08-001576GM
Susan Woods And Karen Lynn Recio vs.
Marion County And Department Of Community Affairs
Status: Closed
Recommended Order on Wednesday, February 4, 2009.
Recommended Order on Wednesday, February 4, 2009.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8SUSAN WOODS AND KAREN LYNN )
14RECIO, )
16)
17Petitioners, )
19)
20vs. ) Case No. 08-1576GM
25)
26MARION COUNTY and DEPARTMENT OF COMMUNITY AFFAIRS, )
34)
35)
36Respondents, )
38and )
40AUSTIN INTERNATIONAL REALTY, )
44LLC, CASTRO REALTY HOLDINGS, )
49LLC, and HALCYON HILLS, LLC, Intervenors. )
56)
57)
58)
59)
60)
61RECOMMENDED ORDER
63A final administrative hearing was held in this case in
73Ocala, Florida, on October 29 and 30, 2008, before J. Lawrence
84Johnston, Administrative Law Judge of the Division of
92Administrative Hearings (DOAH).
95APPEARANCES
96For Petitioners: Susan Woods, pro se
1027323 Northwest 90th Avenue
106Ocala, Florida 34482
109Karen Recio, pro se
1138650 Northwest 63rd Street
117Ocala, Florida 34482
120For Respondent Department of Community Affairs:
126Leslie E. Bryson, Esquire
130Department of Community Affairs
1342555 Shumard Oak Boulevard
138Tallahassee, Florida 32399-2100
141For Respondent Marion County:
145Thomas L. Wright, Esquire
149Marion County Attorney
152601 Southeast 25th Avenue
156Ocala, Florida 34471-9109
159For Intervenors: Bryce W. Ackerman, Esquire
165Steven H. Gray, Esquire
169Gray, Ackerman & Haines, P.A.
174125 Northeast 1st Avenue, Suite 1
180Ocala, Florida 34470
183STATEMENT OF THE ISSUE
187The issue in this case is whether comprehensive plan future
197land use map amendment (FLUMA) 07-L25, adopted by Marion County
207Ordinance 07-31 on November 20, 2007, which changed the FLUM
217designation on 378 acres of Urban Reserve and on 17.83 acres of
229Rural Land to Medium Density Residential, is "in compliance," as
239defined in Section 163.3184(1)(b), Florida Statutes. 1
246PRELIMINARY STATEMENT
248The Department of Community Affairs (DCA, or Department)
256reviewed the FLUMA and published a notice of intent (NOI) to find
268the Amendment in compliance. On March 14, 2008, Susan Woods
278and Karen Lynn Recio filed a Petition for Administrative Hearing
288(Petition) challenging the FLUMA and the NOI. The Petition was
298referred to DOAH, and a final hearing was scheduled for
308October 29-31, 2008. On May 6, 2008, Austin International, LLC,
318Castro Realty Holdings, LLC, and Halcyon Hills, LLC, owners of
328the property subject to the FLUMA, were granted leave to
338intervene.
339At the outset of the final hearing, DCA announced that it
350had changed its position on the FLUMA and would join Petitioners
361in asserting that the FLUMA was not "in compliance" because of
372inconsistency with provisions of Marion County's Comprehensive
379Plan and the lack of an adequate demonstration of need. DCA
390stipulated that non-compliance would have to be proven beyond
399fair debate under Section 163.3184(9)(a), Florida Statutes.
406The parties then had Joint Exhibits 1-5 admitted into
415evidence. 2
417During their case-in-chief, Petitioners called:
422Tony Beresford, a resident of Marion County; Mike McDaniel, DCA's
432Chief of Comprehensive Planning; Robert Pennock, Ph.D., an expert
441in comprehensive planning employed by DCA; Susan Woods; and
450Fay Baird, a professional hydrologist. Petitioners' Exhibits 1-7
458were admitted in evidence. 3 DCA presented its case-in-chief by
468cross-examining Mr. McDaniel and Dr. Pennock and by calling
477Troy Kuphal, the County's Water Resources Manager. DCA Exhibits
4861, 3, and 4 were admitted in evidence. 4 Marion County presented
498no evidence. In their case-in-chief, Intervenors called:
505Jimmy Massey, Acting Director of the County's Planning
513Department; Stanley Geberer, an economist and director of the
522real estate research division of Fishkind & Associates, Inc.;
531J. Thomas Beck, Ph.D., an expert in comprehensive planning;
540Jonathan Thigpen, a traffic engineer employed by Kimley-Horn &
549Associates; Richard Busche, a surface water management engineer
557employed by Kimley-Horn & Associates; and Pete Lee, an expert in
568comprehensive planning. Intervenors' Exhibits 1-5 were admitted
575in evidence. 5 DCA re-called Mr. McDaniel and Dr. Pennock in
586rebuttal.
