09-003487GM Ronald J. Fagan vs. Citrus County Status: Closed Recommended Order on Friday, October 9, 2009.

Summary: Small-scale amendment not in compliance because of incompatibility with surrounding uses & environmental impacts.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD J. FAGAN, )

)

Petitioner, )

)

vs. ) Case No. 09-3487GM

)

CITRUS COUNTY, )

)

Respondent, )

)

and )

)

KATHERINE'S BAY, LLC, )

)

Intervenor. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on August 28,

2009, in Inverness, Florida.

APPEARANCES

For Petitioner: Denise A. Lyn, Esquire

Denise A. Lyn, P.A.

307 North Apopka Avenue

Inverness, Florida 34450-4201

For Respondent: Peter Aare, Esquire

Assistant County Attorney

110 North Apopka Avenue

Inverness, Florida 34450-4231

For Intervenor: Clark A. Stillwell, Esquire

Law Office of Clark A. Stillwell, LLC

Post Office Box 250

Inverness, Florida 34451-0250

STATEMENT OF THE ISSUE

The issue is whether Citrus County's (County's) small-scale

development amendment CPA-09-16 adopted by Ordinance No. 2009-

A07 on May 26, 2009, is in compliance.

PRELIMINARY STATEMENT

On May 26, 2009, the County adopted small-scale development

amendment CPA-09-16, which changed the future land use

designation for a 9.9-acre parcel on the County's Generalized

Future Land Use Map (GFLUM) from Low Intensity Coastal and Lakes

District (CL) to Recreational Vehicle Park District (RVP). The

parcel is owned by Intervenor, Katherine's Bay, LLC (Katherine's

Bay or Intervenor).

On June 24, 2009, Petitioner, Ronald J. Fagan, a dentist

who resides near the subject property, filed with the Division

of Administrative Hearings (DOAH) a Petition and Request for

Hearing (Petition) under Section 163.3187(3)(a), Florida

Statutes (2008). 1 The Petition generally contended that the

amendment was not in compliance with the County's Comprehensive

Plan (Plan) because it was internally inconsistent with other

Plan provisions. On July 16, 2009, Katherine's Bay was

authorized to intervene in this proceeding.

By Notice of Hearing dated July 9, 2009, a final hearing

was scheduled on August 28, 2009, in Inverness, Florida. On

August 24, 2009, the case was transferred from Administrative

Law Judge J. Lawrence Johnston to the undersigned.

On August 18, 2009, the parties filed a Joint Prehearing

Stipulation. At the final hearing, Petitioner testified on his

own behalf and presented the testimony of Dr. Timothy C. Pitts,

Operations Manager for the County's GIS section and former

County Senior Planner, and Glen Black, who resides near the

subject property. Also, he offered Petitioner's Exhibits 2 and

4 through 8, which were received in evidence. The County

presented no witnesses, but offered County Exhibit 3, which was

received in evidence. Intervenor presented the testimony of

Jeffrey Grybek, who owns a fishing camp near the subject

property; Susan Farnsworth, County Environmental Planner and

accepted as an expert; and Jerry W. Peebles, who owns the

subject property. Also, it offered Intervenor's Exhibits 1-4

and 6-8, which were received in evidence.

A Transcript of the hearing (two volumes) was filed on

September 11, 2009. By agreement of the parties, proposed

recommended orders were due no later than October 2, 2009. They

were timely filed by Petitioner and Intervenor and have been

considered in the preparation of this Recommended Order. The

County did not submit a proposed recommended order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

A. Background

1. Petitioner resides and owns property at 10662 West

Halls River Road, Homasassa, Florida, in the southwestern part

of the County. According to a County aerial map, the property

appears to be 0.68 acres in size and is rectangular-shaped, with

the eastern side fronting on the Homasassa River (River), while

the western side adjoins West Halls River Road (also known as

County Road 490A), a two-lane designated collector roadway for

the County. See Intervenor's Exhibit 8. That road dead-ends a

mile or so farther to the southwest in a subdivision known as

Riverhaven. Petitioner has owned the property since April 1992.

2. Intervenor, a limited liability corporation, acquired

ownership of a 47.5-acre parcel in May 2007, which lies directly

west-northwest of Petitioner's property and across West Halls

River Road. In early 2009, it filed an application with the

County seeking a change in the land use on 9.9 acres of the

larger parcel from CL to RVP. The smaller parcel's address is

10565 West Halls River Road and is a short distance north of

Petitioner's lot. The change in land use was requested because

Intervenor intends to place a recreational vehicle (RV) park on

the 9.9-acre parcel.

