95-005776GM Jack Hamilton vs. Jefferson County And Department Of Community Affairs Status: Closed DOAH Final Order on Thursday, October 17, 1996.

Summary: Land Developement Region determined to be consistent with comprehensive plan; petition denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACK HAMILTON, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5776GM

)

DEPARTMENT OF COMMUNITY )

AFFAIRS and JEFFERSON COUNTY, )

)

Respondents. )

________________________________)

FINAL ORDER

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

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

July 11, 1996, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Vance W. Kidder, Esquire

149 Carr Lane

Tallahassee, Florida 32312-9032

For Respondent: Sherry A. Spiers, Esquire

(DCA) 2555 Shumard Oak Boulevard, Suite 315

Tallahassee, Florida 32399-2100

For Respondent: David La Croix, Esquire

(County) 521 West Olympia Avenue

Punta Gorda, Florida 33950-4851

STATEMENT OF THE ISSUE

Whether a land development regulation adopted by the County by Ordinance

No. 94-15 on September 1, 1994, is consistent with the County's comprehensive

plan.

PRELIMINARY STATEMENT

This matter began on August 14, 1995, when petitioner, Jack Hamilton, the

owner of property and a business in Jefferson County, Florida, filed a petition

with respondent, Department of Community Affairs, alleging that a land

development regulation adopted by respondent, Jefferson County, on September 1,

1994, was not in compliance. That regulation amends the Land Development Code

to allow nursing homes and other residential care facilities in the agricultural

land use designations. An amended petition was filed on September 12, 1995. In

general terms, petitioner contends that the regulation is "facially inconsistent

with the County's comprehensive plan." On November 13, 1995, the Department of

Community Affairs rendered its Determination of Consistency of Jefferson County

Ordinance 94-15. The matter was then referred by the agency to the Division of

Administrative Hearings on November 28, 1995, with a request that a Hearing

Officer be assigned to conduct a hearing.

On motion of the parties, this case and Case No. 95-5051GM, which involves

a challenge by petitioner to a related plan amendment, were consolidated for

hearing purposes. Because Case No. 95-5051GM requires the issuance of a

Recommended Order, separate orders are being rendered in the two matters.

By notice of hearing dated November 22, 1995, a final hearing was scheduled

on January 23, 1996, in Tallahassee, Florida. Thereafter, the agency's

unopposed motion for continuance was granted and both cases were rescheduled to

April 23, 1996. A second unopposed motion for continuance by the agency was

granted, and the cases were rescheduled to May 8, 1996, at the same location.

The agency's third unopposed motion for continuance was granted, and the cases

were finally heard on July 11, 1996.

At final hearing, petitioner testified on his own behalf and presented the

testimony of John Durst, County planner; Susan Anderson, an agency planner; and

Jackson E. Sullivan, a planner and accepted as an expert in growth management

and land use planning. Also, he offered petitioner's exhibits 1, 3, 7-10, and

12-18. All exhibits were received in evidence. Respondent Jefferson County

presented the testimony of John Durst, county planning director. Also, it

offered County exhibits 1 and 2. Both exhibits were received in evidence.

Respondent Department of Community Affairs presented the testimony of Susan

Anderson, a planner and accepted as an expert in comprehensive land use

planning. Also, it offered DCA exhibits 1 and 2 which were received in

evidence. Finally, the parties offered joint exhibits 1-6 which were received

in evidence.

The transcript of hearing (three volumes) was filed on August 6, 1996.

Proposed findings of fact and conclusions of law were originally due on

September 6, 1996. At the request of the parties, this time was extended to

September 13, 1996, and then again to September 16, 1996. Proposed orders were

timely filed by all parties and have been considered by the undersigned in the

preparation of this Final Order.

FINDINGS OF FACT

Based upon all of the evidence, including the stipulation of counsel, the

following findings of fact are determined:

1. Respondent, Jefferson County (County), is a local governmental unit

subject to the land use planning requirements of Chapter 163, Florida Statutes.

