10-001136GM Robert A. Schweickert, Jr. vs. Citrus County And Department Of Community Affairs Status: Closed Recommended Order on Tuesday, May 11, 2010.

Summary: Petitioner failed to prove beyond fair debate that the challenged comprehensive plan amendments are not in compliance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT A. SCHWEICKERT, JR., )

)

Petitioner, )

)

vs. ) Case No. 10-1136GM

)

CITRUS COUNTY and DEPARTMENT OF )

COMMUNITY AFFAIRS, )

)

Respondents, )

)

and )

)

CITRUS MINING AND TIMBER, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

The final hearing in this case was held on April 5, 2010, in

Inverness, Florida, before Bram D.E. Canter, Administrative Law

Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Robert A. Schweickert, Jr., pro se

1108 East Inverness Boulevard, 107

Inverness, Florida 34450

For the Department of Community Affairs:

David Jordan, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

For Citrus County: Peter Aare, Esquire

Assistant County Attorney

110 North Apopka Avenue

Inverness, Florida 34450-4231

For Intervenor: Karen A. Brodeen, Esquire

Fowler White Boggs P.A.

101 North Monroe Street, Suite 1090

Tallahassee, Florida 32301

Clark A. Stillwell, Esquire

P.O. Box 250

Inverness, Florida 34431-0250

STATEMENT OF THE ISSUES

The issues to be determined in this case are whether

amendments CPA-09-13 and CPA-09-14 (“Plan Amendments”) to the

Citrus County Comprehensive Plan, which were adopted by Ordinance

163.3184(1)(b), Florida Statutes (2009). 1/

PRELIMINARY STATEMENT

On November 10, 2009, Citrus County adopted Ordinance 2009-

A24, which included amendments to the Citrus County

Comprehensive Plan. Amendment CPA-09-13 amends the Future Land

Use Element ("FLUE") to create a new land use category, Port

District. Amendment CPA-09-14 amends the FLUE to add a Subarea

Plan for the Hollinswood Harbor Port Subarea, and amends the

Future Land Use Map of the comprehensive plan to show the lands

that are to be re-designated as the Hollinswood Harbor Port

Subarea.

Citrus County sent the amendments to the Department of

Community Affairs (“Department”) for a compliance review. On

January 4, 2010, the Department issued its Notice of Intent to

find the amendments in compliance. Petitioner initiated this

administrative proceeding by filing a Petition for Formal

Administrative Hearing with the Department.

Intervenor, Citrus Mining and Timber, Inc. (“CMT”), filed a

petition to intervene, which was granted by the Department. CMT

moved to dismiss the petition for hearing and the Department

granted the motion, giving Petitioner leave to amend his

petition. The Department received Petitioner’s amended petition

and forwarded it to DOAH. Petitioner requested and was granted

additional time to file his amended petition.

CMT demanded an expedited proceeding pursuant to Section

163.3189(3), Florida Statutes, and the final hearing was

scheduled for April 5 through 7, 2010. Petitioner twice moved to

continue the final hearing, complaining that he had insufficient

time to prepare for the hearing. These motions were denied

because the statute expressly states that a party’s need for

additional time for preparation is an insufficient ground for

continuing a hearing.

At the beginning of the final hearing, Petitioner filed

another amended petition and renewed his motion for continuance.

The motion for continuance was denied. CMT moved to dismiss the

amended petition, but the motion was treated as a motion in

limine . A number of issues raised by Petitioner were stricken

and the case proceeded on the issues of whether the amendments

were consistent with the Citrus County Comprehensive Plan,

Chapter 163, Florida Statutes, and Florida Administrative Code

Chapter 9J-5 with respect to urban sprawl, workforce housing,

protection of manatees, and the provision of public water and

sewer services.

At the final hearing, Petitioner testified on his own

behalf. He offered no exhibits into evidence. CMT presented the

expert testimony of Michael Czerwinski (biology), Kevin Mineer

(planning), Gary Maidhof (planning), and Roger Wilburn

(planning). CMT Exhibits 1, 3, 7, 13, 15, 16, 21, 27, 30, 35,

and 36 were admitted into evidence. The County joined in the

case presented by CMT. The Department presented no witnesses or

exhibits.

FINDINGS OF FACT

The Parties

1. The Florida Department of Community Affairs is the state

land planning agency and is statutorily charged with the duty of

reviewing comprehensive plan amendments and determining they are

“in compliance,” as that term is defined in Section

163.3184(1)(b), Florida Statutes.

