98-002331GM
Janet Bollum, Glenn Brewer, And Mary Brewer vs.
Department Of Community Affairs And City Of Deland
Status: Closed
Recommended Order on Monday, November 20, 2000.
Recommended Order on Monday, November 20, 2000.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8JANET BOLLUM, GLENN BREWER, )
13and MARY BREWER, )
17)
18Petitioners, )
20)
21vs. ) Case No. 98-2331GM
26)
27DEPARTMENT OF COMMUNITY )
31AFFAIRS and CITY OF DELAND, )
37)
38Respondents, )
40)
41and )
43)
44WAL-MART STORES, EAST, INC., )
49and MARCIA BERMAN, TRUSTEE, )
54)
55Intervenors. )
57________________________________)
58RECOMMENDED ORDER
60Pursuant to notice, a formal hearing was held in this
70case on August 23, 2000, in Deland, Florida, before Donald R.
81Alexander, Administrative Law Judge of the Division of
89Administrative Hearings.
91APPEARANCES
92For Petitioners: C. Allen Watts, Esquire
98Cobb, Cole & Bell
102Post Office Box 2491
106Daytona Beach, Florida 32115-2491
110For Respondent: Shaw P. Stiller, Esquire
116(DCA) Department of Community Affairs
1212555 Shumard Oak Boulevard, Suite 315
127Tallahassee, Florida 32399-2100
130For Respondent: Mark A. Zimmerman, Esquire
136(City) James, Zimmerman, Paul & Huddleston
142Post Office Drawer 2087
146Deland, Florida 32721-2087
149For Intervenor: David L. Powell, Esquire
155(Berman) Hopping, Green, Sams & Smith, P.A.
162Post Office Box 6526
166Tallahassee, Florida 32314-6526
169For Intervenor: F. Alex Ford, Jr., Esquire
176(Wal-Mart) Landis, Graham, French, Husfeld,
181Sherman & Ford, P.A.
185Post Office Box 48
189Deland, Florida 32721-0048
192STATEMENT OF THE ISSUE
196The issue is whether that portion of Plan Amendment 98-1ER
206known as LU-97-02 is in compliance.
212PRELIMINARY STATEMENT
214This matter began on March 11, 1998, when Respondent, City
224of Deland, adopted Plan Amendment 98-1ER by Ordinance No. 96-17.
234Among other things, the ordinance assigned a Highway Commercial
243land use classification to approximately 40 acres of land owned
253by Intervenor, Marcia Berman, Trustee. The property is under
262contract to be sold to Intervenor, Wal-Mart Stores East, Inc.,
272who plans to construct a store on a part of the property.
284On May 7, 1998, Respondent, Department of Community Affairs,
293published its Notice of Intent to find the plan amendment not in
305compliance on various grounds. The agency then filed a Petition
315in support of its Notice, and the matter was forwarded to the
327Division of Administrative Hearings on May 15, 1998, with a
337request that an Administrative Law Judge be assigned to conduct a
348hearing.
349On May 28, 1998, Petitioners, Janet Bollum, Glenn Brewer,
358and Mary Brewer, and 82 other persons, filed a Petition for
369Administrative Hearing and Petition to Intervene in opposition to
378the plan amendment. The Petition to Intervene was later granted
388by Order dated December 18, 1998.
394By Notice of Hearing dated June 2, 1998, a final hearing was
406scheduled on September 16-18, 1998, in Deland, Florida. At the
416request of the parties, the case was temporarily abated pending
426efforts to reach a settlement. Thereafter, all parties except
435Petitioners executed a Stipulated Settlement Agreement in
442February and March 2000, which resolved all issues originally
451raised by the agency.
455An Amended Notice of Intent to find the amendment in
465compliance was then published on April 3, 2000. By Order dated
476April 28, 2000, the parties were realigned consistent with their
486new positions as required by Section 163.3184(16)(f)1., Florida
494Statutes (1999). The matter was also rescheduled for hearing on
504August 23 and 24, 2000, in Deland, Florida.
512On July 19, 2000, Petitioners filed their Motion for Leave
522to Amend Petition. The motion was granted on August 7, 2000, and
534all Petitioners except Bollum and the Brewers were dismissed as
544parties in this action. In addition, the factual issues to be
555tried were narrowed to two.
