17-003286GM Ronald &Quot;Chip&Quot; Ross vs. City Of Fernandina Beach, Florida Status: Closed Recommended Order on Thursday, November 9, 2017.

Summary: The City's determination that the subject small-scale FLUM Amendments were "in compliance," is fairly debatable.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD "CHIP" ROSS,

Petitioner,

vs. Case No. 17 - 3286GM

CITY OF FERNANDINA BEACH,

FLORIDA,

Respondent.

_______________________________/

RECOMMENDED ORDER

A duly - noticed final hea ring was held in this matter in

Fernandina Beach, Florida, on August 23, 2017, before Suzanne

Van Wyk, an Administrative Law Judge assigned by the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Ronald Joseph Ross, pro se

210 North 3rd Street

Fernandina Beach, Florida 32034

For Respondent: Nicole C. Nate, Esquire

Bryant Miller Olive, P.A.

201 North Franklin Street, Suite 2700

Tampa, Florida 33602

Elizabeth W. Neiberger, Esquire

Bryant Miller Olive, P.A.

1 Southeast 3rd Avenue, Suite 2200

Miami, Florida 33131

STATEMENT OF THE ISSUE

Whether small - scale amendments to the City of Fernandina

Beach Comprehensive Plan, adopted by Ordinances 2017 - 13

and 2017 - 15 on June 6, 2017 (the ÐFLUM AmendmentsÑ), are Ðin

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

Florida Statutes (201 6 ). 1/

PRELIMINARY STATEMENT

On June 6, 2017, the City of Fernandina Beach (Ðthe CityÑ

or ÐRespondentÑ) adopted the FLUM Amendments, which change s the

FLUM category of eight parcels of property from Industrial

( Ð IND Ñ ) to Central Business District ( Ð CBD Ñ ). Together, the

parcels total less than an acre.

On June 8, 2017, Petitioner filed a Petition with the

Division of Administrative Hearings (ÐDivisionÑ) challenging the

FLUM Amendments a s internally inconsistent with the CityÓs

adopted Comprehensive Plan, not based on relevant and

appropriate data and analysis, and other grounds alleged to

violate the Community Planning Act, chapter 163, Part II,

Florida Statutes. Following a telephonic hearing and the

undersignedÓs ruling on RespondentÓs Motion to Dismiss or Strike

Portions of Petition , Petitioner filed a Second Amended

Petition, which is referred to hereinafter as Ð the Petition. Ñ

The case was originally set for hearing on August 8 and 9,

2017, but was subsequently rescheduled to August 23 and 24,

2017, following ruling on a number of motions related to

discovery disputes. The final hearing commenced and concluded

on August 23, 2017.

At the final hearing, the partiesÓ Joint Exhibits J1

through J5 were admitted in evidence. Petitioner offered the

testimony of Greg Roland, former Mayor and City Council member,

and introduced the deposition testimony of Marshall McCrary, the

CityÓs Community Development Director. PetitionerÓs Exhibits P2

through P14 were admitted in evidence. 2/

Respondent offered the deposition testimony of Kelly

Gibson, the CityÓs Senior Planner. RespondentÓs Exhibits R1

through R3, R7 through R9, and R15 were admitted in evidence.

N either party offered any live exper t witness testimony at the

final hearing.

A one - volume Transcript of the proceedings was filed on

August 25, 2017. The undersigned granted PetitionerÓs Motion

for Extension of Time to Submit Proposed Recommended Orders

until September 18, 2017. The under signed subsequently extended

the deadline again, sua sponte , in conjunction with an Order

dated September 15, 2017, reversing certain evidentiary rulings.

Both parties timely filed Proposed Recommended Orders. On

October 17, 2017, Respondent filed a Motio n to Strike Portions

of PetitionerÓs Proposed Recommended Order, to which Petitioner

filed a timely response. The undersigned granted the Motion on

October 23, 2017, striking portions of RespondentÓs Proposed

Recommended Order as beyond the scope of the P etition and the

Prehearing Stipulation. Otherwise, the partiesÓ Proposed

Recommended Orders have been considered in preparing this

Recommended Order.

