94-007071GM William B. Hunt vs. Marion County Status: Closed Recommended Order on Thursday, June 29, 1995.

Summary: Marion County plan as amended found to be in compliance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM B. HUNT, )

)

Petitioner, )

)

vs. ) CASE NO. 94-7071GM

)

DEPARTMENT OF COMMUNITY )

AFFAIRS and MARION COUNTY, )

)

Respondents. )

___________________________)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of

Administrative Hearings by its assigned Hearing Officer, Donald R. Alexander, on

May 10 and 11, 1995, in Ocala, Florida.

APPEARANCES

For Petitioner: William B. Hunt, pro se

3531 Southeast 30th Terrace

Ocala, Florida 34471

For Respondent: Gordon B. Johnston, Esquire

(County) 601 Southeast 25th Avenue

Ocala, Florida 34471-2690

For Respondent: Brigette A. Ffolkes, Esquire

(DCA) 2740 Centerview Drive

Tallahassee, Florida 32399-2100

STATEMENT OF THE ISSUE

The issue in this case is whether the Marion County comprehensive plan, as

amended by Ordinance No. 94-12 on April 7, 1994, is in compliance.

PRELIMINARY STATEMENT

This case began on December 13, 1994, when petitioner, William B. Hunt,

filed a petition for an administrative hearing alleging that the Marion County

comprehensive plan, as amended by remedial amendments, was not in compliance in

a number of respects with Chapter 163, Florida Statutes, and Chapter 9J-5,

Florida Administrative Code. The petition was forwarded by respondent,

Department of Community Affairs, to the Division of Administrative Hearings on

December 19, 1994, with a request that a Hearing Officer be assigned to conduct

a hearing.

By notice of hearing dated January 10, 1995, a final hearing was scheduled

for May 10-12, 1995, in Ocala, Florida. At final hearing, petitioner presented

the testimony of Teresa M. Manning, a land use planning manager with the

Department of Community Affairs, and Gus Gianikis, acting planning director for

Marion County. Also, he offered petitioner's exhibits 1-7. All exhibits were

received in evidence. Respondent, Marion County, offered County exhibits 1-14

while respondent, Department of Community Affairs, offered DCA exhibits 1-4.

All exhibits were received in evidence.

There is no transcript of hearing. Proposed findings of fact and

conclusions of law were filed by respondents and petitioner on May 26 and 30,

1995, respectively. A ruling on each proposed finding is set forth in the

Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact have been

determined:

A. Background

a. The parties

1. Respondent, Marion County (County), is a local government subject to

the comprehensive land use planning requirements of Chapter 163, Florida

Statutes. That chapter is administered and enforced by respondent, Department

of Community Affairs (DCA). The DCA is charged with the responsibility of

reviewing comprehensive land use plans and amendments made thereto.

2. Petitioner, William B. Hunt, owns property and resides within the

County. Petitioner also submitted written comments to the County during the

public hearing held on April 7, 1994, concerning the adoption of an amendment to

the County's comprehensive plan. Therefore, he is an affected person within the

meaning of the law and has standing to bring this action.

b. The nature of the dispute

3. In July 1991, the County initially transmitted its proposed

comprehensive land use plan to the DCA. The DCA issued an Objections,

Recommendations, and Comments (ORC) report for the County's plan on October 18,

1991. The County issued a response to the DCA's ORC report and adopted its

comprehensive plan in January 1992. In April 1992, the DCA issued a notice of

intent to find the comprehensive plan not in compliance.

4. In an attempt to bring the County's plan into compliance, the DCA and

County entered into a settlement agreement in March 1993. Pursuant to the

agreement, the County was supposed to adopt certain remedial amendments to its

comprehensive plan.

5. In August 1993, the County adopted remedial amendments to its

comprehensive plan. In October 1993, the DCA issued a notice of intent to find

the remedial amendments not in compliance.

6. In another attempt to bring the County's plan into compliance, the DCA

and County entered into another settlement agreement in February 1994, and into

an addendum thereto in April 1994. Pursuant to this agreement, the County

adopted the agreed-upon remedial amendments to its comprehensive plan by

Ordinance No. 94-12 on April 7, 1994. On May 30, 1994, the DCA issued a

cumulative notice of intent to find the County's comprehensive plan and remedial

amendments in compliance.

7. On June 18, 1994, petitioner filed a petition to intervene with the

Division of Administrative Hearings seeking to challenge the newly amended plan.

After being advised that the petition was filed in the wrong forum, and that he

incorrectly sought to intervene rather than to initiate a new proceeding, on

December 13, 1994, petitioner filed a petition for an administrative hearing

with the DCA. In his lengthy petition, which contains allegations running some

fifty-four pages in length, petitioner has challenged the County's plan, as

amended, in numerous respects. In his proposed order, however, petitioner has

summarized his complaints into the following categories: (a) "many" of the plan

objectives are not "specific or measurable," (b) "many" policies in the plan are

not "adequate," (c) "many" of the required objectives and policies are not found

within a particular element, (d) "many" policies in the plan defer

implementation to the land development regulations, or to other kinds of

regulations, that are to be adopted after the plan is adopted, (e)

"publications" adopted by reference in the plan "have not been adequately

cited," (f) "the plan does not control growth," and it "designates an over-

allocation of land that can be developed at non-rural densities and

intensities," (g) the plan violates the concurrency provision on State Road 200,

and (h) the plan fails to include an analysis of projected mass transit level of

service and system needs.

