07-005755GM Leseman Family Land Partnership; Walter E. Murphree, Jr.; And Debra C. Treece, vs. Clay County And Department Of Community Affairs Status: Closed Recommended Order on Friday, May 30, 2008.

Summary: Petitioners failed to prove that the designation of 47 acres as Rural Fringe was not "in incompliance."

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LESEMAN FAMILY LAND )

PARTNERSHIP; WALTER E. )

MURPHREE, JR.; and DEBRA C. )

TREECE,, )

)

Petitioners, )

)

vs. ) Case No. 07-5755GM

)

CLAY COUNTY and DEPARTMENT OF COMMUNITY AFFAIRS, )

)

)

Respondents. )

)

RECOMMENDED ORDER

The final hearing in this case was held on March 13 and 14,

2008, in Green Cove Springs, Florida, before Bram D.E. Canter,

an Administrative Law Judge of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioners, Leseman Family Land Partnership and

Walter E. Murphree, Jr.:

Vinette D. Godelia, Esquire

Hopping, Green & Sams, P.A.

123 South Calhoun Street

Post Office Box 6526

Tallahassee, Florida 32314

For Petitioner, Debra Ceece:

Debra Crews Treece, Esquire, Pro Se

4465 Baymeadows Road, Suite 2

Jacksonville, Florida 32217

For the Respondent, Florida Department of Community

Affairs:

Lynette Norr, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

For Respondent, Clay County:

Mark H. Scruby, Esquire

Clay County Attorney

Post Office Box 1366

Green Cove Springs, Florida 32043

For Intervenors:

Marcia Parker Tjoflat, Esquire

Frank E. Miller, Esquire

Pappas, Metcalf, Jenks and Miller, P.A.

245 Riverside Avenue, Suite 400

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

The issue in this case is whether the amendment to the

Future Land Use Map of the Clay County Comprehensive Plan,

adopted by Ordinance No. 2007-53, is “in compliance” as that

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

(2007). 1

PRELIMINARY STATEMENT

On September 25, 2007, Clay County amended its

comprehensive plan through the adoption of Ordinance No. 2007-

53, which made changes to the Future Land Use Map (FLUM). After

reviewing the amendment, the Department of Community Affairs

(Department) determined that the amendment was “in compliance”

and issued its “Notice of Intent to Find the Clay County

Comprehensive Plan Amendment(s) In Compliance” on November 19,

2007. This proceeding was initiated on December 10, 2007, when

Petitioners Leseman Family Land Partnership, Walter E. Murphree,

Jr., Debbra Ceece, Thomas Deece, and Merrill K.

Garlington Trust filed a Petition for Formal Administrative

Hearing with the Department, which the Department then referred

to DOAH. Subsequently, Thomas D. Reece and Merrill K.

Garlington Trust voluntarily dismissed their petitions.

Thereafter, Kingsley Beach, LLC, Kingsley Ventures Development

Company, LLC, and Avery C. Roberts were granted leave to

intervene in support of the amendment.

At the final hearing, the parties’ Joint Exhibits 1 through

7 were admitted into evidence. Petitioners presented the

testimony of Wendy Grey, an expert in comprehensive planning and

land use planning; Dr. Sung-Man Kim, the County’s chief planner;

Holly Parrish, the County’s former chief planner; Walter E.

Murphree, Jr., William Leseman, and Debra Treece. Petitioners’

Exhibits 1, 12, 21, 24 and 29 were admitted into evidence. The

County presented the testimony of Dr. Sung-Man Kim. Intervenors

presented the testimony of Raymond Spofford, an expert in

comprehensive planning and land use planning; and Douglas C.

Miller, P.E., an expert in stormwater management and civil

engineering. County and Intervenor Exhibits 1 through 3, 4A,

4B, 5, 8, 11, 12A through 12F, 16, and 20 through 22 were

admitted into evidence. The Department presented the testimony

of Dr. Joseph Addae-Mensa, an expert in urban and regional

planning. Department Exhibits 1 through 3 were admitted into

evidence.

The two-volume Transcript of the final hearing was prepared

and filed with DOAH. The parties timely 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

plans and amendments thereto, and determining whether a plan or

amendment is “in compliance.”

2. Clay 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. The parties stipulated that each Petitioner is an

“affected person” as that term is defined in Section

163.3184(1)(a), Florida Statutes. Each Petitioner owns property

in Clay County and timely submitted comments and objections

regarding the amendment to the Clay County Board of County

Commissioners.

