10-001540GM Angelo&Apos;S Aggregate Materials, Ltd, Angelo Iafrate Construction Company, And Stony Pointe Limited Partnership vs. Pasco County And Department Of Community Affairs Status: Closed Recommended Order on Wednesday, December 22, 2010.

Summary: Pasco County plan amendments were in compliance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANGELO'S AGGREGATE MATERIALS, )

LTD, ANGELO IAFRATE )

CONSTRUCTION COMPANY, AND STONY )

POINTE LIMITED PARTNERSHIP , )

)

Petitioners , )

)

vs. ) Case No. 10 - 1540GM

)

PASCO COUNTY AND DEPARTMENT OF )

COMMUNITY AFFAIRS , )

)

Respondents . )

)

RECOMMENDED ORDER

On October 27 - 28, 2010, a final administrative hearing was

held in this case in Dade City before J. Lawrence Johnston,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioners: Leigh K. Fletcher, Esquire

Tina M. Fischer, Esquire

Stearns, Weaver, Miller, Weissler,

Alhadefe & Sitterson, P.A.

Post Office Box 3299

Tampa, Florida 33601 - 3299

Gerald A. Figurski, Esquire

Gerald A. Figurski, P.A.

2550 Permit Place

New Port Richey, Florida 34655

For Respondent Pasco County:

David Goldstein, Esquire

W. Elizabeth Blair, Esquire

Pasco County Attorney's Office

7530 Little Road, Suite 340

New Port Richey, Florida 346 54 - 5598

For Respondent Department of Community Affairs:

L. Mary Thomas, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Flo rida 32399 - 2100

STATEMENT OF THE ISSUE

The issue in this case is whether Pasco Comprehensive Plan

Amendments CPA 09 - 1(12), adopted by Ordinance 09 - 25, and CPA 09 -

1(10), adopted by Ordinance 09 - 26, are Ðin compliance,Ñ as

defined by section 163.3184(1)(b), Florida Statutes . 1

PRELIMINARY STATEMENT

The Department of Community Affairs (DCA) reviewed the plan

amendments at issue, plus others adopted by Pasco County, and

found them to be in compliance. Petitioners filed a Petition

for Formal Proceedings (Petit ion) challenging the parts of DCAÓs

determination relating to the plan amendments at issue, plus CPA

09 - 1(7) and 09 - 1(13), adopted by Ordinance 09 - 24. The Petition

was referred to DOAH for a hearing.

At DOAH, the parts of the challenge relating to plan

amendments adopted by Ordinance 09 - 24, except for Section 2.W.,

were voluntarily dismissed; the Petition was amended to delete

those challenges; and jurisdiction was relinquished to DCA for

entry of a final order as to those plan amendments. A Joint

Pre - H earing Stipulation was filed on October 25, 2010,

reflecting that PetitionersÓ challenge to DCAÓs in - compliance

finding as to Section 2.W. of Ordinance 09 - 24 also was dismissed

voluntarily.

During the week before the final hearing, Pasco County

filed six motions to either partially relinquish jurisdiction or

limit the evidence as to issues stated more expansively in the

Joint Pre - Hearing Stipulation than in the Amended Petition.

Those motions were heard and decided at the outset of the final

hearing. Th e first, second, fifth, and sixth motions were

granted in that the evidence was limited to the issues stated in

the Amended Petition. As to the third motion, Petitioners

agreed that no evidence would be presented as to Section 2.W. of

Ordinance 09 - 24 or t he part of CPA 09 - 1(12), adopted by

Ordinance 09 - 25, which amended Policy SWT 4.5.2. The fourth

motion was denied. In addition, PetitionersÓ unopposed Request

for Judicial Notice was granted, and the designated documents

were officially recognized and in cluded as exhibits in the

evidentiary record of the case.

