13-002004GM The Richman Group Of Florida, Inc. vs. Pinellas County Board Of County Commissioners Status: Closed Recommended Order on Monday, November 18, 2013.

Summary: The proposed amendment is determined to be consistent with the Countywide Rules and it is recommended that the amendment be approved.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE RICHMAN GROUP OF FLORIDA,

INC. ,

Petitioner ,

vs. Case No. 13 - 2004GM

PINELLAS COUNTY BOARD OF COUNTY

COMMISSIONERS ,

Respondent .

/

RECOMMENDED OR DER

The final hearing in this case was held on August 27 - 28,

2013, in Clearwater, Florida, before Bram D.E. Canter, an

Administrative Law Judge of the Division of Administrative

Hearings (ÐDOAHÑ).

APPEARANCES

For Petitioner: Scott A. McLaren, Esquire

Edward D. Armstrong, III, Esquire

Hill Ward Henderson, P.A.

101 East Kennedy Boulevard, Suite 3700

Tampa, Florida 33701

For Respondent: Nancy S. Meyer, Esquire

David S. Sadowsky, Esquire

Pinellas County AttorneyÓs Office

315 Court Street, Sixth Floor

Clearwater, Florida 33756

STATEMENT OF THE ISSUE

The issue to be determined in this case is whether the

proposed amendment to the Pinellas Countywide Plan Map, changing

the land use designation s on 34.6 acres of land in Safety Harbor,

Florida, should be approved .

PRELIMINARY STATEMENT

On August 29, 2012, Petitioner submitted its in itial

application to the City of Safety Harbor to amend the City of

Safety Harbor Comprehensive Plan. A revised application was

submitted on December 3, 2012, which included a Development

Agreement. After a public hearing, the City approv ed the proposed

amendment to its Comprehensive Plan , subject to the Countywide

Plan amendment process.

On March 8, 2013, the City submitted an application to amend

the Countywide Plan Map (Ð the AmendmentÑ) to the Pinellas Planning

Council on behalf of the Petitioner. Th e Pinellas Planning

Council recommended approval of the Amendment. On May 7, 2013,

the Pinellas County Board of County Commissioners, in their

capacity as the Countywide Planning Authority (ÐCPAÑ) denied the

application.

On May 28, 2013, pursuant to the Countywide Rules, Petitioner

applied for an administrative hearing . Pursuant to a contract

with DOAH, the matter was forwarded to DOAH to conduct an

evidentiary hearing and prepare a recommended order in conformance

with the procedures of chapter 120, Flo rida Statutes. A corrected

petition was subsequently filed.

At the final hearing, Petitioner presented the testimony of

Robert C. Pergolizzi, who was accepted as an expert in planning;

Matt McLachlan, who was accepted as an expert in planning;

Scott Cull en, who was accepted as an expert in marketing;

Gordon Beardslee and Mike Meidel (via video of the May 7, 2013,

CPA meeting ) ; and Mike Crawford ( via video deposition).

PetitionerÓs Exhibits 1 - 13, 18 - 19, 29 - 31, 33 - 49, 52 - 54, 54A, 54C,

57, 59, and 60 were r eceived into evidence.

Respondent presented the testimony of Mike Meidel, who was

accepted as an expert in economic development; and Mike Crawford,

who was accepted as an expert in planning. RespondentÓs Exhibits

8 - 17 were received into evidence.

The tw o - volume Transcript of the final hearing was filed with

the DOAH. The parties filed proposed recommended orders that have

been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

The Parties

1. Petitioner is the contract purchaser of 34.6 acres of

land ( Ð the PropertyÑ) located near the northeast corner of 10th

Street South and McMullen - Booth Road in the City of Safety

Harbor.

2. Respondent is the Board of County Commissioners of

Pinellas County, in their capacity as the CPA.

Th e Proposed Amendment

3. The Amendment would change the land use designations for

nine parcels within the Property. The A mendment would make the

following changes to the current land use designations:

4. However, t he partiesÓ dispute focuses on the 1 5.8 - acre

parcel that is now designated Industrial Limited ( Ð IL Ñ ). The

A mendment would change the designation of the parcel to

Residential Medium (ÐRMÑ).