4. The parties stipulated that Intervenors are “affected

persons.” Intervenors Kingsley Beach, LLC, and Kingsley

Ventures Development Co., LLC, are the owners of the subject

property. Avery C. Roberts is the managing member of each.

The Amendment

5. The amendment changes the FLUM land use designation for

two parcels of land totaling 47.06 acres, located between County

Road 16A and Kingsley Lake (“the property”) from Rural

Residential to Rural Fringe.

6. The Rural Residential category has a base density of 1

dwelling unit per 5 acres, but provides for up to 1 unit per

acre through application of a points system established in the

Future Land Use Element (FLUE) of the comprehensive plan. The

Rural Fringe category has a base density of 1 unit per acre, but

points can be used to increase the density to 2 units per acre.

With clustering, the density can be further increased to 3 units

per acre.

7. The County adopted the amendment designating the

property as Rural Fringe and added a notation on the FLUM that

the maximum permitted residential units on the property is 70,

corresponding to a maximum density of 1.5 units per acre. The

result is an amendment that creates a hybrid land use category

for the property, with development rights different than those

normally applicable to Rural Fringe. 2

Existing Uses and Conditions of the Property

8. The property is located on the north side of Kingsley

Lake, an Outstanding Florida Water. The eastern parcel is known

as the Kingsley Lake Campground and RV Resort, which contains

253 recreational vehicle camping spaces, 13 cabins, a gatehouse,

a boat ramp, a restaurant, an office, and a number of other

ancillary buildings. The western parcel has been used since the

1950's as a recreational area for swimming, picnicking, and

boating. It contains a boat ramp, a three-story frame building

and other scattered buildings. The property is not longer in

active use.

9. The property is located on a paved road with access to

nearby county and state roads which meet or exceed adopted level

of service standards.

10. Public water and sewer services are not available to

the property.

11. The property is within one mile of fire and emergency

medical services.

12. The property is within school bus service.

13. The property is suitable for construction of a

stormwater management system which can meet the design criteria

for discharging into Kingsley Lake. There are no wetlands on

the property.

14. Although only relevant as an example of what

development is possible under the amendment, the Intervenors

propose to develop a 70-unit, private, gated, residential

subdivision to be called Kingsley Cove, which would be served by

a community-scale potable water system and septic tanks.

The Kingsley Lake Community

15. The property is located in the 560-acre Kingsley Lake

“community” or “enclave,” which is unusual in that it is

completely surrounded by the 72,000-acre Camp Blanding Military

Installation. In addition to the development on the subject

property, the Kingsley Lake community includes a convenience

store, a church, a cemetery, a county-owned parcel, a community

club, and residential properties. Most of the residential

properties are located on the lakefront and have docks and

private boathouses.

16. Excluding the subject property, the Kingsley Lake

community contains about 249 homes. The average density of the

residential parcels in the community is two dwelling units per

acre (du/a). Approximately 30 percent of the lots in the

Kingsley Lake enclave are smaller than half an acre and

approximately 60 percent are smaller than one acre. More than

half of the residential parcels in the community exceed 1.5

du/a.

17. Petitioners each own property within the Kingsley Lake

community. Petitioner Treece's lot is 0.6 acres. Petitioner

Murphree's lot is a half acre. Petitioner Leseman's lot is 8.0

acres.

18. The Kingsley Lake community is located 8.75 miles at

its closest point from another urban service area.

Rural Character

19. Petitioners claim that the amendment would destroy the

rural character of the Kingsley Lake community. However, it was

disputed at the hearing whether the Kingsley Lake community has

much rural character.

20. When Petitioners’ witnesses testified about the rural

character of the community, they used the term “rural” as

Florida.” The County’s 2007 Evaluation and Appraisal Report

(EAR) refers to rural character in the County, generally, as a

“country lifestyle.”

21. One distraction from the rural character of the

Kingsley Lake community is its surrounding by Camp Blanding, an

active military installation which creates “uncommon

disturbances,” primarily noises that occur at all hours.

22. The County has legislatively determined through its

comprehensive plan that there are degrees of rural character,

and those degrees are reflected in three rural residential land

use categories: Rural Residential, Rural Reserve, and Rural

Fringe. The average residential density in the Kingsley Lake

community is greater than is allowed under its current Rural

Residential land use category. The community has densities

associated with the Rural Reserve and Rural Fringe categories.

