10-001283GM Department Of Community Affairs vs. Taylor County Status: Closed Recommended Order on Monday, December 13, 2010.

Summary: Two map changes in coastal high hazard area are not in compliance because of proximity to OFW, lack of mitigation, and encouragement of urban sprawl.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY )

AFFAIRS, )

)

Petitioner , )

)

vs. ) Case No . 10 - 1283 GM

)

TAYLOR COUNTY, )

)

Respondent , )

)

and )

)

KENNETH B. HUTCHINS, )

CATHERINE REDDING, AND )

CLINTON WOOD, )

)

Intervenors. )

______________________________ )

RECOMMENDED ORDER

Pursuant to notice, this matter was h eard before the

Division of Administrative Hearings (DOAH) by its assigned

Administrative Law Judge, D . R. Alexander, on September 15 and

16, 2010, in Perry, Florida.

APPEARANCES

For Petitioner: Matthew G. Davis, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32 399 - 2100

For Respondent : Conrad C. Bishop, Jr., Esquire

The Bishop Law Firm , P.A.

Post Office Box 167

Perry, Florida 32348 - 0167

For Intervenor : Kenneth B. Hutchins, pro se

( Hutchins) 22645 Fishcreek Highway

Perry, Florida 32348 - 8162

STATEMENT OF THE ISSUE

The issue is whether t wo map changes on the Future Land Use

Map (FLUM) of the Comprehensive Plan (Plan) adopted by Taylor

County (County) by Ordinance No s . 2009 - 15 and 2009 - 17 on

December 15, 2009, are in compliance.

PRELIMINARY STATEMENT

Af ter the County amended the FLUM, on March 9, 2010, the

Department of Community Affairs (Department) issued a Notice of

Intent to Find the Taylor County Comprehensive Plan Not in

Compliance (Notice of Intent) on the grounds three map changes

were inconsistent with various statutes and rules and were

internally inconsistent with other Plan provisions. ( Three

parcels of property were reclassified by three separate

ordinances ; however , the owner of the third parcel is not a

party, and t he County is not contesting that part of the

Department's Statement of Intent. Therefore, this case concerns

only two map changes. ) Pursuant to Section 163.3184(10),

Florida Statutes, o n March 16, 2010, the Department filed with

DOAH a Petition for Admin istrative Hearing (Petition) adopting

the reasons expressed in its Notice of Intent as grounds for

finding the amendments not in compliance .

On April 19, 2010, Intervenor, Dr. Kenneth B. Hutchins, who

owns property affected by Ordinance No. 2009 - 15, was authorized

to intervene in support of the amendment . By Order dated

June 24, 2010, Catherine Redding and Clinton Wood, who are

siblings and with three other members of the Wood family own

property affected by Ordinance No. 2009 - 1 7, were authorized to

intervene in support of th at amendment.

By Notice of Hearing dated March 30, 2010, a final hearing

was scheduled on June 23 and 24, 2010, in Perry, Florida. By

agreement of the parties, the hearing was canceled pending

efforts to resolve the matter b y mediation. When those efforts

were unsuccessful, the matter was rescheduled to September 15

and 16, 2010, at the same location. D r. Hutchins' Motion for a

Continuance was denied. A t hearing, Dr. Hutchins' Motion for

Judgment on the Pleadings was denie d, and the Department's

Motion in Limine was denied.

A Joint PreHearing Stipulation was filed by the parties on

September 1 0 , 2010. At the final hearing, the Department

presented the testimony of Ana stasia Richmond, a Department

planner and accepted as an expert; and Seth B. Bli t ch

(incorrectly spelled as Bliech in the Transcript) , a n

Environmental Administrator with the Department of Environmental

Protection (DEP) and accepted as an expert. Also, it offered

Department Exhibits 1 - 7, 1 0 - 14, 18, 20, 2 4, and 25. All were

received except Exhibits 12 and 13. The County presented the

testimony of Dr. Hutchins; Malcolm V. Pace, current County

Commissioner and former member of the County Planning Board ;

J. Robert Sheffield , a real estate broker, former C ounty

Coordinator , and former Chairman of the County Planning Board;

