amendment and FDOT consistently expressed a

preference for Land Use Code 150.

93. The ITE Manual states that local trip generation data

can be used to verify the appropriateness of a land use code

when the land use code is based upon relatively few studies.

Mr. Hatton collected local traffic data for existing

distribution facilities like the one proposed for the Wal-Mart

property to compare them with trip generations predicted by Land

Use Codes 150 and 152.

94. The local trip generation data from existing

facilities compared closely with the predictions based on Land

Use Code 152, but were substantially different (lower) than the

predictions based on Land Use Code 150. The local data

demonstrated that Land Use Code 152 was a better fit for the

amendment.

95. Mike McDaniel of the Department of Community Affairs

told Mr. Hatton that the use of Land Use Code 152 was acceptable

to the Department for the analysis of traffic impacts associated

with the amendment. Mr. McDaniel testified at the hearing that

Land Use Code 152 seemed to him to be more appropriate than Land

Use Code 150. Volusia County claims that Mr. McDaniel acted

improperly, citing Section 163.3177(10)(e), Florida Statutes,

which states in relevant part:

The Legislature intends that the department

may evaluate the application of a

methodology utilized in data collection or

whether a particular methodology is

professionally accepted. However, the

department shall not evaluate whether one

accepted methodology is better than another.

96. No finding made in this Recommended Order regarding

the traffic impacts associated with the amendment is based on

Mr. McDaniel’s opinion, because he is not a traffic engineer.

97. FDOT’s preference for Land Use Code 150 does not

require a finding that Mr. Hatton’s methodology is not

professionally acceptable. Mr. Hatton’s methodology, including

his use of Land Use Code 152, is professionally acceptable.

98. Volusia County contends that the amendment will cause

some segments of U.S. 17 in Volusia County to fall below adopted

LOS standards. Mr. Hatton came to a different conclusion in his

April 2007 traffic study:

the roadway segments of U.S. 17 within the

study [area] are expected to operate within

an acceptable level of service for existing

and future horizon scenarios with the

expected buildout of the South Putnam

Distribution Warehouse Special Planning Area

(of up to 1,200,000 square feet of warehouse

distribution center land uses).

99. Mr. Hatton analysis showed that the projected short-

term (2011) and long-term (2015 and 2016) traffic volumes within

the two segments of U.S. 17 within the study area (County Road

308B to the Volusia County line and Putnam County line to State

Road 40) would not cause the segments to operate below the LOS

Standard.

100. Volusia County contends that Mr. Hatton did not

disclose in the April 2007 analysis that the study area had been

redefined to exclude the segment of U.S. 17 in Volusia County

that was predicted to fail in the September 2006 traffic

analysis. However, the study area was defined in consultation

with Putnam County staff and with FDOT based on roadway segments

on which projected traffic from the distribution warehouse

facility would constitute five percent or greater of the LOS

capacity of the segment.

101. Volusia County notes that the amendment calls for

certain improvements to be made on U.S. 17 to accommodate

ingress to and egress from the new collector road, but DOT has

not concurred in a “proportionate fair share analysis” for

mitigating the traffic impacts associated with a distribution

warehouse facility, and FDOT’s concurrence is required. See §

163.3180(16)(e), Fla. Stat. However, a proportionate share

analysis, if necessary, does not have to be conducted until the

Wal-Mart property is developed, as a part of concurrency

management.

102. The amendment would not put traffic on U.S. 17.

Traffic is not generated by future land use designations, but by

land development. Land development approvals require

concurrency management, including a demonstration that road

improvements will be made as necessary to maintain adopted LOS

standards on affected roads.

103. The amendment does not indicate that it is intended

to establish a proportionate fair share analysis, nor does it

state that the developer will not be required to make, or to

share in the cost of making, other road improvements as required

by a future concurrency determination. Petitioners did not

prove that Putnam County made a decision that requires FDOT’s

concurrence pursuant to Section 163.3180(16)(e), Florida

Statutes.

