91-000705GM Dorothy K. Bicket, As Trustee For The Dorothy K. Bicket Trust; M. M. Bicket, As Trustee For The M. M. Bicket Trust; And John Hiram Bicket, As Trustee For The M. M. And Dorothy K. Bicket Trust vs. Hernando County And Department Of Community Affairs Status: Closed Recommended Order on Friday, February 26, 1993.

Summary: Petitioners citizens, failed to show that, to the exclusion of fair debate, Hernando County's comprehensive plan amendment was not in compliance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOROTHY K. BICKET, as Trustee for )

the Dorothy K. Bicket Trust, )

M.M. BICKET as Trustee for the )

M.M. Bicket Trust, and JOHN HIRAM )

BICKET, as Trustee for the M.M. )

and Dorothy K. Bicket Trust, )

)

Petitioners, )

)

vs. ) CASE NO. 91- 0705GM

)

HERNANDO COUNTY and THE DEPARTMENT )

OF COMMUNITY AFFAIRS, )

)

Respondents. )

___________________________________)

LOREN E. HAMM, )

)

Petitioner, )

)

vs. ) CASE NO. 91- 0706GM

)

HERNANDO COUNTY and THE DEPARTMENT )

OF COMMUNITY AFFAIRS, )

)

Respondents. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated Hearing Officer, Don W. Davis, held a formal hearing in the above-

styled case on August 24-25, 1992, in Brooksville, Florida. The following

appearances were entered:

For Petitioners

Dorothy K., M. M.,

and John Hiram Bicket: M. M. Bicket, Pro Se

22 South Sweetgum Court

Homosassa, Florida 32646

For Petitioner

Loren E. Hamm: David Smolker, Esquire

2700 Landmark Centre

401 East Jackson Street

Tampa, Florida 33602

For Respondent

Hernando County: Robert Bruce Snow, Esquire

County Attorney

Post Office Box 2060

Brooksville, Florida 34605

For Respondent

Department of

Community Affairs: Stephanie M. Callahan, Esquire

Assistant General Counsel

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

STATEMENT OF THE ISSUE

The issues in this case are whether the comprehensive plan adopted by

Hernando County, Florida (County) is "in compliance" pursuant to Chapter 163,

Part II, Florida Statutes, and Chapter 9J- 5, Florida Administrative Code; and,

whether the County gave adequate notice of the plan's amendment as required by

Section 163.3181 and Section 163.3184, Florida Statutes.

PRELIMINARY STATEMENT

The County submitted a proposed comprehensive plan to the Department of

Community Affairs (Department) for review. On July 28, 1989, after reviewing

the plan, the Department issued its Notice of Intent to find the plan not in

compliance based on its Statement of Intent containing the finding that the

designation of the future commercial uses along the State Highway System, U.S.

19, U.S. 41 and S.R. 50, threatened accepted traffic levels of service and

encouraged strip commercial development and leapfrog urban development.

Additionally, the Statement of Intent recommended remedial actions including

limiting the amount of commercial development on U.S. 19, U.S. 41 and S.R. 50

and reducing the amount of residential development to be consistent with the

data and analysis.

The County and the Department executed a Stipulated Settlement Agreement,

effective March 12, 1990, which described remedial actions necessary to bring

the Hernando County Comprehensive Plan into compliance with the requirements of

Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative

Code.

These remedial actions required removal from the Future Land Use Map ( FLUM)

of strip commercial land use except for the strip commercial on U.S. 19 between

the Pasco County Line and S.R. 50, and the strip commercial on S.R. 50 between

Oak Hill Hospital Drive and the southern extension of C.R. 491. The remedial

actions also required the use of nodal commercial designations and infilling of

existing commercial areas.

On November 14, 1990, the Hernando County Board of County Commissioners, by

Ordinance No. 90-21, adopted amendments to the plan in response to the parties'

Stipulated Settlement Agreement described above. On January 5, 1991, the

Department issued its Notice of Intent to find the plan in compliance.

On January 25, 1991, Petitioners filed their petitions with the Department

challenging the compliance determination and requesting formal administrative

proceedings. The petitions generally alleged that the Hernando County plan

amendments were inconsistent with requirements of Sections 163.3177 and

163.3184(1)(b), Florida Statutes, the State Comprehensive Plan, the

Withlacoochee Regional Policy Plan, Rule Chapter 9J-5, Florida Administrative

Code; that Petitioners' properties in Hernando County should be returned to

their former zoning and land use designations; and that Petitioners did not

receive adequate notice of the County's proposed land use changes.

At the final hearing, Counsel for Petitioner Hamm called four witnesses and

introduced into evidence 25 exhibits. Petitioners Bicket called one witness.

The County called two witnesses and introduced into evidence six exhibits. The

Department called two witnesses and introduced into evidence 19 exhibits. A

transcript of the final hearing was filed with the Division of Administrative

Hearings on October 7, 1992. In accordance with provisions of Rule 60Q-2.031,

Florida Administrative Code, the parties, by request and agreement to a deadline

for filing proposed recommended orders more than 10 days after the filing of the

transcript, waived provisions of Rule 28-5.402, Florida Administrative Code.

Proposed findings of fact submitted by the parties are addressed in the

appendix to this recommended order.

FINDINGS OF FACT

I. Parties

1. The Department is the state land planning agency charged with the

responsibility of reviewing plans and plan amendments pursuant to Chapter 163,

Part II, Florida Statutes, also known as The Local Government Comprehensive

Planning and Land Development Regulation Act (Act).

2. Petitioner Loren E. Hamm and Petitioners Dorothy K. Bicket as Trustee

for the Dorothy K. Bicket Trust, M.M. Bicket as Trustee for the M.M. Bicket

Trust, and John Hiram Bicket as Trustee for the M.M. and Dorothy K. Bicket

Trust, all own properties within the boundaries of the County that were affected

by the remedial plan amendments. Petitioner Hamm submitted oral objections

concerning the plan amendment during the review and adoption proceedings.