Acceptance of Expert Witnesses

In the pre - hearing stipulation, the City identified both

Kelly Gibson and Marshall McCrary as expert witnesses. Neither

witness testified at the final hearing. Having reviewed the

deposition transcripts , and exhibits thereto, of both witnesses,

the undersigned accepts both Ms. Gibson and Mr. McCrary as

experts in land use pla nning.

FINDING S OF FACT

The Parties and Standing

1. Petitioner, Ronald Ross, resides and owns property

within the City. Mr. Ross submitted written comments concerning

the FLUM Amendments to the City during the period of time

beginning with the transmitt al hearing for the FLUM Amendments

and ending with the adoption of same.

2. Respondent is a Florida municipal corporation with the

duty and authority to adopt and amend a comprehensive plan,

pursuant to section 163.3167, Florida Statutes (2017).

The Sub ject Properties

3. Together the FLUM Amendments affect eight contiguous

parcels located at the corner of North 2nd Street and Broome

Street, which runs perpendicular to, and dead ends at, North

Front Street, the CityÓs historic waterfront. The subject

p roperties are located two blocks east of North Front Street.

4. The structure at 211 Broome Street is an existing

single - family home built circa 1900.

5. The structure at 205 Broome Street is a vacant single -

family home built circa 1900.

6. The parce l at 224 North 2nd Street contains a multi -

family structure.

7. The remaining parcels are vacant and undeveloped.

8. The Amendments are owner - initiated.

Existing Conditions

9. Residential uses are not allowed in the IND land use

category. As such, th e residential uses on the subject parcels

are non - conforming to the regulations for that category.

10. The residential us es at 211 Broome Street and

224 North 2nd Street are ÐgrandfatheredÑ from the prohibition on

residential uses, and are allowed to con tinue as non - conforming

uses until such time as any one of a number of criteria are met.

Significant redevelopment of the structure would trigger the

requirement to conform to allowable uses.

11. The residential structure at 205 Broome Street is

vacant, in disrepair, and cannot be redeveloped for a

residential use in the IND category.

The FLUM Amendments

12. The FLUM Amendments change the FLUM category for each

of the eight parcels from IND to CBD.

13. The purpose of the IND land use category is to

Ð recognize the existing industrial development, appropriate open

air recreation activities, and the animal shelter, and to ensure

the availability of land for industrial and airport purposes.Ñ

14. Industrial uses include Ðairport dependent uses,

manufactu ring, assembling and distribution activities;

warehousing and storage activities; green technologies, general

commercial activities; integral airport related support services

such as rental car facilities, parking facilities; and other

similar land uses.Ñ

15. The CBD category is designed to Ðaccommodate single -

family or duplex residential uses, either Òstand aloneÓ or in a

mixed residential and business structures; offices; commercial

retail; personal service establishments; restaurants; transient

accommo dations; commercial parking facilities; civic uses; and

cultural uses.Ñ The CBD allows other uses, such as indoor

recreat ion, multi - family, marinas, day care centers, and

educational facilities, subject to certain conditions.

16. The maximum density o f r esidential uses in CBD is

34 units per acre (34/acre).

17. The maximum intensity of non - residential uses in both

IND and CBD is a floor area ratio ( Ñ FAR Ñ ) of 2.0.

The Community Redevelopment Area

18. All of the subject properties are located within the

CityÓs Waterfront Area Community Redevelopment Area ( Ð Waterfront

Area CRA Ñ ).

19. Section 163.360, Florida Statutes, authorizes local

governments to undertake community redevelopment projects in

areas designated as slum or blighted, or areas with a short age

of affordable housing. The local government must first adopt,

by resolution, findings that slum, blight, or inadequate housing

exists. See § 1 6 3.355, Fla. Stat. Following adoption of this

ÐFinding of Necessity ,Ñ the local government, or community

re development agency, may adopt a community redevelopment plan

for the area, following review and comment by the local planning

agency, and an advertised public hearing.

