94-007071GM
William B. Hunt vs.
Marion County
Status: Closed
Recommended Order on Thursday, June 29, 1995.
Recommended Order on Thursday, June 29, 1995.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8WILLIAM B. HUNT, )
12)
13Petitioner, )
15)
16vs. ) CASE NO. 94-7071GM
21)
22DEPARTMENT OF COMMUNITY )
26AFFAIRS and MARION COUNTY, )
31)
32Respondents. )
34___________________________)
35RECOMMENDED ORDER
37Pursuant to notice, the above matter was heard before the Division of
49Administrative Hearings by its assigned Hearing Officer, Donald R. Alexander, on
60May 10 and 11, 1995, in Ocala, Florida.
68APPEARANCES
69For Petitioner: William B. Hunt, pro se
763531 Southeast 30th Terrace
80Ocala, Florida 34471
83For Respondent: Gordon B. Johnston, Esquire
89(County) 601 Southeast 25th Avenue
94Ocala, Florida 34471-2690
97For Respondent: Brigette A. Ffolkes, Esquire
103(DCA) 2740 Centerview Drive
107Tallahassee, Florida 32399-2100
110STATEMENT OF THE ISSUE
114The issue in this case is whether the Marion County comprehensive plan, as
127amended by Ordinance No. 94-12 on April 7, 1994, is in compliance.
139PRELIMINARY STATEMENT
141This case began on December 13, 1994, when petitioner, William B. Hunt,
153filed a petition for an administrative hearing alleging that the Marion County
165comprehensive plan, as amended by remedial amendments, was not in compliance in
177a number of respects with Chapter 163, Florida Statutes, and Chapter 9J-5,
189Florida Administrative Code. The petition was forwarded by respondent,
198Department of Community Affairs, to the Division of Administrative Hearings on
209December 19, 1994, with a request that a Hearing Officer be assigned to conduct
223a hearing.
225By notice of hearing dated January 10, 1995, a final hearing was scheduled
238for May 10-12, 1995, in Ocala, Florida. At final hearing, petitioner presented
250the testimony of Teresa M. Manning, a land use planning manager with the
263Department of Community Affairs, and Gus Gianikis, acting planning director for
274Marion County. Also, he offered petitioner's exhibits 1-7. All exhibits were
285received in evidence. Respondent, Marion County, offered County exhibits 1-14
295while respondent, Department of Community Affairs, offered DCA exhibits 1-4.
305All exhibits were received in evidence.
311There is no transcript of hearing. Proposed findings of fact and
322conclusions of law were filed by respondents and petitioner on May 26 and 30,
3361995, respectively. A ruling on each proposed finding is set forth in the
349Appendix attached to this Recommended Order.
355FINDINGS OF FACT
358Based upon all of the evidence, the following findings of fact have been
371determined:
372A. Background
374a. The parties
3771. Respondent, Marion County (County), is a local government subject to
388the comprehensive land use planning requirements of Chapter 163, Florida
398Statutes. That chapter is administered and enforced by respondent, Department
408of Community Affairs (DCA). The DCA is charged with the responsibility of
420reviewing comprehensive land use plans and amendments made thereto.
4292. Petitioner, William B. Hunt, owns property and resides within the
440County. Petitioner also submitted written comments to the County during the
451public hearing held on April 7, 1994, concerning the adoption of an amendment to
465the County's comprehensive plan. Therefore, he is an affected person within the
477meaning of the law and has standing to bring this action.
488b. The nature of the dispute
4943. In July 1991, the County initially transmitted its proposed
504comprehensive land use plan to the DCA. The DCA issued an Objections,
516Recommendations, and Comments (ORC) report for the County's plan on October 18,
5281991. The County issued a response to the DCA's ORC report and adopted its
542comprehensive plan in January 1992. In April 1992, the DCA issued a notice of
556intent to find the comprehensive plan not in compliance.
5654. In an attempt to bring the County's plan into compliance, the DCA and
579County entered into a settlement agreement in March 1993. Pursuant to the
591agreement, the County was supposed to adopt certain remedial amendments to its
603comprehensive plan.