Jack R . Brown, County Administrator; and Scott R. Koons,

Executive Director of the North Central Florida Regional

Planning Council (Regional Planning Council) and accepted as an

expert . Also, it offered County Exhibits 1 , 2, 5, 7, 8, 10,

13A - 18A, and 22, which were received in evidence. Intervenor

Hutchins presented the testimony of Leonard B. Bailey, a Florida

Fish and Wildlife Conservation Commission employee who testified

in an individual capacity ; Herschel McC ullen , a former member of

the County Planning Board; Intervenor W. Clinton Wood, Sr. , a

former member of the County Planning Board ; Intervenor Catherine

W. Redding; and W. Daniel Griner, County Director of Planning

a nd Zoning. Also, he offered Intervenor's Exhibits 12 - 2 2, 24,

2 5 and 28. All were received except Exhibits 12 - 17 and 19 - 21,

on which a ruling was reserved. Those exhibits are hereby

received. Finally, I ntervenors Redding and Wood did not

participate exc ept to offer testimony as witnesses . However,

they indicated that they wished to retain party status.

The Transcript of the hearing (t hree volumes) was filed on

October 8, 2010. By agreement of the parties, the time for

filing p roposed f indings of f act and c onclusions of l aw w as

extended to November 30, 2010. They were timely filed by the

Department and jointly by the County and Hutchins . None were

filed by Redding and Wood. Although the 64 - page filing by the

County and Hutchins exceeds the 40 - pag e limitation authorized

under Florida Administrative Code Rule 28 - 106.215, both filings

have been considered in the preparation of this Recommended

Order. 1

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

A . The P arties

1. The Department is the state planning agency charged

with the responsibility of reviewing and approving amendments to

comprehensive plans adopted by local governments.

2. The County is a local government that administers a

Plan. It a dopted the t wo plan amendments that are the subject

of this proceeding. It is considered a "rural" county with a

current population of around 20 ,000 residents.

3. D r. Hutchins owns property in the County . Although his

initial pleading alleges, and his Proposed Recommended Order

state s, that he "submitted oral comments regarding the

subject amendments at transmittal and prior to adoption of

the amendment," no evidence was presented at hearing that

Dr. Hutchins did so during the adoption process .

4. Ms. Redding and Mr. Wood are siblings and along with

three other members of the Wood family jointly own property in

the County . Like Dr. Hutchins, no evidence was presented at the

hearing t hat either Intervenor submitted written or oral

comments to the County during the adoption process.

B. History Preceding the Amendment s

5. The process for adopting the County's first Plan,

including the FLUM, began around 1988. For the purpose of

drafting a FLUM, a Planning Board (Board) was created consisting

of seven individuals, all of whom were volunteers with no formal

planning experience. However, they received advice and

assistance from two outside consultants , who also advised the

County concerning the appropriate text to be used in the new

Plan . Four members of the Board, including its former Chairman,

testified at the final hearing.

6. Over the next two years, the Board conducted meetings ,

spoke with numerous property owners, and collected information

in order to assign each parc el an appropriate land use category.

The collective efforts of the Board culminated in a large, hand -

colored FLUM (consisting of numerous sections of aerial maps

patched together) that was affixed to the wall of what is now

the courtroom on the second flo or in the County Courthouse.

Testimony by former members of the Board established that the

Hutchins parcel (then owned by Colin and Lucille Kelly) and the

Bird Island parcel (owned by Wood , Redding , and other family

members ) were assigned a classification of Mixed Use - Urban

Development. Because the County does not have a zoning code,

the properties were never assigned a zoning classification

consistent with that land use category.

7. This classification was based upon the fa ct that at

least two different businesses were being conducted on each

parcel at the time, and the owners requested that they be given

that classification. In the case of the Hutchins (then Kelly)

property, it was being used to conduct a commercial fishin g

operation as well as a small construction company (with dump

trucks, bulldozers, and front end loaders) that had a contract

with Proctor & Gamble (now known as Buckeye Technologies, Inc. )

to maintain roads. An office for the construction company was

loc ated in a separate mobile home placed on the property.

Mr. Bird was a commercial fisherman and operated a wholesale

fish business on Bird Island. Also, both he and his mother had

separate homes on the property, another structure was used to

store fish nets, and docking facilities for other commercial

fisherman were maintained. Many of these structures were blown

away during the so - called Storm of the Century on March 13,

1993 , and never replaced .