560At the final hearing, Petitioners presented the testimony of
569Gary Schindler, former planning director for the City of Deland;
579Janet Bollum; Gary Huttman, a transportation consultant; Richard
587Holmes, former planning director for the City of Deland; Jim
597McCroskey, director of community development for the City of
606Deland; and Thomas L. Brooks, a planner with Volusia County and
617accepted as an expert in planning demographics and population and
627employment projections. Also, they offered Petitioners' Exhibits
6341, 3-5, and 7, which were received in evidence. The Department
645of Community Affairs presented the testimony of Charles Gauthier,
654chief of the bureau of local planning and accepted as an expert
666in comprehensive planning and compliance review. Also, it
674offered Department Exhibit 1, which was received in evidence.
683The City of Deland offered City Exhibits 1-4, which were received
694in evidence. Exhibit 3 is the deposition of Wayne N. Sanborn,
705former city manager of the City of Deland. Finally, the parties
716offered Joint Exhibits 1-9, which were received in evidence.
725The Transcript of the hearing (two volumes) was filed on
735September 20, 2000. Proposed Findings of Fact and Conclusions of
745Law were filed by the parties on October 10, 2000, and they have
758been considered by the undersigned in the preparation of this
768Recommended Order.
770FINDINGS OF FACT
773Based upon all of the evidence, including the stipulation of
783counsel, the following findings of fact have been determined:
792a. Background
7941. In this land use dispute, Petitioners, Janet Bollum
803( Bollum) and Glenn and Mary Brewer (the Brewers), who are
814property owners within or near the City of Deland, contend that a
826portion of Plan Amendment 98-1ER adopted by Respondent, City of
836Deland (City), is not in compliance. The portion of the
846amendment under challenge, known as Plan Amendment LU-97-02,
854changes the land use on 39.56 acres of land owned by Intervenor,
866Marcia Berman, Trustee (Berman), to Highway Commercial. The
874property is currently under contract to be sold to Intervenor,
884Wal-Mart Stores East, Inc. (Wal-Mart), who intends to construct a
894Wal-Mart super store on a part of the site. Respondent,
904Department of Community Affairs (Department), is the state agency
913charged with the responsibility of reviewing comprehensive land
921use plans and amendments.
9252. Until 1997, the Berman property was located in the
935unincorporated area of Volusia County (County). Prior to 1994,
944it carried an Urban Medium Intensity land use designation. That
954year, the County redesignated the property as Industrial. In
9631997, the City annexed the Berman property and revised its Future
974Land Use Map the following year to change the land use to Highway
987Commercial. This change was accomplished through the plan
995amendment under challenge.
9983. On May 1, 1998, the Department issued its Statement of
1009Intent to Find Portions of Plan Amendment Not in Compliance.
1019More specifically, it found that the new land use designation
1029would "generate traffic which causes the projected operating
1037conditions of roadways to fall below adopted level of service
1047standards and exacerbates projected roadway deficiencies." The
1054Department also found that the amendment was "not supported by or
1065based on, and does not react in an appropriate way to, the best
1078available data and analyses." In making these findings, the
1087Department relied in part upon a traffic study prepared by "TEI"
1098in 1998 which reflected that the City's traffic system did not
1109have sufficient capacity to accommodate the new land use. The
1119Department determination triggered this action.
11244. On May 27, 1998, Petitioners, and 82 other property
1134owners, filed a paper styled "Petition for Administrative Hearing
1143and Petition to Intervene" challenging the change of land use on
1154the Berman property in numerous respects. The paper was treated
1164as a petition to intervene and was later granted.
11735. After the case was temporarily abated in August 1998
1183pending efforts to settle the matter, in January 1999, a new
1194traffic study was prepared for the City by Ghyabi, Lassiter &
1205Associates (GLA study), which determined that the existing and
1214planned City transportation network could accommodate the impacts
1222from the development allowed under the amendment. All parties
1231except Petitioners then executed a Stipulated Settlement
1238Agreement in February and March 2000, which resolved all issues
1248originally raised by the Department. Thereafter, the Department
1256issued an Amended Notice of Intent to find the plan amendment in
1268compliance. As required by Section 163.3184(16)(f), Florida
1275Statutes (1999), the parties were realigned consistent with their
1284respective positions.