After opening statements, Petitioners called the following

witnesses: John Arnold, PetitionersÓ non - attorney party

representative; Roger Wilburn, an expert in land use planning;

as an adverse par ty witness, Richard Gehring, Pasco CountyÓs

Growth Management Administrator, and an expert in land use

planning; and Bruce Kennedy, Pasco CountyÓs Utilities Director,

also as an adverse party witness, and an expert in solid waste

planning. As part of Peti tionersÓ presentation, Exhibits A - 4 ,

A - 6, A - 11, A - 12, A - 14, A - 68, A - 72 through A - 82, A - 87, and A - 88

were received in evidence. Pasco County presented its case

through cross - examination of Messrs. Gehring and Kennedy and the

testimony of: Carol Clarke, Pa sco CountyÓs Executive Planner,

and an expert in land use planning; and Chris Wiglesworth, a

Senior Planner with DCA, and an expert in land use planning. As

part of Pasco CountyÓs presentation, or for official

recognition, Exhibits B - 1 through B - 3, B - 5 th rough B - 13, B - 15

through B - 2 0 , and B - 33 were received in evidence. DCA did not

present any evidence.

A three - volume Transcript of the final hearing was filed on

November 23, 2010. Proposed recommended orders filed by

Petitioners and Pasco County (joine d by DCA) have been

considered.

FINDINGS OF FACT

1. Petitioners, Angelo Iafrate Construction Company and

AngeloÓs Aggregate Materials, Ltd., own property and operate

businesses in Pasco County. Petitioner, Stony Pointe Limited

Partnership, owns property in Pasco County. Petitioners

submitted oral or written comments, recommendations, or

objections to Pasco County Ordinances 09 - 25 and 09 - 26 during the

time period beginning with the transmittal hearing and ending

with the adoption hearing.

2. Pasco County Ord inance 09 - 25 amended the ÐFuture Land

Use Appendix, Section FLU A - 6, The Official Future land Use Map,

General Application, Paragraph 4.Ñ Before the amendment, that

part of the comprehensive plan provided that land use

classifications on the Future Land U se Map (FLUM) were

identified according to the predominant use or maximum level of

intensity intended and that other uses, including Ðpublic and

semipublic uses, may be permitted in any land use classification

consistent with the applicable Goals, Objectiv es, and Policies

of the Future Land Use Element.Ñ As amended, that part of the

comprehensive plan provided that other uses, including Ðminor

public/semi public uses may be permitted in any land use

classification consistent with the applicable Goals, Obje ctives,

and Policies of the Comprehensive Plan.Ñ The amendment also

made it explicit that, while minor public/semi - public (P/SP)

uses may be permitted in any land use classification, major P/SP

uses require either the P/SP Future Land Use Designation or

s pecific inclusion in the range of potential uses of another

Future Land Use classification. Also, by insertion of the

adjective Ðsanitary,Ñ it specified that the landfills included

in the general range of potential uses in the P/SP future land

use categor y referred to sanitary landfills.

3. Ordinance 09 - 25 amended the Glossary to define

ÐConstruction and Demolition DebrisÑ and ÐP/SP Facilities.Ñ It

stated that P/SP Facilities Ðconducted entirely by the public

sector shall be considered public; uses not ent irely public

shall be considered semi - public.Ñ It also gave examples of

major and minor P/SP facilities. Major P/SP facilities include:

ÐPower plants, sanitary landfills, wastewater treatment plants

larger than 4 mgd, and other similarly scaled uses.Ñ Minor P/SP

facilities include: ÐRoads, sidewalks, libraries, parks, street

lights, lift stations, transfer stations, pumping stations, fire

stations, police/sheriffs [sic] stations, electric substations,

transportation corridors and other similarly scaled uses.Ñ

Ordinance 09 - 25 also states: ÐIn circumstances where this

Comprehensive Plan does not establish the major/minor status of

a proposed facility, the Growth Management Administrator shall

make that determination based on the size, scale, and impact of

the proposed facility. Further delineation of major and minor

may be provided in the Land Development Code.Ñ

4. Before those amendments, public facilities were defined

as: ÐPublicly owned, operated, franchised, licensed, or

regulated facilities which p rovide water, sewer, solid waste[,]

drainage, schools, and transportation services to the residents

and visitors of Pasco County.Ñ P/SP facilities were defined as:

ÐLand uses, such as schools, hospitals, and airports, in which

government is a major parti cipant and from which the public

benefits.Ñ The definition of ÐlandfillÑ (ÐThose lands, public

and private, which are used for the purpose of disposing

sanitary solid waste.Ñ) was deleted. A definition for Ðsanitary

landfillÑ was added: ÐAny solid waste land disposal area for

which a permit, other than a general permit, is required by s.