Petitioners Bicket did not submit oral or written objections concerning the plan

amendment during that process. All Petitioners have alleged inadequate notice

of the remedial amendments and the consequential proposed land use changes.

3. The County is a local government required to adopt a revised

comprehensive plan pursuant to Sections 163.3164(12) and 163.3167, Florida

Statutes. On June 7, 1989, the County adopted a local comprehensive plan with a

year 2010 planning horizon.

4. For purposes of this recommended order, the findings and conclusions

discussed herein address specifically the property owned by Petitioner Loren E.

Hamm.

II. Background

5. The County is located in rural central Florida. The County encompasses

approximately 312,000 acres. The County is bounded on the north by Citrus

County, on the east by Sumter County, on the south by Pasco County, and on the

west by the Gulf of Mexico. The county seat is the City of Brooksville.

6. There are two arterial roadways at the heart of the issue in this

proceeding. They are U.S. 19, a 4-lane divided highway running north and south

in western Hernando County and S.R. 50 a state highway running east and west in

central southern Hernando County. S.R. 50 features existing strip commercial

development.

7. Petitioner Hamm owns approximately 431 acres of undeveloped land along

S.R. 50 due west of the Oak Hill Hospital and due east of the intersection of

S.R. 50 and U.S. 19 at the City of Weeki Wachee.

8. Petitioner Hamm's property is a vacant parcel of sandy soil, partially

vegetated by pine trees and scrub oaks and dotted by small lakes or "sink

holes". Mr. Hamm has a forest green belt tax exemption on his property.

9. According to the 1989 Hernando County Comprehensive Plan, the land use

classification for Mr. Hamm's parcel was a combination of residential,

commercial and light industrial. Pursuant to the remedial amendments, Mr.

Hamm's property was designated on the FLUM as a combination of residential and

commercial use with a designated commercial node overlapping Mr. Hamm's

property.

10. At the hearing, Mr. Hamm was not aware of the acreage of his parcel

which had been designated as a partial commercial node on the FLUM adopted on

November 14, 1990, nor was he aware of the amount of commercial designation

available for his property pursuant to the prior FLUM adopted June 7, 1989.

11. Under the 1989 plan Mr. Hamm may have been eligible for a category of

development called urban buildup which was a mix of urban land uses. At that

time, he could have potentially developed 80 to 90 acres of the subject land as

commercial development.

12. Mr. Hamm could have developed his property under a commercial land use

designation pursuant to the June, 1989, comprehensive plan; similarly, he can

also develop a portion of his property for commercial use under the November,

1990 plan amendments, depending on the extent to which the commercial node

designated on the FLUM falls on Mr. Hamm's property.

13. Approximately 47 acres of the commercial node falls on Mr. Hamm's

property and may be developed specifically as commercial land use. He may also

develop office/professional uses in addition to the 47 acres of the general

commercial, roughly an additional 50 acres.

14. Utilization of the commercial node on Mr. Hamm's property may afford

up to 90 acres available for commercial development under the November, 1990

comprehensive plan amendments, if development pursuant to the

office/professional designation is included. Previously, Mr. Hamm was able to

develop an area 1000 feet deep across the front of his property amounting to

approximately 100 acres under the June, 1989 comprehensive plan.

III. The Issue of Adequate Notice

15. Hernando County undertook a fairly extensive citizen's participation

program for development of its comprehensive plan and appointed five task forces

to give citizen input on various aspects of the plan over a period of several

years. Hundreds of meetings involving the task force were held, which meetings

were open to the public and in which the public participated.

16. The County duly noticed its public hearings to consider and adopt the

remedial amendments by an advertisement published in a newspaper of general paid

circulation in the County and of general interest and readership in the

community, not one of limited subject matter. The advertisement was a one

quarter page ad in a standard size. The advertisement did not appear in the

portion of the newspaper where legal notices and classified advertisements

appear.

17. The County advertised its notices of public hearings in the

Brooksville Sun Journal, a local newspaper of general circulation in the County

that it had used for such advertisements for a period of fifteen to seventeen

years. The newspaper has since gone out of business. No affected person was

provided individual notice of Plan workshops and hearings.

18. The County advertised notice of the local planning agency meeting held

May 10, 1990, the transmittal hearing by the Board of County Commissioners and

the public adoption hearing of the Board of County Commissioners in the

Brooksville Sun Journal.

19. Notably, approximately 1200 notices of zoning hearings have been

published in the Sun Journal. None of these notices have been previously

determined to be inadequate.

20. Mr. Hamm appeared at, participated in and addressed the Board of

County Commissioners at the duly noticed public hearing held November 14, 1990.

Representatives of Mr. Hamm were also present at the public hearing and were

afforded the opportunity to address the Board of County Commissioners regarding

the remedial amendments and Mr. Hamm's property in relation thereto.

Representatives of Mr. Hamm present at the hearing included an attorney, a real

estate appraiser and a land use consultant.

21. At the public hearing of the Board of County Commissioners at which

the remedial amendments were considered, no new, independent, or additional data

and analysis regarding the land use classification from Mr. Hamm's property was

presented for consideration.

IV. Land Use Compliance Issues

22. The following four issues form the basis of Petitioners' claims that

the Hernando County Comprehensive Plan is not in compliance:

a) Failure to coordinate future land uses

with available facilities and services thereby

encouraging urban sprawl;

b) Promotion of strip commercial development

along State Highway System;

c) The quantity and quality of data and

analysis relative to roadway impacts expected

from the strip commercial land along S.R. 50

near Oak Hill Hospital and methodology

utilized by the County; and

d) Quantity and quality of data analysis

relative to the number and location of the

commercial nodes near U.S. 19 and S.R. 50 as

reflected in the commercial nodes maps and the

methodology utilized by the County.

e) The manner and extent to which Mr. Hamm

can develop his property.