2. Citrus County has adopted a comprehensive plan that it

amends from time to time pursuant to Chapter 163, Part II,

Florida Statutes.

3. Petitioner, Robert Schweickert, Jr., is a resident of

the City of Inverness in Citrus County.

4. Petitioner made oral comments about the Plan Amendments

to Citrus County Commissioner John Thrumston in one or more

telephone conversations during the period of time between the

transmittal and adoption hearings for the Plan Amendments. In

Petitioner’s telephone conversations with Commissioner Thrumston,

the Commissioner was on his personal cellular telephone or home

telephone. No evidence was presented as to whether Commissioner

Thrumston conveyed Petitioner’s comments to the Board of County

Commissioners or to the County’s planning staff.

5. CMT is a Florida corporation and owns the property that

is the subject of Plan Amendment CPA-09-14, which would re-

designate the property as the Hollinswood Harbor Port Subarea.

6. CMT submitted oral comments to the Citrus Board of

County Commissioners at the transmittal and adoption hearings for

the Plan Amendments.

The Site

7. The subject property is a 525-acre site situated on the

Cross Florida Barge Canal. There is a channel “cut” from the

barge canal into the property. CMT owns the submerged lands

beneath the channel cut, and owns the submerged lands along the

southern boundary of its property to the middle of the barge

canal.

8. Currently the site has future land use designations of

“Extractive,” and “Transportation, Communications, and

Utilities.”

9. A portion of the site is planted in pine trees, which

CMT plans to harvest. The small area of the site designated

Extractive is used to store mined materials. A power line and

natural gas pipeline bisect the site.

10. The waterfront portion of the site was used in the past

for a cruise ship operation. A docking facility, parking lot,

and office used in conjunction with the cruise ship operation

still exist on the site.

11. To the west of the site is other land owned by CMT,

which is leased to a mining company and is used for mining

limestone. To the east is land owned by the State of Florida, on

which it proposes to build public boat ramps.

The Plan Amendments

12. Amendment CPA-09-13 amends the FLUE to create a new

amends the Future Land Use Map to designate the 525-acre site

owned by CMT as the HHP Subarea. The HHP Subarea Plan divides

the 525-acre site into four land use districts: “Port-

“Transportation Communication & Utility.”

13. The HHP Subarea Plan proposes a mix of industrial,

commercial, institutional, water dependent, and residential uses,

and establishes minimum and maximum standards for those uses.

The HHP Subarea Plan includes a requirement to comply with the

FDEP 2007 Clean Marina Action Plan Guidebook.

14. Residential uses within the HHP Subarea cannot exceed a

density of six units per acre, or a maximum of 600 units.

Residential units must be clustered on no more than 20 percent of

the site’s total 525 acres.

15. The residential density may be increased by one unit

per acre if workforce housing is provided.

Petitioner’s Issues

16. Petitioner’s issues were limited to whether the

amendments were consistent with the Citrus County Comprehensive

Plan, Chapter 163, Florida Statutes, and Florida Administrative

Code Chapter 9J-5, with respect to manatee protection, workforce

housing, the provision of public water and sewer services, and

urban sprawl.

Manatee Protection

17. The barge canal is a manmade waterway with a depth of

12 to 14 feet. The canal is too deep to allow sunlight to

penetrate to the bottom and, therefore, there are no grass beds

in the area of the site. Water grasses are the primary food of

the manatee. Although manatees are known to travel in the barge

canal, the canal is not essential habitat for the manatee.

18. The proposed Plan Amendments would not prevent

achievement of the criteria established in the Manatee Protection

Element of the comprehensive plan.

19. Petitioner failed to demonstrate that the Plan

Amendments would cause an unreasonable risk of harm to manatees

or are otherwise inconsistent with any provision of the

comprehensive plan.

Workforce Housing

20. Petitioner alleges that the County has more than

sufficient affordable housing and that the Plan Amendments would

add to the surplus of affordable housing by allowing for a

residential density bonus if workforce housing is provided.

“Workforce housing” is generally defined in Section

420.5095(3)(a), Florida Statutes, as “housing affordable to

natural persons or families whose total annual household income

does not exceed 140 percent of the area median income.”

The Housing Element of the comprehensive plan encourages

affordable housing. Citrus County has not established in its

also no cap on affordable housing units established in Chapter

163, Florida Statutes, or in Florida Administrative Code Chapter

9J-5. Petitioner did not adequately explain how an amendment

that encourages the provision of affordable housing for some of

the persons who work on a site or in the local area could be

inconsistent with the comprehensive plan, Chapter 163, or Rule

9J-5.

