17-005082 Moore Pond Homeowners Association, Inc.; And Ox Bottom Manor Community Association, Inc. vs. Golden Oak Land Group, Llc; And Leon County, Florida Status: Closed Recommended Order on Tuesday, December 26, 2017.

Summary: Petitioners failed to prove the proposed residential development was inconsistent with the Comprehensive Plan of Land Development Code provisions that require compatibility.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MOORE POND HOMEOWNERS

ASSOCIATION, INC. ; AND OX BOTTOM

MANOR COMMUNITY ASSOCIATION,

INC.,

Petitioners,

vs. Case No. 17 - 5082

GOLDEN OAK LAND GROUP, LLC ; AND

LEON COUNTY, FLORIDA,

Respondent s .

____________ ___________________/

RECOMMENDED ORDER

The quasi - judicial hearing in this case was held on

November 9, 2017, in Tallahassee, Florida, before Bram D.E.

Canter, Administrative Law Judge of the Division of

Administrative Hearings (ÐDOAHÑ), acting as the Special Master

under section 10 - 7.414 of the Leon County Land Development Code.

APPEARANCES

For Petitioner s : Jeremy V incent Anderson, Esquire

Justin J ohn Givens, Esquire

Anderson & Givens, P.A.

168 9 Mahan Center Boulevard , Suite B

Tallahassee, Florida 32308

For Respondent Leon County:

Gregory T homas Stewart, Esquire

Carl e y J. Schrader, Esquire

Kerry A n ne Parsons, Esquire

Nabors, Giblin & Nickerson, P.A.

1500 Mahan Drive, Suite 200

Tallahassee, Florida 32308

For Respondent Golden Oak Land Group, LLC:

Gary K. Hunter, Jr., Esquire

Erin J. Tilton, Esquire

Hopping Green & Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 3231 4

STATEMENT OF THE ISSUE

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

County De velopment Review CommitteeÓs preliminary conditional

approval of a site and development plan for the Brookside

Village Residential Subdivision is consistent with the

Tallahassee - Leon County 2030 Comprehensive Plan (ÐComp PlanÑ)

and the Leon County Land Dev elopment Code (ÐCodeÑ).

PRELIMINARY STATEMENT

On August 18, 2017, the Development Review Committee issued

a letter which conditionally approved the site and development

plan submitted by Golden Oak Land Group, LLC (ÐGolden OakÑ) for

the Brookside Village R esidential Subdivision, a single - family

residential subdivision to be located on the north side of Ox

Bottom Road in Leon County (ÐProjectÑ). The Project followed

the ÐType BÑ review, which provides for concurrent land use and

environmental permitting app roval. On September 15, Moore Pond

Homeowners Association, Inc., and Ox Bottom Manor Community

Association, Inc. (ÐPetitionersÑ) filed a joint petition

challenging the Development Review CommitteeÓs preliminary

approval as inconsistent with certain provis ions of the Comp

Plan and Code.

Pursuant to a contract between DOAH and Leon County, the

County sent the matter to DOAH to appoint a Special Master and

conduct a quasi - judicial hearing. A notice of the hearing was

provided in accordance with section 10 - 7. 414(J)(ii) of the Code.

At the hearing held on November 9, the partiesÓ Joint

Exhibits 1 through 35 were admitted into evidence. Petitioners

presented the testimony of Jan Norsoph, an expert in

comprehensive planning and zoning. PetitionersÓ Exhibit 1 wa s

admitted into evidence. Respondent Golden Oak presented the

testimony of: Sean Marston, an expert in civil engineering; and

Wendy Grey, an expert in comprehensive planning and zoning.

Respondent Leon County presented the testimony of: Shawna

Martin, Principal Planner with the Leon County Department of

Development Support and Environmental Management, an expert in

land use planning and zoning; and Susan Poplin, Principal

Planner with the Tallahassee - Leon County Planning Department, an

expert in compreh ensive planning. RespondentsÓ Exhibits 1 - 5,

7 - 12, and 16 were admitted into evidence.

At the hearing, an opportunity was provided to receive

comments from the public. Three persons offered comments in

opposition to the Project: Moore Pond residents Ale x Nakis and

Gene Sherron, and Ox Bottom Manor resident Mark Newman. A copy

of this Recommended Order is being sent to these three persons.