Existing Land Uses on the Property and Surrounding Area

5. Located on t he 15.8 - acre parcel (referre d to here after

as the ÐIL parcelÑ or ÐRichman parcelÑ) are numerous industrial

buildings and structures associated with a citrus processing

facility that is no longer in operation.

6. There are no uses being made of the other eight parcels

that comprise the Property. The balance of the Property is

undeveloped and relatively undisturbed. There are wetlands as

well as a creek on the Property. There is an extensive tree

canopy in the undeveloped area.

7. Access to the IL parcel is via 10th Street South

(S.R. 590), which is a two - lane, undivided roadway on the

southern boundary. There is no rail access to the IL parcel.

8. To the north and east of the Property are relatively

affluent neighborhoods of single - family residences on lands

designated Residen tial Suburban and Residential Low. The

residences on the north are separated from the IL parcel by the

large undeveloped area, but the residences to the east are

immediately adjacent to the IL parcel.

9. McMullen - Booth Road, a six - lane arterial roadway , runs

along the northwestern boundary of the Property.

1 0 . On the southwestern boundary, adjacent to the IL

parcel , are lands designated Residential/Office/Retail where

there is a drug store, car wash, and bank.

1 1 . Across 10th Street South, on the so utheast corner of

its intersection with McMullen - Booth Road, is a gas

station/convenience store. Also across 10th Street South,

opposite the entrance to the citrus processing facility, is land

designated IL and used for warehousing, auto - repair, and other

uses.

The Scenic Non - Commercial Corridor

1 2 . McMullen - Booth Road has been designated by Pinellas

County as a Scenic Non - Commercial Corridor (ÐSNCCÑ). The SNCC

designation includes lands bordering both sides of McMullen - Booth

Road. The SNCC designatio n identifies preferred land uses within

the corridor to achieve the CPAÓs goal to preserve and enhance

the scenic qualities of the corridor.

1 3 . The western half of the IL parcel is within the

McMullen - Booth Road SNCC. Under the SNCC policies, the prefe rred

land use for the western half of the parcel is ÐMixed Use.Ñ The

Amendment would allow for land uses consistent with the SNCC.

The Development Agreement

1 4 . The proposed Amendment is accompanied by a Development

Agreement between Richman and the Ci ty of Safety Harbor which

provides more specifically for how the Property would be

developed. Among other items, the Development Agreement provides

for:

a. 246 apartment units in three - story and four - story

buildings;

b. a 25,000 - square - foot office bui lding fronting on

McMullen - Booth Road;

c. a 182 - foot buffer between the nearest apartment unit and

the residences to the east;

d . a requirement that no three - story building will be

located within 450 feet of the eastern property line; and

e. the pres ervation of more than 10 acres of the undeveloped

area , including the creek and wetlands .

Action on the Proposed Amendment

1 5 . Changing a land use designation in the City of Safety

Harbor requires an amendment to the Countywide Plan Map, which

depicts all land use designations in Pinellas County and its

municipalities.

1 6 . Countywide Rules are used in conjunction with the

Countywide Plan and they address amendments to the Countywide Plan

Map.

1 7 . The Countywide Plan and Countywide Rules are created and

administered by t he CPA.

1 8 . Proposed amendments to the Countywide Plan Map are

reviewed by the Pinellas County Planning Advisory Committee

(ÐPACÑ), which is comprised of planners from most of the local

governments in Pinellas County. The PAC makes a recommendation to

the Pinellas Planning Council on a proposed amendment . The PAC

recommended approval of the Amendment.

19 . The staff of the Pinellas Planning Council prepared a n

Ð A genda M emorandum,Ñ which included the following findings which

are sup ported by the preponderance of the evidence presented in

this case and , therefore, are findings of fact in this Recommended

Order:

a. The RM land use is well - suited to serve as a transition

from non - residential areas to the west and south and the

resident ial neighborhoods to the east and north.

b. The area is not part of a larger consolidated industrial

area, but the Richman parcel, together with the IL parcel across

10th Street South, could function as a small industrial park.

c. The IL category, with a ll potential uses allowed, is Ðin

the broadest senseÑ inconsistent with single - family uses to the

north and east.

d . The IL parcel can accommodate certain Ðtarget employers.Ñ

At the final hearing, target employers were identified as Ð office

light industr ial and research and development .Ñ

e . The e nvironmentally sensitive areas on the Property and

adjacent to single - family residences limit the types of industrial

uses that could be located on the IL parcel .

f . The Amendment does not foreclose the opportu nity to

attract target employers to other parcels within the Property .

g . Ð O n balance,Ñ the Amendment is consistent with the

Countywide Rules.