23. In the FLUE, the Hernando County Comprehensive Plan contains the

following goals, objectives and policies relative to the designation of

commercial land use on the FLUM: 1/

POLICIES

OBJECTIVE E: TO PROVIDE FOR MODERATE TO HIGH DENSITY RESIDENTIAL DEVELOPMENT IN

SUITABLE AREAS.

POLICY: 1 Establish a Residential Land Use Category where the land uses

allowed are: Single family residential densities up to 5.4 units/acre, resort

residential, and ancillary land uses such as recreation, churches, and community

centers. Land uses which can be located in this category with performance

standards being met include multi-family housing up to 12.5 units/acre, rural

residential, neighborhood commercial, commercial extending from commercial nodes

with a function frontage road, unless it is determined that wetlands or existing

development make frontage road extension unfeasible, offices and professional,

schools, hospital and minor public facilities.

OBJECTIVE K: PROVIDE FOR THE DEVELOPMENT OF HIGH QUALITY COMMERCIAL AREAS TO

MEET THE CURRENT AND PROJECTED NEEDS OF HERNANDO COUNTY RESIDENTS WHILE ENSURING

AN ORDERLY AND EFFICIENT PATTERN OF LAND USES AND PROTECTING THE COUNTY'S

TRANSPORTATION NETWORK.

POLICY 1: Establish a Commercial Land Use Category, in which land uses

such as commercial, recreation, office and professional, minor public

facilities, and minor institutional are allowed. Residential units may be

allowed.

POLICY 2: Prior to 1991, the County shall amend its Land Development

Regulations to include specific criteria for neighborhood commercial, general

commercial, community commercial, regional commercial, and any subcategories

thereof, addressing permitted uses, bulk regulations, buffer requirements,

performance standards, signage, aesthetics, parking requirements and special

exceptions or other mechanisms to allow flexibility.

POLICY 3: New commercial development shall be initiated within commercial

nodes, as indicated on the adopted Future Land Use Map Series, except for

Specialty Commercial, Neighborhood Commercial, and appropriate infill areas.

POLICY 4: The Landscape Ordinance shall require the buffering of the

negative visual impacts of commercial development through the use of

landscaping, screening, regulation of signs, planting of trees and where

feasible, the preservation of natural vegetation.

POLICY 5: Where commercial development is proximate to residential uses,

ordinances and land use approval conditions shall require that anticipated

negative impacts shall be mitigated to the extent practicable by the commercial

development, including noise, glare, dust, noxious fumes, odors, light,

increased traffic, and visual discontinuity.

POLICY 6: The Land Development Regulations shall be written to encourage

planned development zoning along arterial roads or in multiple land use

developments to ensure compatible land uses and maximize coordination of

facilities and access.

POLICY 7: The County shall establish standards to promote the integration

of pedestrian traffic within and between commercial developments and adjacent

residential areas.

POLICY 8: To the extent feasible, higher intensity commercial uses will be

buffered from residential areas by lower intensity commercial, office and

professional, multi-family or other appropriate land uses. These "steps or

intensity" will be criteria within land use approval process.

POLICY 9: In areas where existing residential usage is expected to

transition into commercial, the initial commercial land uses approved shall

generally be of lower intensity.

COMMERCIAL NODES

OBJECTIVE L: HERNANDO COUNTY WILL MANAGE AND DIRECT COMMERCIAL DEVELOPMENT

THROUGH THE DESIGNATION OF COMMERCIAL NODES.

POLICY 1: Commercial development shall be managed through a

classification into categories of commercial node, established primarily by

locational factors

POLICY 2: Land Use Regulations shall be adopted which further describe

land uses allowed in each commercial node classification, and shall include any

sub-sets of zoning districts, performance standards, exceptions or other

regulations reasonably required to manage commercial development activity.

POLICY 3: Commercial nodes shall be classified as neighborhood

commercial, community commercial, general commercial, and regional commercial,

with the following minimum locational criteria:

a. Neighborhood Commercial Nodes

1. May be located in the Residential or Rural

Future Land Use categories, but because of

size will not require mapping on the Future

Land Use Map Series;

2. Will have a maximum node size of 5 acres;

3. Will not be located in Conservation areas

or environmentally sensitive areas;

4. Will be located on collector or arterial

roads except where proposed as part of an

integrated, mixed-use planned unit

development;

5. Will not degrade the proper functioning of

the adjacent roads below the established

levels of service;

6. Will be proximate to population areas to

support the proposed use;

7. Will not compromise the integrity of

residential areas.

b. Community Commercial Nodes

1. Will be located in areas designated on the

Future Land Use Map Series as locations

appropriate for nodal commercial development;

2. Will be located proximate to the

intersection of two roadways of a status of

collector road or greater;

3. Full median cuts will generally not be

allowed any closer then 660 feet from the

intersection to maintain the proper

functioning of the intersection;

4. Will be located on the fringe, not the

interior, of the residential areas;

5. May be exempt from the criteria of 1, 2,

and 4, if proposed as part of or proximate to

an integrated, mixed-use planned development

project;

6. Will not compromise the integrity of the

residential areas;

7. Will generally range from 40-60 acres in

size.

c. General Commercial Nodes

1. Will be located in areas designated on the

Future Land Use Map Series as appropriate for

nodal development;

2. Will be located proximate to the

intersection of an arterial highway and a

second road of at least collector status;

3. Full median cuts will generally not be any

closer than 1,320 feet on arterials and 660

feet on collectors for the intersection to

maintain the proper functioning of the

intersection;

4. Will generally range from 50 to 100 acres

in size;

5. Will be located within three to five miles

of population areas to support the size and

intensity of the development proposed;

6. Will be of a design which does not

compromise the integrity of adjacent uses of

close proximity;

7. May be exempted from the criteria of 1 and

2, if proposed as part of or proximate to an

integrated, mixed-use planned development

project.

d. Regional Commercial Nodes

1. Will be located proximate to the

intersection of two arterial roadways;

2. Will have a minimum node size of 80 acres;

3. Will be of a design which does not

compromise the integrity of adjacent uses of

close proximity;

4. Full median cuts will generally not be any

closer than 1,320 feet from the intersection

to maintain the proper functioning of the

intersection.