587After presenting the evidence, the parties had a Transcript
596of the final hearing prepared and were given 20 days from the
608filing of the Transcript to file proposed recommended orders
617(PROs). The Transcript (in four volumes) was filed on
626December 22, 2008. On January 8, 2009, the Departments
635unopposed motion to extend the deadline for filing PROs to
645January 20, 2009, was granted. The timely-filed PROs have been
655considered in the preparation of this Recommended Order.
663FINDINGS OF FACT
6661. The parcel that is the subject of the FLUMA at issue
678(the Property) is approximately 395.83 acres in size. The
687existing FLUM designation for 378 acres of the Property is Urban
698Reserve, and the remaining 17.3 acres are designated as Rural
708Land. Both designations allow a maximum of 1 dwelling unit per
71910 acres. The FLUMA would change the designation of the entire
730parcel to Medium Density Residential (MDR). MDR generally
738allows up to four dwelling units per acre. However, Future Land
749Use Element (FLUE) Policy 12.5.k, which also was adopted as part
760of County Ordinance 07-31, limits the maximum density on the
770Property to two dwelling units per acre.
7772. FLUE Policy 12.5.k also requires: that development on
786the Property "be served by central potable water and central
796sanitary sewer services available concurrent with development"
803and be a Planned Unit Development "to address site design,
813buffering, and access issues"; and that NW 90th Avenue be
823reconstructed from U.S. Highway 27 north to the north-eastern
832corner of the Property and that all traffic facility
841improvements needed at the NW 90th Avenue/U.S. 27 intersection,
850including signalization if approved by the Florida Department of
859Transportation, be constructed prior to the issuance of any
868certificates of occupancy for the Property. Finally, with
876respect to the 17.3 acres formerly designated as Rural Land,
886FLUE Policy 12.5.k defers compliance with the County's Transfer
895of Development Rights (TDR) Program until application for
903assignment of a zoning classification for the land.
911Petitioners' Challenge
9133. Intervenors own the Property. Petitioners own property
921nearby in Marion County. Intervenors and Petitioners commented
929on the proposed FLUMA between transmittal to DCA and adoption by
940the County.
9424. Petitioners contend:
945a. The FLUMA is not consistent with the
953stormwater drainage, retention, and
957management policies contained in Policies
9621.1.a. and 1.1.d. of the Natural Groundwater
969Aquifer Recharge Sub-Element of the
974Infrastructure Element of the Comprehensive
979Plan.
980b. MDR is not suitable or compatible with
988existing and planned development in the
994immediate vicinity, as required by FLUE
1000Policy 12.3 of the Comprehensive Plan.
1006c. The Board of County Commissioners failed
1013to evaluate the FLUMA's impact on the need
1021for the change as provided in FLUE Policy
102912.3 of the Comprehensive Plan.
1034d. The FLUMA fails to take into account its
1043impact on water quality and quantity, the
1050availability of land, water and other natural
1057resources to meet demands, and the potential
1064for flooding, as required by Section
1071187.201(15)(b)6., Florida Statutes.
1074e. The FLUMA is not consistent with
1081Transportation Policy 1.0 of the
1086Comprehensive Plan, which states: "Marion
1091County shall create and maintain
1096transportation facilities that operate in a
1102safe and efficient manner within an
1108established level of service."
1112f. The FLUMA is not consistent with the
1120State's Comprehensive Plan in that it does
1127not "ensure that new development is
1133compatible with existing local and regional
1139water supplies," as required by Section
1145187.201(7)(b)5., Florida Statutes.
1148g. The FLUMA does not direct development
1155away from areas without sediment cover that
1162is adequate to protect the Floridan Aquifer
1169and does not prohibit non-residential uses
1175within 200 feet of a sinkhole, solution
1182channel, or other karst feature, in violation
1189of FLUE Policy 4.2 of the Comprehensive Plan.