Public Water and Sewer Services

21. At the final hearing, Petitioner claimed that the Plan

Amendments for the HHP Subarea require that the district be

served by central water and sewer services, but do not specify

what entity is required to provide the services. Stated in this

form, Petitioner’s issue is without merit because Petitioner did

not identify a provision of the comprehensive plan, Chapter 163,

or Rule 9J-5 that requires an identification of the entity that

will provide water and sewer services in the future.

22. Petitioner stated at the final hearing that “What I’m

attempting to do is to narrow [the issues] down to the urban

sprawl issue because to me that is the strength and the meat of

the argument.” Therefore, Petitioner’s issue regarding the

provision of public water and sewer services is treated as an

aspect of his allegation that the Plan Amendments would encourage

urban sprawl, and is addressed below.

Urban Sprawl

23. Petitioner alleges that the Plan Amendments encourage

urban sprawl because they would result in the prematurely and

poorly planned conversion of rural lands, would “leapfrog” over

undeveloped lands, and would add new residential units there are

not needed.

24. Florida Administrative Code Rule 9J-5.006(5), entitled

“Review of Plans and Plan Amendments for Discouraging the

Proliferation of Urban Sprawl,” includes 13 primary indicators

that a plan amendment does not discourage the proliferation of

urban sprawl. Discussed below are the indicators implicated by

the evidence presented by the parties.

25. The first indicator of urban sprawl refers to “low-

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

excess of demonstrated need.” The Plan Amendments call for a mix

of land uses which are relatively high in intensity and density.

Therefore, this indicator is not presented by the proposed Plan

Amendments.

26. The second indicator of urban sprawl is promoting

significant amounts of urban development in rural areas at

substantial distances from existing urban area while leapfrogging

over undeveloped lands available and suitable for development.

Respondents and Intervenor claim that this would not be leapfrog

development because the land was used in the past for industrial

and commercial purposes and because the port uses are water-

dependent. A County planner testified that there is a deficit of

residential units in the planning district in which the HHP site

is located. However, the addition of 600 residential units (even

more, if workforce housing units are included) a substantial

distance from urbanized areas is an indicator of urban sprawl.

27. The fourth indicator is failing to protect and preserve

natural resources as a result of the premature or poorly planned

conversion of rural lands. Petitioner presented no evidence to

show that the Plan Amendments would fail to protect or preserve

natural resources. Therefore, this indicator of urban sprawl is

not present.

28. Indicators 6 through 8 are related to the orderly and

efficient provision of public services and utilities. Generally,

urban sprawl is indicated when public facilities must be created

or expanded to serve a proposed land use due to its density or

intensity, and its distance from existing facilities. Public

water and sewer lines are not currently available to the site,

and the County has no plans to extend public water and sewer

services to the site.

29. The Plan Amendments require all development within the

HHP to be served by central water and sewer. If on-site, central

wastewater facilities are used, they must provide advanced

wastewater treatment and reuse capability.

30. Respondents and Intervenor assert that the Plan

Amendments would reduce the development intensity that is allowed

under the current land use designations and development approvals

for the site. They presented evidence that there would be a

reduction of the water and sewer usage that potentially could

have been required to serve the land uses on the site.

31. Florida Administrative Code Rule 9-5.006(5)(k) states

that the Department “shall not find a plan amendment to be not in

compliance on the issue of discouraging urban sprawl solely

because of preexisting indicators if the amendment does not

exacerbate existing indicators.” However, there was insufficient

evidence presented on past, present, and future public water and

sewer utility capacity. The evidence was insufficient to

determine whether there are pre-existing indicators of urban

sprawl, or whether the current situation indicates urban sprawl

based on a need to expand the capacity of public utilities to

serve the site.

32. Petitioner has the burden of proof. The record

evidence is insufficient to support his claim that the Plan

Amendments show a failure of Citrus County to discourage the

proliferation of urban sprawl.

CONCLUSIONS OF LAW

33. In order to have standing to challenge a plan

amendment, a challenger must be an “affected person,” which is

defined in Section 163.3184(1)(a), Florida Statutes, as a person

who resides, owns property, or owns or operates a business within

the local government whose comprehensive plan amendment is

challenged, and who submitted comments, recommendations, or

objections to the local government during the period of time

beginning with the transmittal hearing and ending with

amendment’s adoption.