6055. In August 1993, the County adopted remedial amendments to its
616comprehensive plan. In October 1993, the DCA issued a notice of intent to find
630the remedial amendments not in compliance.
6366. In another attempt to bring the County's plan into compliance, the DCA
649and County entered into another settlement agreement in February 1994, and into
661an addendum thereto in April 1994. Pursuant to this agreement, the County
673adopted the agreed-upon remedial amendments to its comprehensive plan by
683Ordinance No. 94-12 on April 7, 1994. On May 30, 1994, the DCA issued a
698cumulative notice of intent to find the County's comprehensive plan and remedial
710amendments in compliance.
7137. On June 18, 1994, petitioner filed a petition to intervene with the
726Division of Administrative Hearings seeking to challenge the newly amended plan.
737After being advised that the petition was filed in the wrong forum, and that he
752incorrectly sought to intervene rather than to initiate a new proceeding, on
764December 13, 1994, petitioner filed a petition for an administrative hearing
775with the DCA. In his lengthy petition, which contains allegations running some
787fifty-four pages in length, petitioner has challenged the County's plan, as
798amended, in numerous respects. In his proposed order, however, petitioner has
809summarized his complaints into the following categories: (a) "many" of the plan
821objectives are not "specific or measurable," (b) "many" policies in the plan are
834not "adequate," (c) "many" of the required objectives and policies are not found
847within a particular element, (d) "many" policies in the plan defer
858implementation to the land development regulations, or to other kinds of
869regulations, that are to be adopted after the plan is adopted, (e)
"881publications" adopted by reference in the plan "have not been adequately
892cited," (f) "the plan does not control growth," and it "designates an over-
905allocation of land that can be developed at non-rural densities and
916intensities," (g) the plan violates the concurrency provision on State Road 200,
928and (h) the plan fails to include an analysis of projected mass transit level of
943service and system needs.
947B. Is the Plan, as Amended, in Compliance?
955a. Generally
9578. In attempting to prove the allegations in his petition, petitioner
968offered only the testimony of a DCA land use planning manager and the County's
982acting planning director, both of whom concluded that the plan, as amended, was
995in compliance. Because both witnesses generally refuted all allegations raised
1005in the petition, and they disagreed with the theories advanced by petitioner
1017through his direct examination, the record in this case clearly supports a
1029finding that the plan, as amended, is in compliance. Notwithstanding this state
1041of the record, the undersigned will address in general terms the broad issues
1054raised in the petition, namely, the adequacy of the plan's supporting data and
1067analysis, the adequacy of the goals, objectives and policies, the plan's
1078internal consistency, and the plan's consistency with the state comprehensive
1088plan. In addition, the undersigned will address the more specific objections
1099raised by petitioner in his proposed recommended order.
1107b. Adequate data and analyses
11129. Petitioner has alleged that the County's plan, as amended, is not in
1125compliance because ten elements were not supported by adequate data and
1136analyses, as required by Chapter 9J-5, Florida Administrative Code. However,
1146petitioner either abandoned these allegations or failed to prove them to the
1158exclusion of fair debate.
1162b. Goals, objectives and policies
116710. Petitioner further alleged that the County's plan, as amended, is not
1179in compliance because a number of the goals, objectives and policies (GOPs)
1191contained in the various elements were inadequate in that they did not meet some
1205of the requirements for GOPs in Chapter 9J-5, Florida Administrative Code.
1216However, petitioner either abandoned these allegations or failed to prove them
1227to the exclusion of fair debate.
1233c. Internal consistency of plan
123811. Petitioner next alleged that the County's plan, as amended, is not in
1251compliance because the internal consistency requirements in Chapter 9J-5,
1260Florida Administrative Code, had not been met. Based on the findings of fact
1273above, however, it is clear that the evidence failed to show to the exclusion of
1288fair debate that the County's plan contained GOPs that were in conflict with
1301each other, thereby rendering the plan internally inconsistent.