20. Once a community redevelopment area ( Ð CRA Ñ ) is

designated, the local government ma y issue redevelopment revenue

bonds; approve investments, acquisitions, demolition, removal,

or disposal of property in the area; approve community policing

innovations; and exercise the power of eminent domain.

21. The statute provides a financial benef it for CRAs

known as tax increment financing, or Ð TIF. Ñ The incremental

increase in ad valorem val ue of properties within the CRA,

derived from investment in the CRA, must be deposited in a trust

fund established by the local government. TIF revenues may only

be utilized for redevelopment projects within the CRA boundary.

22. The City adopted a ÐFinding of NecessityÑ to establish

a CRA in 2004. The City found the following statutorily -

enumerated blighted conditions in its waterfront district:

inadequa te street layout and parking facilities ; unsanitary or

unsafe conditions ; deterioration of site and other improvements ;

and inadequate and outdated building density patterns.

23. In June 2004, the City established the Waterfront Area

CRA including the ma rina, shrimping and seafood processing area,

and adjacent residential areas, including the subject

properties. The total acreage of the Waterfront Area CRA is

37.364 acres.

24. In its 2005 resolution approving the Waterfront Area

CRA Redevelopment Plan (Redevelopment Plan) , the City found,

ÐThe Plan will afford maximum opportunity, consistent with the

sound needs of the municipality as a whole, for the

rehabilitation or redevelopment of the Area by private

enterprise.Ñ

Challenges to the Plan Amendments

Internal Inconsistency

25. Petitioner first challenges the FLUM Amendments as

inconsistent with Housing Element Policy 3.01.01, which reads as

follows:

The City shall perform a housing needs

assessment by December 2013. Information

contained in the ass essment should include,

but not be limited to, information regarding

housing trends; the number, type and

condition of existing housing units;

identification of substandard housing units;

the number and types of housing units needed

in the future for all i ncome ranges based on

growth projections; and shortages and/or

deficiencies in the existing housing stock.

The housing needs assessment should be

updated a minimum of every five (5) years.

26. It is an undisputed fact that the City has not

conducted t he housing needs assessment mandated by the subject

policy.

27. Petitioner maintains that the FLUM Amendments, which

allow the subject properties to be developed (or, redeveloped,

as the case may be) for residential densities as high as

34/acre, conflict with the policy.

28. PetitionerÓs argument on this point is essentially

that the FLUM Amendments are not supported by relevant data and

analysis in the form of the assessment called for in the policy.

That argument is separate and apart from the issue of whether

the FLUM Amendments create an internal inconsistency with the

policy.

29. The cited policy does not prohibit the City from

adopting any plan amendment until the assessment is completed.

30. Petitioner presented no expert witness testimony

regard ing internal inconsistency between the FLUM Amendments and

the cited policy.

31. The record does not support a finding that the FLUM

Amendments are inconsistent with Housing Element Policy 3.01.01.

32. Petitioner next contends the FLUM Amendments are

inc onsistent with Housing Element Policy 3.02.08, which reads as

follows:

The City shall establish a City - wide

neighborhood planning program to encourage

the stabilization and preservation of

residential areas throughout the City and

strengthen linkages betwe en neighborhoods

and City government.

33. The parties stipulated that the City has not

implemented the neighborhood planning program called for in the

policy.

34. PetitionerÓs argument on this point is that without

the neighborhood planning program, t he City cannot assess the

impact of the FLUM Amendments on the medium density residential

neighborhood to the east of the subject properties. 3/

35. The policy in question does not prohibit the City from

adopting plan amendments until the neighborhood plan ning program

is implemented.

36. Petitioner introduced no expert witness testimony

regarding internal inconsistency between the FLUM Amendments and

the cited policy.

37. The evidence does not support a finding that the FLUM

Amendments are inconsistent wi th Housing Element Policy 3.02.08.