1197h. The FLUMA does not comply with Section
1205187.201(7), Florida Statutes, concerning the
1210protection of surface and ground water
1216quality in the State.
1220Recharge Sub-Element Policy 1.1.a. and d.
12265. Policy 1.1 of the Natural Groundwater Aquifer Recharge
1235Sub-Element of the Infrastructure Element of the Marion County
1244Comprehensive Plan provides in part:
1249The Countys land development regulations
1254shall implement the following guidelines for
1260stormwater management consistent with
1264accepted engineering practices by October 1,
12702007:
1271a. Stormwater retention/detention basin
1275depth will be consistent with the water
1282management district's storm water
1286requirements for Karst Sensitive Areas so
1292that sufficient filtration of bacteria and
1298other pollutants will occur. Avoidance of
1304basin collapse due to excessive hydrostatic
1310pressure in Karst Sensitive Areas shall be
1317given special consideration.
1320* * *
1323d. Require the use of swales and drainage
1331easements, particularly for single family
1336residential development in Karst Sensitive
1341Areas.
1342These are requirements for land development regulations (LDRs);
1350they do not apply to comprehensive plan amendments. In any
1360event, the evidence did not prove that the site is unsuitable for
1372the density allowed under the adopted FLUMA due to karst
1382features.
13836. The admissible evidence presented by Petitioners
1390regarding stormwater management in karst topography generally
1397related to flooding problems on the property contiguous to the
1407Property, and to a karst feature referred to as the 63rd
1418Street Sinkhole, which is located in the general vicinity of
1429the Property.
14317. Fay Baird, an expert hydrologist called by Petitioners,
1440testified that the 63rd Street Sinkhole allows stormwater run-
1449off to enter the upper aquifer. Ms. Baird testified generally
1459of the problems and concerns regarding development and
1467stormwater management systems in karst topography. She
1474testified that the Property should be properly inventoried, that
1483specific karst features should be identified, and that any
1492stormwater system designed or developed should take into account
1501karst features to protect against groundwater contamination and
1509flooding. She testified that she had not been on the Property,
1520had not seen or reviewed core borings or other data to determine
1532the depth and nature of the sub-surface, and was not in a
1544position to provide opinions as to whether or not a particular
1555stormwater management system would or could adequately protect
1563against her concerns. Intervenors expert, Richard Busche,
1570testified that a stormwater management plan like the one
1579recommended by Ms. Baird was being developed.
1586Compatibility under FLUE Policy 12.3
15918. FLUE Policy 12.3 provides in pertinent part:
1599Before approval of a future land use
1606amendment, the applicant shall demonstrate
1611that the proposed future land use is
1618suitable, and the County will review, and
1625make a determination that the proposed land
1632use is compatible with existing and planned
1639development in the immediate vicinity . . . .
16489. Petitioners argued that the proposed MDR development of
1657the Property is incompatible with surrounding agricultural uses.
1665Actually, the Property is surrounded by a mixture of
1674agricultural and residential uses, including residential
1680subdivisions, a golf course, and scattered large-lot residential
1688and equestrian uses. The properties immediately to the south
1697and east of the Property are developed residential properties
1706and are designated MDR.
171010. Before the FLUMA, most of the Property was designated
1720Urban Reserve under the County's Comprehensive Plan. Such land
"1729provides for expansion of an Urban Area in a timely manner."
1740FLUE Policies 1.24.B and 2.18.
174511. "For an Urban Reserve Area to be designated an Urban
1756Area, it must be compact and contiguous to an existing Urban
1767Area, and central water and sewer must be provided concurrent
1777with development within the expanded area." FLUE Policy 2.18.
1786The Property is compact and is contiguous to existing Urban Area
1797designated MDR. This indicates that the County already has
1806planned for timely conversion of the Urban Reserve land on the
1817Property to urban uses, including MDR. It also means that the
1828County already has determined that at least certain urban uses,
1838including MDR, are compatible with adjacent agricultural uses.
184612. The Property is in the receiving area under the
1856County's Farmland Preservation Policy and TDR Program in FLUE
1865Objectives 13.0 and 13.01 and the policies under those
1874objectives. This means that the County already has determined
1883that residential density can be transferred to the Property from
1893the Farmland Preservation sending areas to increase residential
1901density up to one dwelling unit per acre. See FLUE Policy 13.6.