2 0 . The Council staff recommended approval of the Amendment.

A s partial mitigation for the loss of the IL la nd use, the staff

recommended that Richman work with the County to attract target

employers to other parcels within the Property.

2 1 . The Council held a public hearing and voted to recommend

approval of the Amendment.

2 2 . The Pinellas County planning s taff recommended approval

of the Amendment to the CPA.

23. The CPA, at a public hearing, voted to deny the

Amendment, based primarily on concern over the loss of industrial

lands.

Relevant Criteria

2 4 . Section 5.5.3 .1 of the Countywide Rules states:

In the consideration of a regular Countywide

Plan Map amendment, it is the objective of

these Countywide Rules to evaluate the

amendment so as to make a balanced legislative

determination based on the following six (6)

Relevant Countywide Considerations, as they

pertain to the overall purpose and integrity

of the Countywide Plan.

2 5 . Of these six criteria, the parties stipulated that only

the consideration stated in Section 5.5.3.1.1 is at issue in this

case. That section states:

Consistency with Countywi de Rules. The manner

in, and extent to, which the amendment is

consistent with Article 4, Plan Criteria and

Standards of these Countywide Rules and with

the Countywide Plan as implemented through the

Countywide Rules.

2 6 . The parties disputed what crit eria are Ðimplemented

through the Countywide Rules.Ñ Richman contends that to be

implemented through the Countywide Rules, a policy must be

contained in the Countywide Rules. The CPA contends that there

are provisions of the Plan that must be considered even if they do

not also appear in the Rules .

2 7 . As set forth in the Conclusions of Law, in order for a

provision of the Countywide Plan to be implemented through the

Countywide Rules so that the provision can act as a criterion

applied by the CPA in th e approval or denial of a proposed

amendment to the Countywide Plan Map , the provision must be

repeated, paraphrased, or adopted by reference in the Countywide

Rules.

2 8 . In this regard it is noted that Resolution 06 - 3 of the

Pinellas Planning Council, w hich discusses the need to reserve

industrial parcels for target employers, was referred to in the

Council 's A genda M emorandum and discussed in the public hearing

before the CPA . However, Resolution 06 - 3 i s not implemented

through the Countywide Rules and , therefore, is not a source of

criteria applicable to the Amendment.

2 9 . The SNCC designation for McMullen - Booth Road is in the

Countywide Rules and, therefore, must be considered by the CPA in

its review of the Amendment.

30 . Section 2.3.3.6.1 of the Countywide Rules is relevant to

the issues raised and states in part:

Category/Symbol Î Industrial Limited (IL)

Purpose Î It is the purpose of this category

to depict those areas of the county that are

now developed, or appropriate to be

developed, in a limited industrial manner;

and so as to encourage the reservation and

use of consolidated areas for industrial and

industrial/mixed use in a manner and location

consistent with surrounding use,

transportation facilities, and natural

resource characteristic s.

In addition to this statement of purpose, the section addresses

locational characteristics, traffic generation characteristics,

density/intensity characteristics, density/intensity standards,

and Ðother standards.Ñ

3 1 . Section 2.3.3.6.1 identifies th e Ð primary uses Ñ allowed

in the IL land use category as office, research/development,

light manufacturing/assembly, wholesale/distribution, and

storage/warehouse. The ÐsecondaryÑ uses allowed are residential,

retail/commercial; personal service/office sup port,

commercial/business service, commercial recreation, temporary

lodging, institutional, transportation/utility, recreation/open

space, transfer/recycling, incinerator facility, and

agricultural .

3 2 . The CPAÓs desire for certain target employers to us e

the IL parcel fails to account for the fact that there are

industrial uses of the site that are allowed under the IL land

use category in the Countywide Plan that would cause noise, odor,

truck traffic, or other conditions that are incompatible with

adja cent residential uses. Understandably, the CPA would like to

see the Richman parcel used in the future by one of the target

employers, but the CPA does not acknowledge that the IL

designation authorizes other use s that would be incompatible with

surroundi ng uses.