23. The comprehensive plan does not contain a description

of the Rural Fringe land use category or a statement of the

County’s specific intent with regard to this category, other

than its cap on residential density. The lack of detail in the

plan makes the task of determining whether the amendment is in

compliance more difficult.

24. Beyond the restriction of land uses and establishment

of density limits, the protection of rural character is

difficult, because new dwellings generally cannot be required to

look the same ( e.g. , rustic) as older, existing dwellings. With

regard to rural vistas, Petitioners presented no evidence to

show, for example, that existing lake views would be adversely

affected or that incompatible building heights would be allowed

as a result of the change to Rural Fringe.

Urban Service Areas

25. Under the comprehensive plan, certain land use

categories define the County’s urban service areas. These

categories are Urban Core, Urban Fringe, Rural Fringe, Rural

Reserve, Mixed Use, and Planned Community. By changing the land

use designation to Rural Fringe, the amendment automatically

places the subject property in an urban service area.

26. The discussion of the issue in this case involved

semantic inconsistency between rural land use and urban

services. However, that the comprehensive plan clearly

contemplates that the Rural Reserve and Rural Fringe land use

categories would have both rural characteristics and urban

services.

27. The County’s chief planner, Dr. Sun-Man Kim, testified

that the provision of urban services is not intended to

transform the Rural Fringe land use category into an urban area,

but to provide better services. He believes the urban service

area designation is appropriate for a compact rural development

area like the Kingsley Lake community.

28. There are three other urban service areas in the

County. FLUE Policy 2.3 provides the means by which an urban

service area may expand:

Urban service areas may be expanded to

include undeveloped land in or near existing

urban areas provided that the Clay County

Health Department has determined that

connection to a central system is required

in the public interest due to public health

consideration. Services and facilities must

be guaranteed through “agreements to serve”

by the Clay County Utility Authority.

Expansion of the urban service area shall

require a plan amendment.

This policy appears to apply only to the expansion of an

existing urban service area into adjacent undeveloped areas, and

not to the creation of new urban service areas. There are no

policies in the comprehensive plan that expressly address the

creation of new urban service areas.

29. It is only logical that a newly-designated urban

service area would have urban services currently available or

planned. The County’s density point system uses several urban

services as a basis for assigning density bonus points: fire

protection, emergency medical services, paved access to arterial

or collector roads, central water and sewer facilities, and

proximity to schools. All of these urban services are available

to the property except central sewer.

30. Petitioners object to the amendment, in part, because

they believe the Rural fringe designation is only permitted in

areas where central water and sewer facilities are available.

The County granted density bonus points to the proposed Kingsley

Cove development for having central water service, based on its

proposed community-scale potable water system. Therefore, it is

presumed that Petitioners disagree that a community-scale water

system qualifies as “central” water service, and/or they believe

the Rural fringe designation requires both central water and

central sewer services.

31. FLUE Policy 2.4 states that all development within the

urban service areas shall be served by central water and

wastewater services, “if available.” In addition, FLUE Policy

3.1 grants density points for proposed developments in land use

categories (that are also urban service areas) when central

water and sewer facilities are available. These policies are

acknowledgments that sometimes central water and sewer

facilities are not available in urban service areas.

32. Petitioners argued that, in 2003, the County and

Department interpreted the urban service area policies of the

comprehensive plan differently than they are interpreting them

in this case. In 2003, the County and Department were reviewing

an application to designate 21 acres of the subject property to

Rural Reserve, which, as stated above, also results in an

automatic urban service area designation. Following its review

of the 2003 amendment, the Department prepared an Objections,

Recommendations, and Comments (ORC) Report which opposed the

change to Rural Reserve based on insufficient data and analysis.

The County staff report regarding the 2003 amendment also

recommended denial. Petitioners contend that these prior

actions were based on determinations by the Department and the

County that, to be placed in an urban service area, lands must

be served by central water and sewer facilities.

33. Holly Parrish, the County planner who prepared the

2003 County staff report, testified that central water and sewer

services are not mandatory for an urban service area, and that

any statement to the contrary in the 2003 staff report was an

error.

34. Neither Chapter 163, Florida Statutes, nor Florida

Administrative Code Chapter 9J-5 defines urban service areas,

nor do they establish guidelines or standards on what or how

many urban services are necessary to qualify an area as an urban

service area.