403.707 Florida Statutes, and which receives solid waste for

disposal in or upon land. The term does not include a land -

spreading site, an injection well, a surface imp oundment, or a

facility for the disposal of construction and demolition

debris.Ñ

5. Ordinance 09 - 25 amended the ÐSolid Waste Sub - Element of

the Public Facilities Element, Summary of Solid Waste Issues,

Disposal.Ñ The amendment added a statement that there are

private solid waste disposal facilities throughout the County;

added Policy SWT 4.1.3, stating that semi - public solid waste

management facilities can be integrated into the solid waste

management system to achieve the adopted LOS standard; deleted

Poli cy SWT 4.4.5, which prohibited landfills in certain

environmentally sensitive areas where they would not be

consistent with other elements of the Comprehensive Plan; and

amended Policy SWT 4.5.2, which limited the location of

landfills, to limit the locati on of sanitary landfills by

prohibiting them in those sensitive areas, consistent with other

elements of the Comprehensive Plan.

6. Pasco County Ordinance 09 - 26 added Future Land Use

Objective 1.10.1 on Compatibility and Policies 1.10.1 through

1.10.4 on co mpatibility review, compatibility through

appropriate design, residential compatibility/transition, and

industrial compatibility and performance measures. It also

renamed the ÐAppropriate Transitional Land UsesÑ general guide

table, which i s now called th e ÐTransitional L and Uses General

Guide,Ñ and made minor changes in the guide.

A. Principal Effect of Amendments

7. Before Ordinance 09 - 25, minor P/SP facilities were

allowed in any land use classification Ðconsistent with the

applicable goals, objectives, and policies of the Future Land

Use Element.Ñ Ordinance 09 - 25 clarifies that such facilities

also have to be consi stent with applicable goals, objectives,

and policies elsewhere in the comprehensive plan. Before

Ordinance 09 - 25, minor P/SP facilities did not have to be

mapped; after Ordinance 09 - 25, minor P/SP facilities do not have

to be mapped.

8. Before Ordinance 0 9 - 25, sanitary landfills had to be in

the P/SP future land use category or another category that

specifically allowed them; the County did not consider

construction and demolition debris facilities to be landfills,

and they did not have to be in the P/SP f uture land use category

or in another category that specifically allowed them; they just

had to be consistent with other elements of the comprehensive

plan. Ordinance 09 - 25 clarifies this interpretation of the

comprehensive plan.

9. Density and intensity s tandards for P/SP have not

changed as a result of Ordinance 09 - 25. Before Ordinance 09 - 25,

they were Ðnot applicableÑ; after Ordinance 09 - 25, they are Ðnot

applicable.Ñ

10. Before Ordinance 09 - 25, P/SP facilities did not have

to be publically owned; rather , they were defined as Ðpublicly

owned, operated, franchised, licensed or regulated facilities.Ñ

This definition has been interpreted by the County as including

private facilities that are franchised, licensed, or regulated.

Ordinance 09 - 25 clarifies thi s interpretation.

B. Intensity Standards

11. Petitioners contend that Pasco County Ordinance 09 - 25

makes substantive changes to the Comprehensive Plan and does not

include the intensity standards required for P/SP under Section

163.3177(6)(a) and Rule 9J - 5.006(3)(c)(7) .

12. Even if the changes are considered to be substantive,

it is appropriate not to have intensity standards for P/SP.

Intensity applies to non - residential use, but logically should

only apply to suc h uses that generate impacts and the need for

public services. P/SP responds to impacts and the need for

public services generated by other uses. It is logical and

appropriate not to have intensity standards for P/SP.

C. Meaningful and Predictable Standa rds

13. Petitioners allege that Ordinance 09 - 25 does not

establish meaningful and predictable standards and meaningful

guidelines for land development regulations (LDRs) because: (1)

it does not provide a clear distinction between major and minor

P/SP facili ties; (2) it does not pr ovide adequate guidance to

determine when the P/SP category applies to a particular use;

(3) it does not provide meaningful and predictable standards for

the growth management administrator; and (4) it does not provide

meaningful an d predictable standards for private owners.