POLICY 4: Development in commercial nodes shall provide for extension of

the County's frontage road network on arterial roadways.

POLICY 5: In order to encourage compact commercial development and

maintain the viability of adjacent roadways, commercial development can only

extend outward from commercial nodes where there is a frontage road connected to

the commercial node, unless it is determined that wetlands or existing

development make frontage road extension unfeasible.

POLICY 6: Commercial development in nodes will be encouraged to utilize

unified surface drainage plans, unified landscaping plans, and unified signage

criteria.

POLICY 7: Prior to the issuance of building permits within the commercial

nodes on U.S. 19, north of S.R. 50, an access management plan will be developed.

POLICY 8: Media cuts for commercial nodes on U.S. 19 north of S.R. 50 will

be limited to one per quadrant unless it can be demonstrated to the Florida

Department of Transportation ( FDOT) that additional cuts will result in an

improved traffic flow.

POLICY 9: The access management plan will provide for interconnection

between the commercial activities and residential areas.

STRIP COMMERCIAL DEVELOPMENT

OBJECTIVE N: LIMIT AND MANAGE STRIP COMMERCIAL AND INFILL COMMERCIAL AREAS

SO AS TO IMPROVE TRAFFIC CIRCULATION AND VISUAL QUALITY.

POLICY 1: Strip Commercial will only be allowed along commercial corridors

which have significant existing commercial development, remaining parcels are

generally zoned commercial and commercial development is expected to continue.

POLICY 2: Expansion of the existing strip commercial areas shall not be

allowed except for appropriate infill commercial development.

POLICY 3: The County shall not permit the creation of any new strip

commercial areas during the planning period.

POLICY 4: Infill commercial development can occur only within the strip

commercial areas as described in Policy 1.

POLICY 5: Where practicable, the County shall encourage the redevelopment

of existing strip commercial areas through the designation of commercial nodes

in locations consistent with the criteria as found in Objective L.

POLICY 6: The County shall encourage the redevelopment of older strip

commercial areas in locations consistent with the Future Land Use Map.

POLICY 7: Regulations shall be prepared to address the special needs of

these corridors such as, additional setbacks, buffers, landscaping requirements,

access limitations, and frontage roads.

* * *

24. In its compliance review, the Department considered the amount of

commercial land use along the State Highway System. The Department's analysis

centered on the fact that the entire length of U.S. 19 and S.R. 50 had been

designated as a commercial land use in the 1989 plan and would negatively impact

the level of service on a State Highway System, a primary concern of the

Department.

25. Because of the relationship of the commercial and residential land

uses along and in proximity to the State Highway System, the Department

concluded that the commercial designations proposed on the June 1989 FLUM would

have adverse impacts on the State Highway System particularly along U.S. 19,

S.R. 50 and U.S. 98. The " ORC Report" dated September 21, 1990, identifies the

Department's concerns for the commercial land use designations on the FLUM.

26. The County responded to the Department's ORC Report and attempted to

reduce the allocation of commercial in the County, particularly along U.S. 19,

by reducing the amount of commercial nodes from the proposed land use map to the

adopted land use map. The actual placement of the nodes on the adopted map was a

local decision by the Board of County Commissioners.

V. Strip vs. Node Commercial development

27. The existing plan allows expansion and extension of commercial nodes.

28. The residential land use category in the plan amendment allows for

professional office use in the residential land use category.

29. A commercial node is a center of commercial development generally

located at major intersections. It is a concentrated interrelated commercial

development pattern and should be designed to serve a much larger area than just

the node itself.

30. Commercial strip development involves a series of commercial

developments strung along the highway system. It is basically a linear type of

development activity that is frequently not well interrelated to other

surrounding land uses.

31. Planners will differ as to which is the preferable approach for

commercial land use designation, a commercial node or a commercial strip.

32. Strip commercial development is less compact, less interrelated, less

coordinated. It can be more difficult to implement access control mechanisms

and more difficult to implement steady control.

33. The County selected the use of commercial nodes on U.S. 19 north of

the City of Weeki Wachee to serve residential development shown on the Future

Land Use Map. A number of the nodes correspond with historic developments that

are in that area as well as several developments that were platted in the early

1970's. A couple of the nodes correspond with major intersections with U.S. 19.

Predominately, either intersection criteria or existing historic development

approvals were the criteria used to select the placement of the commercial nodes

along U.S. 19.

34. Appropriate methodologies were used in selecting the placement of the

commercial nodes along U.S. 19. Commercial nodes were chosen by the County, as

opposed to linear strip commercial land use designations in the vicinity of the

intersection of S.R. 50 and U.S. 19 in order to reduce the amount of commercial

development, specifically strip commercial development. The County elected to

let existing strip commercial development remain as strip commercial, with

opportunities for infill, and in other areas the County used nodes for its

commercial development activities, since nodes give a more compact development

pattern.

35. Strip commercial can result in "bad" commercial areas. These

commercial areas have numerous access points onto a road and inhibit the flow of

traffic, possibly resulting in increased accidents and reduced transportation

time from one point to another. Strip commercial development in these instances

is not planned and is not appropriately related to the roadway facility.

