08-000679GM Calvin And Becky Babcock, John And Jean Brittl, And Peter And Penny Wettermann vs. Marion County And Department Of Community Affairs Status: Closed Recommended Order on Thursday, November 19, 2009.

Summary: Petitioners did not prove beyond fair debate that the Plan Amendments failed to discourage urban sprawl.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CALVIN AND BECKY BABCOCK, JOHN )

AND JEAN BRITTL, and PETER AND )

PENNY WETTERMANN, )

)

Petitioners, )

)

vs. ) Case No. 08-0679GM

)

MARION COUNTY and DEPARTMENT OF )

COMMUNITY AFFAIRS, )

)

Respondents, )

and )

GOLDEN OAKS 484, LLC, and ST. )

LUCIE SQUARE INVESTORS, LLC, )

)

)

)

Intervenors. )

)

RECOMMENDED ORDER

On October 1, 2009, a final administrative hearing was held

in this case in Ocala before J. Lawrence Johnston, Administrative

Law Judge, Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioners: Calvin Babcock, pro se

13029 South Highway 475

Ocala, Florida 34480-8503

For Respondent Department of Community Affairs:

Matthew G. Davis, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

For Respondent Marion County:

Robert J. Fowler, Esquire

Marion County Attorney's Office

601 Southeast 25th Avenue

Ocala, Florida 34471-2690

For Intervenors: David L. MacKay, Esquire

David L. MacKay, P.A.

Post Office Box 206

Ocala, Florida 34478-0206

STATEMENT OF THE ISSUE

The issue in this case is whether Plan Amendments 07-L08 and

07-L39, adopted by Marion County Ordinance 07-31, are "in

compliance," as defined by Section 163.3184(1)(b), Florida

Statutes. 1

PRELIMINARY STATEMENT

On November 20, 2007, the Marion County Board of County

Commissioners adopted comprehensive plan amendments, including

two designated 07-L08 and 07-L39. The Department of Community

Affairs (Department or DCA) filed a petition at DOAH for a

determination that several of the plan amendments were not "in

compliance." The Babcocks, Brittls, and Wettermanns intervened

in support of the Department, and Golden Oaks 484, LLC, and St.

Lucie Square Investors, LLC, owners and developers of the 359.30

acres, intervened in support of Marion County. The County,

Department, and owners/developers entered into a stipulated

settlement agreement. The County revised its capital

improvements schedule, which addressed DCA's concerns about

transportation impacts, and supplied additional information to

address DCA's concerns about urban sprawl. On May 13, 2009, the

Department found the plan amendments "in compliance." The

parties were realigned as reflected in the above caption, and the

Babcocks, et al. , as Petitioners, maintained that the plan

amendments designated 07-L08 and 07-L39 (the Plan Amendments)

still were not "in compliance" because they constituted "urban

sprawl." The case was scheduled for a final hearing in Ocala on

October 1, 2009.

On September 23, 2009, Respondents and Intervenors moved to

exclude evidence on new allegations of environmental impacts and

of internal inconsistency. The compliance issues were excluded

as untimely under Section 163.3184(16)(f)1., Florida Statutes,

but the evidence was allowed as relevant to the indicator of

urban sprawl in Florida Administrative Code Rule 9J-

5.006(5)(g)4. 2

At the final hearing, Petitioners' request to be represented

by Calvin Babcock was denied, but all Petitioners were allowed to

rely on the evidence presented by Mr. Babcock. Mr. Babcock

called three witnesses: Jason S. Polk, Ph.D., as an expert in

karst geotechnology; Steven K. Luce, AICP, as an expert in land

planning; and, in rebuttal, Jimmy Massey, Interim Director of the

Marion County Planning Department. Mr. Babcock also had his

Exhibits 1 through 6 admitted in evidence. Intervenors called

three witnesses: Johnny Heath, as an expert in geotechnology;

Michael W. Radcliffe, P.E., as an expert in civil engineering,

including the provision of public facilities; and David DeYoung,

AICP, as an expert in land use planning. Intervenors also had

their Exhibits 1, 2, 7, 9, 10, and 12 and their Supplemental

Exhibits 1 and 2 admitted in evidence. The Department called no

witnesses but had its Exhibit 1 admitted in evidence. Marion

County presented no evidence.