1913This would constitute Low Density Residential, which is an urban
1923use under the County's Comprehensive Plan. See FLUE Policy
19321.24.A. By establishing the Farmland Preservation Policy and
1940TDR Programs, the County already has determined that Low Density
1950Residential is compatible with adjacent Rural Land. In
1958addition, Low Density Residential clearly is compatible with
1966MDR.
196713. Although not raised in the Petition, Petitioners
1975argued that the Urban Reserve and Farmland Preservation eastern
1984boundary was improperly moved west to NW 90th Avenue. However,
1994that change was made prior to the adoption of Ordinance 07-31
2005and the FLUMA at issue in this case and is not a proper subject
2019of this proceeding.
2022Demonstration of Need under FLUE Policies 13.2 and 12.3
203114. FLUE Policy 13.2 provides:
2036The Transfer of Development Rights program
2042shall be the required method for increasing
2049density within receiving areas, unless,
2054through the normal Comprehensive Plan
2059Amendment cycle, an applicant can both
2065justify and demonstrate a need for a Future
2073Land Use Map (FLUM) amendment.
207815. FLUE Policy 12.3 provides:
2083Before approval of a future land use
2090amendment, . . . the County . . . shall
2100evaluate its impact on:
21041. The need for the change;
21102. The availability of facilities
2115and services;
21173. The future land use balance;
2123and
21244. The prevention of urban sprawl
2130as defined by Rule 9J-5.006(5)(g),
2135Florida Administrative Code.
213816. The evidence proved that the County interprets FLUE
2147Policy 12.3 to require need and future land use balance to be
2159assessed within the planning districts it has established.
2167There is no need for additional MDR in the County's Planning
2178District 5, where the Property is located. To accommodate the
2188projected population increase in Planning District 5 by 2010,
2197which is the planning horizon for the Countys Comprehensive
2206Plan, an additional 644 dwelling units are needed. There are
22161,893 vacant acres of MDR available in Planning District 5. At
2228four units per acre allowed in MDR, the County has an available
2240supply of 7,572 MDR dwelling units in Planning District 5.
225117. In the absence of a need in Planning District 5, the
2263County relied on a need demonstration prepared for the
2272Intervenors by Fishkind and Associates. 6 Besides being a
2281County-wide analysis instead of a planning district analysis,
2289the Fishkind analysis assumed a planning horizon of 2015, rather
2299than the 2010 horizon established in the Comprehensive Plan.
2308Finally, the Fishkind analysis applied an allocation factor to
2317the total projected need for residential use, most of which
2327already is supplied, resulting in a projection of residential
2336far in excess of the incremental need for additional residential
2346land by 2015, much less by 2010.
235318. The result of the Fishkind approach was to allocate
2363enough land for residential use to meet the County-wide
2372projected incremental need for additional residential land use
2380for approximately 45 years, which is five times the calculated
2390incremental need for 2015. Even assuming that a County-wide
2399demonstration of need complied with Marion County's
2406Comprehensive Plan, this is much too high an allocation ratio to
2417use to meet the incremental need projected for a 2015 plan, much
2429less for a 2010 plan.
243419. The expert for Intervenors, Stanley Geberer, defended
2442the Fishkind analysis in part by stating that it was comparable
2453to demonstrations of need accepted by DCA in other cases.
2463However, there was no evidence that the facts of those other
2474cases were comparable to the facts of this case.
248320. Mr. Geberer also asserted that holding the County to
2493its 2010 planning horizon would make it impossible for the
2503County to plan for the future. However, nothing prevents the
2513County from revising its Comprehensive Plan to plan
2521comprehensively for a longer timeframe.
252621. There was no evidence of any other circumstances that
2536would demonstrate a need for the FLUMA at issue in this case.
2548State Comprehensive Plan Policy 187.201(15)(b)6.
255322. Petitioners did not prove that the FLUMA fails to take
2564into account its impact on "water quality and quantity, the
2574availability of land, water and other natural resources to meet
2584demands, and the potential for flooding." To the contrary, the
2594evidence was that those items were taken into account as part of
2606the FLUMA. (However, as to the FLUMA's impact on the
2616availability of land to meet demands, see "Demonstration of Need
2626under FLUE Policies 13.2 and 12.3," supra .)