8. Except for property within the small communities of

Keaton Beach, Dekle Beach, Denzel Beach, and Steinhatchee, and a

few other small parcels , such as Dark Island, Cedar Island, and

Intervenors' property, all of the remaining land along the

coastline was placed in either Conservation or Agriculture. An

u nusual feature of the County is that it has one of the longest

coastline s in the State (58 miles) , stretching on the Gulf of

Mexico from Jefferson County to Dixie County. Because around

88 percent of the coastline is owned by the State , very little

water front land is left for de velopment. In fact, Dr. Hutchins

pointed out that except for his property and Bird Island, no

other vacant , upland Gulf - front property within the County is in

private ownership at this time.

9. The FLUM, with the foregoing classifications, was

adopted by the County by Ordinance No. 90 - 4 on June 19, 1990.

Before it was submitted to the Department for its review, the

County was advised by the Department that it would not accept

the large, hand - c olored F LUM in that format. Rather, the

Department required that the map be reduced in size and

digitized . To comply with this request, the original FLUM was

dismantled into smaller sections and hand - carried to a firm in

Crystal River that had the capabi lity of reducing the large map

into digital form. The original FLUM was then returned to the

County Courthouse .

1 0 . When the larger map was reduced in size and converted

to a digital format, it was not parcel - specific and failed to

pick up the Hutchins p arcel and Bird Island. Instead, except

for larger tracts of land , especially in the small communities

noted in Finding of Fact 8, the entire coastline was shown as

being Conservation or Agriculture. This error was not detected

by County officials or the affected property owners since they

continued to rely upon the designations shown on the large ,

hand - colored FLUM in the Courthouse . The Department reviewed

the FLUM, as digitized, assumed that the Hutchins and Bird

Island property were Agriculture and Conservation, and found

th ose parts of th e FLUM to be in compliance. This agency action

occurred on or about October 1, 1990. Thus, the Department

never undertook a compliance review for either parcel with the

intended higher density/inte nsity land use.

1 1 . In 1995, the room in which the original FLUM was

mounted was taken over by another occupant of the Courthouse,

and the original FLUM was moved to a different floor. During or

after the moving process, it was lost or accidentally des troyed

and its whereabouts have been unknown since that time.

1 2 . In 1993, Dr. Hutchins purchased his property from

Colin and Lucille Kelly. Based on a conversation with a County

employee, h e purchased the property with the understanding that

it was classified as Mixed Use - Urban Development . Although he

had no specific plans to develop the property at that time, and

still has none, the Mixed Use - Urban Development land use

category was the major inducement for him to purchas e the

property. In 200 5, Dr. Hutchins was approached by an investor

who wished to develop the property at a later time. When the

investor contacted the County to confirm it s land use

designation, Dr. Hutchins learned for the first time that the

digitized map approved by the De partment reflected the property

carried a n Agriculture /Rural Residential land use . Because of

this, the agreement with the potential investor was never

consummated.

1 3 . In a similar vein, Mr. Wood, who served on the Board

that assigned land use designa tions to property on the original

FLUM, and knew that the Board had designated his property as

Mixed Use - Urban Development, placed the Bird Island property on

the market in 2005 representing that it was classified in that

category. A prospective purchaser checked with the County to

verify its land use and learned that it was Conservation.

Mr. Wood was unaware of this error until that time. Because of

this, the sale was never consummated.

1 4. After 2005, the County and Departm ent held numerous

meetings in an attempt to resolve th is dispute. T he Department

refused to allow the FLUM to be c hanged to reflect the original

land use designations. This led to the County adopt ing the two

challenged amendments to correct what it chara cterizes as a

"scrivener's error." Besides the two parcels that are in

dispute here, on an undisclosed date, two other parcels (in the

interior part of the County) were discovered by the County to

have the wrong land use category as a result of the digiti zing

process . Both should have been placed in the Industrial land

use category, and after a review, the Department had no

objection to those errors being corrected by an amendment.

C. The Plan Amendments

15. On December 15, 2009, the County adopted Ordinance

Nos. 2009 - 15 and 2009 - 17, also known as CPA 08 - 1 and CPA 08 - 3.

