08-002719 Craig W. Patterson And Timothy Buffkin vs. Bradford County Board Of County Commissioners Status: Closed Recommended Order on Thursday, September 18, 2008.

Summary: Applicants for re-zoning demonstrated that the Commerical- Intensive zoning was consistent with the comprehensive plan and land development regulations.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: APPLICATION FOR RE-ZONING )

BY CRAIG W. PATTERSON AND ) Case No. 08-2719

TIMOTHY BUFFKIN )

__________________________________)

RECOMMENDED ORDER

The final hearing in this case was held on August 19, 2008,

in Starke, Florida, before Bram D. E. Canter, an Administrative

Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Applicants:

Marcia Parker Tjoflat, Esquire

Charles L. Gibbs, Esquire

Pappas Metcalf Jenks & Miller, P.A.

245 Riverside Avenue, Suite 400

Jacksonville, Florida 32202

For Bradford County:

William E. Sexton, Esquire

Brown & Broling

486 N. Temple Avenue

Starke, Florida 32091

STATEMENT OF THE ISSUE

The issue in this case is whether the Bradford County Board

of County Commissioners should approve or deny an application to

rezone a 12.76-acre parcel located at the southwest corner of

U.S. Highway 301 and County Road 18 in unincorporated Bradford

County (“the Property”) from Residential, (Mixed) Single

Family/Mobile Home (RSF/MH-1) to Commercial Intensive (CI).

PRELIMINARY STATEMENT

This matter was referred to the Division of Administrative

Hearings on or about June 25, 2008, pursuant to Section 16.6 of

the Bradford County Land Development Regulations (LDRs), which

provides for the appointment of hearing officers when the Board

due to recusals, on a matter requiring a quasi-judicial hearing.

The hearing officer may be an Administrative Law Judge employed

by DOAH.

On May 15, 2006, Petitioners filed an application to rezone

the Property from RSF/MH-1 to CI. On July 10, 2006, the County

Planning and Zoning Board held a public hearing to consider the

re-zoning application and formulate a recommendation to the BOCC.

The Planning and Zoning Board voted to recommend denial of the

re-zoning application.

On July 20, 2006, the BOCC held a public hearing to consider

the re-zoning application, but four of the five Commissioners

recused themselves because of ex parte communications they had

received regarding the application. The BOCC voted to refer the

matter to DOAH to conduct a de novo proceeding and prepare a

Recommended Order.

On November 20, 2006, following referral of the matter to

DOAH, the Administrative Law Judge assigned to the case issued an

Order Closing File, based upon that Administrative Law Judge’s

determination that there was no authority in the LDRs for using

outside hearing officers under the circumstances. On May 17,

2007, the BOCC amended the LDRs to provide for the referral of

quasi-judicial proceedings to a hearing officer where recusals

would prevent a quorum of the BOCC.

On April 28, 2008, Petitioners/Applicants filed another

petition for hearing with the County, requesting that the matter

be referred to DOAH. The County referred the petition to DOAH on

June 9, 2008.

On August 19, 2008, a quasi-judicial, public hearing was

held before the Administrative Law Judge at which all interested

persons were provided an opportunity to speak. All speakers were

placed under oath and were subject to cross examination.

Petitioners presented the testimony of their land use

expert, Ray Spofford. Petitioners’ Exhibits 1 through 25 were

admitted into evidence. Five members of the public spoke in

opposition to the re-zoning: Ernest Reid, Jeff Marshall, Michael

Davis, Randall Scoggin, and Paul Meng. The County took no

position as to the merits of the re-zoning, but stipulated that

the procedures required by the County’s LDRs had been followed.

Additionally, County Planning Director Nora Thompson answered

questions regarding interpretation of certain definitions

contained in the LDRs.

FINDINGS OF FACT

The Parties

1. Petitioners Craig W. Patterson and Timothy Buffkin own

the Property and are the applicants for the proposed re-zoning.

2. Bradford County is the local government responsible for

determining the land use designation and zoning classification

for the Property and has adopted a comprehensive plan and LDRs

which it amends from time to time.

The Property

3. The Property is a 12.76-acre parcel located at the

intersection of U.S. Highway 301 (US 301) and County Road 18 (CR

18) in unincorporated Bradford County. US 301 is a four-lane

divided principal arterial roadway, and CR 18 is a two-lane major

collector roadway. The intersection has a traffic light and left

turn lanes on US 301. This is the only intersection of a

principal arterial road and a major collector road in

unincorporated Bradford County.

4. The Property is roughly rectangular, with approximately

1,240 linear feet fronting on US 301 (eastern boundary of the

Property) and approximately 450 feet fronting on County Road 18

(northern boundary).

5. The Property is not located within a flood-prone area

and has little or no wetlands. Approximately a half mile to the

east of the Property is Hampton Lake.

6. The Property is relatively flat. The soils on the

property are poorly drained soils, but not indicative of

wetlands. The soils and topography of the property do not

preclude its development with a system to control stormwater and

drainage.