3. On page 10-103 of the Plan's Future Land Use Element

(FLUE), the CL land use is described in relevant part as

follows:

This land use category designates those

areas having environmental characteristics

that are sensitive to development and

therefore should be protected. Residential

development in this district is limited to a

maximum of one dwelling unit per 20 acres

and one unit per 40 acres in the Federal

Emergency Management Agency's V-zone.

4. On page 10-112 of the FLUE, the RVP land use is

described in relevant part as follows:

This category is intended to recognize

existing Recreational Vehicle (RV) Parks and

Campgrounds, as well as to provide for the

location and development of new parks for

recreational vehicles. Such parks are

intended specifically to allow for temporary

living accommodation for recreation,

camping, or travel use.

5. After the application was filed and reviewed by the

County staff, a report was prepared by the then County Senior

Planner, Dr. Pitts, on April 14, 2009, recommending that the

application be approved. See Petitioner's Exhibit 5. The

report noted that "this site is appropriate for some type of RV

Park development subject to an appropriately designed master

plan." Id. Although forty-nine RV units could potentially be

placed on the parcel, the report noted that due to significant

"environmental limitations of the area," the site "may not be

able to be designed at maximum intensity for this land use

district." Id. The "environmental limitations" are

approximately 1.64 acres of wetlands that are located on four

parts of the property, wetlands on neighboring properties, and

"karst sensitivity." The report noted that these environmental

issues would have to be addressed in a master plan to be

submitted by the applicant before development. The matter was

then favorably considered by the County's Planning and

Development Review Board by a 4-1 vote on May 7, 2009.

6. On May 26, 2009, the Board of County Commissioners

(Board) conducted a public hearing on the application. By a 3-2

vote, the Board adopted Ordinance 2009-A07, which approved the

change on the GFLUM. See Petitioner's Exhibit 2. Petitioner

and Intervenor appeared at the hearing and submitted comments

regarding the amendment. See County Exhibit 3. Accordingly,

both are affected persons and have standing to participate in

this matter. Because the size of the parcel was less than ten

acres, the map change was not reviewed by the Department of

Community Affairs. See § 163.3187(1)(c)1. and (3)(a), Fla.

Stat.

7. On June 24, 2009, Petitioner filed with DOAH his

Petition challenging the small-scale development amendment. As

summarized in the parties' Joint Prehearing Stipulation,

Petitioner contends that the map change "is not consistent with

[the County's] adopted comprehensive plan because such is

incompatible with the character of the properties surrounding

the subject property and because such is incompatible with [the]

environmentally sensitive nature of the subject property and the

properties surrounding the subject property." See Joint

Prehearing Stipulation, pages 1-2. More specifically,

Petitioner contends the map change is internally inconsistent

with FLUE Policies 17.2.7, 17.2.11, and 17.2.8.

B. The Subject Property

8. Although its precise dimensions are not of record, from

around 1952 until 1985, a golf course was located on a large

tract of land west of West Halls River Road, where Intervenor's

larger parcel of property is located. Currently, the larger

parcel is vacant and undeveloped. The subject property (as well

as the entire larger parcel) is classified as CL (Low Intensity

Coastal and Lakes), which allows one dwelling unit per twenty

acres. Because the property is in the coastal high hazard area

(CHHA), the amendment allows five RV units per acre, or a total

of forty-nine. In all likelihood, however, the number would be

somewhat smaller due to "severe" environmental constraints

discussed above. See Finding 5, supra . The new land use also

allows a small amount of retail development to serve the RV

customers.

9. The 9.9-acre parcel surrounds a one-acre parcel that

adjoins West Halls River Road, also owned by Intervenor, and

carries a CLC (Coastal and Lakes Commercial) land use

designation. A vested eighteen-unit RV park (Sunrise RV Park)

has been located on the one-acre parcel since the late 1980s.

Except for the small one-acre enclave, the property is bordered

on three sides by vacant, unimproved property, all designated as

CL. According to Petitioner, Sunrise RV Park has a small number

of "dilapidated" trailers and "a bunch of junk stored on the

front lawn." This was not disputed. The vacant lot directly

south of the larger parcel, comprised mainly of wetlands, is

owned by Glen Black, who objects to the map change. Across the

roadway, the area north and south of Petitioner's property along

the River is classified as CL and is "predominately

residential."