B. Is the Plan, as Amended, in Compliance?

a. Generally

8. In attempting to prove the allegations in his petition, petitioner

offered only the testimony of a DCA land use planning manager and the County's

acting planning director, both of whom concluded that the plan, as amended, was

in compliance. Because both witnesses generally refuted all allegations raised

in the petition, and they disagreed with the theories advanced by petitioner

through his direct examination, the record in this case clearly supports a

finding that the plan, as amended, is in compliance. Notwithstanding this state

of the record, the undersigned will address in general terms the broad issues

raised in the petition, namely, the adequacy of the plan's supporting data and

analysis, the adequacy of the goals, objectives and policies, the plan's

internal consistency, and the plan's consistency with the state comprehensive

plan. In addition, the undersigned will address the more specific objections

raised by petitioner in his proposed recommended order.

b. Adequate data and analyses

9. Petitioner has alleged that the County's plan, as amended, is not in

compliance because ten elements were not supported by adequate data and

analyses, as required by Chapter 9J-5, Florida Administrative Code. However,

petitioner either abandoned these allegations or failed to prove them to the

exclusion of fair debate.

b. Goals, objectives and policies

10. Petitioner further alleged that the County's plan, as amended, is not

in compliance because a number of the goals, objectives and policies (GOPs)

contained in the various elements were inadequate in that they did not meet some

of the requirements for GOPs in Chapter 9J-5, Florida Administrative Code.

However, petitioner either abandoned these allegations or failed to prove them

to the exclusion of fair debate.

c. Internal consistency of plan

11. Petitioner next alleged that the County's plan, as amended, is not in

compliance because the internal consistency requirements in Chapter 9J-5,

Florida Administrative Code, had not been met. Based on the findings of fact

above, however, it is clear that the evidence failed to show to the exclusion of

fair debate that the County's plan contained GOPs that were in conflict with

each other, thereby rendering the plan internally inconsistent.

d. Consistency with state comprehensive plan

12. Petitioner has also alleged that the County's plan, as amended, is not

in compliance because it is not compatible with, and does not further, a number

of goals and policies of the State Comprehensive Plan, which are contained in

Section 187.201, Florida Statutes.

13. Petitioner failed to present any evidence showing that the County's

plan, as amended, is not compatible with, and does not further, the State

Comprehensive Plan.

e. Other objections

14. Petitioner has alleged in his proposed recommended order that some of

the objectives and policies used by the County do not conform to the definition

of those terms in Rule 9J-5.003, Florida Administrative Code. However, the

evidence established that those definitions are not mandatory, they merely

provide clarification for the local government, and the local government is free

to use other definitions in its plan so long as they generally conform with the

codified definition. Since the challenged objectives and policies generally

conform with the above rule, and they provide the means for their achievement,

they are found to be in compliance.

15. Petitioner also alleges that some elements in the plan lack certain

policies and objectives required by chapter 9J-5 and thus are deficient. The

more persuasive evidence shows, however, that each of the challenged elements

was adequate in terms of containing the necessary policies and objectives, and

thus the requirements of chapter 9J-5 have been satisfied.

16. Petitioner next alleges that many of the policies in the plan defer

implementation to the land development regulations (LDRs) or other regulations

that will not be adopted until after this plan becomes effective. Contrary to

petitioner's assertion, however, some of the policies do not defer to the LDRs.

In cases where they do, the LDRs must still be adopted in accordance with strict

time limitations established by Chapter 163, Florida Statutes, and thus the

necessary guidance in the plan is not lacking.

17. Petitioner further contends that "publications" adopted by reference

in the plan "have not been adequately cited." He specifically refers to policy

1.5 of the Traffic Circulation Element which adopts by reference, and without

specific citation to a page number, a manual entitled Institute of Traffic

Engineers Trip Generation. Through testimony of witness Manning, however, it

was established that it is impractical and unnecessary for the local government

to cite specific page numbers of the manual in the plan itself. Indeed,

reference to the title of the manual is sufficient. Therefore, those provisions

of the plan which incorporate by reference other publications without detailed

citations are found to be in compliance.

18. Petitioner has also complained that the plan does not control growth,

and it over allocates land to non-rural purposes. In this regard, the County's

future allocation of land use was made through the use of a multiplier, which is

a planning technique for assessing future land use needs. This technique, and

the accompanying calculations, were not shown to be unreasonable or to produce

inappropriate results. It was further established that, in making its

projections, the County exceeded the requirements of chapter 163. Indeed, in

the words of a DCA planner, the County made one of the "most honest assessments

of development of any plan in the state."