The Transcript of the hearing was filed with DOAH. The

parties submitted proposed recommended orders that were

cons idered in the preparation of this Recommended Order.

FINDING S OF FACT

The Parties

1. Petitioner Moore Pond Homeowners Association, Inc.

(ÐMoore PondÑ) , is a Florida not - for - profit corporation whose

members are residents of Moore Pond, a single - family subd ivision

bordering the Project to the east.

2. Petitioner Ox Bottom Manor Community Association, Inc.

(ÐOx Bottom ManorÑ ) , is a Florida not - for - profit corporation

whose members are residents of Ox Bottom Manor, a single - family

residential subdivision borde ring the Project to the west.

3. Respondent Golden Oak is a Florida limited liability

company. Golden Oak is the applicant for the Project and the

owner of the property on which the Project will be developed.

4. Respondent Leon County is a political sub division of

the State of Florida, and has adopted a comprehensive plan that

it amends from time to time pursuant to chapter 163, Florida

Statutes.

Land Use Designations

5. The Project is located on land that is designated as

Residential Preservation on th e Future Land Use Map of the Comp

Plan, and is in the Residential Preservation zoning district

established in the Code. Residential Preservation is described

in both as Ðexisting homogeneous residential areasÑ that should

be protected from Ðincompatible l and use intensities and density

intrusions.Ñ

6. Policy 2.2.3 of the Future Land Use Element (ÐFLUEÑ) of

the Comp Plan permits residential densities within Residential

Preservation of up to six dwelling units per acre (Ðdu/aÑ) if

central water and sewer se rvices are available. Central water

and sewer services are available in this area of the County.

7. The Project is located within the Urban Services Area

established by the FLUE, which is the area identified by the

County as desirable for new development based on the

availability of existing infrastructure and services.

The Project

8. The Project is a 61 - lot, detached single - family

residential subdivision on a 35.17 - acre parcel. To avoid

adverse impacts to approximately 12 acres of environmentally

sensi tive area in the center of the property, the Project places

the single - family lots on the periphery of the property with

access from a horseshoe - shaped street that would be connected to

Ox Bottom Road. The environmentally sensitive area would be

maintaine d under a conservation easement.

9. The ÐclusteringÑ of lots and structures on uplands to

avoid environmentally sensitive areas is a common practice in

comprehensive planning. The Comp Plan en courage s clustering or

ÐcompactÑ development to protect envir onmentally sensitive

features.

10. The Project would include a 25 - foot vegetative buffer

around most of the perimeter of the property. There is already

a vegetative buffer around a majority of the property, but the

vegetative buffer will be enhanced to a chieve 75 percent opacity

at the time of additional planting and 90 percent opacity within

five years. The buffers would include a berm and privacy fence.

The proposed buffers exceed the requirements in the Code.

11. In the course of the application and review process

for the Project, Golden Oak made changes to the site and

development plan to address concerns expressed by residents of

the neighboring subdivisions. These changes included an

increase in lot sizes abutting lots within Moore Pond and Ox

Bo ttom Manor; a reduction in the number of lots from 64 to 61;

and an expansion and enhancement of buffers.

12. In addition, Golden Oak revised the proposed covenants

and restrictions for the Project to incorporate minimum square

footage requirements and to prohibit second - story, rear - facing

windows on homes abutting lots in Moore Pond and Ox Bottom

Manor.

13. The Development Review Committee approved the Project,

subject to the conditions outlined in the staff report and an

additional condition regarding b uffers.

Compatibility

14. Petitioners contend the Project would be incompatible

with adjacent residential uses in Moore Pond and Ox Bottom Manor

and, therefore, the Project should be denied because it violates

the provisions of the Comp Plan and Code that require

compatibility. Petitioners rely mainly on FLUE Policy 2.2.3,

entitled ÐResidential Preservation,Ñ which states that

ÐConsistency with surrounding residential type and density shall

be a major determinant in granting development approval.Ñ

Althou gh Moore Pond and Ox Bottom Manor are also designated

Residential Preservation, Petitioners claim the Project would be

incompatible because of the differences in development type and

density.

15. The Project is the same development type (detached ,

single - family) and density (low density, 0 - 6 du/a) as the

surrounding development type and density.

16. Petitioners assert that the Project is a different

development type because it is Ðcluster housing.Ñ Cluster

housing is not a development type. Clustering i s a design

technique. The clustering of detached, single - family houses

does not change the development type, which remains detached,

single - family.