Data and Analysis

38. PetitionerÓs last argument is the FLUM Amendments are

inconsistent with section 163.3177(1)(f), which requires as

follows:

All . . . plan amendments shall be based

upon relevant and appropriate data and an

analysis by the local government that may

include, but not be limited to, surveys,

studies, community goals and vision, and

other data available at the time of adoption

of the . . . plan amendment.

39. The CityÓs Senior Planner, Kelly Gibson, te stified in

deposition that the FLUM Amendments are supported by the

Findings of Necessity supporting creation of the Waterfront Area

CRA, the Redevelopment Plan, and the historic development

patterns of the Waterfront Area CRA.

40. One of the CityÓs stat ed purposes of creating the

Waterfront Area CRA is to Ðafford maximum opportunity,

consistent with the sound needs of the municipality as a whole,

for the rehabilitation or redevelopment of the Area by private

enterprise.Ñ

41. Applicants for the change i n land use designation of

205 and 211 Broome Street seek to redevelop the deteriorated

residential structure at 211 Broome Street. The applicants will

not invest in redevelopment of the property under the IND

designation because that designation prohibits residential uses.

The FLUM Amendment s will encourage redevelopment by allowing the

applicants to invest in the dilapidated structure . Further, the

FLUM Amendments afford the applicants more flexibility in

development of the vacant lots because , while t h e IND land use

category is limited to the uses described in paragraph 14,

above , the CBD category allows single - family and duplex

residential uses, offices , commercial retail , personal service

establishments , restaurants , transient accommodations ,

commerci al parking facilities , civic uses , and cultural uses.

42. The applicants for change in the land use designation

of properties located at 224 North 2nd Street , and the adjoining

vacant lots , seek to reinvest in the existing non - conforming

multi - family res idential structure . The FLUM Amendments

encouragement redevelopment by allowing the reinvestment sought

by the applicants. Likewise, the FLUM Amendments provide

flexibility for infill development of the adjoining vacant lots.

43. The Redevelopment Plan includes initiatives and

programs for the Waterfront and ÐTransitional Areas.Ñ The

subject properties are located within a Transitional Area of the

Waterfront Area CRA.

44. One of the purposes of the Redevelopment Plan is to

Ðencourage opportunities fo r new development by allowing a

broader mix of uses in the . . . transitional areas[.]Ñ

Further, the Plan states, ÐIt is critical that the strategies

are prioritized to initiate growth of tax increment revenues to

the Agency Î a primary or seed funding so urce for many of the

redevelopment efforts identified in this Plan.Ñ

45. Objective 2 of the Redevelopment Plan is to promote a

mix of uses within the CRA. This section states, ÐThe existing

Future Land Use and Zoning designations along the waterfront and

adjacent areas limit the type of allowable uses to industrial

uses. Such limitations may be a primary impediment to

redevelopment of the CRA.Ñ The Redevelopment Plan further

states, Ð[T]he City should take a proactive position in

accommodating a broader mix of uses with design controls.Ñ

46. The CBD category allows a broader m ix of uses tha n the

IND category. See paragraphs 14 and 15, above.

47. Further, the FLUM Amendments remove the impediment to

redevelopment of the subject properties created by th e

prohibition on residential uses in the IND category.

48. Petitioner elicited testimony from the CityÓs experts

that there are minimal differences between the uses allowed

within the existing zoning category of the subject properties

and the zoning cat egory sought under the applicantÓs concurrent

rezoning request.

49. Petitioner proved that the uses allowed within the CBD

zoning category, which are not allowed in the existing I - 1

(Light Industrial), are residential, daycare centers, group

homes, and bed and breakfast inns.

50. The issue in this case is not the breadth of the

zoning category, but that of the FLUM category. 4/

51. The FLUM Amendments are supported by both the Findings

of Necessity establishing, and the Redevelopment Plan for, the

Waterfront Area CRA. 5/

52. Finally, Petitioner points to Future Land Use (FLU)

Policy 1.07.10 to support his argument that the FLUM Amendments

are not supported by data and analysis.