No party filed a transcript of the final hearing, and the

parties were given ten days to file proposed recommended orders

(PROs). DCA's unopposed motion to extend the time for filing

PROs to October 23, 2009, was granted. Mr. Babcock's PRO and the

Joint PRO filed by Respondents and Intervenors have been

considered.

FINDINGS OF FACT

1. Intervenors are the owners and developers of 359.30

acres of land south of Ocala in Marion County north of County

Road (CR) 484, between Interstate Highway 75 (I-75) and the City

of Belleview (the Golden Oaks site). They also own land in

Marion County in the Ocala Ranchettes subdivision, which is in

the extreme northeast corner of Marion County.

2. On November 20, 2007, the Marion County Board of County

Commissioners adopted Comprehensive Plan Amendments 07-L08 and

07-L39. Plan Amendment 07-L08 changes the Future Land Use Map

(FLUM) designation for the Golden Oaks site from Rural Land to

Medium Density Residential, which has an open space requirement

of at least 350 square feet per residential unit. Plan Amendment

07-L39 is a text amendment to the Future Land Use Element (FLUE)

limiting development on the Golden Oaks site to a maximum of 523

single-family residential units.

3. Mr. and Mrs. Babcock own land and reside in Marion

County near the 359.30 acres subject to the FLUM change. No

evidence was presented during the hearing as to whether the other

Petitioners own land or reside in Marion County. However,

Respondents and Intervenors stipulated in their Joint PRO that

all Petitioners are "affected," as defined in Section

163.3184(1)(a), Florida Statutes.

4. Petitioners and Intervenors submitted oral or written

comments on the Plan Amendments between the transmittal hearing

and adoption of the Plan Amendments.

5. Petitioners contend that, as a result of the Plan

Amendments, the Marion County Comprehensive Plan fails to

discourage urban sprawl, as required by Rule 9J-5.006(3)(b)8.

6. Rule 9J-5.003(134) states:

"Urban sprawl" means urban development or

uses which are located in predominantly rural

areas, or rural areas interspersed with

generally low-intensity or low-density urban

uses, and which are characterized by one or

more of the following conditions: (a) The

premature or poorly planned conversion of

rural land to other uses; (b) The creation of

areas of urban development or uses which are

not functionally related to land uses which

predominate the adjacent area; or (c) The

creation of areas of urban development or

uses which fail to maximize the use of

existing public facilities or the use of

areas within which public services are

currently provided. Urban sprawl is

typically manifested in one or more of the

following land use or development patterns:

Leapfrog or scattered development; ribbon or

strip commercial or other development; or

large expanses of predominantly low-

intensity, low-density, or single-use

development.

7. Whether a comprehensive plan or plan amendment fails to

discourage urban sprawl is determined by Rule 9J-5.006(5), which

includes a complicated method for evaluating 13 primary

indicators of urban sprawl.

8. The first primary indicator is a plan or plan amendment

that: "Promotes, allows or designates for development

substantial areas of the jurisdiction to develop as low-

intensity, low-density, or single-use development or uses in

excess of demonstrated need."

9. The Plan Amendments are not "in excess of demonstrated

need" when considered on a county-wide basis because Intervenors

and the County entered into a binding Developer's Agreement not

to develop 475 lots in the Ocala Ranchettes subdivision (leaving

just five vested lots in the subdivision). 3 However, the 523

maximum allowable residential units under the Plan Amendments

exceed demonstrated need in the County's Planning District 14,

where Golden Oaks is located. 4

10. The second primary indicator is a plan or plan

amendment that: "Promotes, allows or designates 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."

11. Golden Oaks is in an area that is in transition. It is

approximately three miles east of I-75 and approximately three

miles southwest of Belleview (approximately four road miles along

CR 484). It is approximately a half-mile west of the western

edge of the Urban Reserve area that extends southwest from

Belleview. Much of the land surrounding Golden Oaks is rural in

character. The Golden Oaks site has a flag-like shape. It is

narrow where it fronts on the north side of CR 484 (the

"flagpole") and widens at a distance to the north of CR 484 (the

"flag"). Much frontage along CR 484 is now in

commercial/business use (including frontage immediately east of

the "flagpole" of the Golden Oaks site and south of the "flag"

part of Golden Oaks) or designated for future commercial or mixed

use (including the Goolsby mixed-use development and a rural

activity center, which are on CR 484 approximately two miles east

and west of Golden Oaks, respectively). Several tracts in the CR

484 corridor between I-75 and Belleview are developed with

residential densities as high as or higher than the densities

designated for Golden Oaks by the Plan Amendments. One of these

is a sprawling, non-conforming, but vested subdivision

approximately a half-mile east of Golden Oaks called Belleview

Heights. CR 484 is being four-laned between I-75 and the City of

Belleview. Additional sewer and water capacity is being placed

in the CR 484 corridor, which is transitioning into a more urban

area. A new county library is being built along CR 484

approximately two miles east of Golden Oaks in the Goolsby mixed-

use development.

