10-006921GM Elisa Ackerly vs. Martin County And Department Of Community Affairs Status: Closed DOAH Final Order on Friday, July 29, 2011.

Summary: The challenged land development regulations are determined to be consistent with the Martin County Comprehensive Plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELISA ACKERLY, ) )

)

Petitioner, ) Case No. 10-6921GM

vs. )

)

MARTIN COUNTY AND DEPARTMENT OF )

COMMUNITY AFFAIRS, )

)

Respondents. )

)

SUMMARY FINAL ORDER

At the request of the parties, the scheduled final hearing was

canceled and the case was submitted for summary final order,

pursuant to section 120.57(1)(h), Florid a Statutes (2010), by Bram

D. E. Canter, Administrative Law Judge of the Division of

Administrative Hearings (“DOAH”).

APPEARANCES

For Petitioner: Donna Sutter Melzer, Esquire

3471 Southwest Centre Court

Palm City, Florida 34990-2312

For Respondent Martin County:

David A. Acton, Esquire

Martin County Administrative Center

2401 Southeast Monterey Road

Stuart, Florida 34996-3322

For Respondent Department of Community Affairs:

Marlene Katherine Stern, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

STATEMENT OF THE ISSUE

The issue to be determined in this case is whether Martin

County's amendments to its Land Development Regulations (LDRs),

adopted by Ordinance 833, are consistent with the Future Land

Use Element of the Martin County Comprehensive Plan.

PRELIMINARY STATEMENT

On November 17, 2009, Martin County adopted Ordinance 833,

which amended Article 3 of the Martin County LDRs to address

fishing and hunting camps. On December 8, 2009, Elisa Ackerly,

Donna Melzer, Marge Ketter, and Martin County Conservation

Alliance, Inc., filed a petition with the County, challenging

the new LDRs as inconsistent with the Comprehensive Plan.

Martin County did not respond to the petition within 30 days and

the same Petitioners filed a petition with the Department of

Community Affairs (Department) on January 15, 2010.

The Department conducted an informal investigation and held

an informal hearing. On July 16, 2010, the Department issued a

written determination that the subject LDRs were inconsistent

with the Martin County Comprehensive Plan. On August 2, 2010,

the Department filed a petition for hearing with DOAH. The case

was abated for a period of time at the unopposed request of the

Department. On March 25, 2011, the Department filed a notice

that it had reconsidered its determination of inconsistency and

now took the position that the new LDRs were consistent with the

Comprehensive Plan. The Department voluntarily dismissed its

petition for hearing and was then realigned as a Respondent.

On May 20, 2011, Petitioners Donna Melzer, Marge Ketter, and

Martin County Conservation Alliance, Inc., withdrew all of their

claims and Petitioner Elisa Ackerly withdrew her claims related

to alleged inconsistency of the LDRs with capital improvements

and infrastructure provisions of the Comprehensive Plan. On the

same date, the parties represented that there was no genuine

issue as to any material fact and, therefore, moved to cancel

the scheduled final hearing and to submit proposed summary

orders on a stipulated evidentiary record. These motions were

granted. Official recognition was granted as to seven documents

and the parties submitted 13 joint exhibits.

Petitioner Elisa Ackerly and Respondent Martin County filed

Proposed Summary Orders. The Department joined in the Proposed

Summary Order of Martin County. The proposed orders were

carefully considered in the preparation of this Final Order.

FINDINGS OF FACT

1. The Department is the State land planning agency.

2. The Martin County is a political subdivision of the

State of Florida. Through its Board of County Commissioners, it

adopted Ordinance 833 on November 17, 2009, amending the LDRs

pertaining to fishing and hunting camps.

3. Petitioner is a person who resides in Martin County.

She has an ownership interest in three parcels of land in the

County. Two of the parcels are adjacent to land that is

eligible for development as a hunting camp under the new LDRs.

An owner of land that is adjacent to one of Petitioner's parcels

has submitted plans for a hunting camp to the County.

4. Petitioner's principal complaint is that Ordinance 833

allows new commercial uses at fishing and hunting camps, which

she contends are uses that are inconsistent with policies of the

Future Land Use Element of the Comprehensive Plan that require

new commercial development to be located in the Primary Urban

Service Area and which require that agricultural lands be

protected.

5. There are no policies of the Martin County

Comprehensive Plan that specifically address fishing and hunting

camps, but the following policies are relevant to the

determination of the issues raised by Petitioner.

Policy 4.7A.2. Development in Primary Urban

Service District. Martin County shall

require new residential development with

lots of one-half acre or smaller, commercial

uses and industrial uses to locate in the

Primary Urban Service District. This

requirement is to ensure consistency with

the County's growth management policies and

Capital Improvements Element and to assure

that the Plan's LOS standards will be

provided and maintained cost-efficiently.