17. Petitioners object to the density of the Project of

1.73 du/a, but their primary concern is with the P rojectÓs Ðnet

densityÑ or the density within the development area (outside of

the conservation easement). Most of the lots in the Project

would be about 1/8 to 1/4 of an acre, with the average lot size

being 0.26 acres. In contrast, the lots in Moore Pon d range

from 1.49 to 12.39 acres, with the average size being 3.08

acres. The lots in Ox Bottom Manor range from .53 acres to 0.96

acres, with the average size being 0.67 acres.

18. There is also a significant difference in lot coverage

between the Proje ct and the two adjacent subdivisions.

19. The witnesses for the County and Golden Oak never

acknowledged the reasonableness of PetitionersÓ claim of

incompatibility or the notion that owners of large houses on

large lots would object to having on their bo rder a row of small

houses on small lots. However, the objection of Moore Pond and

Ox Bottom Manor residents was foreseeable.

20. The gist of the arguments made by Oak Pond and the

County is that the Project is compatible as a matter of law.

Respondents demonstrated that the applicable provisions of the

Comp Plan and Code, as interpreted by the County, treat a

proposed Residential Preservation development as compatible with

existing Residential Preservation developments. Put another

way: a low density, detached single - family development is

deemed compatible with existing low density, detached single -

family developments. No deeper analysis is required by the

County to demonstrate compatibility.

21. PetitionersÓ claim of incompatibility relies

principal ly on FLUE Policy 2.2.3(e), which states in part:

At a minimum, the following factors shall be

considered to determine whether a proposed

development is compatible with existing or

proposed low density residential uses and

with the intensity, density, and scale of

surrounding development within residential

preservation areas: proposed use(s);

intensity; density; scale; building size,

mass, bulk, height and orien tation; lot

coverage; lot size/ configuration;

architecture; screening; buffers, including

vegetat ive buffers; setbacks; signage;

lighting; traffic circulation patterns;

loading area locations; operating hours;

noise; and odor.

22. Petitioners attempted to show that the application of

these factors to the Project demonstrates it is incompatible

with Moore Pond and Ox Bottom Manor.

2 3 . However, Policy 2.2.3 also sets forth guiding

principles for protecting existing Residential Preservation

areas from other types of development on adjoining lands. No

guidelines are include d for protecting Residential Preservation

areas from proposed low density residential development. The

County asserts that this reflects the CountyÓs determination

that low density residential development is compatible with

existing Residential Preservation areas and, therefore, Poli cy

2.2.3 does not require that the Project be reviewed using the

listed compatibility factors.

2 4 . The County showed that its interpretation of FLUE

Policy 2.2.3 for this proceeding is consistent with its past

practice in applying the policy.

2 5 . Respond ents also point to Table 6 in FLUE

Policy 2.2.26, which is a Land Use Development Matrix which

measures a parcelÓs development potential based on certain land

use principles contained in the FLUE, including the parcelÓs

potential compatibility with surroun ding existing land uses.

The Matrix shows that a proposed low density residential land

use Ðis compatible/allowableÑ in the Residential Preservation

land use category.

2 6 . Petitioners argue that the Project is incompatible,

using the definition of Ðcomp atibilityÑ in section 163.3164(9),

Florida Statutes:

ÐCompatibilityÑ means a condition in which

land uses or conditions can coexist in

relative proximity to each other in a stable

fashion over time such that no use or

condition is unduly negatively impacte d

directly or indirectly by another use or

condition.

27. Petitioners contend the Project would unduly

negatively impact Moore Pond and Ox Bottom Manor. Respondents

contend it would not. However, as explained in the Conclusions

of Law, this defini tion in chapter 163 is not an extra criterion

for approving or denying the Project.

2 8 . Without abandoning their argument that Policy 2.2.3

does not require a compatibility analysis for the Project, both

Golden Oak and the County performed compatibility a nalyses

because of the objections raised by adjacent residents.