1309d. Consistency with state comprehensive plan
131512. Petitioner has also alleged that the County's plan, as amended, is not
1328in compliance because it is not compatible with, and does not further, a number
1342of goals and policies of the State Comprehensive Plan, which are contained in
1355Section 187.201, Florida Statutes.
135913. Petitioner failed to present any evidence showing that the County's
1370plan, as amended, is not compatible with, and does not further, the State
1383Comprehensive Plan.
1385e. Other objections
138814. Petitioner has alleged in his proposed recommended order that some of
1400the objectives and policies used by the County do not conform to the definition
1414of those terms in Rule 9J-5.003, Florida Administrative Code. However, the
1425evidence established that those definitions are not mandatory, they merely
1435provide clarification for the local government, and the local government is free
1447to use other definitions in its plan so long as they generally conform with the
1462codified definition. Since the challenged objectives and policies generally
1471conform with the above rule, and they provide the means for their achievement,
1484they are found to be in compliance.
149115. Petitioner also alleges that some elements in the plan lack certain
1503policies and objectives required by chapter 9J-5 and thus are deficient. The
1515more persuasive evidence shows, however, that each of the challenged elements
1526was adequate in terms of containing the necessary policies and objectives, and
1538thus the requirements of chapter 9J-5 have been satisfied.
154716. Petitioner next alleges that many of the policies in the plan defer
1560implementation to the land development regulations (LDRs) or other regulations
1570that will not be adopted until after this plan becomes effective. Contrary to
1583petitioner's assertion, however, some of the policies do not defer to the LDRs.
1596In cases where they do, the LDRs must still be adopted in accordance with strict
1611time limitations established by Chapter 163, Florida Statutes, and thus the
1622necessary guidance in the plan is not lacking.
163017. Petitioner further contends that "publications" adopted by reference
1639in the plan "have not been adequately cited." He specifically refers to policy
16521.5 of the Traffic Circulation Element which adopts by reference, and without
1664specific citation to a page number, a manual entitled Institute of Traffic
1676Engineers Trip Generation. Through testimony of witness Manning, however, it
1686was established that it is impractical and unnecessary for the local government
1698to cite specific page numbers of the manual in the plan itself. Indeed,
1711reference to the title of the manual is sufficient. Therefore, those provisions
1723of the plan which incorporate by reference other publications without detailed
1734citations are found to be in compliance.
174118. Petitioner has also complained that the plan does not control growth,
1753and it over allocates land to non-rural purposes. In this regard, the County's
1766future allocation of land use was made through the use of a multiplier, which is
1781a planning technique for assessing future land use needs. This technique, and
1793the accompanying calculations, were not shown to be unreasonable or to produce
1805inappropriate results. It was further established that, in making its
1815projections, the County exceeded the requirements of chapter 163. Indeed, in
1826the words of a DCA planner, the County made one of the "most honest assessments
1841of development of any plan in the state."
184919. Petitioner next asserts that policy 2.1 of the Traffic Circulation
1860Element allows a 20 percent degradation to the existing level of service for two
1874segments on State Road 200, and thus it "violates the concurrency provision of
1887the act and Rule 9J-5." While the level of service for roads must be consistent
1902with Department of Transportation standards to the maximum extent possible, if
1913it cannot meet them, the local government may show justification for deviation
1925from those standards. In this case, the County presented justification for
1936deviating from those standards by 20 percent on State Road 200 as authorized by
1950Rules 9J-5.0055(1)(d) and 9J-5.007(2)(b), Florida Administrative Code.
1957Therefore, the questioned policy is deemed to be in compliance.
196720. Finally, petitioner alleges that the plan fails to include an analysis
1979of projected mass transit level of service and system needs. Admittedly, such
1991an analysis is not found in the plan. However, this is because the County does
2006not operate a public mass transit system. In circumstances such as these, the
2019County is required by chapter 163 to have a mass transit element in its plan,
2034but it is not required to adopt an objective on this subject. Therefore, the
2048absence of such an analysis does not render the plan not in compliance.