12. The evidence was that there is some land closer to

existing urban areas than Golden Oaks that is available and

suitable for development, but it was not clear from the evidence

how much. There also are areas of urban infill that could be

developed or redeveloped, but it was not clear from the evidence

how much is available or if any would be suitable for large-scale

development.

13. The third primary indicator is a plan or plan amendment

that: "Promotes, allows or designates urban development in

radial, strip, isolated or ribbon patterns generally emanating

from existing urban developments." The Plan Amendments are part

of an emerging pattern of development in the CR 484 corridor.

14. The fourth primary indicator is a plan or plan

amendment that: "As a result of premature or poorly planned

conversion of rural land to other uses, fails adequately to

protect and conserve natural resources, such as wetlands,

floodplains, native vegetation, environmentally sensitive areas,

natural groundwater aquifer recharge areas, lakes, rivers,

shorelines, beaches, bays, estuarine systems, and other

significant natural systems."

15. Much of Golden Oaks was part of the larger Belleview

Forest that has been clear-cut.

16. There are at least two hydrated air-filled caves on the

Golden Oaks site--the Belleview Formation Cave and the Loquat

Cave. It has not been conclusively determined that there are no

other similar caves on the site. The two known caves are worthy

of preservation for scientific and other reasons. If preserved,

they would have to be buffered from development by setbacks, and

surface water would have to be managed to prevent contaminants

from entering the caves, which likely are connected to the

underlying aquifer. Care would have to be taken to strike a

balance so that surface water management activities both protect

water quality and do not lower the water table enough to de-

hydrate the caves. The evidence was that these objectives can be

accomplished under the Marion County Comprehensive Plan, which

requires springs protection.

17. The Ocala Ranchettes subdivision is in an

environmentally sensitive area of wet prairie. The environmental

benefits of the Developer's Agreement offset any environmental

detriment from the Plan Amendments.

18. The fifth primary indicator is a plan or plan amendment

that: "Fails adequately to protect adjacent agricultural areas

and activities, including silviculture, and including active

agricultural and silvicultural activities as well as passive

agricultural activities and dormant, unique and prime farmlands

and soils."

19. With the 523-unit maximum, it should be possible to

develop Golden Oaks and adequately protect adjacent agricultural

areas (mainly, horse farms and pastures) through buffers and

limited road access to CR 484 (versus access through the rural

areas to the immediate west, north, and east).

20. One concern of Petitioners is the eventual conversion

of more rural land to urban uses, which would be the subject of

future land use decisions.

21. The sixth primary indicator is a plan or plan amendment

that: "Fails to maximize use of existing public facilities and

services." The seventh is the same but for future public

facilities and services. The eighth primary indicator is

similar--a plan or plan amendment that: "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."

22. Golden Oaks is several miles from most public

facilities and services. However, closer public facilities and

services are planned or being built (for example, the four-laning

of CR 484, sewer force mains and lines, water lines, and

schools). Because the Plan Amendments limit density at Golden

Oaks, they do not maximize the use of public facilities and

services. Excess capacity is planned and being added for future

development in the CR 484 corridor in addition to Golden Oaks.

23. The ninth primary indicator is a plan or plan

amendment that: "Fails to provide a clear separation between

rural and urban uses." Since the CR 484 corridor is in

transition, urban uses are being introduced into what was a rural

area. During the transition, there is not going to be a clear

separation between rural and urban uses.

24. The tenth primary indicator is a plan or plan amendment

that: "Discourages or inhibits infill development or the

redevelopment of existing neighborhoods and communities."

Because they allow development that is not infill or

redevelopment, the Plan Amendments discourage or inhibit infill

or redevelopment to a limited extent.

