15-000308GM Kingswood Manor Association, Inc., A Florida Not-For-Profit Corp., Also Known As Kingswood Manor Improvement Assoc.; Sharon Leichering; Lori Erlacher; Carla Mcmullen; Doreen Maroth; Valerie Perantoni; And Friends Of Lake Weston And Adjacent Canals, Inc. vs. Town Of Eatonville Status: Closed Recommended Order on Wednesday, June 3, 2015.

Summary: The Town's determination that its proposed comprehensive plan amendment to allow light industrial uses in a new Lake Weston Subarea was in compliance is fairly debatable.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KINGSWOOD MANOR ASSOCIATION,

INC., SHARON LEICHERING; LORI

ERLACHER; DALE DUNN; DOREEN

MORATH; GEORGE PERANTONI;

VALERIE PERANTONI; AND FRIENDS

OF LAKE WESTON AND ADJACENT

CANALS, INC.,

Petition ers,

vs.

TOWN OF EATONVILLE, Case No. 15 - 0308GM

Respondent,

and

LAKE WESTON, LLC,

Intervenor.

_______________________________/

RECOMMENDED ORDER

The final hearing in this case was held on March 26, 2015,

in Orlando, Florida , before Bram D.E. Canter, Administrative Law

Judge of the Division of Administrative Hearings (ÐDOAHÑ).

APPEARANCES

For Petitioners: Sharon R. Leichering, pro se

Kingswood Manor Association, Inc.

5623 Stull Avenue

Orlando, Florida 32810

Lori A. Erlacher, pro se

1620 Mosher Drive

Orlando, Florida 32810

George Anthony Perantoni, pro se

Friends of Lake Weston and Adjacent

Canals, Inc.

5800 Shasta Drive

Orlando, Florida 32810

Valerie Lolita Perantoni, pro se

5800 Shasta Drive

Orlando, Flor ida 32810

For Respondent Town of Eatonville:

Joseph Morrell, Esquire

Town of Eatonville

1310 W est Colonial Drive, Suite 28

Orlando, F lorida 32804

For Interven or Lake Weston, LLC:

William Clay Henderson, Esquire

Holland & Knight , LLC

200 South Orange Avenue , Suite 2600

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue to be determined in this case is whether the

amendment of the Town of Eatonville Comprehensive Plan adopted

through Ordinance 2014 - 2 (ÐPlan AmendmentÑ) is Ðin complianceÑ as

that term is defined in section 163.3184(1)(b), Florida Statutes

(2014).

PRELIMIN ARY STATEMENT

On December 16, 2014, the Town of Eatonville adopted

Ordinance No. 2014 - 2, which amended the Eatonville Comprehensive

Plan to establish a new Policy 1.6.10 within the Future Land Use

Element, entitled ÐLake Weston Subarea Policy,Ñ and amended the

Future Land Use Map to designate certain lands surrounding Lake

Weston as subject to the subarea policy.

On January 15, 2015, Sharon Leichering, Lori Erlacher,

Carla McMullen, Kingswood Manor Association, Inc., George

Perantoni, Valerie Perantoni, Rob ert Perantoni, John Walker,

Dale Dunn, Doreen Maroth, Linda Lukanic, Anthony DÓAmbrosi,

Isabel DÓAmbrosi, and Friends of Lake Weston and Adjacent Canals,

Inc., filed a petition challenging the Plan Amendment. Before

the final hearing, Petitioners Carla Mc Mullen, Robert Perantoni,

John Walker, Linda Lukanic, Anthony DÓAmbrosi, and Isabel

DÓAmbrosi made written requests to be dismissed and orders were

entered dismissing them from the proceeding. On February 11,

2015, Lake Weston, LLC , moved to intervene in these proceedings

and intervention was granted.

Lake Weston, LLC , filed a motion to dismiss or to strike the

petition for hearing, alleging lack of standing and failure to

state a cause of action. The motion to dismiss was denied, but

all claims directed to related land development regulations were

stricken as being beyond the scope of the proceeding.

At the final hearing, Petitioners Sharon Leichering,

Lori Erlacher, George Perantoni, and Valerie Perantoni each

presented testimony. Petitioners also prese nted the testimony of

the townÓs planning consultant Valerie Hubbard and Ken Clayton,

an owner of the property. The Town of Eatonville and Lake

Weston, LLC , presented testimony of Town Clerk Debra Franklin;

Linda Dodge, representative of Lake Weston, LLC; and Valerie

Hubbard.

PetitionersÓ Exhibits 1 and 7 were admitted into evidence.