2061CONCLUSIONS OF LAW
206421. The Division of Administrative Hearings has jurisdiction over the
2074subject matter and the parties hereto pursuant to Sections 120.57(1) and
2085163.3184(9), Florida Statutes.
208822. The broad issue in this case is whether the plan, as amended, is "in
2103compliance" with Part II of Chapter 163, Florida Statutes, and Chapter 9J-5,
2115Florida Administrative Code. "In compliance," as defined in Section
2124163.3184(1)(b), Florida Statutes, means the plan is consistent with the
2134applicable provisions of Part II of Chapter 163, Florida Statutes, the state
2146comprehensive plan, the regional policy plan, and Chapter 9J-5, Florida
2156Administrative Code.
215823. This case arose under Section 163.3184(9)(a), Florida Statutes,
2167following DCA's notice of intent to find the County's plan and remedial
2179amendments in compliance. Under that statute, the plan or amendment must be
2191determined to be "in compliance" if the local government's determination of
2202compliance is fairly debatable. Therefore, the action of the County must be
2214approved "if reasonable persons could differ as to its propriety." B & H Travel
2228Corporation v. Department of Community Affairs, 602 So.2d 1362, 1365 (Fla. 1st
2240DCA 1992). In other words, petitioner bears a heavy burden in proving the
2253legitimacy of his claims.
225724. Based upon all of the evidence, it is concluded that petitioner has
2270failed to prove to the exclusion of fair debate that the County's plan, as
2284amended, is not supported by adequate data and analyses, or that some of the
2298GOPs are inadequate or in conflict with each other.
230725. Based upon all of the evidence, it is concluded that petitioner has
2320failed to prove to the exclusion of fair debate that the County's plan, as
2334amended, is inconsistent with the State Comprehensive Plan.
234226. Therefore, it is concluded that petitioner has failed to prove that
2354the County's determination of compliance is not fairly debatable.
236327. Finally, at hearing petitioner moved to "disqualify" his own witness,
2374Teresa M. Manning, then a DCA employee, on the ground she had applied for the
2389position of County planning director. The request was denied. In his proposed
2401order, he again requests that she be disqualified on the ground that, after the
2415hearing, she was hired for that position. Because this is not a ground for
2429disqualifying a witness under Section 90.603, Florida Statutes, but rather is a
2441factor to be considered in assessing the witness' credibility, the request to
2453disqualify witness Manning is again denied.
2459RECOMMENDATION
2460Based on the foregoing findings of fact and conclusions of Law, it is
2473RECOMMENDED that the Department of Community Affairs enter a final order
2484determining that Marion County's comprehensive plan, as amended by Ordinance No.
249594-12, is in compliance.
2499DONE AND ENTERED this 29th day of June, 1995, in Tallahassee, Florida.
2511___________________________________
2512DONALD R. ALEXANDER
2515Hearing Officer
2517Division of Administrative Hearings
2521The DeSoto Building
25241230 Apalachee Parkway
2527Tallahassee, Florida 32399-1550
2530(904) 488-9675
2532Filed with the Clerk of the
2538Division of Administrative Hearings
2542this 29th day of June, 1995.
2548APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-7071GM
2555Petitioner:
25561. Partially accepted in finding of fact 2.
25642-3. Partially accepted in finding of fact 1.
25724a.-4c. Partially accepted in finding of fact 14.
25804d. Partially accepted in finding of fact 15.
25884e. Partially accepted in finding of fact 16.
25964f. Partially accepted in finding of fact 17.
26044g. Partially accepted in finding of fact 18.
26125. Partially accepted in finding of fact 19.
26206. Partially accepted in finding of fact 20.
26287-9. Covered in conclusions of law.