The first amendment changed the land use on the 14 - acre Hutchins

parcel from Agriculture/Rural Residential to Mixed Use - Urban

Development. T he present land use allows one dwelling unit per

5 acres while the new land use designation allows up to 12

dwelling units per acre and a 60 percent impervious surface

ratio for nonresidential development. See Department Exhibit 1,

Future Land Use Policy I.3.2. Thus, up to 126 residential units

and 96,476 square feet of non - residential development could be

built on the Hutchins site . The second amendment changed the

land use on the 3.36 - acre Bird Island parcel from Agriculture - 2

and Conservation to Mixed Use - Urban Development . The former

land use allows one dwelling unit per 40 acres while the new

land use would permit the same density/intensity as the Hutchins

parcel. The new category would allow up to 30 residential units

and 21,954 square feet of non - residential development. The

amendments were transmitted by the County to the Department for

its review in early April 2009.

16. On June 5, 2009, the Department issued its Objections,

Recommendations and Comments (ORC) report. The Department

lodged objections to both amendments generally on the grounds

the sites are not environmentally suitable for the proposed

density and intensity increases; the amendments authorize an

i mproper increase in density within the Coastal High Hazard Area

(CHHA) without proper mitigation; the amendments failed to

discourage urban sprawl; and they are internally inconsistent

with existing provisions within the Plan. The ORC recommended

that the County not adopt the amendments.

17. Besides the Department, DEP and the Regional Planning

Council also provided written comments on the amendments. By

letter dated May 8, 2009, DEP generally noted that it had

concerns regarding development adjacent to the Big Bend

Seagrasses Aquatic Preserve (the Preserve) where the parcels are

located , and that careful planning strategies should be used for

any development on the land. See Department Exhibit 4. The

Regional Planning Council issued a staff report o n February 25,

2010, generally concluding that the amendments were consistent

with the applicable Strategic Regional Policy Plan goals and

objectives. See Department Exhibit 15 ; County Exhibit 1 .

1 8 . The County did not respond in writing to the ORC. On

December 15, 2009, it adopted the amendments without change. On

March 10, 2010, the Department published its Notice of Intent to

find the amendments not in compliance in the Taco Times . On

March 16, 2010, the Department filed its Petition with DOAH

raising the same grounds that are in its Notice of Intent.

D. The Property

1 9 . Th e Hutchins parcel is located in the southwest part

of the County, a few miles south of Keaton Beach, with around

500 to 600 feet fronting on the Gulf of Mexico. The 14 upland

acres that are the subject of this case are a sub - site of a

larger 25 - acre parcel owned by Dr. Hutchins , with the remaining

11 acres being adjoining wetlands on the north and south sides.

Dr. Hutchins has built a home on pilings on his property alo ng

with a smaller ancillary structure. Photographs indicate that

e xcept for trees, the remainder of the upland property is

vacant. Bird Island also lies on the Gulf of Mexico just

northwest of the Hutchins parcel and is surrounded by water on

three sides . Photographs reflect one residence and a dock still

on the property. The two parcels are separated by "marsh grass

and a little water. " Both p arcels of property are easily

accessible to, and just west of, County Road 361 , a paved two -

lane highway t hat begins south of the subject properties and

runs adjacent to, or near, the coastline, eventually turning

northeast and terminating on U.S. Highway 19 south of Perry .

20 . Both properties abut portions of the Gulf of Mexico

that have been designated as an Outstanding Florida Water (OFW) .

The waters are a part of the Preserve, which was established in

1985 and is managed by DEP. The Preserve has exceptional

biological, aesthetic, and scientific value.

2 1 . The two parcels are located in the Coastal High Hazard

Area (CHHA) . That is to say, they are in "the area below the

elevation of the category 1 storm surge line as established by a

Sea, Lake, and Overland Surges from Hurricanes (SLOSH)

computerized storm surge model." § 163.3178(2)(h), Fla. Stat.

In order to increase density within the CHHA, the County must

meet certain criteria set forth in Section 163.3178(9)(a),

Florida Statutes.

E. The Department's Objections

2 2 . As summarized in its Proposed Recommended Order, the

Department contends that the two plan amendments are not in

compliance because the sites are not environmentally suitable

for the proposed density and intensity increases; there is an

improper increase in density within the CHHA without proper

mitigation; and the amendments fail to discourage urban sprawl .

