15-001651GM Edward Ruben Anderson vs. City Of St. Augustine Status: Closed Recommended Order on Thursday, July 16, 2015.

Summary: Petitioner failed to prove the City of St. Augustine's proposed small-scale comprehensive plan amendment was not in compliance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDWARD RUBEN ANDERSON,

Petitioner,

vs. Case No. 15 - 1651GM

CITY OF ST. AUGUSTINE,

Respondent,

and

ST. AUGUSTINE LIGHTHOUSE AND

MUSEUM, INC.,

Intervenor.

_______________________________/

RECOMMENDED ORDER

The final hearing in this case was heard on May 27, 2015, in

St. Augustine, Florida, by Bram D.E. Canter, Administrative Law

Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Edward Ruben Ande rson, p ro se

6 0 Magnolia Drive

St. Augustine, Florida 32080

For Respondent: Ralf G. Brookes, Esquire

Ralf Brookes Attorney

1217 East Cape Coral Parkway , Suite 107

Cape Coral, Florida 33904

For Intervenor: Sidney F. Ansbacher, Esquire

Upchurch, Bailey and Upchurch, P.A.

780 N orth Ponce de Leon Boulevard

St. Augustine, Florida 32084

STATEMENT OF TH E ISSUE

The issue to be determined in this case is whether the City

of St. AugustineÓs proposed amendment to its Comprehensive Plan,

adopted via Ordinance 2015 - 03, is Ðin compliance,Ñ as th a t term

is defined in section 163.3184(1)(b), Florida Statutes (20 14).

PRELIMINARY STATEMENT

On March 9, 2015, the City adopted a small - scale amendment

to the Future Land Use Map (FLUM) of the St. Augustine

Comprehensive Plan (ÐComp PlanÑ). On March 23, 2015, Edward

Anderson filed a petition to challenge the proposed a mendment.

On April 2, 2015, St. Augustine Lighthouse and Museum, Inc.,

filed a petition to intervene, which was granted.

At the final hearing, Petitioner testified on his own

behalf. PetitionerÓs Exhibits 1 through 15 were received into

evidence. Respo ndent presented the testimony of David Birchim,

City Planning and Building Department Director; and Martha

Graham, City Public Works Director. RespondentÓs Exhibits 1

through 12 were received into evidence. Intervenor presented the

testimony of its Execu tive Director, Kathy Fleming, and Mark

Knight. IntervenorÓs Exhibit 1 was received into evidence.

Official recognition was taken of the Comp Plan.

FINDINGS OF FACT

1. Petitioner is an individual who owns property and

resides in the City near the pro perty that is the subject of the

proposed amendment.

2. Respondent City of St. Augustine is a municipality in

St. Johns County, which has adopted a comprehensive plan pursuant

to chapter 163, which it amends from time to time.

3. Intervenor St. Augustin e Lighthouse and Museum, Inc., is

a not - for - profit Florida corporation, which owns approximately

6.5 acres of property located at 100 Red Cox Drive, St.

Augustine, upon which the historic St. Augustine Light Station is

located.

4. St. Johns County, which previously owned the lighthouse

property, conveyed the property to Intervenor in 2014. The

lighthouse property was zoned ÐGovernment UseÑ while the County

owned the property, which is a zoning category that requires

government ownership. When the proper ty was conveyed to

Intervenor, it became Ðnon - conformingÑ because it is now

privately owned.

5. Under the CityÓs Land Development Code , additions,

modifications, reconstruction, and repairs of non - conforming

structures and uses are restricted . These rest rictions are an

inconvenience and impediment to the periodic reconstructions and

repairs required to maintain and improve the lighthouse tower and

its associated historic structures.

6. To remove the non - conforming status of the lighthouse

property, Inter venor considered various options for rezoning the

property. The best zoning district match was determined to be

ÐMaritime UseÑ because it included Ðmaritime museumÑ among the

allowed uses. The Maritime Use zoning district is listed as an

implementing zon ing district under the future land use

designation Medium Density Residential Mixed Use in the Comp

Plan. Therefore, Intervenor applied for a small - scale (under ten

acres) comprehensive plan amendment to amend the FLUM to change

the land use designation f or the lighthouse property from

Recreation/Open Lands to Medium Density Residential Mixed Use.

7. The amendment includes a number of special limitations

that restrict the kind of development that can occur on the

lighthouse property, including: (a) limit ing the use of the

property to maritime museum; (b) maximum 20 percent lot coverage;

(c) maximum individual building footprint of 7,500 square feet;

(d) large building setbacks, including setbacks of up to 190 feet

to protect the Maritime Hammock in the so uthwestern corner of the

property and a 120 - foot - deep ÐviewshedÑ in front of the

lighthouse tower; (e) review of any development proposal by the

State Historical Preservation Officer (SHPO) and finding of Ðno

adverse effectÑ by the SHPO as a condition prec edent to any City

development approval; and (f) a reverter of title to the County

if Intervenor ceases to use the property for historic

preservation.