Policy 4.7A.10. Priority for public

services. In providing public services and

facilities and allocating public financial

resources for them first priority shall be

given to the Primary Urban Service District.

Second priority shall support the staged

development of suitable lands in the

Secondary Urban Service District at

densities specified in Policy 4.7B.1 or as

they are converted to the Primary Urban

Service District.

Public Services that support or encourage

urban development in other areas shall not

be provided, except for improvements

necessary to remedy an existing deficiency.

Policy 4.12A.2. Restrictions outside urban

service districts. Outside urban service

districts, development options shall be

restricted to low-intensity uses, including

Agricultural lands, not exceeding one unit

per 20 gross acres; Agricultural Ranchette

lands not exceeding one unit per five gross

acres; and small-scale service

establishments necessary to support rural

agricultural uses.

Policy 4.13A.1 The FLUM identifies those

lands in Martin County that are allocated

for agricultural development. This

designation is intended to protect and

preserve agricultural soils for

agriculturally related uses, realizing that

production of food and commodities is an

essential industry and basic to the County's

economic diversity.

* * *

The further intent of the Agricultural

designation is to protect agricultural land

from encroachment by urban or even low

density residential development.

* * *

Policy 4.13A.8(3) General Commercial

development.

* * *

The areas designated for General Commercial

development are specifically not adapted to

permanent residential housing, and such uses

shall be located in other areas designated

for residential development. On the other

hand, transient residential facilities

including hotels and motels, timesharing or

fractional fee residential complexes, or

other transient quarters should be located

in areas designated for commercial use.

6. Ordinance 833 amended Article 3 of the LDRs, entitled

"Zoning Districts." Section 3.3 was amended to change the

definition of "fishing and hunting camps." The previous

definition excluded overnight lodging facilities, but the

amendment changed the definition to include "overnight

accommodations, food, transportation, guides and other customary

accessory uses and facilities as set forth in Section 3.76.1."

7. Section 3.76.1 is a new section entitled "Hunting

Camps" and establishes development standards for hunting camps,

including a limitation on overnight accommodations to six guest

rooms and a limitation on food service to customers of the

hunting camp. Sales and rentals of hunting supplies and

accessories are also limited to customers of the hunting camp.

8. Ordinance 833 also defined "fishing and hunting camps"

in a new Section 3.403. The definition in Section 3.403 is

identical to the definition in Section 3.3, except that instead

of including a reference to Section 3.76.1, the definition

refers to Section 3.412.A. Section 3.412.A. adds the same

development standards for hunting camps that are found in

Section 3.76.1. There is no material difference between the two

definitions.

9. Common sense indicates that the lands designated

"Agricultural" on the Future Land Use Map are more appropriate

areas for fishing and hunting camps than the Primary or

Secondary Urban Service Districts. People generally fish, hunt,

and camp in rural areas, not in urban areas.

10. Martin County contends that fishing and hunting camps

are not commercial land uses, but are recreational uses.

Petitioner claims, however, that the addition of overnight

accommodations, food facilities, and accessory uses at fishing

and hunting camps makes them inconsistent commercial uses.

11. The dictionary definition of the word "camp" includes

the idea of staying overnight in an area. See , e.g. , Webster's

New Collegiate Dictionary 158 (1979). If a person stays

overnight in a camp, he or she must have shelter and food. It

is a matter of general knowledge of which the Administrative Law

Judge takes judicial notice that fishing and hunting camps often

provide lodging for hunters and fisherman to stay overnight and

facilities for eating.

12. Policy 4.12A.2 of the Comprehensive Plan allows "low-

intensity uses," including "small-scale service establishments

necessary to support rural and agricultural uses" outside of

urban service districts. This policy co-exists with Policy

4.7A.2, which requires new commercial development to be located

in the Primary Urban Service District. Obviously, therefore,

low-intensity uses and small-scale service establishments that

support rural and agricultural uses are not the type of uses,

even if they have commercial aspects, that must be located in

the Primary Urban Service District.

13. Although the County does not claim (for reasons that

are not clear) that "customary accessory uses and facilities"

for fishing and hunting camps are encompassed by the term

"small-scale service establishments," the County asserts that

customary accessory uses and facilities are the types of low-

intensity uses which Policy 4.12A.2 allows outside the urban

service districts. That is a reasonable interpretation of

Policy 4.12A.2.

14. The LDRs establish development guidelines for hunting

camps that are consistent with low-intensity uses. Petitioner

argues that no development guidelines are established for

fishing camps and, therefore, they could be potentially include

high-intensity commercial activities. If Ordinance 833 did not

create development guidelines for fishing camps, that would not

constitute a change because the previous LDRs already permitted

fishing camps in agricultural areas without specifying any

development guidelines other than a prohibition against

overnight lodging. Both of the new definitions for "fishing

camps" created by Ordinance 833 appear to incorporate by

reference the guidelines applicable to hunting camps. However,

even if the guidelines are not applicable to fishing camps, it

cannot be assumed for the purposes of this consistency

determination that the new LDRs permit uses at fishing camps

that would not be low-intensity uses. The LDRs do not express

or imply that intent.