7. Currently, the Property contains one single-family

dwelling unit. The Property is bounded on the north by a

commercial land use and single-family residences, on the east by

vacant and commercial land use, on the south by vacant land, and

on the west by vacant land and single-family residences.

Current Zoning and Land Use Designations

8. Before October 2004, the Property was designated on the

which authorizes residential development at a density of less

than or equal to two dwelling units per acre. On October 21,

2004, the County amended the FLUM to re-designate the Property as

“Commercial.” However, the zoning for the Property remained

“Residential, (Mixed) Single Family / Mobile Home (RSF/MH-1).

The current zoning does not allow the types of uses appropriate

under its Commercial land use designation.

9. The Property is also located within an Urban Development

Area which is defined in the Future Land Use Element of the

comprehensive plan as an “area to which higher density

agricultural, residential (single family, multi-family and mobile

homes) and commercial and industrial uses are to be directed.”

Within Urban Development Areas, lands classified as “Commercial”

are to be used for the “sale, rental and distribution of products

or performance of services, as well as public, charter and

private elementary, middle and high schools.” Certain other uses

may also be approved as special exceptions or special permits.

Surrounding Land Uses

10. A portion of the land to the north of the Property and

all of the land immediately east are within the municipal

boundaries of the City of Hampton. The City of Hampton has zoned

property at the US 301/CR 18 intersection as “CG”, a commercial

designation which includes all of the uses authorized under

Bradford County’s CI zoning district. Within the past several

years, a truck repair and auto parts facility was located and is

still operating east of the Property, across US 301. Farther

east, but bordering those commercial lands, a residential

subdivision (Fox Hollow) is under development.

The Requested Re-zoning

11. The Applicants seek to re-zone the Property to

Commercial Intensive (CI). Permitted principal uses and

structures allowed within the CI zoning district are consistent

with the types of commercial uses listed in the comprehensive

plan for the Commercial land use designation, namely retail

outlets for the sale of food, home furnishings, vehicles, etc.;

service establishments such as barber shops, shoe repair shops,

repair and service garages; medical or dental offices; and

wholesaling.

12. The CI zoning district is described as “intended for

intensive, highly automotive-oriented uses that require a

conspicuous and accessible location convenient to streets

carrying large volumes of traffic and shall be located within

commercial land use classifications on the [FLUM].” The Property

meets the description of a conspicuous and accessible location

that is convenient to streets carrying large volumes of traffic.

Concurrency Management Assessment

13. The requested re-zoning is a “straight” re-zoning

request, meaning that the re-zoning is not associated with any

particular proposed use. Future development of the site will be

subject to development plan review and approval, pursuant to

Article Fourteen of the County LDRs.

14. A concurrency reservation is not available until final

site plan approval. However, at the County’s request, the North

Central Florida Regional Planning Council (NCFRPC) performed

concurrency management assessments of the re-zoning in 2006 and

again in 2008. In 2006, the NCFRPC provided the County with

nonbinding concurrency determination that the applicable service

levels would be met or exceeded for potable water (to be supplied

by potable water wells); sanitary sewer (to be served by on-site

septic tanks); solid waste; drainage; recreation; affordable

housing; and historic resources.

15. As to transportation facilities, the 2006 concurrency

management assessment determined that the maximum potential

development of the Property would generate 389 trips on US 301 at

“PM peak hour.” When added to the then-existing PM peak hour

trips, based on Florida Department of Transportation (FDOT)

traffic count data, US 301 would continue to operate within the

adopted level of service (LOS).

16. Between 2006 and 2008, the adopted LOS standard for US

objective was changed to maintain a freer flow of traffic during

evening peak traffic. Therefore, despite the reduction of

“background” trips on US 301, the 2008 concurrency management

assessment determined that maximum development of the Property

would cause the new LOS “B” standard to be exceeded.

17. Petitioners presented a traffic analysis based upon

more recent FDOT traffic count data than was used by the NCFRPC

for its 2008 concurrency management assessment. The newer data

showed a further decline in background trips on US 301, so that

adding the maximum potential trips from the Property would no

longer result in total PM peak hour trips that would exceed the

adopted LOS standard. Petitioners’ more recent data and analysis

is professionally acceptable and should be used.

18. At the time of site plan review for any future

development of the Property, an updated concurrency assessment

will be required and will be based on the number of trips

generated by the actual proposed use, rather than the trips that

would be generated by the maximum development potential of the

Property. The assessment will also use the most current FDOT

traffic count data.

Compatibility with Surrounding Land Uses

19. The County’s Planning and Zoning Board reviewed the

application for re-zoning at its July 10, 2006, meeting. It

recommended denial of the re-zoning based upon the impact of the

proposed change upon living conditions in the neighborhood. As

factual support for the recommended denial, the Planning and

Zoning Board’s report cites “all comments received during the

said public hearing and the Concurrency Management Assessment

concerning said application.”

20. At the August 19, 2008, public hearing held before the

Administrative Law Judge, members of the public expressed concern

that the CI zoning would be incompatible with the existing

residential development to the west, in the Hampton Lake area.

Some members of the public also expressed concern about possible

future uses of the Property, such as a truck stop or bar.