RespondentÓs Exhibits R - 1 and R - 3 through R - 14 were admitted into

evidence. IntervenorÓs Exhibits I - 1, I - 2, and I - 4 through I - 7

were admitted into evidence.

The two - volume t ranscript of the final hearing was filed

with DOAH. Respondent and Intervenor filed a joint proposed

recommended order. Petitioners did not file a proposed order.

FINDINGS OF FACT

The Parties

1. Respondent Town of Eatonville is a municipality in

Orange County with a comprehensive plan which it amends from time

to time pursuant to chapter 163, Florida Statutes.

2. Intervenor Lake Weston, LLC , is a Florida limited

liability company whose sole member is Clayton Investments, L td .

It owns approximately 49 a cres of land along Lake Weston on West

Kennedy Boulevard in Eatonville (Ðthe PropertyÑ), which is the

subject of the Plan Amendment.

3. Petitioners Sharon Leichering, Lori Erlacher, George

Perantoni, Valerie Perantoni , and Doreen Maroth own or reside in

u nincorporated Orange County near Lake Weston. The record does

not establish whether Dale Dunn lives or owns property in the

area.

4. Petitioner Kingswood Manor Association, Inc. , is a non -

profit corporation whose members are residents of Kingswood

Manor, a residential subdivision near the Property.

5. Petitioner Friends of Lake Weston and Adjacent Canals,

Inc. , is a non - profit corporation whose objective is to protect

these waters.

Standing

6. Petitioners Sharon Leichering and George Perantoni

submitted comments to the Eatonville Town Council on their own

behalves and on behalf of the Kingswood Manor Association and

Friends of Lake Weston, respectively, regarding the Plan

Amendment.

7. Petitioner Valerie Perantoni is the wife of Petitioner

George Perant oni . She did not submit comments regarding the Plan

Amendment to the Town Council.

8. Petitioner Dale Dunn did not appear at the final

hearing. There is no evidence Mr. Dunn submitted oral or written

comments to the Town Council regarding the Plan Amend ment.

9. Petitioner Dor e en Maroth did not appear at the final

hearing for medical reasons. Ms. Maroth submitted oral comments

to the Town Council regarding the Plan Amendment.

10 . Respondent and Intervenor contend there is no evidence

that Lori Erlacher appeared and gave comments to the Town

Council, but the Town Clerk testified that Petitioner Leichering

was granted an extension of time Ðto speak for othersÑ and

Petitioner Leichering testified that the ÐothersÑ were Lori

Erlacher and Carla McMullen .

The Plan Amendment

1 1 . The Property is zoned ÐIndustrialÑ in the TownÓs Land

Development Code, but is designated ÐCommercialÑ on the Future

Land Use Map in the Comprehensive Plan. The Town adopted the

Plan Amendment to make the zoning and future land use

de signations consistent with each other.

1 2 . The Plan Amendment attempts to resolve the

inconsistency by designating the Property as the ÐLake Weston

SubareaÑ within the Commercial land use category. The

designation would appear on the Future Land Use Map and a new

policy is made applicable to the Subarea, allowing both

industrial and commercial uses:

1.6.10. Lake Weston Subarea Policy.

Notwithstanding the provisions of Policy

1.6.9, within the Lake Weston Subarea Policy

boundaries as shown on the Future L and Use

Map, light industrial uses may be allowed in

addition to commercial uses. The specific

permitted uses and development standards

shall be established by the Lake Weston

Overlay District, which shall be adopted as a

zoning overlay district in the La nd

Development Code ; however, the wetlands

adjacent to Lake Weston within the Lake

Weston Subarea Policy boundaries are hereby

designated as a Class I Conservation Area

pursuant to Section 13 - 5.3 of the Town of

Eatonville Land Development Code and shall be

subject to the applicable provisions of

Section 13 - 5 of the Land Development Code.

The intent of this subarea policy and related

Lake Weston Overlay District is to allow a

range of commercial and industrial uses on

the subject property with appropriate

de velopment standards, protect environmental

resources, mitigate negative impacts and

promote compatibility with surrounding

properties. Subject to requirements of this

subarea policy and of the Lake Weston Overlay

district, the current industrial zoning of

the property is hereby deemed consistent with

the Commercial Future Land Use designation of

the area within the boundaries of this

subarea policy.

Data and Analysis

1 3 . Petitioners contend the Plan Amendment is not supported

by relevant and appropriate data and analysis. Relatively little

data and analysis were needed to address the inconsistency

between the Land Development Code and the Comprehensive Plan or

to address the protection of Lake Weston and adjacent land uses.