Although the Notice of Intent also raised the issue of whether

the amendments are internally inconsistent with other provisions

in the County's existing Plan , the Prop osed Recommended Order

does not address any specific internal inconsistenc ies , and the

evidence focuses on the first three concerns . Therefore, the

undersigned has assumed that those objections have been

withdrawn or abandoned.

a. Environmental Suitability

23. With the exception of an area in the middle part of

the County 's coastline (where the Fenholloway River flows into

the Gulf) , the Preserve extends along the County's entire

coastline , including the area in which the two parce ls are

located . The Preserve , designated as an OFW, contains various

types of seagrasses, whose function is to provide habitat for a

number of species, improve water quality, and reduce currents or

wave energy in the event of a storm. It is undisputed th at the

seagrass beds near the amendment sites are high - quality,

healthy, and of high environmental value.

24. Coastal marshes are prevalent in the area of the

County where the amendment sites are located. They serve many

functions, including cleaning wat er flowing into The Preserve,

functioning as a habitat for a number of species, and acting as

a coastal barrier against storm surge during large storm events.

2 5 . Section 163.3177(6)(d), Florida Statutes, requires

that local governments protect and cons erve natural resources

through the conservation element of the local plan. See also

Fla. Admin. Code R. 9J - 5.006(3)(b)4. A Department rule also

requires local governments to limit the specific impacts and

cumulative impacts of development or redevelopmen t upon water

quality and living marine resources. See Rule 9J - 5.012(3)(c)1.

26. High - density development (up to 12 units per acre) on

the parcels c learly has the potential to negatively impact

coastal marshes and seagrasses adjacent to and near the subje ct

sites. Although Dr. Hutchins indicated that he would develop

his property only to the extent allowed by DEP so that the

marshes and seagrasses would be safeguarded , the Department's

practice for many years has been to assume that the property

will be developed at its maximum allowable density and

intensity. See , e.g. , Sheridan v. Lee Cty, et al. , Case No. 90 -

7791 (DOAH Jan. 27, 1992; DCA June 28, 1993; Admin. Comm. Feb.

15, 1994)(compliance determination must be ma de based on maximum

impacts authorized by the amendment terms, not speculation of a

lesser impact). Mr. Wood's development intentions are not

known. In any event, the two parcels potentially authorize 156

residential units and 113,430 square feet of non - residential

use s adjacent to an OFW. Even so, the Mixed Use - Urban

D evelopment land use designation may still be permissible if

specific conditions limiting the density/intensity on the

parcels are incorporated into the Plan by asterisk or text

language in conjunction with a new amendment . As noted in the

Conclusions of Law, t his planning practice has been used in

other cases. Without any limitations, though, the preponderance

of the evidence supports a finding that the maximum allowable

density/intensi ty contravenes the cited statute and rules.

b. CHHA

27. Both parcels are located within the CHHA of the

County . Section 163.3178(2)(h), Florida Statutes, requires that

the County establish mitigation criteria for plan amendments

located in the CHHA. Pr obably because of its small size in

terms of population, and the lack of development (or ability to

do so) along the coastline, the County has no goals, objectives,

or policies addressing criteria for mitigation.

28. Rule 9J - 5.012(3)(b)6. requires that a plan "direct

population concentrations away from known or predicted coastal

high - hazard areas." Also, Rule 9J - 5.012(3)(b)7. requires that a

plan "maintain or reduce evacuation times."

29. Prior to 2006, the Department would allow a local

government to co mply with the foregoing rules by allowing

density increases i n the CHHA if the local government decreased

a similar type of density elsewhere. This practice was known as

"offsets." In 2006, h owever, the Legislature amended the

statute to include criteria for compliance with the two rules.

Due to the change in the law, the Department no longer engages

in the practice of offsets for land use changes in the CHHA .

Instead, it requires a local government that proposes to

increase density within the CHHA to m eet the requirements of

Section 163.3178(9) (a) 1. - 3. , Florida Statutes. Under the

statute, if the County can demonstrate a 16 - hour out - of - county

evacuation time for a category 5 storm event as measured on the

Saffir - Simpson scale and a 12 - hour evacuatio n time to shelter

within the C ounty for a category 5 storm event , an increase in

density within the CHHA may be allowed. See § 163.3178(9)(a)1.

and 2., Fla. Stat. Alternatively, the County may use one of the

mitigation measures described in Section 163.3 178(9)(a)3.,

Florida Statutes. Except for Coastal Element Objective IX - 7 of

the Plan , which provides that the County maintain a hurricane

evacuation time of 9 hours for a category 1 storm , s ee County

Exhibit 7, n o data and analysis, such as a hurricane evacuation

study for a category 5 storm event, was presented to demonstrate

compliance with the se requirement s . Dr. Hutchins' submission

during the mediation process of an evacuation plan for a

category 3 storm does not satisfy this c riterion. Typically, a

local government will have an adopted plan for a category 5

storm, as well as an evacuation model. The preponderance of the

evidence supports a finding that the mitigation measures in

Section 163.3178(9)(a), Florida Statutes, have not been

satisfied.