2634Respondents:
26351. Partially accepted in finding of fact 1.
26432. Partially accepted in finding of fact 2.
26513. Partially accepted in finding of fact 3.
26594. Partially accepted in finding of fact 4.
26675. Partially accepted in finding of fact 5.
26756. Partially accepted in finding of fact 6.
26837. Partially accepted in finding of fact 7.
26918. Partially accepted in finding of fact 9.
26999. Partially accepted in finding of fact 10.
270710. Partially accepted in finding of fact 11.
271511. Partially accepted in finding of fact 12.
272312. Rejected as being unnecessary.
272813. Partially accepted in finding of fact 13.
2736Note: Where a proposed finding has been partially accepted, the remainder has
2748been rejected as being unnecessary for a resolution of the issues, irrelevant,
2760not supported by the more credible, persuasive evidence, subordinate, or a
2771conclusion of law.
2774COPIES FURNISHED:
2776William B. Hunt
27793531 S. E. 30th Terrace
2784Ocala, Florida 34471
2787Gordon B. Johnston, Esquire
2791601 S. E. 25th Avenue
2796Ocala, Florida 34471-2690
2799Brigette A. Ffolkes, Esquire
2803Department of Community Affairs
28072740 Centerview Drive
2810Tallahassee, Florida 32399-2100
2813Linda Loomis Shelley, Secretary
2817Department of Community Affairs
28212740 Centerview Drive
2824Tallahassee, Florida 32399-2100
2827Dan R. Stengle, Esquire
2831General Counsel
2833Department of Community Affairs
28372740 Centerview Drive
2840Tallahassee, Florida 32399-2100
2843NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
2849All parties have the right to submit to the agency written exceptions to this
2863Recommended Order. All agencies allow each party at least ten days in which to
2877submit written exceptions. Some agencies allow a larger period within which to
2889submit written exceptions. You should contact the agency that will issue the
2901Final Order in this case concerning agency rules on the deadline for filing
2914exceptions to this Recommended Order. Any exceptions to this Recommended Order
2925should be filed with the agency that will issue the Final Order in this case.
![](/images/view_pdf.png)
- Date
- Proceedings
- Date: 09/22/1995
- Proceedings: Amended Final Order filed.
- Date: 08/08/1995
- Proceedings: Final Order filed.
-
PDF:
- Date: 06/29/1995
- Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held May 10 and 11, 1995.
- Date: 05/30/1995
- Proceedings: (Petitioner) Proposed Recommended Order filed.
- Date: 05/26/1995
- Proceedings: Joint Proposed Recommended Order filed.
- Date: 05/01/1995
- Proceedings: (Joint) Prehearing Stipulation filed.
- Date: 04/27/1995
- Proceedings: Order sent out. (hearing rescheduled for 5/10/95; 10:30am; Ocala)
- Date: 04/25/1995
- Proceedings: Letter to Hearing Officer from Yvonne Morson-Matra Re: Follow-up letter referencing letter dated April 21 filed.
- Date: 04/24/1995
- Proceedings: Letter to DRA from Yvonne Morson-Matra (RE: location of hearing scheduled for May 10, 11 and 12, 1995) filed.
- Date: 04/05/1995
- Proceedings: Respondent Marion County`s Notice of Serving Answers to Interrogatories filed.
- Date: 01/26/1995
- Proceedings: Order sent out. (county`s Motion to Strike Interrogatories is granted)
- Date: 01/23/1995
- Proceedings: Respondents Motion to Strike Interrogatories; Petitioner`s First Set of Interrogatories to Marion County filed.
- Date: 01/10/1995
- Proceedings: Notice of Hearing sent out. (hearing set for May 10-12, 1995; 10:30am; Ocala)
- Date: 01/09/1995
- Proceedings: (Department of Community Affairs) Response to Order filed.
- Date: 12/28/1994
- Proceedings: (Initial) Order sent out.
- Date: 12/23/1994
- Proceedings: Notification card sent out.
- Date: 12/19/1994
- Proceedings: Agency Referral Letter; Amended Petition of William B. Hunt for an Administrative Hearing on the Comprehensive Plan of the County of Marion filed.
Case Information
- Judge:
- D. R. ALEXANDER
- Date Filed:
- 12/19/1994
- Date Assignment:
- 12/23/1994
- Last Docket Entry:
- 09/22/1995
- Location:
- Ocala, Florida
- District:
- Northern
- Agency:
- ADOPTED IN TOTO
- Suffix:
- GM