That chapter is administered by respondent, Department of Community Affairs

(DCA). The DCA is charged with the responsibility of reviewing comprehensive

growth management plans and amendments thereto. At issue in this case is a land

development regulation adopted by the County.

2. Petitioner, Jack Hamilton, is a resident of Jefferson County. He owns

and operates a nursery, orchard and cattle operation on his property on the east

side of Highway 19, approximately two miles north of Monticello, Florida. The

land, which is approximately 135 acres in size, is presently designated in a

land use category known as Agriculture 2. For almost thirty years, the

Jefferson Nursing Center (JNC), a nursing home, has been situated on a seven

acre parcel of land surrounded on three sides by petitioner's property. Here,

petitioner challenges a land development regulation which allows nursing homes,

including JNC, in the Agriculture 2 category. The parties have stipulated that

petitioner is a substantially affected person within the meaning of the law and

thus he has standing to bring this action.

3. The County adopted its comprehensive plan (plan) on July 19, 1990. The

plan was later determined by the DCA to be in compliance. The County has also

adopted a Land Development Code (Code) containing various land development

regulations which implement the plan.

4. Prior to the adoption of the challenged ordinance, Section 2.02.03(B)3.

of the Code included a provision allowing, among other things, the following

uses in the Agriculture 2 land use district:

Institutional, excluding residential care

facilities and nursing homes.

5. On September 1, 1994, the County adopted Ordinance No. 94-15, which

amended Section 2.02.03(B)3. by removing the exclusion, thereby allowing nursing

homes and residential care facilities in the Agriculture 2 land use district.

Thus, the ordinance made nursing homes a permitted use in the Agriculture 2

district, like all other institutional uses which were allowed in agriculture

districts. This was also consistent with other Code provisions which allowed

nursing homes in almost every other district.

6. On August 15, 1995, petitioner filed a petition with the DCA contending

that the land development regulation was not consistent with the plan. An

amended petition was later filed on September 12, 1995, alleging generally that

nursing homes did not conform to, and were incompatible with, agriculture uses.

7. On November 13, 1995, the DCA entered its Determination of Consistency

of Jefferson County Ordinance 94-15. Among other things, the DCA based its

finding of consistency on the following provisions in the Housing Element of the

plan:

GOAL: Assure the availability of housing

to meet the existing and future needs of

all residents of Jefferson County for all

income levels.

Objective 5: The useful life of the

existing housing stock will be conserved

and extended, and neighborhood quality

will be improved.

Policy 5-3: The County shall establish

non-discriminatory standards and criteria

addressing the location of group homes and

foster care facilities as well as other

types of special need housing.

8. The specific uses to be allowed in the agricultural land use categories

were largely deferred to the land development regulations contained in the Code.

Those regulations define residential care facilities and nursing homes (group

homes) as institutional uses. Policy 5-3 requires that the County establish

"non-discriminatory standards and criteria" in addressing the location of group

homes. Before the adoption of Ordinance 94-15, all institutional uses, except

nursing homes and residential care facilities, were allowed in agricultural

districts. The new land development regulation removes this discriminatory

feature.

9. The plan recogizes that the character of development in the rural areas

of the County is of mixed uses which are of a scale to intermix without creating

incompatibilities. The area in which petitioner's property and JNC are located

contains a mix of uses. Ordinance No. 94-15 is consistent with the character of

rural development in the County.

10. The Future Land Use Element of the plan provides in relevant part as

follows:

GOAL: Efficiently manage and regulate land

use types, locations, and densities in

compatibility with natural and man-made

resources so as to provide the residents of

Jefferson County with an aesthetically

pleasing, economically beneficial, and

socially adequate environment.

* * *

Policy 1-3: The categories on the Future

Land Use Map are defined as follows:

* * *

Agriculture 2: This includes areas

appropriate for a variety of agricultural

uses, including but not limited to crop

land, pasture land, orchards and groves, or

forestry. Dwellings and associated

accessory farm buildings are allowable.