10. Besides the residential uses on the River side of the

road, Intervenor identified around six non-conforming businesses

(mainly former fish camps) that were vested prior to the

adoption of the current Plan and that are interspersed with the

residential lots. (Under current Plan provisions, they would

not be allowed.) Around one-quarter mile or so south of the

subject property is the Magic Manatee Marina (Marina) located on

a two-acre parcel facing the River. 2 A small fish camp with six

"rental cottages" lies a few lots north of the Marina. There

are also four small condominium buildings with dock facilities

(known as Cory's Landing) just north of the fish camp. The

aerial map reflects that all other lots south of Petitioner's

property are used for residential purposes.

11. Besides the other residential lots north of

Petitioner's property, there are nine rental units at a vested

"fishing resort" on a parcel slightly less than two acres in

size located at 10606 West Halls River Road. Around one-half

mile further north at the confluence of the Halls and Homasassa

Rivers is a vested restaurant, Margarita Grill. Except for

these vested non-conforming uses, all other lots are used for

residential purposes, and the entire strip of land adjoining the

River is classified as CL.

12. North of Intervenor's 47.5-acre parcel, but not

directly adjoining it, and on the western side of West Halls

River Road, is a large unevenly-shaped tract of land classified

as RVP, on which the Nature's Resort RV Park is located. That

facility is authorized to accommodate around three hundred RVs.

The entrance to that park from West Halls River Road appears to

be at least one-quarter mile or more north of the subject

property.

C. Petitioner's Objections

13. Petitioner contends that the amendment is not in

compliance because it is internally inconsistent with FLUE

Policies 17.2.7, 17.2.11, and 17.2.8, which concern

environmental and compatibility requirements. These provisions

are discussed separately below.

a. Policy 17.2.7

14. Policy 17.2.7 provides as follows:

The County shall guide future development to

the most appropriate areas, as depicted on

the GFLUM, specifically those with minimal

environmental limitations and the

availability of necessary services.

15. Petitioner argues that the subject property is in an

extremely sensitive environmental area due to extensive wetlands

and a karst sensitive landscape. (Karst is a limestone

underground rock structure that is very porous and through which

pollutants can easily travel.) He further points out that the

property is located within the CHHA. Given these environmental

constraints, and the proposed increase in density, Petitioner

contends the map change will run counter to the above policy.

16. There are no provisions within the Plan that prohibit

the location of an RV park within the CHHA. Policy 17.6.12

imposes numerous requirements for RV parks, including a thirty

percent open space requirement, restrictions on densities,

wetland protection, upland preservation, clustering, and

connection to regional central water and sewer service. These

policy restrictions have been implemented by more specific land

development regulations (LDRs) that limit the density and

intensity of RVs and the types of RVs ( e.g. , park models) that

can be placed in an RV park located within a CHHA. In this

case, because the property is in a CHHA, the LDRs impose a five-

RV per acre limitation, as opposed to the normal fourteen RVs

per acre in non-CHHA areas, and for evacuation purposes, park

models are prohibited. Further, the RV park must be served by

regional central water and sewer services.

17. All land in the County west of U.S. Highway 19,

including the subject property, is karst sensitive. As such,

any development west of U.S. Highway 19 must meet certain design

standards to ensure that the water supply is not threatened.

The County says that these concerns must be addressed during the

site approval (development) process.

18. The record shows that there are four jurisdictional

wetland sites on the parcel totaling 1.64 acres. There are also

wetlands on the surrounding property. Because of these

environmental constraints, Dr. Pitts (the former County Senior

Planner) stated that it is "highly unlikely" that Intervenor

"can develop at 49 units." He further pointed out that while it

is "certainly possible to do it at a smaller number," there

would be one hundred percent wetland protection through setbacks

both to wetlands on the subject parcel, as well as the

surrounding area, a thirty percent open space requirement on the

site, a ten percent area dedicated to recreational uses, and

minimum buffers on the side of the property facing West Halls

River Road. For RV parks, pertinent LDRs adopted to implement

the Plan require that the developer avoid all wetlands.