State Comprehensive Plan

104. In their Proposed Recommended Order, Individual

Petitioners contend that the amendment is inconsistent with

Sections 187.201(15)(b)2., Florida Statutes, which sets forth

the following policy of the State Comprehensive Plan, under the

heading “Land Use:”

Develop a system of incentives and

disincentives which encourages a separation

of urban and rural land uses while

protecting water supplies, resource

development, and fish and wildlife habitats.

105. Petitioners did not prove that Putnam County has not

developed a system of incentives and disincentives.

Petitioners’ claim is that amendment creates an urban use that

is not separated from rural uses. Based on the findings

previously made regarding compatibility, urban sprawl, and the

economic benefits of the proposed distribution warehouse

facility, the amendment is consistent with the State

Comprehensive Plan when the State Comprehensive Plan is

construed as a whole.

CONCLUSIONS OF LAW

Jurisdiction

106. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Sections 120.569, 120.57(1), and

163.3184(16), Florida Statutes.

Standing

107. In order to have standing to challenge a plan

amendment, a challenger must be an “affected person,” which is

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

who resides, owns property, or owns or operates a business

within the local government whose comprehensive plan amendment

is challenged, and who submitted comments, recommendations, or

objections to the local government during the period of time

beginning with the transmittal hearing and ending with

amendment’s adoption.

108. Petitioners Buckhalt, Raulerson, and Stevens and

Intervenor Wal-Mart have standing as affected persons.

109. The standing requirement for an adjoining local

government is also established in Section 163.3184(1)(a),

Florida Statutes. Affected persons include:

adjoining local governments that can

demonstrate that the plan or plan amendment

will produce substantial impacts on the

increased need for publicly funded

infrastructure or substantial impacts on

areas designated for protection or special

treatment within their jurisdiction.

110. Respondents contend that because Volusia County

failed to prove that any LOS standard for a road in Volusia

County would be violated, it failed to show there would be an

increased need for publicly funded infrastructure, and is

without standing. However, Volusia County presented competent

evidence to show LOS standards would be violated and, although

its evidence was determined to be less persuasive than the

evidence presented by Respondents, Volusia County has standing

to present its evidence and to argue that it is the better

evidence.

Ultimate Issue

111. Pursuant to Chapter 163.3184, Florida Statutes, the

Department is to determine whether comprehensive plan amendments

are “in compliance.” The term “in compliance ” is defined in

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

In compliance” means consistent with the

requirements of ss. 163.3177, when a local

government adopts an educational facilities

element, 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, where such rule is not

inconsistent with this part and with the

principles for guiding development in

designated areas of critical state concern

and with part III of chapter 369, where

applicable.

112. “In compliance” does not involve a determination of

whether an amendment is the most clear, most effective, or best

approach for accomplishing the local government’s purpose.

Burden and Standard of Proof

113. The burden of proof, absent a statutory directive to

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

issue in the proceeding. See Young v. Department of Community

Affairs , 625 So. 2d 831 (Fla. 1993). As the parties maintaining

this action to assert that the amendment is not in compliance,

Petitioners have the burden of proof.

114. The standard of proof to establish a finding of fact

is preponderance of the evidence. See § 120.57(1)(j), Fla.

Stat.

115. Section 163.3184(9)(a), Florida Statutes, provides

that, if the Department determines that a plan amendment is in

compliance, the plan amendment “shall be determined to be in

compliance if the local government’s determination of compliance

is fairly debatable.”

116. The term “fairly debatable” is not defined in Chapter

163, Part II, Florida Statutes, but the Florida Supreme Court in

Martin County v. Yusem , 690 So. 2d 1288 (Fla. 1997), held that,

“The fairly debatable standard of review is a highly deferential

standard requiring approval of a planning action if reasonable

persons could differ as to its propriety.” Id. at 1295. The

Court stated further that, “an ordinance may be said to be

fairly debatable when for any reason it is open to dispute or

controversy on grounds that make sense or point to a logical

deduction that in no way involves its constitutional validity.”

Id. It has also been stated that the fairly debatable standard

requires approval of a planning action if reasonable persons

could differ as to its propriety.” City of Miami Beach v.