21. Package stores for the sale of alcoholic beverages,

bars, taverns, cocktail lounges, truck stops and automotive

service stations can only be approved as special exception uses

in the CI zoning district. Special exception uses require

approval of the County’s Board of Adjustment after a public

hearing, upon a finding that granting the special exception use

would promote the “public health, safety, morals, order, comfort,

convenience, appearance, propriety or the general welfare.” The

Board of Adjustment must also determine that the special

exception use would be compatible with adjacent properties. A

favorable decision here on the requested re-zoning to CI is not a

determination that a bar or truck stop on the Property would be

compatible with the adjacent residential area.

22. The LDRs impose site use and design criteria for

commercial uses that adjoin residential districts. Site plan

approval for commercial developments in CI zoning districts

requires the consideration of landscape buffers, height

restrictions, off-street parking requirements, lot coverage and

yard standards. These development conditions are designed to

minimize impacts to adjacent residential areas.

Stormwater

23. Some of the speakers at the public hearing expressed

concern about stormwater runoff from the Property. One speaker,

Michael Davis, testified that stormwater from the Property

currently flows across his property. Another expressed concern

that runoff from the Property would flow directly to Hampton

Lake.

24. On-site stormwater retention facilities would be

required for the Property in conjunction with its development.

The LDRs require that post-development runoff rates not exceed

pre-development conditions. The objective of the required

stormwater runoff controls is to approximate the rate, volume,

quality, and timing of stormwater runoff that occurred under the

site’s unimproved or existing state. There is no basis, at this

stage of analysis, to determine that the County’s stormwater

regulations are not adequate to prevent adverse stormwater

impacts to adjacent residences or to Hampton Lake.

Traffic on CR 18

25. Several speakers expressed concerns regarding increased

traffic on CR 18. Petitioners conducted a site-specific traffic

count for CR 18 east of US 301 and determined that the peak hour

trips are now 131. The capacity for CR 18 is approximately 600.

Based upon the total of 389 additional trips generated by the

maximum potential development of the Property (on either US 301

or CR 18), the adopted LOS standard for CR 18 would not be

exceeded.

26. Petitioners demonstrated that the proposed re-zoning is

consistent with the comprehensive plan and the LDRs.

CONCLUSIONS OF LAW

27. DOAH has jurisdiction of this matter, pursuant to

Section 16.6 of the Bradford County LDRs.

28. The Administrative Law Judge is to conduct a de novo

public hearing and issue a recommended order stating whether the

BOCC should approve or deny, in whole or in part, the application

for re-zoning.

29. Citizen testimony in a zoning matter constitutes

competent substantial evidence, provided that it is fact-based.

Miami-Dade County v. Walberg , 739 So. 2d 115, 117 (Fla. 3d DCA

1999), citing Metropolitan Dade County v. Blumenthal , 675 So. 2d

598, 607 (Fla. 3d DCA 1995), rev . dismissed , 680 So. 2d 421 (Fla.

1996). However, general statements of opposition are not

sufficient to support a finding of fact.

30. Petitioners have the burden to prove that the re-zoning

is consistent with the comprehensive plan and complies with all

procedural requirements of the LDRs. See Board of County Com’rs

v. Saepler , 627 So. 2d 469, 476 (Fla. 1993). The burden then

shifts to an opponent of the re-zoning to demonstrate that denial

of the re-zoning accomplishes a legitimate public purpose. Id.

31. The policy decision regarding whether the Property

should be developed with commercial uses was made by the County

in 2004 when it changed the FLUM designation of the Property to

Commercial. The current zoning of the Property is inconsistent

with that FLUM designation.

32. Petitioners proved by a preponderance of the evidence

that the requested CI zoning is consistent with the comprehensive

plan and that all procedural requirements of the LDRs have been

met.

33. The Planning and Zoning Board issued a report and

recommendation on the re-zoning application based on its

consideration of 16 criteria in Section 16.2.2 of the LDRs. The

Planning and Zoning Board recommended denial based on one

criterion: “The impact of the proposed change upon living

conditions in the neighborhood.” However, based on the record

created at the public hearing before the Administrative Law

Judge, the proposed re-zoning is appropriate for a parcel located

at a major intersection, and there is no basis in the record for

concluding that the re-zoning would cause impacts upon living

conditions in the neighborhood that are greater than the

reasonable and unavoidable impacts associated with mixed uses in

urbanizing areas.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Bradford County Board of County

Commissioners approve the requested re-zoning.

DONE AND ENTERED this 18th day of September, 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 18th day of September, 2008.

COPIES FURNISHED:

Ray Norman, Clerk of the Board

Bradford County Board of County

Commissioners

945 North Temple Avenue

Starke, Florida 32091

Marcia Parker Tjoflat, Esquire

Charles L. Gibbs, Esquire

Pappas Metcalf Jenks & Miller, P.A.

245 Riverside Avenue, Suite 400

Jacksonville, Florida 32202

William E. Sexton, Esquire

Brown & Broling

486 N. Temple Avenue

Starke, Florida 32091