36. Strip commercial development is also a contributor to urban sprawl.

The use of the commercial nodes along S.R. 50 and U.S. 19, as reflected in the

1990 Plan Amendment, help to reduce concerns regarding promotion of urban

sprawl.

37. The half node of commercial designated in the area of Mr. Hamm's

property can be developed in a manner that is functionally related to the Oak

Hill Hospital which is nearby.

38. No new or independent data and analysis was offered at the hearing to

support a designation of commercial land uses along S.R. 50 or U.S. 19

preferable to that designated by the County in its comprehensive plan

amendments, nor was any such data and analysis provided to show that the

County's commercial land use designation in this area is not in compliance or

otherwise unsupported.

39. Nodal commercial development is generally a good concept, provided the

location of those nodes make planning sense versus the use of infill development

of strip commercial areas. In that regard, a distance of 2.3 miles (approximate

distance from the northerly end of the strip commercial designation on U.S. 19

and the westerly edge of the strip commercial designation along S.R. 50) is a

significant difference or gap such that extension of strip commercial

development should not be classified as infill development.

40. The total amount of commercial land use in the County (consisting of

strip commercial, the opportunity for infill plus the assignment of commercial

nodes) meets the needs for commercial land use for the projected population of

the County within the planning time frame.

VI. Infill

41. An important consideration in the location of strip commercial

development for determining whether a FLUM complies with Rule 9J-5, Florida

Administrative Code, is whether the commercial development as designated is

existing commercial development and whether there are opportunities for infill.

42. The FLUM adopted by the County allows infill of existing strip

commercial development along S.R. 50 between C.R. 491 and U.S. 19 and along S.R.

50 south of the City of Weeki Wachee.

43. The opportunity for infill of the existing strip commercial area along

S.R. 50 in the vicinity of Oak Hill Hospital is significant.

44. The area of existing strip commercial development to the east of Oak

Hill Hospital along S.R. 50 offers anywhere from 50 to 80 percent commercial

infill development.

VII. Vesting/Nodes Along U.S. 19

45. The County anticipates that the U.S. 19 corridor will continue to

develop as it has to the south through the planning horizon of year 2010. There

are a number of projects anticipated in the north U.S. 19 area and the County's

analysis of population growth indicates that there will be growth in that area.

Additionally, there are commitments to infrastructure and a subregional sewer

plant site shown in the area.

46. The estimated 2010 population for the area north along U.S. 19 is

approximately 40,000.

47. The placement of the nodes along U.S. 19 was based upon at least one

of the following four criteria: construction had commenced and is continuing in

good faith; projects were DRI vested under Chapter 380, Florida Statutes; common

law vesting; or locational criteria as prescribed in the Hernando County Plan

Amendments.

48. It is good planning practice for planners to evaluate vested rights

along U.S. 19 in determining the placement of commercial nodes.

49. It is an appropriate planning practice to locate commercial nodes

where there exist platted subdivisions. It is a legitimate planning device for

a county to direct future development to existing platted subdivisions as

opposed to creating new platted subdivisions.

50. The historical development and vested status of the properties were

considered by the County in the placement of nodes along U.S. 19.

51. The County recognized certain binding letters as part of the

information it used in compiling and adopting the comprehensive plan amendments

and the placement of commercial nodes along U.S. 19.

52. Planned infrastructure and public services are available within the

2010 horizon to support the commercial nodes placed along U.S. 19, including the

four laning of U.S. 19 arterial, two subregional sewer plants, and waterlines

proposed along U.S. 19 to serve development activities.

VIII. Protecting the Integrity of the State Highway System

53. Section 187.201(20), Florida Statutes sets forth the transportation

goal of the State Comprehensive Plan and requires that:

Florida shall direct future transportation

improvements to aid in the management of

growth and shall have a state transportation

system that integrates highway or mass transit

and other transportation modes.

54. Applicable policies of that goal are set forth in Section

187.201(20)(b), Florida Statutes, and read as follows:

Policy 2. To coordinate transportation

investments in major travel corridors to

enhance system efficiency and minimize adverse

environmental impacts.

Policy 3. To promote the comprehensive

transportation planning process which

coordinates state, regional, ad local

transportation plans.

Policy 9. To ensure that the transportation

system provides Florida citizens and visitors

with timely and efficient access to services,

jobs, markets, and attractions.

Policy 13. Coordinate transportation

improvements of the state, local, and regional

plans.

55. The main purpose of the state highway system is mobility: the timely

and safe transportation of people and goods over the roads in an efficient and

cost effective manner.

56. Strip commercial adversely affects the operation of the mobility

factor on the state highway system.

57. Rule Chapters 14-96 and 14-97, Florida Administrative Code, adopted by

the Florida Department of Transportation, regulate the spacing of access points,

driveways, and median cuts in order to assist the mobility of people and goods

on the state highway system. Development in a linear or strip commercial

fashion is counter productive to that effort and is not as efficient or cost

effective as the use of commercial nodes along the state highway system.

58. The integrity of the state highway system can be protected through

local government comprehensive plans which limit strip commercial development.

Linear strip commercial development causes more trips on the highway system and

at some point requires roadway widening and increased traffic signalization.

Commercial node development allows better system control and management.

59. The over-commercialization of land uses along the state highway system

has the potential to adversely or negatively impact the level of services

provided by state roads. Alternatively, commercial nodes have less of a adverse

impact because the node concept concentrates commercial development in an area

where planning controls can be used to mitigate adverse impacts through methods

such as limited curb cuts or frontage roads.

60. Generally, effective access management programs help to limit strip

sprawl development patterns, maintain the through-carrying capacity of arterial

roadways, and enhance the preservation of rural scenic values as development

occurs. Curb cuts and access points can be minimized by requiring development

to utilize parallel access roads, share existing or new access points, and

construct local road networks that provide alternatives to the use of arterial

roads. It is essential when employing this technique that the plan and

implementing land development regulations require new subdivisions, planned unit

developments, and like development to cluster commercial development sites in

nodes and to connect their internal roadways to existing local networks so that

a grid of alternative travel routes eventually results.

