08-000208GM Kathleen Burson vs. City Titusville Status: Closed Recommended Order on Tuesday, September 9, 2008.

Summary: Petitioner failed to prove that the City`s small-scale amendment was not "in compliance."

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KATHLEEN BURSON, )

)

Petitioner, )

)

vs. )

)

CITY TITUSVILLE, ) Case No. 08-0208GM

)

Respondent, )

)

and )

)

RAVI SHAH, )

)

Intervenor. )

)

RECOMMENDED ORDER FOLLOWING REMAND

The final hearing in this case was held on March 24 and 25,

and April 4, 2008, in Titusville, Florida, before Bram D.E.

Canter, an Administrative Law Judge of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Kathleen Burson

2950 Knox McRae Drive

Titusville, Florida 32780

For Respondent: Dwight W. Severs, Esquire Richard C. Broome, Esquire

City of Titusville

Post Office Box 2806

Titusville, Florida 32781-2806

For Intervenor: John H. Evans, Esquire

John H. Evans, P.A.

1702 South Washington Avenue

Titusville, Florida 32780

STATEMENT OF THE ISSUE

The issue in this case is whether the small-scale amendment

to the Future Land Use Map of the City of Titusville

Comprehensive Plan, adopted by Ordinance 72-2007, is “in

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

Florida Statutes (2007). 1

PRELIMINARY STATEMENT

On December 11, 2007, the City of Titusville amended its

comprehensive plan through the adoption of Ordinance 72-2007,

which made changes to the Future Land Use Map (FLUM). Because

it was a “small-scale” amendment, involving less than 10 acres

of land, the amendment was not reviewed for compliance by the

Department of Community Affairs. This proceeding was initiated

on January 10, 2008, when Petitioner Kathleen Burson filed a

petition challenging the amendment.

Ravi Shah was granted leave to intervene in support of the

amendment.

Petitioner's motion to file an amended petition was denied,

but she was granted leave to file a second amended petition.

Petitioner filed her 2nd Amended Petition on March 11, 2008.

At the final hearing, Petitioner testified on her own

behalf and presented the testimony of Jewell Brennigan. [2]

Petitioner’s Exhibits 1, 1G, 1H, 1O, 50 and 51 were admitted

into evidence. The City presented the testimony of Courtney

Harris, the City's planning director; James Stephens, a mapping

technician for the City; William Kerr, IV, a consulting

ecologist; and Bart Pair, a civil engineer. The City's Exhibits

1 through 16 were admitted into evidence. Intervenor presented

no testimony. Intervenor's Exhibit 1 was admitted into

evidence. Because the final hearing could not be completed in

the two days for which it was scheduled, additional testimony

was presented and additional exhibits were received into

evidence via a telephonic hearing held on April 4, 2008.

The three-volume Transcript of the final hearing was

prepared and filed with DOAH. Petitioner and Respondent filed

Proposed Recommended Orders which were carefully considered in

the preparation of this Recommended Order.

FINDINGS OF FACT

The Parties

1. Petitioner Kathleen Burson owns property and resides at

2950 Knox McRae Drive in Titusville. Her residence is located

near the land affected by the FLUM amendment. Petitioner

submitted comments and objections regarding the amendment to the

Titusville City Commission.

2. The City of Titusville is a municipality 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. Intervenor Ravi Shah was the applicant for the

comprehensive plan amendment and a companion zoning change. He

signed a contract to purchase the property affected by the

amendment. At the time of the hearing, the contract's

expiration date had passed. However, Intervenor is pursuing

mediation under the terms of the contract to contest and prevent

the termination of his right to purchase the property.

The Amendment

4. The amendment changes the FLUM designations for a

portion of a 18.17-acre parcel of land ("the property") located

at the intersection of State Road 405 (South Street) and Fox

Lake Road. The amendment was formally approved by Ordinance 72-

2007, issued by the City on December 11, 2007, and was

designated Small Scale Amendment 15-2007.

5. The property had two FLUM designations before the

amendment, Residential High Density and Conservation. The

amendment changes a portion of the Residential High Density area

to Conservation. It changes an area formerly designated

Residential High Density and Conservation to Commercial Low

Intensity. It changes an area formerly designated Conservation

to Residential Low Density. Respondent's Exhibit 10 and

Petitioner's Exhibit 50, respectively, depict the "before" and

"after" land use designations.