2634Transportation Element Objective 1.0
263823. Transportation Element Objective 1.0 provides:
2644Marion County shall create and maintain
2650transportation facilities that operate in an
2656efficient and safe manner within established
2662levels of service.
266524. Petitioners presented no expert testimony or
2672admissible evidence that the FLUMA will change established
2680levels of service or result in transportation facilities
2688operating in an unsafe or inefficient manner. Intervenors
2696presented the testimony of Jonathan Thigpen, an expert traffic
2705engineer, who prepared and submitted to the County a Traffic
2715Impact Study and testified that the FLUMA would not change
2725established levels of service or result in transportation
2733facilities operating in an unsafe or inefficient manner. The
2742ultimate need for transportation improvement, such as turn lanes
2751and traffic lights to mitigate the impacts of development under
2761the FLUMA, will be determined at later stages of development.
277125. Petitioners suggested that the FLUMA will result in
2780delays caused by additional traffic, frustrate drivers waiting
2788to turn east on U.S. 27, and induce large numbers of them to
2801seek an alternative route to the north through agricultural
2810areas, some of which have inadequate slag roads. However,
2819Petitioners failed to prove that this result is likely.
2828State Comprehensive Plan Policy 187.201(7)(b)5
283326. Petitioners presented no evidence that the designation
2841of MDR on the Property is incompatible with existing local and
2852regional water supplies. The evidence was that adequate local
2861and regional water supplies exist. Even if they did not exist,
2872the consequence would be less development than the maximum
2881allowed by the FLUMA.
2885FLUE Policy 4.2
288827. FLUE Policy 4.2 provides in pertinent part:
2896In order to minimize the adverse impacts of
2904development on recharge quality and quantity
2910in high recharge Karst sensitive and springs
2917protection areas, design standards for all
2923development shall be required and defined in
2930the LDRs to address, at a minimum, the
2938following:
2939* * *
2942f. Directing development away from
2947areas with sediment cover that is
2953inadequate to protect the Floridian
2958[sic] Aquifer.
2960* * *
2963h. Prohibiting nonresidential uses
2967within 200 feet of a sinkhole,
2973solution channel, or other Karst
2978feature.
297928. This policy sets forth requirements for the content of
2989LDRs, not FLUMAs.
299229. Petitioners presented no evidence that sediment cover
3000on the Property is inadequate to protect the Floridan Aquifer or
3011that any non-residential uses would be constructed within 200
3020feet of a sinkhole, solution channel, or other karst feature
3030under the FLUMA.
303330. Marion County has adopted amendments to its
3041Comprehensive Plan to protect springs and karst features.
3049CONCLUSIONS OF LAW
305231. Petitioners and Intervenors have party standing as
"3060affected persons" under Section 163.3184(1)(a), Florida
3066Statutes.
306732. Section 163.3184(9), Florida Statutes, provides that
3074when the Department has issued an NOI to find a comprehensive
3085plan amendment to be "in compliance," the amendment "shall be
3095determined to be in compliance if the local government's
3104decision is fairly debatable." In recognition of the local
3113nature of legislative land use decisions, and the Department's
3122expertise on the subject, the "fairly debatable" standard defers
3131not only to the local government's determination, but also to
3141the Department's determination in its NOI. In this case,
3150Petitioners and the Department bear the burden of proving beyond
3160fair debate that the FLUMA is not "in compliance." In addition,
3171to the extent that internal inconsistency is at issue, the
"3181fairly debatable" standard applies regardless of the
3188Department's NOI. See § 163.3184(10)(a), Fla. Stat.
319533. The Florida Supreme Court has held that, under the
"3205fairly debatable" standard, the local government's decision
3212must be upheld "if reasonable persons could differ as to its
3223propriety." Martin County v. Yusem , 690 So.2d 1288, 1295 (Fla.
32331997). See also B & H Travel Corp. v. Department of Community
3245Affairs , 602 So.2d 1362 (Fla. 1st DCA 1992), appeal dismissed
3255and rev. denied , 613 So.2d 1 (Fla. 1992).
326334. Section 163.3184(1)(b), Florida Statutes, defines "in
3270compliance" to mean:
3273consistent with the requirements of ss.
3279163.3177, when a local government adopts an
3286educational facilities element [sic],
3290163.3178, 163.3180, 163.3191, and 163.3245,
3295with the state comprehensive plan, with the
3302appropriate strategic regional policy plan,
3307and with chapter 9J-5, Florida Administrative
3313Code, where such rule is not inconsistent
3320with this part and with the principles for
3328guiding development in designated areas of
3334critical state concern and with part III of
3342chapter 369, where applicable.