1 4 . The need to protect envir onmental resources, to

mitigate negative impacts of development, and to promote

compatibility with surrounding land uses was based on general

principles of land planning, the report of a planning consultant,

as well as public comment from Petitioners and o thers.

1 5 . A wetland map, survey, and delineation were submitted

to the Town. The effect of the Class I Conservation Area

designation is described in the Land Development Code. The

availability of public infrastructure and services was not

questioned by Petitioners.

1 6 . The preponderance of the evidence shows the Plan

Amendment is based on relevant and appropriate data and analysis.

Meaningful Standards

1 7 . Petitioners contend the Plan Amendment does not

establish meaningful and predictable standards f or the future use

of the Property.

1 8 . It is common for comprehensive plans to assign a

general land use category to a parcel, such as Residential,

Commercial, or Industrial, and then to list the types of uses

allowed in that category. The Plan amendment does not alter the

Comprehensive PlanÓs current listing of Commercial and Industrial

use s .

1 9 . The Plan Amendment designates the wetlands adjacent to

Lake Weston as a Class I Conservation Area subject to the

provisions of the Eatonville Wetlands Ordinanc e in the Land

Development Code. This designation means the littoral zone of

the lake and associated wetlands would be placed under a

conservation easement. This is meaningful guidance related to

the future use of the P roperty.

20 . The Plan Amendment dir ects the Land Development Code to

be amended to create a Lake Weston Overlay District with the

expressed intent to Ðprotect environmental resources, mitigate

negative impacts and promote compatibility with surrounding

properties.Ñ This direction in the Pl an Amendment is guidance

for the content of more detailed land development and use

regulations.

2 1 . Contemporaneous with the adoption of the Plan

Amendment, the Eatonville Land Development Code was amended to

establish the Lake Weston Overlay District, wh ich has the same

boundaries as the Property. The Land Development Code describes

in greater detail the allowed uses and development standards

applicable to the Property.

2 2 . The preponderance of the evidence shows the Plan

Amendment establishes meaningfu l and predictable standards.

Internal Consistency

2 3 . Petitioners contend the Plan Amendment is inconsistent

with the relatively recent Wekiva Amendments to the Comprehensive

Plan, but Petitioners failed to show how the Plan Amendment is

inconsistent with any provision of the Wekiva Amendments.

2 4 . Petitioners contend the Plan Amendment is inconsistent

with objectives and policies of the Comprehensive Plan that

require development to be compatible with adjacent residential

uses. Compatibility is largely a matter of the distribution of

land uses within a parcel and measures used to create natural and

artificial buffers. These are matters usually addressed when a

landowner applies for site development approval.

2 5 . Protection is provided in the Plan Amend ment for Lake

Weston and its wetlands. Petitioners did not show there are

other factors that make it impossible to make light industrial

uses on the Property compatible with adjacent residential uses.

2 6 . The preponderance of the evidence shows the Plan

Amendment is consistent with other provisions of the

Comprehensive Plan.

Urban Sprawl

2 7 . Petitioners contend the Plan Amendment promotes urban

sprawl based on the potential for more impervious surfaces and

less open space. However, this potential does n ot automatically

mean the Plan Amendment promotes urban sprawl.

2 8 . Section 163.3177(6)(a)9. sets forth thirteen factors to

be considered in determining whether a plan amendment discourages

the proliferation of urban sprawl, such as failing to maximize

th e use of existing public facilities. The Plan Amendment does

not ÐtriggerÑ any of the listed factors.

2 9 . The preponderance of the evidence shows the Plan does

not promote the proliferation of urban sprawl.

CONCLUSIONS OF LAW

Standing

30 . To have stan ding to challenge a comprehensive plan

amendment, a person must be an Ðaffected person,Ñ which is

defined in section 163.3184(1)(a) as a person owning property,

residing, or owning or operating a business within the boundaries

of the local government, and who made timely comments to the

local government regarding the amendment.

3 1 . Sharon Leichering, George Perantoni, Lori Erlacher,

Doreen Maroth, Kingswood Manor Association, Inc., and Friends of

Lake Weston and Adjacent Canals, Inc., are affected persons with

standing to initiate this proceeding.

3 2 . Because there is no evidence that Dale Dunn submitted

comments to the Town Council regarding the Plan Amendment, his

standing was not established.

3 3 . Valerie Perantoni did not make oral comments on the

Plan Amendment to the Town Council. B ecause of the privity and

identity of interests of a husband and wife recognized by the

law, and the broad standing intended by chapter 163, it is

arguable that the comments offered by her husband, George

Perantoni , should confer standing on Ms. Perantoni as if she had

addressed the Town Council to repeat what her husband said.