53. FLU Policy 1.07.10 reads, in pertinent part, as

follows:

f. A prop osed amendment to the FLUM to

increase the land area within the Central

Business District land use category shall

demonstrate the suitability of the proposed

site based on:

1. The need for additional land area within

the Central Business District land us e

category;

2. Consistency of the land area with the

characteristics of the Central Business

District; and

3. Consistency of the land area with the

characteristics of the downtown.

54. Petitioner presented the lay testimony of former City

Mayor and C ouncilman Greg Roland, distinguishing the location

and characteristics of the downtown and the CBD from those of

the subject properties. In the same vein, Petitioner grilled

both Ms. Gibson and Mr. McCrary in deposition regarding what

data and analysis su pport a need for additional land in the CBD .

55. The testimony and other evidence regarding this policy

was largely irrelevant because Petitioner did not allege, in

either his Petition or the pre - hearing stipulation, that the

FLUM Amendments were interna lly inconsistent with FLU

Policy 1.07.10.

56. The testimony regarding compliance with FLU

Policy 1.07.10 was relevant to PetitionerÓs contention that the

FLUM Amendments are not based on relevant and appropriate data.

However, as explained below, the is sue is whether the FLUM

Amendments are supported by data available at the time the

amendments were adopted, not whether non - existent data may be

contrary to the amendments.

57. Petitioner did not prove beyond fair debate that the

FLUM Amendments are not based upon relevant and appropriate data

and analysis in violation of section 163.3177(1)(f).

CONCLUSIONS OF LAW

58. The Division of Administrative Hearings has

jurisdiction over the subject matter and parties hereto pursuant

to sections 120.569, 120.57(1 ), and 163.3187, Florida Statutes.

59. To have standing to challenge or support a plan

amendment, a person must be an Ðaffected person,Ñ as defined in

section 163.3184(1)(a).

60. Petitioner is an affected person within the meaning of

the statute.

61. ÐI n complianceÑ means Ðconsistent with the

requirements of §§ 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 guiding development in

designated areas of critical state concern and with part III of

chapter 369, where applicable.Ñ £ 163.3184(1)(b), Fla. Stat.

62. The standard of proof to establish a finding of fact

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

Stat.

63. The FLUM Amendments shall be determined to be in

compliance if the local governmentÓs determination that the

small scale amendment is in compliance is Ðfairly debatable.Ñ

See § 163.3187(5)(a), Fla. Stat.

64. The Ðfairly debatableÑ standard, which provides

deference to the local gov ernmentÓs disputed decision, applies

to any challenge filed by an affected person. Therefore,

Petitioner bears the burden of proving beyond fair debate that

the challenged FLUM Amendments are not in compliance. This

means that Ðif reasonable persons coul d differ as to its

propriety,Ñ a plan amendment must be upheld. Martin Cnty. v.

Yusem , 690 So. 2d 1288, 1295 (Fla. 1997).

Internal Inconsistency

65. Based on the foregoing Findings of Fact, Petitioner

did not prove beyond fair debate that the FLUM Amend ments are

inconsistent with Housing Element Policies 3.01.01 and 3.02.08.

While the cited policies require the City to conduct a housing

needs assessment and establish a neighborhood planning program,

respectively, neither policy prohibits the City from ad opting

FLUM amendments until the assessment is complete or the program

is initiated.

66. Petitioner argued, based on the deposition testimony

of Mr. McCrary, that a housing needs assessment would provide

data relevant to the availability of affordable ho using and

shortages and deficiencies in the existing housing stock.

Petitioner apparently believes the City must undertake the

assessment in order to have appropriate data to support this, or

any future, plan amendment authorizing additional residential

de velopment. To this extent, PetitionerÓs arguments on internal

inconsistency and adequate data and analysis overlap.