35. The comprehensive plan contains some ambiguity with

respect to urban service areas. The County might be to able to

interpret the comprehensive plan as Petitioners urge, to

prohibit the creation of a new urban service area where central

water and sewer facilities are unavailable. However, the

County’s interpretation and application of its urban service

area policies to allow an urban service area to be created in

the unique circumstances of a rural compact development area

surrounded by a military installation, where central sewer

facilities are not available, but several other urban services

are available, is not unreasonable.

36. Petitioners assert that the County’s rationale for the

amendment would allow urban service areas to be placed anywhere

on the FLUM, but there are no other areas on the Clay County

FLUM like the Kingsley Lake community.

Urban Sprawl

37. Petitioners also contend that the amendment is

inconsistent with FLUE Objective 2 which discourages urban

sprawl. Florida Administrative Code Rule 9J-5.006(5) contains

guidelines for use in determining whether a plan or plan

amendment discourages the proliferation of sprawl. Petitioners

focused on five of the listed indicators:

(5)(g) Primary indicators. The primary

indicators that a plan or plan amendment

does not discourage the proliferation of

urban sprawl are listed below. The

evaluation of the presence of these

indicators shall consist of an analysis of

the plan or plan amendment within the

context of features and characteristics

unique to each locality in order to

determine whether the plan or plan

amendment:

* * *

4. As a result of premature or poorly

planned conversion of rural land to other

uses, fails adequately to protect and

conserve natural resources . . .

* * *

6. Fails to maximize use of existing public

facilities and services.

7. Fails to maximize use of future public

facilities and services.

8. Allows for land use patterns or timing

which disproportionately increase the cost

in time, money and energy, of providing and

maintaining facilities and services,

including roads, potable water, sanitary

sewer, stormwater management, law

enforcement, education, health care, fire

and emergency response, and general

government.

9. Fails to provide clear separation

between rural and urban areas.

38. However, Petitioners did not prove that the amendment

will create an increased threat to natural resources. Nor did

they show that the County’s use of existing or future public

facilities and services is somehow impaired or made inefficient,

or that the cost in time, money and energy, of providing and

maintaining facilities and services would be increased as a

result of the amendment. The amendment does not prevent a clear

separation between rural and urban areas because the property

remains rural.

39. Dr. Joseph Addae-Mensa, the Department's planning

expert, does not believe the amendment encourages urban sprawl

in violation of Florida Administrative Code Rule 9J-5.006(5).

40. When evaluated in the context of the entire

comprehensive plan and the features and characteristics unique

to the locality, as required by Florida Administrative Code Rule

9J-5.006(5), Petitioners' evidence was insufficient to prove

that the amendment fails to discourage urban sprawl.

Data and Analysis

41. Petitioners contend that the application and staff

report for the subject amendment did not contain sufficient data

and analysis to demonstrate that the property could be provided

with central water and sewer facilities within the planning

horizon. However, for the reasons stated above, such data and

analysis are unnecessary because central water and sewer

facilities are not mandated.

42. Petitioners also claim there is insufficient data and

analysis to demonstrate what effect the designation of the urban

service area would have on surrounding properties, which they

believe could be a significant increase in the density of

Kingsley Lake community because lots might now qualify for

density bonus points. However, Dr. Kim analyzed this issue and

concluded that only one lot would gain additional density points

as a result of the urban service area designation, resulting in

potentially two additional residential units. His analysis was

not rebutted.

43. Petitioners’ contention that there is insufficient

data and analysis to show that the Rural Fringe land use

category is consistent with the conditions of the property is

contrary to the record which contains ample data and analysis on

this point.

CONCLUSIONS OF LAW

44. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties pursuant to

Sections 120.569, 120.57(1), and 163.3184(9), Florida Statutes.

45. Under the comprehensive planning scheme established in

Chapter 163, Part II, Florida Statutes, the Department has the

duty to review proposed and adopted local government

comprehensive plan amendments. The Department’s role is not to

opine as to whether a local government’s amendment is the best

alternative approach available to the local government for

addressing a subject, but to determine whether the amendment is

Statutes.

46. 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, 163.31776,

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.

47. Petitioners did not claim that the amendment is

inconsistent with Sections 163.3178, 163.3180, 163.3191, and

163.3245, Florida Statutes, nor did they go forward with their

claim that the amendment is inconsistent with certain provisions

of the State Comprehensive Plan. Petitioners’ challenge focused

on alleged inconsistency with Sections 163.3177(2), (6), and

(8), Florida Statutes, and portions of Florida Administrative

Code Chapter 9J-5.