PetitionersÓ specific concern is that the amendment does not

make clear whether a construction and demolition debris facility

will be determined to be major or minor.

14. Before Ordinance 09 - 25, construction and demolition

debris facilities were considered to be minor. Ordinance 09 - 25

does not require them to be major but leaves open the

possibility that they could be considered major, depending on

their size, scale, and impact. This determination will require

t he exercise of judgment . But the requirement that

comprehensive plans provide meaningful and predictable standards

and meaningful guidelines for LDRs does not prohibit the

exercise of judgment.

15. Petitioners contend that Ordinance 09 - 25 is deficient

beca use its lists of examples of major and minor P/SP facilities

are not exhaustive or explicit, and many factors must be taken

into account to determine whether a particular facilit y would be

major or minor. In addition, Petitioners point out that

libraries, parks, and police stations are listed generally as

examples of minor facilities, but those facilities could be

considered to be major if regional and of sufficient size,

scale, and impact. But those examples of minor facilities were

intended to connote t ypical neighborhood - scale libraries, parks,

and police stations . Although the amendment could have been

written more clearly, Ordinance 09 - 25 as a whole gives the

growth administrator sufficient guidance to make a judgment

whether a particular constructio n and demolition debris facility

is major or minor.

16. The growth management administratorÓs exercise of

judgment is subject to review by the Board of County

Commissioners (BOCC). Petitioners contend that this review

procedure removes the standards and gu idelines in Ordinance 09 -

25. But the BOCC must be guided by the same considerations as

the growth management administrator. The procedure for review

by the BOCC does not detract from the standards and guidelines

that govern both.

17. Petitioners contend that Ordinance 09 - 26 makes

substantive changes to the Comprehensive Plan that do not

provide predictable and meaningful standards and meaningful

guidelines for LDRs because it does not: (1) provide standards

related to the land use cl assifications to which it applies; (2)

specify how the policies are to be integrated into LDRs; and (3)

direct that it shall be implemented by the LDRs.

18. The comprehensive plan has residential compatibility

standards in Future Land Use Element (FLUE) pol icies 1.4.2,

1.4.3, and 1.4.4. These have been found to be in compliance.

19. Ordinance 09 - 26 adds an objective and four policies on

compatibility in general. Ordinance 09 - 26 provides predictable

and meaningful standards and meaningful guidelines for LDRs . It

is not necessary to name all the future land use classifications

to which Ordinance 09 - 26 applies; it is not necessary to further

specify how Ordinance 09 - 26 is to be integrated into LDRs; and

it is not necessary to direct that Ordinance 09 - 26 shall be

implemented by the LDRs.

D. Data and Analysis

20. Petitioner contend that Ordinance 09 - 25 is not

supported by data and analysis demonstrating that solid waste

LOS standards will be met and maintained, that there will be

adequate land for solid waste facili ties and other major P/SP

facilities to support future land use needs, and that the County

will be able to monitor compliance with the solid waste LOS

standards.

21. Ordinance 09 - 25 does not change the CountyÓs solid

waste capacity or its solid waste stream . The solid waste LOS

standard in PascoÓs comprehensive plan is for solid waste

requiring a sanitary landfill and for other solid waste other

than construction and demolition debris. Ordinance 09 - 25 has no

effect on the LOS standard because the amendment does not add to

the solid waste stream or subtract from capacity. For the same

reasons, it does not affect the CountyÓs ability to monitor

compliance.

22. The comprehensive plan designates enough P/SP land to

meet the CountyÓs solid waste needs. If neede d, more land is

available to be added to the CountyÓs solid waste disposal

capacity. There also are other ways to handle excess solid

waste beside adding P/SP land. Solid waste can be placed under

contract to be hauled and disposed of outside the County. Under

Ordinance 09 - 25, as before, minor construction and demolition

debris facilities can be sited in any land use category. No

additional data and analysis are required.

E. Internal Consistency

23. Petitioners contend that Ordinance 09 - 25 is internally

inconsistent because it fails to coordinate land uses and public

facilities, including utilities, and allows premature provision

of central water and sanitary sewer, inconsistent with

comprehensive pl an policies: (1) related to capital

improvements; (2) establishing LOS standards for transportation

and public facilities; and (3) discouraging the premature

provision of central water and sanitary sewer.