However, it is unnecessary to reach a conclusion on whether

Valerie Perantoni qualifies as an affected person because there

are other Petitioners w ith standing to present the same claims .

Burden and Standard of Proof

3 4 . As the challengers of the Plan Amendment, Petitioners

have the ultimate burden of persuasion.

3 5 . A person challenging a plan amendment must show that it

is not Ðin complianceÑ as that term is defined in section

163.3184(1)(b):

ÐIn complianceÑ means consistent with the

requirements of ss. 163.3177, 163.3178,

163.3180, 163.3191, 163.3245, and 163.3248,

with the appropriate strategic regional

policy plan, and with the principles for

g uiding development in designated areas of

critical state concern and with part III of

Chapter 369, where applicable.

3 6 . The Town of EatonvilleÓs determination that the Plan

Amendment is Ðin complianceÑ is presumed correct and must be

sustained if the To wnÓs determination of compliance is fairly

debatable. See § 163.3184(5)(c), Fla. Stat.

3 7 . The term Ðfairly debatableÑ is not defined in chapter

163, but the Florida Supreme Court held in Martin County v.

Yusem , 690 So. 2d 1288 (Fla. 1997) that Ð[t]he fa irly debatable

standard is highly deferential standard requiring approval of a

planning action if reasonable persons could differ as to its

propriety.Ñ Id . a t 1295.

3 8 . The standard of proof to establish a finding of fact is

preponderance of the evidence . See § 120.57(1)(j), Fla. Stat.

Data and Analysis

3 9 . Section 163.3177(1)(f) requires that all plan

amendments be based on relevant and appropriate data and an

analysis by the local government.

40 . Petitioners failed to prove that the Plan Amendment is

not based on relevant and appropriate data and analysis.

Meaningful Standards

4 1 . Section 163.3177(1) requires a comprehensive plan to

include 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.

4 2 . Petitioners failed to prove the Plan Amendment does not

establish meaningful and predictable standards.

Internal Consistency

4 3 . The elements of a comprehensive plan must be

consisten t. § 163.3177(2), Fla. Stat.

4 4 . Petitioners failed to prove the Plan Amendment would be

incons i stent with other provisions of the Town of Eatonville

Comprehensive Plan.

Urban Sprawl

4 5 . Plan amendments must discourage the proliferation of

urban sprawl. § 163.3177(6)(a)9., Fla. Stat.

4 6 . Petitioners did not prove the Plan Amendment fails to

discourage the proliferation of urban sprawl.

Summary

4 7 . The Town of EatonvilleÓs determination that the Plan

Amendment is in compliance is fairly debatable.

RECO MMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Economic Opportunity

enter a final order determining that the Plan Amendment adopted

by Eatonville Ordinance No. 2014 - 02 is in compliance .

DONE AND ENTERED this 3rd day of June , 2015 , in Tallahassee,

Leon County, Florida.

S

BRAM D. E. CANTER

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 3rd day of June , 2015 .

COPIES FURNISHED:

George Anthony Perantoni

Friends of Lake Weston

and A djacent Canals, Inc.

5800 Shasta Drive

Orlando, Florida 32810

(eServed)

Dale Dunn

5726 Shasta Drive

Orlando, Florida 32810

Lori A. Erlacher

1620 Mosher Drive

Orlando, Florida 32810

(eServed)

Sharon R. Leichering

Kingswood Manor Association, Inc.

5623 Stull Avenue

Orlando, Florida 32810

(eServed)

Doreen Lynne Maroth

5736 Satel Drive

Orlando, Florida 32810

(eServed)

Valerie Lolita Perantoni

5800 Shasta Drive

Orlando, Florida 32810

(eServed)

Debbie Franklin, City Clerk

Town of Eatonville, Florida

3 07 East Kennedy Boulevard

Eatonville, Florida 32751

Joseph Morrell, Esquire

Town of Eatonville

1310 West Colonial Drive , Suite 28

Orlando, Florida 32804

(eServed)

William Clay Henderson, Esquire

Holland and Knight, LLP

200 South Orange Avenue , Suite 2600

Orlando, Florida 32801

(eServed)

Robert N. Sechen, General Counsel

Department of Economic Opportunity

Mail Stop Code 110, Caldwell Building

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

Jesse Panuccio, Executive Director

Depar tment of Economic Opportunity

Mail Stop Code 110, Caldwell Building

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

Katie Zimmer, Agency Clerk

Department of Economic Opportunity

Mail Stop Code 110, Caldwell Building

107 East Madison Str eet

Tallahassee, Florida 32399 - 4128

(eServed)

N OTICE 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.