334635. Section 163.3177(6)(a), Florida Statutes, provides in
3353part:
3354The future land use plan shall be based upon
3363surveys, studies, and data regarding the
3369area, including the amount of land required
3376to accommodate anticipated growth; the
3381projected population of the area; the
3387character of undeveloped land; the
3392availability of water supplies, public
3397facilities, and services; the need for
3403redevelopment, including the renewal of
3408blighted areas and the elimination of
3414nonconforming uses which are inconsistent
3419with the character of the community; the
3426compatibility of uses on lands adjacent to or
3434closely proximate to military installations;
3439the discouragement of urban sprawl; energy-
3445efficient land use patterns accounting for
3451existing and future electric power generation
3457and transmission systems; greenhouse gas
3462reduction strategies; and, in rural
3467communities, the need for job creation,
3473capital investment, and economic development
3478that will strengthen and diversify the
3484community's economy.
348636. Florida Administrative Code Rule 9J-5.006(2)(c) 7
3493requires that the FLUE be based on an "analysis of the amount of
3506land needed to accommodate the projected population . . . ."
351737. Rule 9J-5.005(2) provides in pertinent part:
3524(a) All goals, objectives, policies,
3529standards, findings and conclusions within
3534the comprehensive plan and its support
3540documents, and within plan amendments and
3546their support documents, shall be based upon
3553relevant and appropriate data and the
3559analyses applicable to each element. To be
3566based on data means to react to it in an
3576appropriate way and to the extent necessary
3583indicated by the data available on that
3590particular subject at the time of adoption of
3598the plan or plan amendment at issue. Data or
3607summaries thereof shall not be subject to the
3615compliance review process. However, the
3620Department will review each comprehensive
3625plan for the purpose of determining whether
3632the plan is based on the data and analyses
3641described in this chapter and whether the
3648data were collected and applied in a
3655professionally acceptable manner.
3658* * *
3661(c) Data are to be taken from professionally
3669accepted existing sources, such as the United
3676States Census, State Data Center, State
3682University System of Florida, regional
3687planning councils, water management
3691districts, or existing technical studies.
3696The data used shall be the best available
3704existing data, unless the local government
3710desires original data or special studies.
3716Where data augmentation, updates, or special
3722studies or surveys are deemed necessary by
3729local government, appropriate methodologies
3733shall be clearly described or referenced and
3740shall meet professionally accepted standards
3745for such methodologies.
3748* * *
3751(e) The comprehensive plan shall be based on
3759resident and seasonal population estimates
3764and projections. Resident and seasonal
3769population estimates and projections shall be
3775either those provided by the University of
3782Florida, Bureau of Economic and Business
3788Research, those provided by the Executive
3794Office of the Governor, or shall be generated
3802by the local government. If the local
3809government chooses to base its plan on the
3817figures provided by the University of Florida
3824or the Executive Office of the Governor,
3831medium range projections should be utilized.
3837If the local government chooses to base its
3845plan on either low or high range projections
3853provided by the University of Florida or the
3861Executive Office of the Governor, a detailed
3868description of the rationale for such a
3875choice shall be included with such
3881projections.
38821. If the local government chooses to
3889prepare its own estimates and projections, it
3896shall submit estimates and projections and a
3903description of the methodologies utilized to
3909generate the projections and estimates to the
3916Department with its plan when the plan is due
3925for compliance review unless it has submitted
3932them for advance review. If a local
3939government chooses to prepare its own
3945resident and seasonal population estimates
3950and projections, it may submit them and a
3958description of the methodology utilized to
3964prepare them to the Department prior to the
3972time of compliance review. The Department may
3979request additional information regarding the
3984methodology utilized to prepare the estimates
3990and projections.
39922. The Department will evaluate the
3998application of the methodology utilized by a
4005local government in preparing its own
4011population estimates and projections and
4016determine whether the particular methodology
4021is professionally accepted. The Department
4026shall provide its findings to the local
4033government within sixty days. In addition,
4039the Department shall make available, upon
4045request, beginning on December 1, 1986,
4051examples of methodologies for resident and
4057seasonal population estimates and projections
4062that are deemed by the Department to be
4070professionally acceptable. The Department
4074shall be guided by the Executive Office of
4082the Governor, in particular the State Data
4089Center, in its review of any population
4096estimates, projections, or methodologies
4100proposed by local governments.