2 9 . Golden OakÓs expert planner analyzed compatibility on

a larger scale by looking at subdivisions within a quarter - mile

radius of the Project site. She found a range of densities and

lot s izes, including one subdivision with a higher density and

smaller lot size. However , nothing in Policy 2.2.3 or the other

provisions of the Comp Plan suggests that the incompatibility of

a proposed development with an existing, adjoining development

is pe rmissible if the proposed development is compatible with

another development within a quarter of a mile. Still, her

analysis showed the CountyÓs past practice in interpreting and

applying the relevant provisions of the Comp Plan and

Consistency Code is co nsistent with the CountyÓs position in

this proceeding.

30 . RespondentsÓ compatibility analyses were based in part

on legal factors. For example, it was explained that under the

Comp Plan, residential density is always applied as gross

density rather tha n net density. This policy is reasonable

because it encourages clustering and compact development which

helps to achieve important objectives of the Comp Plan, such as

the protection of sensitive environmental features. However, it

does not follow that b ecause clustering has benefits, it cannot

cause incompatibility.

3 1 . Clustering is a well - established growth management

technique , despite the fact that clustering can cause some

adverse impacts when it increases densities and intensities on

the border wi th adjoining land uses. Such impacts are addressed

with buffer requirements. This approach strikes a reasonable

balance of the Comp PlanÓs goals, objectives, and policies. If

the buffer requirements are inadequate, as Petitioners claim,

that is an issue that cannot be addressed here.

3 2 . Petitioners also contend the Project is inconsistent

with sections of the Code that require compatibility. For

example, s ection 10 - 6.617 pertains to the Residential

Preservation zoning district and states that, ÐCompat ibility

with surrounding residential type and density shall be a major

factor in the authorization of development approval.Ñ

S ection 10 - 7.505(1) provides that each development shall be

designed to Ðbe as compatible as practical with nearby

development and characteristics of land.Ñ

3 3 . These general statements in the Code are implemented

through the more specific requirements in the Code for proposed

new developments. Petitioners did not demonstrate that the

Project is inconsistent with any of the specific requirements of

the Code for the reasons already discussed.

3 4 . The County showed that its interpretations of

section 10 - 7.617 and section 10 - 7.505(1) for this proceeding are

consistent with its past practice in applying these provisions.

Summary

3 5 . Compatibility for purposes of land use determinations

is not in the eye of the beholder, but is determined by law.

The CountyÓs growth management laws incorporate professional

planning principles and use development techniques and density

ranges, which provide flexibility in achieving important

objectives, such as environmental protection. The focus is not

on lot - to - lot differences, but on maintaining stable communities

and neighborhoods.

3 6 . The preponderance of the evidence, which includes the

CountyÓs past interpretation of, and practice in applying, the

compatibility provisions of the Comp Plan and Code, demonstrates

that the Project is consistent with all requirements for

approval.

CONCLUSIONS OF LAW

Jurisdiction

3 7 . DOAH has jurisdiction ov er the parties to and the

subject matter of this proceeding pursuant to section 10 - 7.414

of the Code.

3 8 . Petitioners raised no issues regarding the procedures

followed by the County for the decision under review, including

public notice.

Burden and Stan dard of Proof

3 9 . The burden is on the applicant for site plan approval

to demonstrate that the application complies with the procedural

requirements of the applicable ordinance and that the use sought

is consistent with the applicable provisions of the C omp Plan

and Code. See , e.g. , Alvey v. City of N . Miami Bch. , 206 So. 3d

67, 73 (Fla. 3d DCA 2016) ( citing Bd. of Cnty. CommrÓs of

Brevard Cnty. v. Snyder , 27 So. 2d 469, 472 (Fla. 1993) ) .

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

is prepo nderance of the evidence. § 120.57(1)(j), Fla. Stat.

(2017).

Consistency with the Comp Plan

4 1 . Under section 10 - 7.414(J)(vii) of the Code, the

standard of review to be applied by the Special Master in

determining whether the Project is consistent with t he Comp Plan

is Ðstrict scrutiny in accordance with Florida law.Ñ Strict

scrutiny in this context means strict compliance with the Comp

Plan, based on the document as a whole. See Snyder , 2 7 S o. 2d ,

at 475; Arbor Props. v. Lake Jackson Prot. Alliance , 51 So. 3d

502, 505 (Fla. 1st DCA 2010); § 163.3194(4)(a), Fla. Stat.

4 2 . The CountyÓs interpretations of the relevant

provisions of the Comp Plan are reasonable.

4 3 . Golden Oak proved by a preponderance of the evidence

that the proposed development order i s consistent with the Comp

Plan.