IX. Adequate Data and Analysis

61. The data and analysis to support the plan amendments include the

following:

The Hernando County Future Land Use Map

designates segments of U.S. 19 and S.R. 50 for

continued commercial strip development. These

two sections are located between the

Pasco/ Hernando County Line and the southern

boundary of Weeki Wachee along U.S. 19, and

between Oak Hill Hospital Drive and the

southern extension of C.R. 491 along S.R. 50.

The 2010 network and socio-economic data

residing in the Hernando County FSUTMS

Transportation Model was utilized to analyze

future conditions. The commercial service and

total data (the ZDATA2 file) was modified to

reflect commercial build-out conditions along

U.S. 19 and S.R. 50. The commercial and

service data in the Transportation Analysis

Zones ( TAZ's) along the two corridors were

factored up to appropriately represent a 100%

build- out scenario.

The June 1990 Compliance Agreement between

Hernando County and the Department sets forth

a level of service (LOS) standard "C" for non

backlogged facilities. It is assumed that

S.R. 50 and U.S. 19 will not be in a

backlogged condition at the end of the

planning period.

Only two links are projected to exceed LOS "C"

urban, one on U.S. 19 just south of the City

of Weeki Wachee, and one link of S.R. 50

between the future North South ( Suncoast)

Corridor and Wiscon Road. In these cases LOS

"C" was exceeded by 208 and 251 vehicles/hour

respectively. However, exceeding the standard

by 4 or 5% is not significant since this

amount is well within the tolerance error of

the model. That is to say, the error margin

of model exceeds the estimated excess volume.

Since all of the other affected links

maintained service levels of "C" or better,

with most links being in the "A" category, it

is assumed that the commercial build-out of

the subject areas will not adversely impact

service volume levels by the year 2010, the

end of the current planning period.

State Facility Backlog Analysis.

The State facilities designated as backlogged

in the Traffic Circulation Element of the

Hernando County Comprehensive Plan include

sections of U.S. 19, S.R. 50, and U.S. 41.

Daily and peak hour traffic counts were taken

by Hernando County staff on these facilities

in the Autumn of 1990. The results of this

effort are recorded in Table 3A.

As was stated in the previous section, State

maintained roads were to be analyzed on the

basis of peak hour analysis. The peak hour

level of service standard is LOS C. rural.

U.S. 41 is in a backlogged condition from

Cortez Boulevard (S.R. 50) to Ayers Road.

State Road 50 is backlogged from U.S. 19 to

Cortez Boulevard to I-75. Jefferson Street

(S.R. 50A) is backlogged from S.R. 50 to west

boundary of the City of Brooksville to Cortez

Boulevard. U.S. 19 south of S.R. 5 to Spring

Hill Drive is in a backlogged status in the

peak hour given the statistical confidence

level of the counts taken. Additionally the

segment exceeds the daily LOS threshold

standard.

62. Data and analysis to support a comprehensive plan is information about

the County that is utilized in the development of the county's plan. Examples

include demographic information, population projections, growth trends, and

existing land use patterns.

63. Part of the data and analysis supporting the Hernando County

Comprehensive Plan was developed through the public participation process.

Further, the County through its consultants and its own planning staff furthered

that effort with supporting documentation for both the original 1989 plan and

the 1990 amendments.

64. The plan is adequately supported by data and analysis gathered by

professionally accepted methodology. Also, the plan does not promote urban

sprawl.

X. Ultimate Findings

65. The November 14, 1990 amendments to the Future Land Use Map reduced

strip commercial development along State Road 50, east and west of Brooksville

on State Road 50 in the vicinity of U.S. 19 and U.S. 41 south of Brooksville and

on U.S. 19 north of S.R. 50. Additionally, the amendment reduced the amount of

residential land use on a county-wide basis.

66. The County reduced the number of commercial nodes along U.S. 19 in

conformity to the date and analysis.

67. The Land Use Element contained in the 1990 amendments, including the

Future Land Use Map series was created, established, and adopted pursuant to

generally accepted planning principles.

68. The goals, objectives, and policies set forth in the Comprehensive

Plan Amendment coupled with the data and analysis support the Future Land Use

Map series of the adopted amendments.

69. The Plan as a whole serves to discourage the proliferation of urban

sprawl.

70. The proof presented fails to show that the 1990 Amendments to the

County's Comprehensive Plan are not in compliance with provisions of Chapter

163, Part II, Florida Statutes, the Withlacoochee Regional Policy Plan, the

State Comprehensive Plan set forth in Section 187.201, Florida Statutes, and

provisions of Rule 9J-5, Florida Administrative Code.

CONCLUSIONS OF LAW

71. Pursuant to Sections 120.57(1) and 163.3184(9)(a), Florida Statutes,

the Division of Administrative Hearings has jurisdiction over the parties and

the subject matter.

72. Petitioner Hamm is an "affected person" within the meaning of Section

163.3184(1)(a), Florida Statutes, and thus has standing to challenge the

Department's determination that the County's plan amendment is in compliance.

There is no evidence that Petitioners Bicket submitted oral or written

objections during the local government review and adoption proceedings.

Accordingly, standing of Petitioners Bicket to bring this proceeding has not

been shown.

Notice and Public Participation

73. Rule 9J-5.004(1), Florida Administrative Code, provides that the local

government and local planning agency adopt procedures to provide for and

encourage public participation in the planning process, including amendments to

the comprehensive plan. The procedures "shall include" provisions to:

assure that real property owners are put on

notice, through advertisement in a newspaper

of general circulation in the area or other

method adopted by the local government, of

official actions that will affect the use of

their property.