67. PetitionerÓs contention is inaccurate. The local

government is not required to undertake original data

collection. See § 163.3177(1) (f)2., Fla. Stat. Local

government plan amendments must be supported data Ðavailable on

that particular subject at the time of adoption of the . . .

plan amendment at issue.Ñ The fact that better data may be

available to the City after it conducts a hous ing assessment is

irrelevant to whether the subject FLUM Amendments are supported

by relevant and appropriate data, pursuant to 163.3177(1)(f).

Data and Analysis

68. Section 163.3177(1)(f) requires plan amendments to be

Ðbased upon relevant and appropria te data and analysisÑ by the

local government, and includes Ðsurveys, studies, community

goals and vision, and other data available at the time of

adoption.Ñ

69. The FLUM Amendments are supported by the data

collected and analysis provided in the Findi ngs of Necessity to

establish the Waterfront Area CRA , as well as the Redevelopment

Plan.

70. Petitioner did not challenge as professionally

unacceptable either the sources of data or analytical

methodologies underpinning the CRA. Petitioner presented n o

relevant acceptable data or analysis which contradicted the

CityÓs adoption of the FLUM Amendments.

71. Based upon the foregoing Findings of Fact, Petitioner

did not prove beyond fair debate that the FLUM Amendments are

not based on relevant and appropr iate data and analysis as

required by 163.3177(1)(f).

72. For the reasons stated above, Petitioner has not

proven beyond fair debate that the FLUM Amendments are not Ðin

complianceÑ with the specified provisions of chapter 163,

Florida Statutes.

RECOMMEND ATION

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 City of

Fernandina Beach Comprehensive Plan Amendments adopted by

Ordinances 2017 - 1 3 and 2017 - 15 on June 6, 2017 , are Ðin

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

Florida Statutes (2017).

DONE AND ENTERED this 9 th day of November , 2017 , in

Tallahassee, Leon County, Florida.

S

SU ZANNE VAN WYK

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 Ad ministrative Hearings

this 9 th day of November , 2017 .

ENDNOTE S

1/ Except as otherwise provided herein, all references to the

Florida Statutes are to the 2016 version, which was in effect

when the FLUM Amendments were adopted.

2/ At the final hearing , the undersigned excluded PetitionerÓs

Exhibits P3, P4, P5, P10, and P12. Those rulings were reversed

by Order dated September 15, 2017.

3/ To the extent PetitionerÓs Proposed Recommended Order

suggests that the FLUM Amendments may destabilize or other wise

negatively impact the adjoining neighborhood, that argument is

not within the scope of this proceeding. Petitioner did not

allege in the Petition that the FLUM Amendments are incompatible

with the existing adjoining development.

4/ Assuming, arguen do, the specific zoning category sought were

at issue, the City proved the CBD zoning category is, indeed,

broader than the existing I - 1 category.

5/ Ms. GibsonÓs deposition testimony that the FLUM Amendments

were supported by the historical development pattern of the area

as evidenced by the Sanborn maps, consisted of a single

statement to that affect. Because Ms. GibsonÓs testimony was

not offered at hearing, her opinion on this issue was not

further developed. There is insufficient record evidence to

find that the FLUM Amendments are supported by the historic

pattern of development as reflected in the Sanborn maps.

COPIES FURNISHED:

Elizabeth W. Neiberger, Esquire

Bryant Miller Olive, P.A.

Suite 2200

1 Southeast 3rd Avenue

Miami, Florida 33131

(eS erved)

Ronald Joseph Ross

210 North 3rd Street

Fernandina Beach, Florida 32034

(eServed)

Nicole C. Nate, Esquire

Bryant Miller Olive , P.A.

Suite 2700

201 North Franklin Street

Tampa, Florida 33602

(eServed)

Peter Penrod, General Counsel

Department of Economic Opportunity

Caldwell Building, MSC 110

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

Stephanie Chatham, Agency Clerk

Department of Economic Opportunity

Caldwell Building

107 East Madison Street

Tallahassee, Florida 32399 - 41 28

(eServed)

Cissy Proctor, Executive Director

Department 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 excep tions 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.