Lachman , 71 So. 2d 148, 152 (Fla. 1953).

Section 163.3177, Florida Statutes

117. Subsection 163.3177(2), Florida Statutes, requires

the elements of a comprehensive plan to be internally

consistent. Plan amendments must preserve the internal

consistency of the plan. See § 163.3187(2), Fla. Stat.

118. Petitioners argue that the provisions of the Putnam

County Comprehensive Plan that use the term “shall encourage,”

must be interpreted as mandates because the word “shall” means

mandatory. However, it is the word “encourage” that is the

obstacle for Petitioners’ interpretation of the comprehensive

plan. The word “encourage” in a comprehensive plan goal,

objective, or policy is difficult to apply in a compliance

proceeding, but the word plainly indicates an intent to stop

short of establishing a requirement from which there can be no

deviation.” See , e.g. , Webster’s New Collegiate Dictionary

(“encourage” means to inspire or help). Therefore, a plan

provision such as FLUE Policy A.1.6.1, which states that Putnam

County shall encourage infill, is not an absolute prohibition

against any development that is not infill.

119. A future land use designation does not authorize land

development that would create impacts to roads and other public

infrastructure that do not meet concurrency requirements.

Satisfaction of concurrency requirements is a matter that is

subject to later determination and possible challenge at the

time that land development approvals are sought.

120. A comprehensive plan goal, objective, or policy that

requires coordination between local governments cannot be

reasonably interpreted as requiring agreement because that would

give local governments a veto power over their neighbors’

comprehensive planning efforts. Under such an interpretation,

it would not matter whether a proposed land use is compatible

with surrounding land uses if the agreement of the adjacent

local government could not be obtained. Even if the proposed

land use is compatible from an objective point of view, the re-

designation would fail because it was not “coordinated.”

121. Putnam County’s determination that the amendment is

internally consistent is fairly debatable.

122. Sections 163.3177(4)(a) and 163.3177(6)(h), Florida

Statutes, require coordinated comprehensive planning by adjacent

local governments. Petitioners failed to prove that the

amendment is inconsistent with these statutes.

123. Section 163.3177(10)(e), Florida Statutes, requires

plan amendments to be based upon “appropriate” data.

Petitioners failed to prove that the amendment is not supported

by appropriate data.

124. Petitioners failed to prove that the amendment is

inconsistent with Section 163.3177, Florida Statutes.

Florida Administrative Code Chapter 9J-5

125. Florida Administrative Code Rule 9J-5.005(2)(a)

requires all amendments to be based on relevant and appropriate

data and analysis. Petitioners failed to prove that the

amendment is not based on appropriate data and analysis.

126. Florida Administrative Code Rule 9J-5.006(5)(g)

describes 13 primary indicators of urban sprawl. Florida

Administrative Code Rule 9J-5.006(5)(d) states that “The

presence and potential effects of multiple indicators shall be

considered to determine whether they collectively reflect a

failure to discourage urban sprawl.”

127. The urban sprawl analysis must also apply the

criteria in Florida Administrative Code Rule 9J-5.006(5)(h)

through (j), which require the consideration of surrounding land

uses and circumstances.

128. Petitioners failed to prove that the amendment

constitutes a failure by Putnam County to discourage the

proliferation of urban sprawl.

129. Petitioners claim that the amendment is inconsistent

with Florida Administrative Code Rule 9J-5.006(3)(b)3 and Rule

9J5.006(3)(c)2., which require that all comprehensive plans

include objectives and policies that encourage compatibility

land uses. However, Petitioners did not show that the Putnam

County Comprehensive Plan does not include such objectives and

policies. Furthermore, Petitioners failed to prove that the

amendment is incompatible with adjacent land uses.