6. Concurrent with the comprehensive plan amendment, the

City approved a rezoning of the property. Petitioner and the

City presented evidence related to the re-zoning and to

Intervenor's proposed development of a drug store and other

retail shops on that portion of the property now designated

Commercial Low Intensity. However, most of this evidence was

irrelevant to the issue of whether the comprehensive plan

amendment is "in compliance."

The Property and Surrounding Land Uses

7. The property is currently vacant. A wetland covers

3.71 acres in the southern portion of the property. The

boundaries of the wetland were used to define the area

designated Conservation by the amendment. It was the City's

intent for the amendment to place in the Conservation

designation on any part of the wetland that was not previously

designated Conservation and to remove from the Conservation

designation any land that was not part of the wetland.

8. The upland portion of the property is used by wildlife,

but it is not known to be used by any threatened or endangered

wildlife species other than the gopher tortoise, which is a

threatened species. Several gopher tortoise burrows were found

and at least one burrow was "active."

9. Petitioner claims that the amendment would destroy the

rural character of the area. The City disputed that the area

has much rural character.

10. The property is bounded on the west by South Street,

which is an arterial road. The land across South Street to the

west includes commercial and industrial uses.

11. The land on the northwest corner of the intersection

of South Street and Fox Lake Road is designated Commercial Low

Intensity and the City has approved a gas station/convenience

store for the site.

12. The property is bounded on the north partly by Fox

Lake Road, a collector road, and partly by a small parcel which

is designated Residential High Density. This small parcel has

existing dwellings and has non-conforming density.

13. Across Fox Lake Road to the north is land which is

designated Residential High Density.

14. To the east of the property, between the property and

the neighborhood where Petitioner resides, is land which is

designated Residential Low Density and is zoned for single-

family homes on lots of at least one acre.

15. Petitioner's neighborhood comprises 14 homes on lots

that generally range in size from one acre to 4.5 acres, with

one 10-acre lot. No other homeowners in Petitioner's

neighborhood challenged the amendment, even those persons who

live closer to the property than Petitioner.

16. The southern border of the property is bounded by

Commercial High Intensity, Conservation, and Educational land

uses. The Education designation covers the site of Apollo

Elementary School.

17. The property has access to urban services, including

public utilities.

18. The land uses designations created by the amendment

are compatible with the surrounding land uses. More

specifically, the Commercial Low Intensity designation is

compatible with Petitioner's neighborhood because the

neighborhood is separated from the commercial use by almost 300

feet, with other residential land uses between.

The Conservation Designation

19. Petitioner's challenge to the amendment focuses

primarily on the change in the area previously designated

Conservation. She contends that the area should remain

Conservation because she relied on the designation, and the

former Conservation designation protects upland wildlife.

20. When it adopted its first comprehensive plan in 1988,

the City designated Conservation areas on the FLUM to correspond

with wetlands as depicted on a 1988 National Wetland Inventory

map prepared for the U.S. Fish and Wildlife Service. From time

to time since 1988, the City has modified the boundaries of

Conservation areas depicted on the FLUM when, in the process of

reviewing land development proposals, the City has received more

current and detailed information about the boundaries of

particular wetlands.

21. Petitioner claims that it is wrong for the City to use

wetlands, alone, as a basis for designating Conservation areas.

She cites statements made by the City in 1988 as evidence that

the City intended for the Conservation designation to cover some

upland areas as well as wetlands.

22. Goal 1, Objective 6, Policy 3 in the Conservation

Element states that "at a minimum," the 1988 Wetland Inventory

Map will be used to define Conservation areas. Policy 3 allows

the City to designate Conservation areas to correspond only with

wetlands, and that has been the City's consistent practice. It

is reasonable for the City to continue that practice in the

adoption of the amendment at issue in this case. The amendment

is consistent with this policy.

Protection of the Wetland's Functional Values

23. Petitioner contends that the amendment is inconsistent

with comprehensive plan policies and with Florida Administrative

Code 9J-5.013(3), related to protecting the functional values of

wetlands. Petitioner did not present competent evidence that

any functional values of the wetland on the property would be

adversely affected by the amendment, but she does not think an

adequate functional value assessment was done for the wetland.

24. Goal 1, Objective 6 of the Conservation Element is to

"encourage preservation/protection of wetlands according to

their function." Policy 1, Strategy 1 states that "The

protection of wetlands shall be determined by the functional

value of the wetland." Other related policies and strategies in

the Conservation Element indicate that this objective is to be

accomplished in part through land development regulations. For

example, Policy 3, Strategy 6 states that "Mitigation for

unavoidable impacts to wetlands which possess significant

functional value, as determined by a functional value

assessment, will be addressed in the land development

regulations."