30 . At hearing, t he County and Dr. Hutchins contend ed t hat

offsets should still be used in this case to satisfy the

mitigation requirements. They point out that the County has

recently purchased property (totaling 51.7 acres) that is

designated Mixed Use - Urban Development and more than compensates

for any potential increase of residents needing to evacuate if

the two amendments are found to be in compliance. As noted

above, however, the practice of offsets was discontinued in 2006

wi th the passage of the new law. Notwithstanding assertions to

the contrary, t here was no legal requirement that the Department

notify every affected local government and property owner that

it was discontinuing that practice to comply with the new law . 2

c. Urban Sprawl

31 . Rule 9J - 5.006(5)(g)1. - 13. identifies thirteen

"primary" indicators of urban sprawl. The Department contends

that eight indicators are "tripped" or "triggered" by the new

amendments and collectively they indicate that the proliferation

of urban sprawl is not discouraged. No evidence was presented

regarding five indicators. According to the rule, "[t]he

presence and potential effects of multiple indicators shall be

considered to determine whether they collectively refl ect a

failure to discourage urban sprawl." Fla. Admin. Code R. 9J -

5.006(5)(d).

3 2 . Indicator 1 is tripped if the amendments allow uses in

excess of demonstrated need. In this case no need analysis for

additional land in the Mixed Use - Urban Development c ategory was

submitted by the County. The absence of a study is sufficient

to trigger this indicator.

3 3 . Indicator 2 is tripped if the amendments allow

"significant" amounts of urban development to occur in rural

areas at substantial distances from exist ing urban areas. The

only true existing "urban" area in the County , as that term is

commonly understood, is the City of Perry . Other residential

and some commercial development ( but to a much lesser degree) is

found mainly in a few small communities on t he coastline such as

Steinhatchee , an unincorporated community perhaps 15 miles south

of the subject parcels with probably around 1,500 residents , and

Keaton Beach and Dekle Beach , both having no more than a few

hundred residents each. (Offic ial recognition has been taken of

the population data.) Keaton Beach is around 2 or 3 miles north

of the subject property and has condominiums and other limited

residential/commercial development. In addition, Dark Island is

located a short distance nort h of Bird Island and is classified

as Mixed Use - Urban Development , which authorizes the higher

density /intensity development . Given th is lack of "urban areas"

in the County, virtually any development outside of Perry could

arguably be considered "urban de velopment . . . in rural areas

at substantial distances from existing urban areas while leaping

over undeveloped lands which are available and suitable for

development." Fla. Admin. Code R. 9J - 5.006(5)(g)2.

Notwithstanding this unique (and perhaps unfair ) situation, it

is fair to characterize the potential addition of 12 units per

acre as urban development and a total of around 150 residential

units with associated commercial development as "substantial"

when considering the County's size and existing development.

Therefore, the second indicator has been triggered.

3 4 . Indicator 3 is triggered if the amendments allow urban

development in "radial, strip, isolated or ribbon patterns

generally emanating from existing urban development." Because

urban development will occur in a rural, isolated area, this

indicator is tr iggered.

3 5 . Indicator 4 is triggered if there is premature

development of rural land that fails to adequately protect and

conserve natural resources. The evidence supports a finding

that this indicator is triggered.

3 6 . Indicators 6, 7, and 8 are rel ated to the orderly and

efficient provision of existing and future public services and

facilities. The evidence shows that the area is not currently

served by central sewer and is not near any fire or police

stations . While no public faci lities are plann ed for that area

in the five year capital improvement schedule, at a meeting in

March 2010 the Taylor County Coastal Water & Sewer District

indicated that a request for partial federal funding to extend

central sewer services to Fish Creek, which lies beyo nd and to

the south of the subject parcels , would be placed on the April

agenda . See County Exhibit 7. Whether a request was actually

made at that meeting is not of record. In any event, Coastal

Element Policy IX.6.5 provides that where central sewer is not

available in an area classified as Mixed Use - Urban Development ,

septic tanks may be used within the CHHA. See Department

Exhibit 1. As to fire and law enforcement support, there is

insufficient evidence to establi sh that these services cannot be

provided in an efficient manner . Given these circumstances,

there is less than a preponderance of the evidence to support a

finding that indicators 6 through 8 are triggered.