3 3 . At the final hearing, the CountyÓs Director of Economic

Development testified that the Richman parcel is ÐperfectÑ for an

IL land use, but that testimony only makes sense in the context of

certain target employers. I n the context of all the IL uses that

are allowable under the Countywide Plan and Countywide Rules, the

site is imperfect and impracticable because of the proximity of

single - family homes and the access from an undivided, two - lane

street used by residential traffic.

3 4 . Several years of marketing efforts by Richman and the

County have not generated a single offer to purchase or lease the

Richman parcel for any of the allowed IL uses , including target

employers .

3 5 . Following the CPAÓs denial of the Amendment, the staff

of the Pinellas Planning Council undertook a review of its current

policies regarding the preservation of industrial lands and

recommended amending the Countywide Rules to identify industrial

properties Ðworthy of preservingÑ and to develop criteria for the

evalu ation of proposed amendments to convert industrial land.

These recommendations highlight the current lack of adequate

guidance in the Countywide Rules.

3 6 . The determination by the CPA that the Amendment is

inconsistent with the Countywide Rules is base d primarily on three

propositions which are contrary to the preponderance of the

evidence. First, that the Richman parcel is being reserved for IL

uses. The preponderance of the evidence shows that the parcel is

inappropriate for several authorized IL us es and the CPA wants the

parcel reserved only for a few target employers.

3 7 . Second, that the IL designation is not inconsistent with

the McMullen - Booth Road SNCC. T he identification of preferred

land uses in the corridor would have no effect unless it was a

factor to be considered by the CPA when it reviews proposed

amendments to the Countywide Plan Map. The IL designation within

the McMullen - Booth SNCC is inconsistent with the goal of the

corridor and is a factor (not a requirement) in favor of chang ing

current IL designation to another designation that qualifies as

Mixed Use.

3 8 . Third, that the Richman parcel is part of a

Ðconsolidated areaÑ for industrial uses in a location Ð consistent

with surrounding uses Ñ as described in Section 2.3.3.6.1. Th e

preponderance of the evidence shows that this is not a

consolidated area for industrial uses. It was once a

consolidated area , but past land use decisions have eliminated

more than half the industrial acreage. If Richman had proposed

to consolidate its parcel with the IL parcel south of 10th Street

South to create a large, integrated warehousing and distribution

operation served by rail, the proposal would have been consistent

with the core purpose for IL lands as expressed in Section

2.3.3.6.1. The im practicability of such a proposal, however,

highlights the problem with the current IL designation for the

Richman parcel.

39 . The CountyÓs 2008 Target Employment and Industrial Land

Study found that two - thirds of the Ðtarget industriesÑ operating

in Pin ellas County are on lands not designated industrial,

because these uses can often be accommodated on lands designated

for office uses.

4 0 . The 2008 study recommended that the industrial

designations of lands in five Ðprime industrial areasÑ be

preserve d. RichmanÓs IL parcel is not in one of these prime

industrial areas. When all relevant factors are considered, the

CPA appears to be t aking a stand for preservation of industrial

lands in the wrong place .

CONCLUSIONS OF LAW

4 1 . This is a de novo proce eding. The standard of proof is

a preponderance of the evidence.

4 2 . The CPA contends that the IL classification for the

Richman parcel is presumptively valid and Richman must prove the

classification is invalid, citing Lee County v. Sunbelt Equities,

I I , 619 So. 2d 996 (Fla. 2d DCA 1993). However, the Sunbelt

Equities case arose in a different context. This proceeding is

not governed by either chapter 125 or chapter 163, Florida

Statutes. It is a unique proceeding established by the CPA.

4 3 . Sectio n 5.5.3.1.1 of the Countywide Rules expressly

states, and the parties have stipulated, that the issue to be

determined is Ð[t]he manner in, and extent to, which the amendment

is consistent with" certain criteria in the Countywide Rules. The

CPA establishe d this review procedure and review standard. It

cannot ignore its own standard and insist, instead, that a

challenger prove the existing land use classification is invalid.