19. Petitioner next asserts that policy 2.1 of the Traffic Circulation

Element allows a 20 percent degradation to the existing level of service for two

segments on State Road 200, and thus it "violates the concurrency provision of

the act and Rule 9J-5." While the level of service for roads must be consistent

with Department of Transportation standards to the maximum extent possible, if

it cannot meet them, the local government may show justification for deviation

from those standards. In this case, the County presented justification for

deviating from those standards by 20 percent on State Road 200 as authorized by

Rules 9J-5.0055(1)(d) and 9J-5.007(2)(b), Florida Administrative Code.

Therefore, the questioned policy is deemed to be in compliance.

20. Finally, petitioner alleges that the plan fails to include an analysis

of projected mass transit level of service and system needs. Admittedly, such

an analysis is not found in the plan. However, this is because the County does

not operate a public mass transit system. In circumstances such as these, the

County is required by chapter 163 to have a mass transit element in its plan,

but it is not required to adopt an objective on this subject. Therefore, the

absence of such an analysis does not render the plan not in compliance.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has jurisdiction over the

subject matter and the parties hereto pursuant to Sections 120.57(1) and

163.3184(9), Florida Statutes.

22. The broad issue in this case is whether the plan, as amended, is "in

compliance" with Part II of Chapter 163, Florida Statutes, and Chapter 9J-5,

Florida Administrative Code. "In compliance," as defined in Section

163.3184(1)(b), Florida Statutes, means the plan is consistent with the

applicable provisions of Part II of Chapter 163, Florida Statutes, the state

comprehensive plan, the regional policy plan, and Chapter 9J-5, Florida

Administrative Code.

23. This case arose under Section 163.3184(9)(a), Florida Statutes,

following DCA's notice of intent to find the County's plan and remedial

amendments in compliance. Under that statute, the plan or amendment must be

determined to be "in compliance" if the local government's determination of

compliance is fairly debatable. Therefore, the action of the County must be

approved "if reasonable persons could differ as to its propriety." B & H Travel

Corporation v. Department of Community Affairs, 602 So.2d 1362, 1365 (Fla. 1st

DCA 1992). In other words, petitioner bears a heavy burden in proving the

legitimacy of his claims.

24. Based upon all of the evidence, it is concluded that petitioner has

failed to prove to the exclusion of fair debate that the County's plan, as

amended, is not supported by adequate data and analyses, or that some of the

GOPs are inadequate or in conflict with each other.

25. Based upon all of the evidence, it is concluded that petitioner has

failed to prove to the exclusion of fair debate that the County's plan, as

amended, is inconsistent with the State Comprehensive Plan.

26. Therefore, it is concluded that petitioner has failed to prove that

the County's determination of compliance is not fairly debatable.

27. Finally, at hearing petitioner moved to "disqualify" his own witness,

Teresa M. Manning, then a DCA employee, on the ground she had applied for the

position of County planning director. The request was denied. In his proposed

order, he again requests that she be disqualified on the ground that, after the

hearing, she was hired for that position. Because this is not a ground for

disqualifying a witness under Section 90.603, Florida Statutes, but rather is a

factor to be considered in assessing the witness' credibility, the request to

disqualify witness Manning is again denied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of Law, it is

RECOMMENDED that the Department of Community Affairs enter a final order

determining that Marion County's comprehensive plan, as amended by Ordinance No.

94-12, is in compliance.

DONE AND ENTERED this 29th day of June, 1995, in Tallahassee, Florida.

___________________________________

DONALD R. ALEXANDER

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 29th day of June, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-7071GM

Petitioner:

1. Partially accepted in finding of fact 2.

2-3. Partially accepted in finding of fact 1.

4a.-4c. Partially accepted in finding of fact 14.

4d. Partially accepted in finding of fact 15.

4e. Partially accepted in finding of fact 16.

4f. Partially accepted in finding of fact 17.

4g. Partially accepted in finding of fact 18.

5. Partially accepted in finding of fact 19.

6. Partially accepted in finding of fact 20.

7-9. Covered in conclusions of law.

Respondents:

1. Partially accepted in finding of fact 1.

2. Partially accepted in finding of fact 2.

3. Partially accepted in finding of fact 3.

4. Partially accepted in finding of fact 4.

5. Partially accepted in finding of fact 5.

6. Partially accepted in finding of fact 6.

7. Partially accepted in finding of fact 7.

8. Partially accepted in finding of fact 9.

9. Partially accepted in finding of fact 10.

10. Partially accepted in finding of fact 11.

11. Partially accepted in finding of fact 12.

12. Rejected as being unnecessary.

13. Partially accepted in finding of fact 13.

Note: Where a proposed finding has been partially accepted, the remainder has

been rejected as being unnecessary for a resolution of the issues, irrelevant,

not supported by the more credible, persuasive evidence, subordinate, or a

conclusion of law.

COPIES FURNISHED:

William B. Hunt

3531 S. E. 30th Terrace

Ocala, Florida 34471

Gordon B. Johnston, Esquire

601 S. E. 25th Avenue

Ocala, Florida 34471-2690

Brigette A. Ffolkes, Esquire

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

Linda Loomis Shelley, Secretary

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

Dan R. Stengle, Esquire

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 to the agency written exceptions to this

Recommended Order. All agencies allow each party at least ten days in which to

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

submit written exceptions. You should contact 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.