3 7 . Indicator 9 is triggered if the plan amend ments fail

to provide a clear separation between rural and urban uses.

There is insufficient evidence to support a finding that this

indicator is triggered.

3 8 . Collectively, the presence of four indicators is

sufficient to support a finding that the Cou nty has failed to

discourage urban sprawl.

E. Scrivener's Error

3 9 . The County and Intervenors rely heavily upon the fact

that the plan amendments are in compliance because the

amendments simply correct an error that occurred when , at the

Department's direction in 1990, the original FLUM was reduced in

size and digitized. While at first blush this argument is

appealing, it assumes that the Department would have approved

the new land use classifications in 1990 when it performed a

compliance review of t he original FLUM. But this never

occurred, and the new amendments give the Department its first

opportunity to determine if the new land uses are in compliance.

40 . It is undisputed that on an undisclosed date the

Department approved an amendment based on the same type of

error . While the record is somewhat confusing, it appears that

i n th at case, the two propert ies were Industrial, they w ere not

located in the CHHA, and on - going business concerns were

operating on the properties.

41 . Intervenor Hutchins also cited several instances where

mapping errors were allowed to be corrected by subsequent plan

amendments. Where final agency action in those matters is of

record, however, it shows that approval was given only after a

compliance review was m ade by the Department. 3

CONCLUSIONS OF LAW

4 2 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the par ties hereto

pursuant to Sections 120.569, 120.57(1), and 163.318 4( 10 ),

Florida Statutes.

43 . In order to have standing to challenge a plan

amendment, a challenger must be an affected person as defined in

Section 163.3184(1)(a), Florida Statutes. 4 While Intervenors own

property within the County, no evidence was presented to show

that they submitted written or oral comments to the County

during the adoption process. Given Intervenors' long - standing

interest in this matter, th is evidentiary omission was probably

due to oversight. Even so, they are not affected persons and

lack standing to participate. However, Intervenors were allowed

to fully participate in the hearing process.

44 . Once the Department renders a notice of intent to find

a plan am endment not in compliance, as it did here, "the local

government's determination shall be sustained unless it is shown

by a preponderance of the evidence that the comprehensive plan

or plan amendment is not in compliance. " § 163.3184(10)(a),

Fla. Stat. As to allegations of internal inconsistency, if any

are raised , they will not be sustained if the County's

determination is fairly debatable. Id. Because the undersigned

has only considered objections that do not involve int ernal

inconsistency issues, the fairly debatable standard does not

apply. Therefore, the Department has the burden of showing by a

preponderance of the evidence that the County's determination

should not be sustained. Finally, if a Recommended Order in

f avor of the Department is rendered, it must be submitted to the

Administration Commission for final agency action.

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

Department has shown by a preponderance of the evidence that the

two plan amendmen ts are not in compliance because, if built out

to the ir maximum potential, they fail to adequately protect the

environment; they are inconsistent with Department rules and

Section 163.3178(9)(a), Florida Statutes, by increasing density

in the CHHA without appropriate mitigation or hurricane

evacuation plans ; and they fail to discourage urban sprawl .

46. Finally, Intervenors are not left without a remedy.

They are reminded that it is a common technique in comprehensive

planning to place restrictions o n FLUM amendments so that

particular land uses, densities, or intensities that would

otherwise be allowed under a future land use designation are

prohibited or restricted on the affected lands. See , e.g. ,

Patricia Curry , et al. v. Palm Beach Cty , et al. , C ase No. 09 -

1204GM, 2009 Fla. ENV LEXIS 160 (DOAH Oct. 21, 2009), adopted ,

2009 Fla. ENV LEXIS 159 (DCA Nov. 24, 2009); Leseman Family Land

Partnership , et al. v. Clay County , et al. , Case No. 07 - 57 5 5GM ,

2008 Fla. Div. Adm. Hear. LEXIS 425 (DOAH May 30, 200 8, DCA Oct.

17, 2008) ; Diane Brown, et al. v. Dep ' t of Community Affairs , et

al., Case No. 06 - 0881GM , 2006 Fla. ENV LEXIS 229 (DOAH Dec. 5,

2006), adopted , 2007 Fla. ENV LEXIS 25 (DCA April 3, 2007) ;

Ti erra Verde Community Assn., Inc., et al. v. City of St.