Density for residential use shall not exceed

1 unit per 5 acres, except that transfer of

property to members of the principal owner's

immediate family is allowable, provided that

all other applicable requirements are met.

However, as provided in other policies of

the Future Land Use Element, density is

calculated on a gross basis (area-based

allocation); actual units should be

clustered, subject to the requirements set

forth in the objectives and policies of the

comprehensive plan so long as the gross

density is not exceeded.

11. Under the plan, dwellings are allowed uses in the agriculture 2 land

use district. A disputed issue is whether the uses allowed by Ordinance No. 94-

15 are residential uses. Petitioner's expert conceded that it is within the

discretion of a local government to define nursing homes as a residential use,

and that the County's plan tends to do so. The evidence establishes that

residential care facilities, such as adult congregate living facilities, are a

residential land use. Since dwellings (residences) are an allowed use in the

agriculture 2 land use district, it is at least fairly debatable that

residential care facilities are also allowed in that district.

12. In addition, in the Housing Element of the plan, nursing homes are

included in the discussion and inventory of group homes in the County. They are

considered to be special needs housing for the elderly. The plan recognizes

that housing needs for the elderly often form a distinct sub-market of the total

housing market, and projects that the elderly population (65 and older) will be

the second fastest growing age group in the County by the year 2000. When

reading the Housing Element provision in pari materia with the Future Land Use

Element, it is at least fairly debatable that nursing homes are residential or

dwelling uses in the plan and are therefore allowed in the agriculture 2

district.

13. Given the foregoing, it is found that the challenged land development

regulation is consistent with the plan.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has jurisdiction over the

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

163.3213, Florida Statutes.

15. This proceeding is governed by Section 163.3213, Florida Statutes.

Under the terms of Section 163.3213(3), Florida Statues, a substantially

affected person must initiate a consistency challenge within twelve months after

final adoption of the land development regulation. Petitioner's challenge was

begun within that time period.

16. The issue in this case is whether the land development regulation is

consistent with the local comprehensive plan. As an aid in making this

determination, Section 163.3213(5)(a), Florida Statutes, provides that "(t)he

adoption of a land development regulation by a local government is legislative

in nature and it shall not be found to be inconsistent with the local plan if it

is fairly debatable that it is consistent with the plan."

17. The more persuasive evidence supports a conclusion that petitioner has

failed to prove to the exclusion of fair debate that the challenged land

development regulation is inconsistent with the comprehensive plan. This being

so, the land development amendment adopted by Ordinance No. 94-15 is determined

to be consistent with the plan.

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

ORDERED that the land development regulation adopted by Ordinance No. 94-15

is determined to be consistent with the County's comprehensive plan.

DONE AND ENTERED this 17th day of October, 1996, in Tallahassee, Florida.

___________________________________

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of October, 1996.

COPIES FURNISHED:

James F. Murley, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399-2100

Vance W. Kidder, Esquire

149 Carr Lane

Tallahassee, Florida 32312-9032

Sherry A. Spiers, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 315

Tallahassee, Florida 32399-2100

Stephanie M. Gehres, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325-A

Tallahassee, Florida 32399-2100

David La Croix, Esquire

521 West Olympia Avenue

Punta Gorda, Florida 33950-4851

NOTICE OF RIGHT TO JUDICIAL REVIEW

Any party who is adversely affected by this Final Order is entitled to judicial

review pursuant to Section 120.68, Florida Statutes. Review proceedings are

governed by the Florida Rules of Appellate Procedure. Such proceedings are

commenced by filing a copy of a notice of appeal with the agency clerk of the

Division of Administrative Hearings and a second copy, accompanied by filing

fees prescribed by law, with the District Court of Appeal, First District, or

with the district court of appeal in the district where the party resides. The

notice of appeal must be filed within thirty days of rendition of the order to

be reviewed.