410438. Section 163.3177(2), Florida Statutes, provides in
4111part:
4112Coordination of the several elements of the
4119local comprehensive plan shall be a major
4126objective of the planning process. The
4132several elements of the comprehensive plan
4138shall be consistent . . . .
414539. Implementing Section 163.3177(2), Florida Statutes,
4151Rule 9J-5.005(5) requires "Internal Consistency" and
4157subparagraph (a) provides:
4160The required elements and any optional
4166elements shall be consistent with each other.
4173All elements of a particular comprehensive
4179plan shall follow the same general format
4186(see "Format Requirements"). Where data are
4193relevant to several elements, the same data
4200shall be used, including population estimates
4206and projections.
420840. In this case, Petitioners and the Department proved
4217beyond fair debate that the FLUMA was not based on a
4228professionally acceptable demonstration of need as required by
4236Section 163.3177(6)(a), Florida Statutes, and Rules
42429J-5.006(2)(c) and 9J-5.005(2), or as required by Marion County
4251FLUE Policy 12.3, which makes the FLUMA internally inconsistent
4260with that Policy, as well as with the rest of the Marion County
4273Comprehensive Plan, which is based on a planning timeframe of
42832010.
4284RECOMMENDATION
4285Based upon the foregoing Findings of Fact and Conclusions of
4295Law, it is
4298RECOMMENDED that the Department determine the FLUMA at issue
4307in this case to be not "in compliance" and take further action as
4320required by Section 163.3184(9)(b), Florida Statutes.
4326DONE AND ENTERED this 4th day of February, 2009, in
4336Tallahassee, Leon County, Florida.
4340S
4341J. LAWRENCE JOHNSTON
4344Administrative Law Judge
4347Division of Administrative Hearings
4351The DeSoto Building
43541230 Apalachee Parkway
4357Tallahassee, Florida 32399-3060
4360(850) 488-9675
4362Fax Filing (850) 921-6847
4366www.doah.state.fl.us
4367Filed with the Clerk of the
4373Division of Administrative Hearings
4377this 4th day of February, 2009.
4383ENDNOTES
43841/ Unless otherwise noted, all statutory references are to the
43942008 Florida Statutes.
43972/ The Joint Exhibits consisted of Marion County's Comprehensive
4406Plan, the Proposed FLUMA Package, DCA's Objections,
4413Recommendations, and Comments Report, agency comment letters, the
4421Adopted FLUMA Package, and the NOI.
44273/ Petitioners' Exhibits 1-6 were admitted in part subject to
4437valid hearsay objections, so their use is restricted by Section
4447120.57(1)(c), Florida Statutes.
44504/ DCA's exhibits were its staff memorandum on the adopted
4460FLUMA, the County's adopted springs protection remedial plan
4468amendment, and DCA's NOI on the County's adopted springs
4477protection remedial plan amendment.
44815/ Intervenors' Exhibits 2, 3, and 4 were admitted in part
4492subject to valid hearsay objections, so their use is restricted
4502by Section 120.57(1)(c), Florida Statutes. .
45086/ Dr. Beck also testified that need for the FLUMA was
4519demonstrated, but he did not explain the reason for his
4529testimony, other than the Fishkind analysis.
45357/ Unless otherwise indicated, all rule references are to the
4545version of the Florida Administrative Code in effect at the time
4556of the final hearing.
4560COPIES FURNISHED:
4562Thomas Pelham, Secretary
4565Department of Community Affairs
45692555 Shumard Oak Boulevard, Suite 100
4575Tallahassee, Florida 32399-2100
4578Shaw Stiller, General Counsel
4582Department of Community Affairs
45862555 Shumard Oak Boulevard, Suite 325
4592Tallahassee, Florida 32399-2100
4595Thomas D. MacNamara, Esquire
4599Marion County's Attorney's Office
4603601 Southeast 25th Avenue
4607Ocala, Florida 34471-2690
4610Leslie E. Bryson, Esquire
4614Department of Community Affairs
46182555 Shumard Oak Boulevard
4622Tallahassee, Florida 32399-2100
4625Karen Lynn Recio
46288650 Northwest 63rd Street
4632Ocala, Florida 34482
4635Steven H. Gray, Esquire
4639Gray, Ackerman & Haines, P.A.