4 4 . The CPA contends that industrial use - related policies

and strategies of the Countywide Plan can be applied to the

proposed Amendment, even if they do not appear anywhere in the

Countywide Rules. The CPA treats all related Plan provisions as

implemented by the Rules and, therefore, as potential criteria to

be applied by the CPA in its review of a proposed Countywide Plan

Map amendment. Its position requires an illogical construction

of the phrase Ðimplemented by the Countywide RulesÑ that is

contrary to the ordinary meaning of the words used. Its position

makes the determination of what criteria are applicable to a map

amendment difficult to determine and open to debate.

45. The CPA is not foreclosed from considering related

matters discussed in the Countywide Plan that give context to

words and concepts used in the Countywide R ules. However, n othing

in the Countywide Plan can be transformed into a Countywide Rule

criterion that requires IL lands to be reserved for certain target

employers when the Countywide Rules addressing industrial uses do

not mention target employers and a llow uses that are not target

employers.

4 6 . It is concluded that a criterion must appear somewhere

in the Countywide Rules in order to be reasonably described as

Ðimplemented through the Countywide Rules.Ñ This conclusion

harmonizes with the title of Se ction 5.3.3.1.1, ÐConsistency with

the Countywide Rules,Ñ and with Section 2.2.3 of the Countywide

Rules, which states that Ð[a]ll Countywide Plan Map amendments

shall be made in accordance with the provisions of these

Countywide Rules, as amended.Ñ

4 7 . Section 2.2.3.6.1, which describes the IL

classification, is a Countywide Rule directly relevant to a

proposed map amendment involving IL lands and must be consider ed

by the CPA in its review of Amendment.

48 . Section 5.3.3.1 .1 requires consideration of the extent

to which an amendment is consistent with Article 4 of the

Countywide Rules and with the provisions of the Countywide Plan

that are implemented through the Countywide Rules. E very

professional planner that reviewed the Amendment leading up to

it s presentation to the CPA opined, and the preponderance of the

evidence shows, that the Amendment creates more points of

consistency and fewer points of inconsistency than the existing

IL land use classification.

49 . Nevertheless, under Section 5.3.3 of the Countywide

Rules, the review of a proposed Countywide Plan Map amendment

requires a Ð a balanced legislative determination.Ñ The CPA is

bound by factual findings made by the Administrative Law Judge

which are supported by competent substantial evidence , but the

CPA is not bound by the balance struck by the Administrative Law

Judge , based on his perception of the differential importance of

various findings. The ultimate balancing and determination of

consistency is for the CPA to make. See Save Anna Ma ria, Inc. v.

DepÓt of Transp. , 700 So. 2d 113, 116 (Fla. 2d DCA 1997)(The

Department of Environmental Protection did not reject any of the

hearing officer's findings regarding the proposed mitigation of

environmental impacts, but balanced the findings to r each the

ultimate legal conclusion that DOT had provided reasonable

assurance.) Save Anna Maria involved a statute that specifically

directed the agency to determin e whether mitigation was

sufficient and no similar statute is involved here. However, the

ultimate authority of the CPA is similar, because it is making a

legislative decision , which cannot be delegated to an

Administrative Law Judge.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Cou ntywide Planning Authority issue a

F inal O rder approving the Amendment.

DONE AND ENTERED this 18th day of November, 2013 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Admi nistrative 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 18th day of November , 2013 .

COPIES FURNISHED:

Scott A. McLaren, Esquire

Edward D. Armstrong, III, Esquire

Hill, Ward and Henderson, P.A.

3700 Bank of America Plaza

101 East Kennedy Boulevard

Tampa, Florida 33602

Gordon Beardslee , General Planning Administrator

Pinellas County De partment

of Strategic Planning and Initiatives

310 Court Street

Clearwater, Florida 33756

Michael Crawford , Executive Director

Pinellas Planning Council

310 Court Street , Second Floor

Clearwater, Florida 33756 - 5137

Kenneth Welch , Commission Chairman

Board of County Commissioners

Pinellas County

315 Court Street

Clearwater, Florida 33756

Nancy S. Meyer, Esquire

David S. Sadowsky, Esquire

Pinellas County Attorney's Office

315 Court Street , Sixth Floor

Clearwater, Florida 33756

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.