19. Policy 17.2.7 expresses a County planning decision

that future development be directed to "the most appropriate

areas, as depicted on the GFLUM, specifically those with minimal

environmental limitations ." (Emphasis added) According to

Dr. Pitts, the subject property has "severe" environmental

limitations, and that "it will be difficult to design the site

[in a way] that meets the standards of the comprehensive plan

and the land development code." Notwithstanding the other

provisions within the Plan and LDRs that place limitations on RV

park development in an effort to satisfy environmental

constraints, see Finding 18, supra , the subject property is

clearly not "the most appropriate area, as depicted on the

GFLUM" for new development, nor is it an area "with minimal

environmental limitations." In fact, the amendment does just

the opposite -- it directs new commercial development to an area

with severe environmental limitations. Therefore, the greater

weight of evidence supports a finding that the map change is

internally inconsistent with Policy 17.2.7.

b. Policy 17.2.11

20. Petitioner next contends that the plan amendment is

contrary to the Plan's basic strategy of protecting

environmentally sensitive areas, as set forth in FLUE Policy

17.2.11, which reads as follows:

Consistent with the Plan's basic strategy

for protection of environmentally sensitive

areas, the following guidelines shall apply

to all development in the Coastal, Lakes,

and Rivers Region:

No increase in residential density should be

approved except for Planned Development

standards already contained in the Plan.

No additional high intensity non-residential

land uses shall be approved for this region.

Specifically new GNC [General Commercial]

and IND [Industrial] districts shall be

avoided.

21. The subject property is within the Coastal Region and

therefore subject to these guidelines. See Intervenor's Exhibit

3, page 10-3. On page 10-150 of the FLUE, the narrative text

states in part that "with increasing development activity and

growth in the coming years, existing restrictions on the

density/intensity of land use should be maintained and enhanced

to provide additional protection to this sensitive region."

22. According to the Plan, a "GNC district allows

potentially high density/intensity development" and "should not

be located in areas of the County deemed to be environmentally

sensitive areas." See Intervenor's Exhibit 3, page 10-110. It

further provides that "[n]o new GNC shall be allowed in the

coastal, lakes and river region." Id. Therefore, new GNC

development should not be allowed in the Coastal Region.

Although an RV park is a commercial use, it is not a GNC use.

Further, the five-units per acre limitation is not considered a

high-intensity non-residential use. Therefore, while the policy

serves a laudable purpose, it does not prohibit RVP development

within the Coastal Region. Therefore, the map change is not

internally inconsistent with Policy 17.2.11.

c. Policy 17.2.8

23. Petitioner's final objection is that an RV park is not

compatible with the surrounding area. He goes on to contend

that by placing an RVP designation adjacent to a large tract of

CL land, the County has contravened FLUE Policy 17.2.8. That

policy reads as follows:

The County shall utilize land use techniques

and development standards to achieve a

functional and compatible land use framework

which reduces incompatible land uses.

24. Because compatibility is not defined in the Plan,

Florida Administrative Code Rule 9J-5.003(23) is helpful in

resolving this issue. 3 That rule defines the term

"compatibility" as follows:

(23) "Compatibility" means a condition in

which land uses or conditions can coexist in

relative proximity to each other in a stable

fashion over time such that no use or

condition is unduly negatively impacted

directly or indirectly by another use or

condition.

25. In its Proposed Recommended Order, Intervenor also

suggests that the definition of "suitability" is relevant to

this issue. That term is defined in Rule 9J-5.003(128) as

follows:

(128) "Suitability" means the degree to

which the existing characteristics and

limitations of land and water are compatible

with a proposed use or development.

26. Petitioner characterized the area around his home as

quiet, peaceful, and "all residential." He noted that except

for a few vested, non-conforming businesses, such as the Sunrise

RV Park, Marina, fish camp, and restaurant, the remainder of the

area along the River, as well as Intervenor's larger parcel

across the street, is either residential or vacant. Petitioner

fears that an RV park will result in increased noise, park

lighting during nighttime hours, trash being left by the

roadside, more traffic on the two-lane road, and a decrease in

the value of his property. He also believes that the developer

intends to place the southern entrance to the RV park almost

directly across the street from his home.