74. Rule 9J-5.004(2)(b) and (e), Florida Administrative Code, states that

the public participation procedures shall include provisions "for notice to keep

the general public informed" and "to assure the consideration of and response to

public comments."

75. The local government is required to comply with procedures which it

adopts to govern public participation. Rule 9J-5.005(8),Florida Administrative

Code, provides that plans and plan amendments shall be considered and adopted in

accordance with procedural requirements of Section 163.3161 through Section

163.3215, Florida Statutes, by ordinance after required public hearings.

76. Section 163.3181(1), Florida Statutes, expresses the legislative

intent with regard to public participation as follows:

It is the intent of the Legislature that the

public participate in the comprehensive

planning process to the fullest extent

possible. Towards this end, local planning

agencies and local governmental units are

directed to adopt procedures designed to

provide effective public participation in the

comprehensive planning process and to provide

real property owners with notice of all

official actions which will regulate the use

of their property. The provisions and

procedures required in this act are set out as

the minimum requirements towards this end.

77. Section 163.3184(15)(c), Florida Statutes, provides:

If the proposed comprehensive plan or plan

amendment changes the permitted uses of land

or changes land-use categories, the required

advertisements shall be no less than

one-quarter page in a standard size or a

tabloid size newspaper, and the headline in

the advertisement shall be in a type no

smaller than 18 point. The advertisement

shall not be placed in that portion of the

newspaper where legal notices and classified

advertisements appear. The advertisement

shall be published in a newspaper of general

paid circulation in the county and of general

interest and readership in the community, not

one of limited subject matter, pursuant to

chapter 50. Whenever possible, the

advertisement shall appear in a newspaper that

is published at least 5 days a week, unless

the only newspaper in the community is

published less than 5 days a week. The

advertisement shall be in substantially the

following form:

NOTICE OF CHANGE OF LAND USE

The ( (name of local governmental unit) )

proposes to change the use of land within the

area shown in the map in this advertisement.

A public hearing on the proposal will be held

on ( (date and time) ) at ( (meeting place) ).

The advertisement shall also contain a

geographic location map which clearly

indicates the area covered by the proposal.

The map shall include major street names as a

means of identification of the area.

78. The criteria of public participation, procedural in nature, should not

be confused with substantive criteria of Chapter 163, Part II, and Chapter 9J-5.

Local governments retain considerable discretion to make local planning

decisions and to base those decisions on local considerations, such as land use

compatibility. The local government must merely consider and respond to public

comments. The environment of a public hearing dictates that the responses to

complex questions will not approach the plan or data and analysis in terms of

comprehensiveness or even sophistication. Wilson v. City of Cocoa and

Department of Community Affairs, DOAH Case No. 90- 4821GM, Recommended Order,

dated August 8, 1991.

79. The County complied with the statutory requirements regarding notice

of its proposed amendments to the Future Land Use Map. Additionally, Petitioner

Hamm was afforded notice and openly participated, personally and through

representatives, at the plan amendment adoption public hearing held November 14,

1992.

Burden of Proof: The Fairly Debatable Standard

80. Chapter 9J-5, Florida Administrative Code, was adopted by the

Department pursuant to Chapter 163, Part II, Florida Statutes, in order to

provide guidance as to minimum requirements which plans must meet to be "in

compliance." That term is defined in Section 163.3184(1)(b), Florida Statutes,

and reads as follows:

"In compliance" means consistent with the

requirements of ss. 163.3177, 163.3178, and

163.3191, the state comprehensive plan, the

appropriate regional policy plan, and rule

9J- 5, F.A.C., where such rule is not

inconsistent with Chapter 163, Part II.

81. Pursuant to Section 163.3184(9)(a), Florida Statutes, the local plan

or plan amendment shall be determined to be "in compliance" if the local

government's determination of compliance is fairly debatable.

82. Therefore, Petitioner must provide to the exclusion of fair debate

that the plan is not in compliance. Section 163.3184(9)(a), Florida Statutes.

83. The Act does not define what is meant by "fairly debatable." In

zoning cases, the "'[t]he fairly debatable' test asks whether reasonable minds

could differ as to the outcome of a hearing" (citations omitted). Norwood-

Norland Homeowners' Association, Inc. v. Dade County, 511 So.2d 1009, 1012 (Fla.

3d DCA 1987). The element of reasonableness imposes certain requirements upon

the persons differing as to the outcome. The fairly debatable test requires

that the persons reaching different conclusions are informed by relevant facts

and law and are capable of analyzing this information in a reasonable manner in

order to reach a logical conclusion based exclusively on the applicable facts

and law. Pope v. City of Cocoa Beach and Department of Community Affairs, DOAH

Case No. 90- 3581GM, Recommended Order, dated March 4, 1991.

84. Petitioner's burden is a heavy one. See Allapattah Community

Association, Inc. v. City of Miami, 379 So.2d 387, 392 (Fla. 3d DCA 1980); S.A.

Healy Co. v. Town of Highland Beach, 355 So.2d 813 (Fla. 4th DCA 1978). To meet

this burden, Petitioner must show that its position regarding the adoption of

the subject plan amendment is not subject to reasonable debate or legitimate

controversy. See City of Miami Beach v. Lachman, 71 So.2d 148, 152 (Fla. 1953);

Norwood-Norland Homeowners Association Inc. v. Dade County, 511 So. 2d 1009,

1012 (Fla. 3d DCA 1987); Sarasota County v. Purser, 476 So.2d 1359, 1362 (Fla.

2d DCA 1985); Marrell v. Hardy, 450 So.2d 1207, 1209 (Fla. 4th DCA 1984).

Petitioner has not met this burden.