15. The new LDRs are not inconsistent with Policy 4.7A.10,

related to the County's priorities for providing public

services, because the LDRs do not support or encourage urban

development.

16. The new LDRS are not inconsistent with Policy 4.13A.1,

related to the protection of agricultural soils because the

allowance in the Comprehensive Plan for uses other than farming

in the agricultural areas shows that the policy to protect

agricultural soils is not meant to preserve every square foot of

agricultural soil for farming.

17. The new LDRS are not inconsistent with Policy 4.13A.1,

related to the protection of agricultural lands from

encroachment by urban or residential development because the

LDRs do not authorize urban or residential uses in conjunction

with fishing and hunting camps.

18. Petitioner did not show that the restricted commercial

activities at fishing and hunting camps are urban uses.

Therefore, such uses do not contribute to urban sprawl. They

are reasonably treated by the County as low-intensity, support

services which are consistent with the Comprehensive Plan

policies to prevent urban sprawl into agricultural areas and to

otherwise protect agricultural lands.

CONCLUSIONS OF LAW

19. Petitioner is a substantially affected person with

standing to challenge the subject LDRs.

20. All land development regulations must be consistent

with the local government comprehensive plan. See

§ 163.3194(1)(b), Fla. Stat. (2010) 1/

21. Section 163.3194(3) provides that a land development

regulation is consistent with the comprehensive plan if:

the land uses, densities or intensities, and

other aspects of development permitted by

such . . . regulation are compatible with

and further the objectives, policies, land

uses, and densities or intensities in the

comprehensive plan and if it meets all other

criteria enumerated by the local government.

22. The adoption of a land development regulation is

legislative in nature and shall not be found to be inconsistent

with the local plan if it is fairly debatable that it is

consistent with the plan. § 163.3213(5), Fla. Stat.

23. The term “fairly debatable” is not defined in chapter

163, Florida Statutes, but the Supreme Court of Florida stated

in Martin Cnty. v. Yusem , 690 So. 2d 1288, 2195 (Fla. 1997),

that: “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.” Quoting

from City of Miami Beach v. Lachman , 71 So. 2d. 148, 152 (Fla.

1953), the Court stated further that “an ordinance may be said

to be fairly debatable when for any reason it is open to dispute

or controversy on grounds that make sense or point to a logical

deduction that in no way involves its constitutional validity.”

24. Section 163.3213(5)(b), Florida Statutes, provides

that the order of the administrative law judge in a case to

determine whether an LDR is consistent with the local government

comprehensive plan shall be the final order.

25. Pursuant to section 120.57(1)(h), Florida Statutes,

any party in a proceeding in which the administrative law judge

has final order authority may move for a summary final order

when there is no genuine issue as to any material fact. The

parties have stipulated that there is no genuine issue as to any

material fact. Therefore, a summary final order is appropriate.

26. There is no direction in section 163.3213 to review an

LDR against a standard of clarity, detail, or enforceability.

The statute does not require a determination whether it is

possible to apply the LDR in a manner that would be inconsistent

with the comprehensive plan.

27. If it is unclear whether an LDR authorizes an activity

that is inconsistent with the comprehensive plan, section

163.3213 does not require the administrative law judge to assume

that the inconsistent activity is authorized. The requirement

of section 163.3213 to use the fairly debatable standard points

to the opposite analysis –- that unless the LDR clearly

authorizes an inconsistent activity, it remains fairly debatable

that the LDR does not authorize the inconsistent activity. An

adversely affected person has a remedy if an LDR is misapplied

to authorize development that is inconsistent with the

comprehensive plan. See § 163.3215, Fla. Stat.

28. It is fairly debatable that the amendments to the LDRs

adopted through Ordinance 833 are consistent with the

Comprehensive Plan. Petitioner did not meet her burden to prove

otherwise.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the land development regulations created or

amended by Martin County Ordinance 833 are consistent with the

Martin County Comprehensive Plan.

DONE AND ORDERED this 29th day of July, 2011, 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 29th day of July, 2011.

ENDNOTE

1/ Unless otherwise noted, all references to the Florida

Statutes are to the 2010 codifications.

COPIES FURNISHED

:

Donna Sutter Melzer, Esquire

3471 Southwest Centre Court

Palm City, Florida 34990

David A. Acton, Esquire

Martin County Administrative Center

2401 Southeast Monterey Road

Stuart, Florida 34996-3322

Marlene Katherine Stern, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

Billy Buzzett, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399-2100

Deborah K. Kearney, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399-2160

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original notice of appeal with the Clerk of the

Division of Administrative Hearings and a copy, accompanied by

filing fees prescribed by law, with the District Court of

Appeal, First District, r with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.