25. Florida Administrative Code 9J-5.013(3)(a) states:

Wetlands and the natural functions of

wetlands shall be protected and conserved.

The adequate and appropriate protection and

conservation of wetlands shall be

accomplished through a comprehensive

planning process which includes

consideration of the types, values,

functions, sizes, conditions and locations

of wetlands, and which is based on

supporting data and analysis.

26. The City interprets its comprehensive plan policies as

satisfied if wetland impacts are avoided. The wetland analysis

conducted for the amendment at issue in this case was adequate

because the entire wetland is included in the Conservation

designation and, therefore, appropriate planning level

protection is provided for the wetland. The adjacent Commercial

Low Intensity designation, standing alone, does not mean that

adverse impacts to the wetland will occur. Intervenor's

proposed development, for example, provides a buffer from the

wetland and does not propose to have an impact to the wetland.

27. The City's interpretation and application of the

comprehensive plan objectives and policies related to protecting

wetland functional values was not shown to be unreasonable. The

amendment was not shown to be inconsistent with the

comprehensive plan nor with Florida Administrative Code Rule 9J-

5.013(3)(a).

Compatibility

28. Petitioner contends that the amendment also violates

Florida Administrative Code Rule 9J-5.013(3)(b) because it

directs incompatible land uses into wetlands. The amendment

places all of the wetlands on the property under the

Conservation land use designation. Neither the Residential Low

Density designation nor the Commercial Low Intensity designation

is placed in the wetlands. The amendment eliminates an

incompatible Residential High Density designation that was

formerly in the wetlands. Petitioner failed to show that the

amendment directs incompatible uses into the wetlands.

29. Petitioner contends the amendment is inconsistent with

Objective 1.13 and Policy 1.13.1 of the Future Land Use Element

(FLUE), which require compatibility with "environmentally

sensitive areas;" and Policy 1.6.1 which requires elimination or

minimization of negative impacts to environmentally sensitive

areas caused by commercial land uses. "Environmentally

sensitive areas" are not defined in the comprehensive plan, but

discussed in the Conservation Element are (1) habitat for

threatened and endangered species, (2) important natural

resources, (3) critical habitat, and (4) streams, lakes, rivers,

estuaries, and wetlands.

30. The types of "environmentally sensitive areas" on the

property are wetlands and habitat for a threatened species, the

gopher tortoise. As found above, the amendment does not direct

commercial uses into the wetlands. Petitioner did not show

where the gopher tortoise habitat is located on the property but

claims that Intervenor’s proposed commercial project fails to

protect that habitat.

31. The property has not been designated as critical

habitat for the gopher tortoise. In fact, no critical habitat

has been designated in Florida for the gopher tortoise because

there are many areas in the state that provide suitable habitat

for this species.

32. In Florida, it is common for land developers to seek

and obtain approval from state and federal regulatory agencies

to remove and relocate gopher tortoises to other areas which

have suitable gopher tortoise habitat. Developers also have the

option to build near the burrows as long as they are not

disturbed.

33. Goal 1, Objectives 1 and 2, Policy 3 of the

Conservation Element states that "any public or private use of

land greater than three (3) acres in area shall require a

management plan designed to minimize harm to the species and its

habitat.” Such a management plan, however, would be submitted

as part of a re-zoning or development proposal and, therefore,

the adequacy of any management plan submitted by the Intervenor

in this case is not a relevant inquiry.

34. Petitioner argues that the relocation of the gopher

tortoises to other suitable habitat would not be consistent with

the comprehensive plan's policy to protect habitat. For

threatened and endangered species ("listed species") other than

the gopher tortoise, relocation might be impracticable or

inappropriate, and, therefore, inconsistent with the

comprehensive plan. However, for gopher tortoises, their

relocation is often determined to be practicable and

appropriate, and it has been the practice of the City and of the

state and federal regulatory agencies to allow their relocation.

35. There is no policy in the comprehensive plan that

clearly requires gopher tortoises and their habitat to be

managed differently in Titusville than in other areas of the

state. A local government's future land use designation has no

effect on the regulation and protection of listed species,

including gopher tortoises, afforded under state and federal

law.

36. Any land use, including a single-family residence, has

the potential to disturb the habitat of gopher tortoises.