85. If reasonable men can differ as to the propriety of the action taken

by the County with respect to the adoption of the subject plan amendment, this

tribunal cannot substitute its judgment for that of the Board of County

Commissioners. See Palm Beach County v. Tinnerman, 517 So.2d 699 (Fla. 4th DCA

1987), rev. denied, 528 So.2d 1183 (Fla. 1988).

86. As previously noted, Petitioner's objections to the changes to the

land use classification of his property as designated on the Future Land Use Map

series formed the gravamen of Petitioner's challenge.

87. All goals, objectives, policies, standards, findings and conclusions

within the comprehensive plan and its support documents must be based upon

relevant and appropriate data. A designation on a Future Land Use Map also

falls within this requirement. Rules 9J-5.005(2)(a), 9J-5.006(2), Florida

Administrative Code. The FLUM is the mechanism for establishing the

distribution, location and extent of the various proposed land uses. Land use

determinations on the map are to be "supplemented" by goals, objectives and

policies in the plan. Section 163.3177(6)(a), Florida Statutes. The FLUM

determines the type and intensity of development that will occur on a given

parcel, and it must "reflect" goals, objectives and policies of the plan. Rule

9J-5.005(5), Florida Administrative Code. See Department of Community Affairs v.

Walton County, ER FALR '92:208, November 4, 1992.

88. Petitioner failed to prove the validity of any of his objections,

beyond fair debate, including allegations that the County's comprehensive plan

amendment does not adequately address the coordination of future land uses with

available facilities and services, thereby encouraging urban sprawl; the

promotion of strip commercial along the state highway system; the quantity and

quality of data and analysis relative to roadway impacts expected from the strip

commercial land along State Road 50 near Oak Hill Hospital and the methodology

utilized by the County; the quantity and quality of the data and analysis

relative to the number and location of the commercial nodes near U.S. 19 and

State Road 50 as reflected in the commercial nodes map and the methodology

utilized by the County; and the policies included in the Future Land Use Element

and the Future Land Use Map.

89. The testimony and evidence presented at the hearing shows that

reasonable minds, of expert planners and others, can differ as to the extent to

which the subject plan amendment adequately addresses these compliance issues.

90. The testimony and evidence presented by Petitioner at the hearing

failed to show to the exclusion of fair debate that the Hernando County's

comprehensive plan amendment is not "in compliance" with Section 163, Part II,

Florida Statutes, Chapter 187, Florida Statutes, the regional policy plan and

Rule 9J-5, Florida Administrative Code.

RECOMMENDATION

Based on the foregoing it is RECOMMENDED that a final order be entered

finding the comprehensive plan amendment adopted November 14, 1990 by Hernando

County to be in compliance.

DONE AND ENTERED this 26th day of February, 1993, in Tallahassee, Leon

County, Florida.

___________________________________

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of February, 1993.

ENDNOTE

1/ In order to facilitate comprehension, all quotations from the comprehensive

plan found in this recommended order have previously struck-through language

deleted and previously underlined language added.

APPENDIX

The following constitutes my specific rulings, in accordance with Section

120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner Hamm's Proposed Findings.

Proposed findings consisted of paragraphs numbered 11-112 and are treated as

follows:

11.-23. Accepted.

24. Rejected, subordinate to Hearing Officer's findings

on this point.

25.-26. Accepted.

27. Rejected, subordinate to HO findings on this point.

28.-29. Accepted, except for last two sentences of 29 which

are rejected.

30.-32. Subordinate to HO findings on this point.

33.-39. Accepted.

40.-41. Subordinate to HO findings on this point.

42.-46. Rejected, unnecessary.

47.-50. Accepted.

51.-53. Subordinate to HO findings on this point.

54.-56. Rejected, unnecessary.

57.-58. Rejected, argumentative.

59.-60. Rejected, procedural.

61. Rejected, subordinate to HO findings.

62.-64. Rejected, not supported by weight of the evidence.

65.-66. Accepted.

67. Subordinate to HO findings.

68.-69. Accepted.

70. Subordinate to HO findings.

71. Accepted.

72. Subordinate to HO findings.

73. Rejected, recitation of testimony.

74.-77. Accepted.

78.-81. Accepted.

82.-87. Subordinate to HO findings.

88.-90. Rejected, unnecessary.

91.-103. Accepted.

103.-105. Subordinate to HO findings.

106.-112. Rejected, not supported by weight of the evidence.

Petitioners Bicket Proposed Findings.

No proposed findings submitted.

Respondents' Joint Proposed Findings.

Proposed findings on pages 5-7 of Respondents' submittal is improperly numbered

and therefore not treated in this appendix. Proposed findings 1.-73., beginning

on page 8 of that submittal are treated as follows:

1.-14. Accepted.

15. Rejected, unnecessary.

16.-22. Accepted.

23. Subordinate to HO findings on this point.

24. Adopted, though not verbatim.

25.-36. Addressed.

37.-45. Accepted.

46.-73. Adopted, though not verbatim.

COPIES FURNISHED:

Linda Loomis Shelley

Secretary

Department of Community Affairs

2740 Centerview Dr.

Tallahassee, Florida 32399-2100

G. Steven Pfeiffer, Esquire

General Counsel

Department of Community Affairs

2740 Centerview Dr.

Tallahassee, Florida 32399-2100

M.M. Bicket

22 South Sweetgum Court

Homosassa, Florida 32646

David Smolker, Esquire

2700 Landmark Centre

401 East Jackson Street

Tampa, Florida 33602

Robert Bruce Snow, Esquire

County Attorney

Post Office Box 2060

Brooksville, Florida 34605

Stephanie M. Callahan, Esquire

Assistant General Counsel

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended

order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should consult with the agency that will issue the

final order in this case concerning agency rules on the deadline for filing

exceptions to this recommended order. Any exceptions to this recommended order

should be filed with the agency that will issue the final order in this case.