Standing

48. In order to have standing to challenge a plan

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

defined as a person who resides, owns property, or owns or

operates a business within the local government whose

comprehensive plan amendment is challenged. § 163.3184(1)(a),

Fla. Stat. Petitioners and Intervenors have standing as

affected persons.

Burden of Proof

49. The County determined that the amendment is in

compliance. Because the Department also determined that the

amendment is in compliance, Section 163.3184(9)(a), Florida

Statutes, provides that the amendment “shall be determined to be

in compliance if the local government’s determination of

compliance is fairly debatable."

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

163, Florida Statutes, or Florida Administrative Code Chapter

9J-5. However, the Supreme Court of Florida has suggested that

the fairly debatable standard under Chapter 163, Florida

Statutes, is the same as the common law “fairly debatable”

standard applicable to decisions of local governments acting in

a legislative capacity. In Martin County v. Yusem , 690 So. 2d

1288 (Fla. 1997), the Court said, “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. Quoting from City of Miami Beach v.

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

further that “[A]n 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.” Put more simply

in the context of a challenge to a comprehensive plan amendment,

the amendment is fairly debatable if its validity can be

defended with a sensible argument.

51. Subsection 163.3177(2), Florida Statutes, and Florida

Administrative Code Rule 9J-5.005(5)(a), require the elements of

a comprehensive plan to be internally consistent. A plan

amendment creates an internal inconsistency when it has the

effect of conflicting with an existing provision of the

comprehensive plan.

52. Petitioners contend that the amendment is inconsistent

with FLUE Objective 2, which discourages urban sprawl, and

Policy 2.3, related to the expansion of urban service areas

because central water and sewer facilities are unavailable to

the property. However, Policy 2.3, on its face, applies to the

expansion of an existing urban service area and not to the

creation of a new urban service area. The County presented a

sensible interpretation of its plan that central water and sewer

services are not always required for urban service areas.

Therefore, Petitioners’ failed to prove that the amendment is

inconsistent with FLUE Objective 2 and Policy 2.3.

Consistency with Section 163.3177, Florida Statutes

53. Petitioners assert that the amendment is inconsistent

with several requirements of Section 163.3177(2), (6), and (8),

Florida Statutes. Section 163.3177(2), Florida Statutes,

requires that the FLUM and the FLUE be implemented in a

consistent manner. Petitioners rely primarily on the County’s

action on the proposed 2003 amendment to assert that approval of

the new amendment is inconsistent.

54. However, the statements contained in the County and

Department reports of 2003 are ambiguous on the issue of whether

central water and sewer services are required for the Rural

Fringe land use category because the context was a development

that proposed central water and sewer services, but was

deficient in its data and analysis. Petitioners failed to prove

that there is no rational explanation for the different

treatment of these amendments by the County and the Department.

55. Petitioners contend that the amendment is not based

upon appropriate data and analysis as required by Subsections

163.3177(6) and (8), Florida Statutes, and Florida

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

Code Rule 9J-5.005(2)(a) requires that, in order for a plan

provision to be “based” upon relevant and appropriate data, the

local government must “react to it in an appropriate way and to

the extent necessary indicated by the data available on that

particular subject at the time of adoption of the plan or plan

Amendment at issue.” The data must also be the “best available

existing data” and “collected and applied in a professionally

see also § 163.3177(10)(e), Fla. Stat. (2004).

56. The data and analysis that can support a plan

amendment are not limited to those identified or actually relied

upon by a local government. All data in existence and available

to a local government at the time of the adoption of the plan

amendment may be relied upon to support an amendment in a de

novo proceeding. Zemel v. Lee County et al. , 15 F.A.L.R. 2735

(Dept. of Community Affairs Final Order, June 22, 1993), aff’d ,

642 So. 2d 1367 (Fla. 1st DCA 1994).

57. Analysis, on the other hand, does not have to exist at

the time of the adoption of a plan amendment. See Zemel, supra.

Data that existed at the time of the adoption of a plan

amendment can be analyzed for the first time in preparation for

the administrative hearing held to hear a challenge to a plan

amendment. Id.

58. Petitioners did not prove that the amendment is

unsupported by appropriate data and analysis, that the data used

was not the best available data, or that the County did not use

the data appropriately.