25. The eleventh primary indicator is a plan or plan

amendment that: "Fails to encourage an attractive and functional

mix of uses." The Plan Amendments themselves provide for

residential use only. It was not proven that they will fail to

encourage an attractive and functional mix of uses. Limiting

access to Golden Oaks to CR 484 (versus access through the rural

areas to the immediate west, north, and east) or through the

existing commercial areas fronting CR 484 to the immediate south

of Golden Oaks (east of the "flagpole" and south of the "flag"

part of the site) could help encourage an attractive and

functional mix of uses.

26. The twelfth primary indicator is a plan or plan

amendment that: "Results in poor accessibility among linked or

related land uses." Golden Oaks is several miles from most

existing linked or related land uses. As development proceeds in

the emerging pattern along the CR 484 corridor, more linked or

related land uses will be closer.

27. The thirteenth primary indicator is a plan or plan

amendment that: "Results in the loss of significant amounts of

functional open space." To the extent that the Plan Amendments

result in a loss of functional open space, the loss is countered

by the Developer's Agreement on the Ocala Ranchettes subdivision.

28. Considering the extent, amount and frequency of the

indicators of urban sprawl, and the presence and potential

effects of multiple indicators, it is fairly debatable whether

the indicators of urban sprawl collectively reflect a failure of

the Plan Amendments, and the Marion County Comprehensive Plan as

a whole, to discourage urban sprawl. See Fla. Admin. Code R. 9J-

5.006(5)(d) and (h).

CONCLUSIONS OF LAW

29. Petitioners and Intervenors are "affected" and have

standing under Section 163.3184(1)(a), Florida Statutes.

30. The only timely compliance issues under Section

163.3184(1)(b), Florida Statutes, relate to alleged failure to

discourage urban sprawl.

31. Under Section 163.3184(16)(f)1, Florida Statutes, the

burden of proof in this case is governed by Section

163.3184(9)(a), Florida Statutes, which states: "In this

proceeding, the local plan or plan amendment shall be determined

to be in compliance if the local government's determination of

compliance is fairly debatable."

32. The phrase “fairly debatable” is not defined in the Act

or in Rule Chapter 9J-5. The Supreme Court of Florida has stated

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, 1295 (Fla. 1997), the Court stated that the fairly

debatable standard is deferential and requires "approval of a

planning action if reasonable persons could differ as to its

propriety." Quoting from City of Miami Beach v. Lachman , 71

So. 2d 148, 152 (Fla. 1953), the Court stated further: "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."

33. Petitioners did not prove beyond fair debate that the

Plan Amendments fail to discourage urban sprawl so as not to be

"in compliance."

RECOMMENDATION

Based upon 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 Amendments are "in

compliance."

DONE AND ENTERED this 19th day of November, 2009, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

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 19th day of November, 2009.

ENDNOTES

1/ All statutory references are to the 2009 Florida Statutes.

2/ All rule references are to the version of the Florida

Administrative Code in effect on October 1, 2009.

3/ The PRO submitted by Mr. Babcock attempted to raise an issue

of internal consistency of the Developer's Agreement with a new

Marion County Comprehensive Code FLUE provision adopted at the

same time as the Plan Amendments that excludes Rural Lands as

possible receiving areas for transfer of vested development

rights. Because this compliance issue is not timely, it is

excluded from consideration in this case. In addition, the date

of the Developer's Agreement is not clear from the record, and

there was no evidence that the validity of the Developer's

Agreement has been challenged for inconsistency with the new FLUE

provision.

4/ The PRO submitted by Mr. Babcock attempted to raise an issue

of internal consistency with a Marion County Comprehensive Code

FLUE provision on determination of need by planning district.

Because this compliance issue is not timely, it is excluded from

consideration in this case.

COPIES FURNISHED:

Calvin Babcock

Becky Babcock

13029 South Highway 475

Ocala, Florida 34480-8503

Peter H. Wettermann

Penny F. Wettermann

12981 South Highway 475

Ocala, Florida 34480-8503

John Bittl

Jean Bittl

13013 South Highway 475

Ocala, Florida 34480-8503

David L. MacKay, Esquire

David L. MacKay, P.A.

Post Office Box 206

Ocala, Florida 34478-0206

Matthew G. Davis, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

Robert J. Fowler, Esquire

Marion County's Attorney's Office

601 Southeast 25th Avenue

Ocala, Florida 34471-2690

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 32399-2100

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.