24. As indicated, Ordinance 09 - 25 has no effect on the

CountyÓs ability to meet LOS standards. For that reason, it has

no effect on the CountyÓs plans for needed capital improvements

or the provision of central water and sanitary sewer; and it is

not inconsistent with any plan provision on those subjects.

CONCLUSIONS OF LAW

25. Petitioners have standing as Ðaffected personsÑ under

section 163.3184(1)(a), Florida Statutes.

26. Section 163.3184(1)(b) states:

"In compliance" means consistent with the

requirements of ss. 163.3177, 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.

27. ÐIn this proceeding, the local plan or plan amendment

shall be determined to be in compliance if the local

government's determination of compliance is fair ly debatable.Ñ

§ 163.3184(9)(a), Fla. Stat. This is a deferential standard

that requires Ðapproval of a planning action if reasonable

persons could differ as to its propriety.Ñ Martin Cty. v.

Yusem , 690 So. 2d 1288, 1295(Fla. 1997)(quoting City of Miami

Beach v. Lachman , 71 So. 2d 148, 152 (Fla. 1955).

28. Section 163.3177(6)(a) states that future land use

categories Ðmust include standards to be followed in the control

and distribution of population densities and building and

structure intensities.Ñ Nei ther this statute nor Florida

Administrative Code Rule 9J - 5.006(3)(c)7 . require s intensity

standards for PascoÓs P/SP category, which is designed to serve

the needs generated by the density and intensity of residential

and non - residential development under a comprehensive plan. See

Fla. Admin. Code R. 9J - 5.003(60) (defining ÐintensityÑ as Ðan

objective measurement of the extent to which land may be

developed or used, including the consumption or use of the space

above, on or below ground; the measurement o f the use of or

demand on natural resources; and the measurement of the use of

or demand on facilities and services.Ñ) . It was not proven

beyond fair debate that the plan amendments fail to include

necessary intensity standards.

29. Comprehensive plan goals, objectives, and policies

must Ðestablish meaningful and predictable standards for the use

and development of land and provide meaningful guidelines for

the content of more detailed land development and use

regulations.Ñ Fla. Admin. Code R. 9J - 5.005(6). It was not

proven beyond fair debate that the plan amendments fail to meet

these requirements.

30. ÐCoordination of the several elements of the local

comprehensive plan shall be a major objective of the planning

process. The several elements of the compreh ensive plan shall

be consistent . . . .Ñ £ 163.3177(2), Fla. Stat. See also Fla.

Admin. Code R. 9J - 5.005(5)(a)(ÐThe required elements and any

optional elements shall be consistent with each other. " ) . It

was not proven beyond fair debate that the plan am endments are

internally inconsistent.

31. Sections 163.3177(6)(a) and 163.3177(8), and rule 9J -

5.005(2)(a), require that comprehensive plan be based on

relevant and appropriate data and analysis. It was not proven

beyond fair debate that the plan amendment s are not based on

relevant and appropriate data and analysis.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that DCA enter a final order finding the

comprehensive plan amendments adopted by Pasco County Ordinances

09 - 25 and 09 - 26 to be in compliance.

DONE AND ENTERED this 22nd day of December, 2010, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

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 22nd day of December, 2010.

ENDNOTE

1/ Unless otherwise noted, all statutory references are to the

2010 codification of the Florida Statutes.

COPIES FURNISHED :

David Goldstein, Esquire

W. Elizabeth Blair, Esquire

Pasco County Attorney's Office

7530 Little Road, Suite 340

New Port Richey, Florida 34654 - 5598

Gerald A. Figurski, Esquire

Gerald A. Figurski, P.A.

2550 Permit Place

New Port Richey, Florida 34655

Leigh K. Fletcher, Esquire

Stearns Weaver Miller Weissler

Alhadefe & Sitterson, P.A.

Post Office Box 3299

Tampa, Florida 33601 - 3299

L. Mary Thomas, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

Thomas G. Pelham, Secr etary

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 R IGHT 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.