Consistency with Chapter 9J-5

59. Petitioners contend that the amendment is not in

compliance with Florida Administrative Code Rule 9J-5.005(2)(a),

which describes the data and analysis that is necessary to

support a plan amendment. For the reasons just stated,

Petitioners failed to prove that the amendment is inconsistent

with this particular rule.

60. Petitioners contend that the amendment is inconsistent

with Florida Administrative Code Rule 9J-5.005(5), which

requires a comprehensive plan to be internally consistent. For

the reasons set forth in the Findings of Fact, Petitioners

failed to prove that the amendment is inconsistent with this

particular rule.

61. Petitioners contend that the amendment is inconsistent

with Florida Administrative Code Rule 9J-5.005(6) because it

fails to implement comprehensive plan goals, objectives, and

policies in a consistent manner. For the reasons set forth in

the Findings of Fact, Petitioners failed to prove that the

amendment is inconsistent with this particular rule.

62. Petitioners contend that the County’s comprehensive

plan as amended results in a failure to implement FLUE goals,

objectives, and policies in a consistent manner, in violation of

Florida Administrative Code Rule 9J-5.005(6). For the reasons

set forth in the Findings of Fact, Petitioners failed to prove

that the amendment is inconsistent with this particular rule.

63. Petitioners contend that the amendment exhibits

several of the indicators listed in Florida Administrative Code

Rule 9J-5.006(5)(g) that an amendment fails to discourage urban

sprawl. For the reasons set forth in the Findings of Fact,

Petitioners failed to prove that an indicator listed in Florida

Administrative Code Rule 9J-5.006(5)(g) is present in this case.

64. Petitioners contend that the amendment is incompatible

with adjacent land uses in violation of Florida Administrative

Code Rules 9J-5.006(3)(b)3, 8, and (c)2. Florida Administrative

Code Rule 9J-5.006(3) sets forth the objectives and policies

that must be in a FLUE. However, the Department regularly

applies the rule to FLUM amendments as well. Even if a FLUE

contains all of the objectives and policies required by the

rule, the Department believes it can determine that the rule is

violated by a FLUM amendment. 3

65. “Compatibility” is defined in Florida Administrative

Code Rule 9J-5-003(23) as:

A condition in which land uses or conditions

can co-exist in relative proximity to each

other in a stable fashion over time so that

no use or condition is unduly negatively

impacted directly or indirectly by another

use or condition.

66. The land uses adjacent to, and in the vicinity of, the

property are single-family residential. The special notation on

the amendment that limits density on the property to 70 units

(1.5 du/a), makes the amendment compatible with existing

densities in the Kingsley Lake community. Petitioners failed to

prove that the amendment is incompatible with surrounding land

uses.

67. Petitioners contend that the amendment is not based

upon relevant, appropriate and professionally accepted data as

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

For the reasons set forth in the Findings of Fact, Petitioners

failed to prove that the amendment is inconsistent with this

particular rule.

68. In summary, Petitioners failed to prove beyond fair

debate that the amendment is not “in compliance,” as the term is

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

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 amendment is “in compliance”

as defined in Chapter 163, Part II, Florida Statutes.

DONE AND ENTERED this 30th day of May, 2008, 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] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of May, 2008.

ENDNOTES

1 / Unless otherwise indicated, all references to the Florida

Statutes are to the 2007 codification.

2 / The validity of such action is not at issue in this case.

Evidence was presented that this is the first such “notated”

FLUM amendment for Clay County, but that similar notated

amendments have been adopted by other local governments and

approved by the Department.

3 / A FLUM amendment can be inconsistent with a FLUE objective or

policy, but the Administrative Law Judge does not agree that a

FLUM amendment can be inconsistent with this rule.

COPIES FURNISHED :

Thomas 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

Lynette Norr, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

Mark H. Scruby, Esquire

Clay County Attorney

Post Office Box 1366

Green Cove Springs, Florida 32043-1366

Marcia Parker Tjoflat, Esquire

Pappas, Metcalf, Jenks & Miller, P.A.

245 Riverside Avenue, Suite 400

Jacksonville, Florida 32202

Deborah Crews Treece, Esquire

4465 Baymeadows Road, Suite 2

Jacksonville, Florida 32217

Vinette D. Godelia, Esquire

Hopping Green & Sams, P.A.

123 South Calhoun Street

Post Office Box 6526

Tallahassee, Florida 32314

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.