4 4 . The parties discussed the definition of

ÐcompatibilityÑ in section 163.3164(9) , Florida Statutes, and

whether the Project would be compatible under the definition.

Leon County has not adopted this definition as part o f its Comp

Plan. The relevant use of this definition is in section

163.3177, which describes the requirements for a future land use

element. One of these requirements is to have criteria that

provide for the compatib ility of adjacent land uses.

§ 163.31 77(6)(a)3.g., Fla. Stat. (2017).

4 5 . When Leon County adopted its future land use element

and the adoption became final, the CountyÓs satisfaction of the

requirement of section 163.3177(6)(a)3.g. to establish

compatibility criteria based on the definition of

ÐcompatibilityÑ in chapter 163 was legally established. Now

that the County has implemented section 163.3177(6)(a)3.g., with

criteria which provide that residential projects of similar type

and density are compatible, it is unnecessary to re - use the

d efinition of ÐcompatibilityÑ in chapter 163 as an additional,

external criterion for determining whether the Project is

compatibl e . The County must rely on the provisions of its own

Comp Plan.

4 6 . Even if the use of the definition of ÐcompatibilityÑ

in c hapter 163 were appropriate, it would not require a

different conclusion regarding the compatibility of the Project.

Consistency with the Code

4 7 . Under section 10 - 7.414(J)(vii) of the Code, the

standard of review to determine whether the Project is

consi stent with the Code Ðshall be in accordance with Florida

law.Ñ Florida law requires that the CountyÓs determination that

the Project is consistent with relevant provisions of the Code

must be based on competent substantial evidence. See Premier

Dev. v. C ity of Fort Lauderdale , 920 So. 2d 852, 853 (Fla. 4th

DCA 2006).

4 8 . The CountyÓs interpretations of the relevant

provisions of the Code are reasonable.

4 9 . The preponderance of competent substantial evidence in

the record of this proceeding supports t he determination of the

Development Review Committee that the Project is consistent with

all applicable provisions of the Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Leon County Board of C ounty

Commissioners enter a final order approving the Project, subject

to the conditions outlined by the Development Review Committee

in its written preliminary decision dated August 18, 2017.

DONE AND ENTERED this 26 th day of December , 2017 , in

Tallahasse e, 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 - 684 7

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26 th day of December , 2017 .

COPIES FURNISHED:

Justin John Givens, Esquire

Anderson & Givens, P.A.

1689 Mahan Center Boulevard

Tallahassee, Florida 32308

Alex N akis

6036 Heartland Circle

Tallahassee, Florida 32312

Mark Newman

6015 Quailridge Drive

Tallahassee, Florida 32312

Gene Sherron

6131 Heartland Circle

Tallahassee, Florida 32312

Jessica M. Icerman, Assistant County Attorney

Leon County

Room 202

301 So uth Monroe Street

Tallahassee, Florida 32301

(eServed)

Carley J. Schrader, Esquire

Nabors, Giblin and Nickerson, P.A.

Suite 200

1500 Mahan Drive

Tallahassee, Florida 32308

(eServed)

G regory Thomas Stewart, Esquire

Nabors, Giblin and Nickerson, P.A.

Sui te 200

1500 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Kerry Anne Parsons, Esquire

Nabors, Giblin & Nickerson, P . A .

1500 Mahan Dr ive S ui te 200

Tallahassee, Florida 32308

(eServed)

Gary K. Hunter, Jr., Esquire

Hopping, Green & Sams , P.A.

Post Off ice Box 6526

Tallahassee, Florida 32314

(eServed)

Erin J. Tilton, Esquire

Hopping Green & Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314

(eServed)

Jeremy Vincent Anderson, Esquire

Anderson & Givens, P.A.

Suite B

1689 Mahan Center Boulevard

Tallahassee, Florida 32308

(eServed)

Vince S. Long, County Administrator

Leon County

Suite 202

301 South Monroe Street

Tallahassee, Florida 32301

Herbert W. A. Thiele, County Attorney

Leon County

Suite 202

301 South Monroe Street

Tallahassee, Florida 32301

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions

within 1 0 days from the date of this Recommended Order. Any

exceptions to this Recommended Order should be filed with the

clerk of the Board of County Commissioners of Leon County . See

§ 10.7.414(K), Land Development Code.