8. Petitioner expressed concern about the number of

properties in his neighborhood that are still on sept ic tanks.

However, whether the City should extend its sewer lines to serve

PetitionerÓs property is an issue that is irrelevant to the

validity of the proposed amendment.

9. To the extent Petitioner attempted to tie the existing

septic tanks to the issue of whether the proposed amendment is

consistent with public infrastructure provisions of the Comp

Plan, he failed to show an inconsistency. The lighthouse

property is already served by the CityÓs wastewater system.

Furthermore, the proposed amendment wo uld reduce the uses allowed

under the existing land use designation for the lighthouse

property, which reduces potential future demand on the wastewater

system.

10. Petitioner is also concerned about the lack of

sidewalks, Ðtraffic controls,Ñ and stormwat er management

capacity. However, Petitioner did not demonstrate that the

proposed amendment increases the need for sidewalks, traffic

controls, and stormwater management. The more persuasive

evidence shows the opposite, that the proposed amendment and it s

development restrictions reduce the need. For example, the

proposed amendment eliminates residential densities allowed under

the current FLUM designation.

11. There is parking provided on the lighthouse property

and visitors to the lighthouse are not a llowed to park on

adjacent streets. Signage at the lighthouse property directs

departing visitors away from PetitionerÓs neighborhood and the

nearby elementary school.

12. As an educational exhibit on the lighthouse property,

small traditional wooden boa ts have been built by volunteer

craftsmen using only hand tools. Petitioner contends this is an

industrial use, which is not allowed under the proposed land use

designation. However, construction by handcraft in this manner

is not an industrial activity. It is an appropriate use in

conjunction with a maritime museum.

CONCLUSIONS OF LAW

13. Petitioner is a resident of the City and made comments

at the adoption hearing for the proposed amendment. Therefore,

Petitioner has standing. See § 163.3184(1)(a) , Fla. Stat.

(2014).

14. Intervenor has standing to intervene in this proceeding

because it owns the property affected by the proposed amendment.

15. As the party challenging the proposed amendment,

Petitioner has the burden to prove the plan amendment i s not Ðin

compliance , Ñ as that term is defined in section 163.3184(1)(b).

16. The CityÓs determination that the proposed amendment is

in compliance is presumed to be correct and must be sustained if

the CityÓs determination of compliance is fairly debatab le. See

§ 163.3184(5)(c) 1. , Fla. Stat.

17. The term Ðfairly debatableÑ is not defined in chapter

163, but in Martin County v. Yusem , 690 So. 2d 1288, 1295 (Fla.

1997), the Supreme Court of Florida explained Ð[t]he fairly

debatable standard is a highly d eferential standard requiring

approval of a planning action if a reasonable person could differ

as to its propriety.Ñ

18. The standard of proof for findings of fact is

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

19. Section 163.3187(4) pr ovides that Ð[c]omprehensive

plans may only be amended in such a way as to preserve the

internal consistency of the plan pursuant to s. 163.3177.Ñ

Petitioner failed to prove that the proposed amendment would

cause the Comp Plan to be internally inconsiste nt.

20. Each amendment to a comprehensive plan must be based on

relevant and appropriate data and analysis. See

§ 163.3177(1)(f) , Fla. Stat. To the extent Petitioner intended

to claim that the proposed amendment is not based on appropriate

data and ana lysis he failed to prove this claim.

21. The CityÓs determination that the proposed amendment is

in compliance is fairly debatable.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of E conomic Opportunity

enter a Final Order determining that the City of St. Augustine

Plan Amendment 2015 - 03 is in compliance.

D ONE AND ENTERED this 16th day of July, 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 Administr ative Hearings

this 16th day of July , 2015 .

COPIES FURNISHED:

Edward Ruben Anderson

60 Magnolia Drive

St. Augustine, Florida 32080

(eServed)

Ralf G. Brookes, Esquire

Ralf Brookes Attorney

1217 East Cape Coral Parkway , Suite 107

Cape Coral, Florida 33 904

(eServed)

Sidney F. Ansbacher, Esquire

Upchurch, Bailey and Upchurch, P.A.

780 N orth Ponce de Leon Boulevard

St. Augustine, Florida 32084

(eServed)

Jesse Panuccio, Executive Director

Department of Economic Opportunity

Caldwell Building

107 East Mad ison Street

Tallahassee, Florida 32399 - 4128

(eServed)

Robert N. Sechen, General Counsel

Department of Economic Opportunity

Caldwell Building, MSC 110

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

Katie Zimmer, Agency Clerk

Departmen t of Economic Opportunity

Caldwell Building

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

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.