Although Petitioner is correct in her view that the Conservation

designation is more likely to avoid habitat disturbances and the

need to re-locate gopher tortoises on the property than the

Commercial Low Intensity designation, that factor, standing

alone, does not require a finding that the amendment is not in

compliance.

Restricting Development

37. Petitioner contends that the amendment is inconsistent

with FLUE Policy 1.6.1 E because the City did not impose

conditions regarding hours of operation, visual impacts, and

privacy factors on the Intervenor's proposed development in the

Commercial Low Intensity area. This policy only requires that

such matters be considered.

38. The City approved the concurrent re-zoning of property

with a condition that a six-foot wooden fence be placed along

the boundary between the commercial project and the adjacent

residential area. The City also required Intervenor to place

the wetland under a conservation easement, to provide a buffer

zone around the wetland, and to prepare and submit a gopher

tortoise management plan prior to development of the property.

Petitioner failed to show that controls were not considered by

the City or that the amendment is incompatible due to the lack

of adequate controls.

Road Access

39. Petitioner contends the amendment is inconsistent with

FLUE Policy 1.6.1 A, which states that sites for commercial

development at collector/arterial intersections are appropriate

"provided minimal access is necessary on the collector street."

The site plan for the proposed commercial development shows a

primary entrance on South Street, an arterial road. A

secondary, side entrance is on the collector street, Fox Lake

Road. Petitioner failed to show how the amendment was

inconsistent with Policy 1.6.1 A.

Open Space and Recreation Zoning

40. Petitioner contends the amendment violates the City's

land development regulations (LDRs) because the LDRs place an

Open Space and Recreation (OR) zoning classification on all

Conservation lands on the FLUM, and describe OR as a "permanent"

classification. This argument is not persuasive, because the

characterization of the OR zoning classification as "permanent"

in the LDRs is merely to distinguish OR from certain other

classifications which are used as "holding" or temporary

classifications.

41. The word "permanent" in this context merely means that

the OR classification is treated the same way as normal zoning

classifications, which are "permanent" unless there is a re-

zoning by the City. The City has modified or eliminated OR

districts many times in conjunction with updated wetland

delineations.

Market Analysis

42. Petitioner contends the amendment in inconsistent with

FLUE Policy 1.6.1 I because a market analysis was not conducted.

The policy states:

Commercial land use shall be limited to

those areas designated as commercial or

mixed use on the Future Land Use Map except

as may be permitted by the Planned

Development Regulations. Requests to

increase and/or convey commercial land

rights to an alternate site must be

accompanied by adequate analysis to prove

necessity for such request.

The applicability of this policy was not shown. The first

sentence of the policy appears to be self-evident: limiting

commercial uses to land designated for commercial uses. The

meaning of “Planned Development Regulations” was not explained.

Perhaps it is a typographical error and was intended to refer to

“Land Development Regulations.” The meaning intended for the

term “commercial land rights” was not explained, nor was it

explained how this amendment involves a request to increase or

convey commercial land rights to an “alternate” site.

43. A market analysis is more typically associated with a

specific development proposal, because that allows the analysis

to be focused on a particular service or product. Petitioner

argues that the policy requires a market analysis for any FLUM

amendment that creates a new commercial land use designation.

If she is correct, the market analysis would necessarily be a

more general one. The City conducted a general market analysis

and determined that the residential development in the

surrounding area provided a market for a commercial use on the

property. That is a reasonable conclusion. If FLUE Policy

1.6.1 I is applicable to this amendment, the amendment is

consistent with the policy.

Archaeological Resources

44. Petitioner amended her petition to allege that the

amendment was improper because it was incompatible with the

protection of an Indian mound on the property. However, no

admissible evidence was presented to show that an Indian mound

exists on the property, where it is located, or how the

amendment would cause it to be disturbed. As with listed

species, a local government's land use designations have no

effect on the state regulation and protection of archaeological

resources.

CONCLUSIONS OF LAW

45. 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.

46. Under the comprehensive planning scheme established in

Chapter 163, Part II, Florida Statutes, the review of a

comprehensive plan amendment is not to determine whether the

amendment is the best alternative approach available to the

local government for addressing a subject, but to determine

whether the amendment is "in compliance," as defined in Section

163.3184(1)(b), Florida Statutes.

47. 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.