27. The greater weight of evidence supports a finding that

the proposed new land use designation is not compatible with the

surrounding land. Intervenor argues that an RV park and the

surrounding residential properties are compatible (and suitable)

because there are already non-conforming uses along the River

that have not unduly negatively impacted the area. These uses,

however, number only six along that stretch of the River, and

they have existed for decades due to vested rights. It is fair

to infer that the insertion of an RV park in the middle of a

large tract of vacant CL land would logically lead to further

requests for reclassifying CL land to expand the new RV park or

to allow other non-residential uses.

28. The stated purpose of Policy 17.2.8 is to reduce

"incompatible land uses." At the same time, Rule 9J-5.003(23)

discourages land uses which are in relative proximity to each

other and can unduly negatively impact the other uses or

conditions. The commercial RV park, with a yet-to-be determined

number of spaces for temporary RVs, tenants, and associated

commercial development, will be in close proximity to a

predominately residential neighborhood. A reasonable inference

from the evidence is that these commercial uses will have a

direct or indirect negative impact on the nearby residential

properties and should not coexist in close proximity to one

another. This is contrary to Policy 17.2.8, which encourages a

reduction in "incompatible land uses," and the amendment is

therefore internally inconsistent with the policy.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569, 120.57(1), and 163.3187(3),

Florida Statutes.

30. Section 163.3187(3)(a), Florida Statutes, provides in

relevant part that "[a]ny affected person may file a petition

with [DOAH] pursuant to ss. 120.569 and 120.57 to request a

hearing to challenge the compliance of a small scale development

amendment . . . ." The statute further provides that "the

parties to a hearing held pursuant to this subsection shall be

the petitioner, the local government, and any intervenor." The

parties have stipulated to facts establishing that Petitioner

and Intervenor are affected persons within the meaning of the

law.

31. Under Section 163.3187(3)(a), Florida Statutes, the

County's determination that the small-scale amendment is in

compliance is presumed to be correct. Further, this

determination will 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." Therefore, the

test is whether the evidence supports or contradicts the

determination of the County. See , e.g. , Cochran v. City of

Crestview, et al. , DOAH Case No. 08-0208GM, 2008 Fla. ENV LEXIS

75 at *38 (DOAH April 21, 2008, Admin. Comm. July 30, 2008).

This burden of proof has been applied in this proceeding.

32. For the reasons given in the Findings of Fact, the

preponderance of the evidence supports a conclusion that the

plan amendment is internally inconsistent with FLUE Policies

17.2.7 and 17.2.8 and is therefore not in compliance.

Accordingly, in these two respects, it is concluded that

Petitioner has met his burden of showing that the amendment is

not in compliance with the requirements of Chapter 163, Florida

Statutes, and that the determination of the County is incorrect.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Administration Commission enter a

final order determining that small-scale development amendment

CPA-09-16 adopted by the County by Ordinance No. 2009-A07 on

May 26, 2009, is not in compliance.

DONE AND ENTERED this 9th day of October, 2009, in

Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

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 9th day of October, 2009.

ENDNOTES

1/ All statutory references are to the 2008 version of the

Florida Statutes.

2/ At hearing, Petitioner and Intervenor offered conflicting

testimony regarding the distances between the subject property,

Petitioner's property, and the non-conforming uses. For example,

while acknowledging that he wasn't sure, Petitioner believed that

the Marina "might be a mile and a half down the road." (Vol. II,

Tr. at 8). On the other hand, Mr. Gryback, who owns a "fishing

resort" north of Petitioner's lot estimated the distance from his

property to the Marina to be no more than one-quarter mile.

(Vol. II, Tr. at 32.) The latter distance appears to more

closely comport with the County's aerial map of the area.

3/ All rule references are to the current version of the Florida

Administrative Code.

COPIES FURNISHED:

Barbara Leighty, Clerk

Transportation and Economic

Development Policy Unit

The Capitol, Room 1801

Tallahassee, Florida 32399-0001

Rob Wheeler, General Counsel

Office of the Governor

The Capitol, Room 209

Tallahassee, Florida 32399-0001

Shaw P. Stiller, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399-2100

Denise A. Lyn, Esquire

Denise A. Lyn, P.A.

307 North Apopka Avenue

Inverness, Florida 34450-4201

Peter Aare, Esquire

Assistant County Attorney

110 North Apopka Avenue

Inverness, Florida 34450-4231

Clark A. Stillwell, Esquire

Law Office of Clark Stillwell, LLC

Post Office Box 250

Inverness, Florida 34451-0250

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days of the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

render a final order in this matter.