130. Using the definition of “compatible” in Florida

Administrative Code Rule 9J-5.003(23), Volusia County argues

that an issue to be determined in this case is whether U.S. 17

is “unduly negatively impacted” by the amendment. A compliance

determination for a future land use amendment does not require a

finding that the future land use is “compatible” with a road,

using the term as it is defined in Florida Administrative Code

Rule 9J-5.003(23).

affic impacts on a particular road are reviewed

against the relevant provisions of the comprehensive plan and

the LOS standard that has been adopted for the road. In this

case, the proposed industrial use is located where it has access

to an arterial road, as required by the Putnam County

Comprehensive Plan, and the evidence shows that the arterial

road has adequate capacity. Therefore, compatibility, in its

general sense, was demonstrated.

132. Petitioners failed to prove that the plan amendment

is inconsistent with Florida Administrative Code Chapter 9J-5.

State Comprehensive Plan

133. Petitioners did not raise a State Comprehensive Plan

issue in their petitions, nor did they seek leave to amend their

petitions to add the issue. Nevertheless, because consistency

with the State Comprehensive Plan was identified as an issue in

the parties’ Pre-hearing Stipulation, it is addressed here.

134. The State Comprehensive Plan establishes general

planning goals and policies. It would be a rare situation for a

plan amendment to be inconsistent with the State Comprehensive

Plan if it is consistent with the local comprehensive plan and

the criteria found in Florida Administrative Code Chapter 9J-5.

135. Petitioners failed to prove that the amendment is

inconsistent with Section 187.201(15)(b)2. of the State

Comprehensive Plan.

136. Petitioners failed to prove that the amendment is

inconsistent with the State Comprehensive Plan, when the State

Comprehensive Plan is construed as a whole. See § 187.101(3),

Fla. Stat.

Conclusion

137. Putnam County’s determination that the amendment is

in compliance is fairly debatable.

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 plan amendment adopted by

Putnam County pursuant to Ordinance 2007-27, as modified by

Ordinance 2008-32, is “in compliance.”

DONE AND ENTERED this 22nd day of September, 2009, in

Tallahassee, Leon County, Florida.

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of September, 2009.

ENDNOTES

1/ All references to the Florida Statutes are to the 2008

codification.

2/ The parties incorrectly identified the ordinance in their

Proposed Recommended Orders as Ordinance 2007-28.

3/ The internal consistency issues addressed in this

Recommended Order are confined to the issues identified in the

parties' Pre-Hearing Stipulation and addressed to Petitioners'

Proposed Recommended Orders.

4/ Awkward composition or ambiguity in a comprehensive plan

cannot be "fixed" in a proceeding to determine whether an

amendment to the plan is "in compliance."

5/ Petitioners did not plead or itemize in the Pre-Hearing

Stipulation the particular indicators of sprawl which they

intend to show were triggered by the amendment.

6/ The utility agreement with Crescent City calls for water and

sewer equipment to be installed at the Wal-Mart property, but

such on-site equipment is not, like central water and sewer

treatment utilities, facilities that must already exist for the

purposes of satisfying the comprehensive plan goals, objectives

and policies that refer to existing utilities or facilities.

7/ U.S. 17 is actually identified by FDOT as part of the

"Emerging" Strategic Intermodal System, but the difference is

not material for purposes of this compliance determination.

COPIES FURNISHED :

Michael W. Woodward, Esquire

Keyser & Woodward, P.A.

501 Atlantic Avenue

Interlachen, Florida 32148

Bruce D. Page, Esquire

Larry Smith, Esquire

County of Volusia

123 West Indiana Avenue

Deland, Florida 32720

Lynette Norr, Esquire

Department of Community Affairs

2555 Shumard Oaks Boulevard

Tallahassee, Florida 32399-2100

Russell D. Castleberry, Esquire

Putnam County Attorney’s Office

518 St. Johns Avenue

Palatka, Florida 32178

David A. Theriaque, Esquire

S. Brent Spain, Esquire

Theriaque Vorbeck & Spain

433 North Magnolia Drive

Tallahassee, Florida 32308

Thomas G. Pelham, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399-2100

Shaw Stiller, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399-2160

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions

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

exceptions to this Recommended Order should be filed with the

agency that will issue the Final Order in this case.