4644125 Northeast 1st Avenue, Suite 1
4650Ocala, Florida 34470-6675
4653Susan Woods
46557323 Northwest 90th Avenue
4659Ocala, Florida 34482
4662NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
4668All parties have the right to submit written exceptions within 15
4679days from the date of this Recommended Order. Any exceptions to
4690this Recommended Order should be filed with the agency that will
4701issue the final order in this case.
- Date
- Proceedings
- PDF:
- Date: 08/26/2009
- Proceedings: Letters to R. Goodson from C. Patterson regarding Judge's Recommended Order filed.
- PDF:
- Date: 06/02/2009
- Proceedings: (Proposed) Order Granting Motion to Continue Final Hearing filed.
- PDF:
- Date: 03/09/2009
- Proceedings: Letter to Judge Johnston from B. Frisby regarding Judge`s ruling at hearing filed.
- PDF:
- Date: 02/27/2009
- Proceedings: Petitioners` Response to Exceptions Regarding Preliminary Statement, Paragraph 1 (incomplete; no signature) filed.
- PDF:
- Date: 02/26/2009
- Proceedings: Response to Department of Community Affairs` Exception to Recommended Order filed.
- PDF:
- Date: 02/04/2009
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 02/04/2009
- Proceedings: Recommended Order (hearing held October 29 and 30, 2008). CASE CLOSED.
- PDF:
- Date: 01/08/2009
- Proceedings: Order Granting Extension of Time (proposed recommended orders to be filed by January 20, 2009).
- PDF:
- Date: 01/07/2009
- Proceedings: Unopposed Motion to Extend the Deadline for Filing Proposed Recommended Orders filed.
- Date: 12/22/2008
- Proceedings: Transcript (Volumes 1-4) filed.
- Date: 10/29/2008
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 10/24/2008
- Proceedings: Amended Notice of Hearing (hearing set for October 29 through 31, 2008; 9:00 a.m.; Ocala, FL; amended as to start time of hearing).
- PDF:
- Date: 10/15/2008
- Proceedings: Unopposed Motion for Protective Order and and Striking Witnesses from Petitioners` Witness List filed.
- PDF:
- Date: 06/04/2008
- Proceedings: Notice of Service of Intervenors` Request to Produce Petitioners filed.
- PDF:
- Date: 06/04/2008
- Proceedings: Notice of Service of Intervenors` Expert Interrogatories to Petitioners filed.
- PDF:
- Date: 06/04/2008
- Proceedings: Notice of Service of Intervenors` Interrogatories to Petitioners filed.
- PDF:
- Date: 06/03/2008
- Proceedings: Notice of Service of Intervenors` Request to Produce to Petitioners filed.
- PDF:
- Date: 06/03/2008
- Proceedings: Notice of Service of Intervenors` Interrogatories to Petitioners filed.
- PDF:
- Date: 06/03/2008
- Proceedings: Notice of Service of Intervenors` Expert Interrogatories to Petitioners filed.
- PDF:
- Date: 05/06/2008
- Proceedings: Order Granting Leave to Intervene (Austin International Realty, LLC., Castro Realty Holdings, LLC and Halcyon Hills, LLC).
- PDF:
- Date: 05/05/2008
- Proceedings: Petition to Intervene of Austin International Realty, LLC., Castro Realty Holdings, LLC and Halcyon Hills, LLC filed.
- PDF:
- Date: 04/30/2008
- Proceedings: Notice of Hearing (hearing set for October 29 through 31, 2008; 10:00 a.m.; Ocala, FL).
Case Information
- Judge:
- J. LAWRENCE JOHNSTON
- Date Filed:
- 03/28/2008
- Date Assignment:
- 03/28/2008
- Last Docket Entry:
- 02/22/2010
- Location:
- Ocala, Florida
- District:
- Northern
- Agency:
- ADOPTED IN TOTO
- Suffix:
- GM
Counsels
-
Leslie E. Bryson, Esquire
Address of Record -
Steven H Gray, Esquire
Address of Record -
Thomas D MacNamara, Esquire
Address of Record -
Karen Lynn Recio
Address of Record -
Susan Woods
Address of Record -
Steven H. Gray, Esquire
Address of Record