Petersburg , Case No. 09 - 3408 (DOAH June 30, 2010; Admin. Comm.

Nov. 10, 2010) ; Dep't of Comm unity Aff airs , et al. v. City of

Jacksonville, et al. , Case Nos. 07 - 3539GM and 08 - 4193GM, 2009

Fla. ENV LEXI S 66 (DOAH Jan. 12, 2009), adopted , 2009 Fla. ENV

LEXIS 65 (Admin. Comm. June 10, 2009); Flagler Retail

Associates, Ltd , et al. v. Dep't of Comm unity Aff ai rs, et al. ,

Case No. 09 - 4713GM, (DOAH July 14, 2010), Determination of Non -

Compliance (DCA Dec. 7, 20 10) .

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 Plan Amendments CPA 08 - 1 and CPA

08 - 3 adopted by Ordinance Nos. 2009 - 15 and 2009 - 17 are not in

compliance.

DONE AND ENTERED this 13th day of December , 2010, in

Tallahassee, Leon County, Florida.

S

D . R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of December , 20 10 .

ENDNOTE S

1 / On December 2, 2010, or after the filing was made, the County

and Dr. Hutchins filed a Joint Motion to Exceed Allowable Pages

in Submitted Proposed Recommended Order.

2/ Even if offsets were still used, the evidence does not show

that the proposed new densities within the CHHA would be offset

elsewhere within the County. While t he County has purchased

three parcels and assigned them a similar land use designation ,

the largest parcel (43.45 acres) has restrictions that forbid

using the purchased density to offset other density increases.

The remaining parcels total only 11.8 acres, while the Hutchins

and Bird Island parcels make up 17.36 acres. Even then, the 11.8

acr es were purchased with County funds and probably cannot be

used for offsets due to language in Section 163.3178(1), Florida

Statutes, which provides that it is the legislative intent that

comprehensive plans "limit public expenditures in areas that are

sub ject to destruction by natural disaster." To support his

argument, Dr. Hutchins also submitted Intervenor's Exhibit 15,

which is a copy of an ORC issued in 2008 in response to a

Charlotte County plan amendment increasing its Urban Service Area

(USA) . How ever, that amendment d id not involve the CHHA or

Section 163.3178(9) . Rather, the ORC simply recommended that the

expansion of the USA could be offset by removing other lands from

the USA. A copy of the final disposition of that matter is not

of record.

3/ The exhibits submitted by Dr. Hutchins to support his

position are either distinguishable or inapposite. For example,

in some cases, the local government had assigned a zoning

classification to a parcel which was incorrectly mapped when the

original comprehensive plan was adopted, and the changes were

necessary to conform the land use with the existing zoni ng and

uses on the property. The preponderance of the evidence is that

the Department still performed a compliance review before

approving any of these changes.

4/ The Department has not stipulated to the facts necessary to

show that Intervenors are af fected persons. In fact, the

standing of all Intervenors is identified as an issue in

paragraphs G.1. and H.1. of the parties' Joint PreHearing

Stipulation.

COPIES FURNISHED:

Barbara Leighty, Clerk

Transportation and Economic

Development Policy Unit

The Capitol, Room 1801

Tallahassee, Florida 32399 - 0001

Rick Figlio, General Counsel

Office of the Governor

The Capitol, Room 20 9

Tallahassee, Florida 32399 - 0001

Shaw P. Stiller, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevar d

Tallahassee, Florida 32399 - 2100

Conrad C. Bishop, Jr., Esquire

The Bishop Law Firm, P.A.

Post Office Box 167

Perry , Florida 32348 - 0167

Matthew G. Davis , Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399 - 2100

Kenneth B. Hutchins

22645 Fishcreek Highway

Perry, Florida 32348 - 8162

Clinton Wood

45 Bird Island Road

Perry, Florida 32348 - 8187

Catherine W. Redding

3855 U.S. Highway 1 9 South

Perry, Florida 32348 - 6447

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 matte r.