34. Respondents and Intervenor contend that Petitioner is

not an “affected person" because his telephone conversations

regarding the Plan Amendments with one County commissioner is not

the kind of communication with a local government that is

contemplated by Section 163.3814(1)(a), Florida Statutes. They

cite the Final Order of the Department of Community Affairs in

Starr v. DCA and Charlotte County , 22 F.A.L.R. 3837 (Fla. Dept.

of Community Affairs 2000). The Starr case involved a person who

made comments to a county code enforcement board about matters

only indirectly related to a subsequent comprehensive plan

amendment, and the comments were not made during the period of

time beginning with the transmittal hearing and ending with the

amendment’s adoption. These facts are distinguishable from this

case because Petitioner Schweickert’s comments to Commissioner

Thrumston were directly related to the proposed Plan Amendments

and his comments were made during the appropriate time period.

35. However, in the Starr Final Order, the Department also

discussed the essential element that a person must have

“submitted oral or written comments, recommendations, or

objections to the local government.” In this regard, the

Department referred to the definition of “local government,”

Florida Statutes, and determined that the communication between

the “affected person” and the local government must be with the

local planning agency or the local governing body. Id. at

§ VI(D).

36. Petitioner presented no evidence to establish that he

asked Commissioner Thrumston to relay his comments to the Board

of County Commissioners when they met in a public hearing to

consider the Plan Amendments, or that Commissioner Thrumston did

relay Petitioner’s comments to the full Board or to the County’s

planning staff.

37. It might not be unreasonable to interpret Section

163.3184(1), Florida Statutes, as allowing a private conversation

with one member of a county or city commission to be sufficient

to qualify a person as an “affected person.” However, the

interpretation advocated by Respondents and Intervenor is a

reasonable interpretation and is probably the better

interpretation.

38. Fundamentally, the requirements in Chapter 163 for

public participation in the comprehensive planning process are

aimed at making the governing body of the local government

consider the public’s input before acting on a comprehensive plan

amendment. A private conversation with one commissioner does not

achieve this fundamental objective because the other members of

the governing body are unaware of and, therefore, unable to

consider or act on the comments.

39. Petitioner failed to demonstrate that he is an affected

person with standing to challenge the Plan Amendments. However,

because an evidentiary hearing was held to resolve the parties’

disputed issues, it is appropriate to make Findings of Fact and

Conclusions of Law on the issues raised by Petitioner.

40. Petitioner has the burden in this proceeding to prove

that the Plan Amendments are not in compliance. The term “in

compliance” is defined in Section 163.3184(1)(b), Florida

Statutes, as follows:

In compliance means consistent with the

requirements of ss. 163.3177, 163.3176,

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.

41. The County’s determination of compliance must be upheld

if is it is fairly debatable. See § 163.3184(9), Fla. Stat. The

term “fairly debatable” is not defined in Chapter 163, Florida

Statutes, but in Martin County v. Yusem , 690 So. 2d 1288, 2195

(Fla. 1997), the court said, “The fairly debatable standard of

review is a highly deferential standard requiring approval of a

planning action if reasonable persons could differ as to its

propriety.”

42. Petitioner failed to prove beyond fair debate that the

Plan Amendments are inconsistent with any goal, objective, or

policy of the Citrus County Comprehensive Plan.

43. Petitioner failed to prove beyond fair debate that the

Plan Amendments are inconsistent with any provision of Chapter

163, Florida Statutes, or Florida Administrative Code Chapter

9J-5.

44. In summary, Petitioner failed to prove beyond fair

debate that the Plan Amendments are not “in compliance,” as that

term is defined in Section 163.3184(1)(b), Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Community Affairs enter a

Final Order finding that amendments CPA-09-13 and CPA-09-14 to

the Citrus County Comprehensive Plan are “in compliance.”

DONE AND ENTERED this 11th day of May, 2010, 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]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of May, 2010.

ENDNOTE

1/ Unless otherwise noted, all references to the Florida

Statutes are to the 2009 codification.

COPIES FURNISHED :

Karen A. Brodeen, Esquire

Fowler White Boggs, P.A.

101 North Monroe Street, Suite 1090

Post Office Box 11240

Tallahassee, Florida 32302-1240

Peter Aare, Esquire

Citrus County Attorney's Office

110 North Apopka Avenue

Inverness, Florida 33450-4231

David L. Jordan, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

Robert A. Schweickert, Jr.

1108 East Inverness Boulevard, No. 107

Inverness, Florida 34450

Thomas G. Pelham, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399-2100

Shaw Stiller, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399-2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

should be filed with the agency that will issue the Final Order

in this case.