48. Petitioner did not claim that the amendment is

inconsistent with Sections 163.3178, 163.3180, 163.3191, and

163.3245, Florida Statutes. Petitioner's challenge focused on

alleged inconsistency with certain provisions of Section

163.3177, Florida Statutes, portions of Florida Administrative

Code Chapter 9J-5, and one provision of the State Comprehensive

Plan.

49. Whether a FLUM amendment is "in compliance" must be

determined without regard to any re-zoning or development order

issued by the local government in conjunction with the FLUM

amendment. Furthermore, a concurrent re-zoning or development

order cannot be challenged under Section 163.3184(9), Florida

Statutes. This case is restricted to determining whether the

FLUM amendment is in compliance.

Standing

50. In order to have standing to challenge a plan

amendment, or to participate as an intervenor, each challenger

and intervenor 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.

Petitioner and Intervenor in this case have standing as affected

persons.

Standard of Proof

51. Section 163.3187(3)(a), Florida Statutes, provides

that, in a proceeding to determine whether a small-scale

amendment is “in compliance,” the local government’s

determination of compliance is presumed to be correct and “shall

be sustained unless it is shown by a preponderance of the

evidence that the amendment is not in compliance with the

requirements of this act.”

52. Under Sections 163.3184(9) and (10), Florida Statutes,

the local government’s determination that an amendment is

internally consistent must be sustained if the determination is

fairly debatable. In the Recommended Order issued in this case,

the Administrative Law Judge included that, although this

standard of proof for a local government’s determination of

internal consistency is not expressly stated in Section

163.3187(3)(a), addressing small-scale amendments, it would be

illogical to apply a different standard of proof just because

the amendment involves less than 10 acres.

53. On or about September 5, 2008, the Department of

Community Affairs issued an Order of Remand, because it

determined that the conclusion of law stated in paragraph 52,

above, was an incorrect statement of the law. The Department

believes the standard of proof applicable to a local

government’s determination of internal consistency in the case

of a small-scale plan amendment is preponderance of the

evidence. Therefore, the matter was remanded to the

Administrative Law Judge for a determination whether Petitioner

demonstrated by a preponderance of the evidence that this

particular FLUM amendment is internally inconsistent.

In Compliance Review

54. 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. For the reasons set forth in the Findings

of Fact, Petitioner failed to prove by a preponderance of the

evidence that the amendment is inconsistent with any goal,

objective, or policy of the City's comprehensive plan.

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

Petitioner failed to prove by a preponderance of the evidence

that the amendment is inconsistent with any provision of Section

163.3177, Florida Statutes.

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

Petitioner did not prove by a preponderance of the evidence 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.

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

Petitioner failed to prove by a preponderance of the evidence

that the amendment is inconsistent with the provisions of

Florida Administrative Code Chapter 9J-5 related to the

protection of wetlands and the discouragement of urban sprawl.

58. With respect to the City's interpretation and

application of its Conservation land use designation, the City's

practice of using the designation only for wetlands is

consistent with the wetland protection requirements of Florida

Administrative Code Chapter 9J-5. The use of a Conservation

land use category is just one method for complying with those

requirements.

59. "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.

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

failed to prove by a preponderance of the evidence that the

amendment creates incompatible land uses.

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

Petitioner failed to prove by a preponderance of the evidence

that the amendment is inconsistent with Section 187.201(9)(b)1.,

Florida Statutes, a provision of the State Comprehensive Plan

related to the protection of natural resources.

61. In summary, Petitioner failed to prove that the

amendment is not "in compliance," as the term is defined in

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

62. Petitioner’s desire for more protection of the upland

wildlife species and their habitat is not unreasonable.

Petitioner urges an alternative interpretation and application

of the City’s comprehensive plan that would provide greater

protection. However, as stated above, the review of a

comprehensive plan amendment is not to determine whether the

amendment is the best alternative approach, but whether it is

“in compliance.” Petitioner failed to prove that the amendment

is not in compliance.

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 9th 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 9th day of September, 2008.

ENDNOTES

1 / Unless otherwise noted, all references to the Florida

Statutes are to the 2007 codification.

2 / Although the name appears in the transcript of the hearing as

Jewell Brannigan, Respondent's Exhibit 15 shows an official

public records listing of the name as Jewell Brennigan.

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

Dwight W. Severs, Esquire

City of Titusville

Post Office Box 2806

Titusville, Florida 32781-2806

John H. Evans, Esquire

John H. Evans, P.A.

1702 South Washington Avenue

Titusville, Florida 32780

Kathleen Burson

2950 Knox McRae Drive

Titusville, Florida 32780

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.