12866. Through an Amended Petition filed by Petitioners on
1295July 19, 2000, all original Petitioners except Bollum and the
1305Brewers have been dismissed, and the factual issues in this case
1316narrowed to two: (a) whether the recent traffic studies
"1325demonstrate a transportation concurrency failure, and a failure
1333to fall within a lawful transportation concurrency exception
1341under F.S. 163.3180(5)(c) and (d)"; and (b) whether the "plan
1351amendment data and analyses continue a failure to show demand for
1362additional 'highway commercial' land, as originally asserted by
1370the Department's Notice of Intent."
1375b. Standing of the Parties
13807. Bollum owns property, resides within, and owns and
1389operates a business within the City. She also submitted written
1399and oral comments to the City while the amendment was being
1410adopted. The parties have stipulated that she is an affected
1420person and thus has standing to participate.
14277. The Brewers own property and reside in an unincorporated
1437area of the County in the immediate vicinity of the proposed plan
1449amendment. They also reside within what is known as the "Greater
1460Deland Area," as defined by Chapter 73-441, Laws of Florida.
1470However, they do not own property, reside within, or own and
1481operate a business within the corporate limits of the City, and
1492thus they lack standing to participate.
14988. The parties have stipulated that Intervenors Berman and
1507Wal-Mart have standing to participate in this proceeding.
1515c. The Amendment
15189. The Berman property lies on the eastern side of U.S.
1529Highway 17 just north of the intersection of U.S. Highways 17 and
154192, approximately three miles north of the City's central
1550business district. The land is currently undeveloped.
155710. Prior to being annexed by the City, the property was
1568located within the unicorporated area of the County, just north
1578of the City limits. The earliest County land use designation was
1589Urban Medium Intensity, a primarily residential land use
1597classification which also allowed some commercial development,
1604including small neighborhood shopping centers.
160911. In 1993, the County began a comprehensive examination
1618of land use and zoning restrictions in the vicinity of the Berman
1630property. In May 1994, it redesignated the Berman property from
1640Urban Medium Intensity to Industrial. This use allowed not only
1650industrial development, but also some commercial development.
165712. Before the Berman property was annexed by the City, it
1668was depicted on the City's Urban Reserve Area Map (map). That
1679map established advisory designations for unincorporated County
1686land abutting the City, and was meant to be a guide for City land
1700use decisions when property was annexed. The property was
1709designated on the map as approximately one-half Commercial and
1718one-half Industrial.
172013. In 1997, the Berman property was annexed by the City.
1731Because the City was then required to place a land use
1742designation on the property, on May 16, 1998, it adopted
1752Amendment 98-1ER, which redesignated the property from Volusia
1760County Industrial to City Highway Commercial. The new mixed-use
1769designation allows "a wide range of retail and service and office
1780uses," as well as up to twenty percent residential land uses,
1791including multi-family manufactured housing developments. Thus,
1797the Highway Commercial land use designation is meant to
1806accommodate major shopping centers like the one proposed by
1815Wal-Mart.
1816d. Transportation issue
181914. In their Amended Petition, Petitioners allege that
1827accepting as fact the "most recent traffic studies," those
1836studies still "demonstrate a transportation concurrency failure,
1843and a failure to fall within a lawful transportation concurrency
1853exception under F.S. 163.3180(5)(c) and (d)."
185915. The "most recent traffic studies" are the GLA study,
1869and it shows that the existing and planned City transportation
1879network can accommodate the traffic impacts arising from
1887development allowed under the plan amendment.
189316. Some of the transportation impacts from the expected
1902development on the Berman property will affect roadways within an
1912area of the City that was formally designated in May 1992 as a
1925Special Transportation Area (STA) or road segments with
1933specialized level of service (LOS) standards. The STA includes
1942the central business district and certain outlying areas
1950essentially bounded by Minnesota Avenue, Amelia Avenue, the rear
1959property lines of properties along the north side of New York
1970Avenue (State Road 44), South Hill Avenue, Beresford Avenue,
1979Boundary Avenue, and Clara Avenue, which extend to approximately
1988one mile from the Berman property. None of the roadways within
1999the STA are on the Florida Intrastate Highway System.
200817. Rule 9J-5.0055(2), Florida Administrative Code,
2014requires that the City adopt LOS standards on roadways within its
2025planning jurisdiction (which are not on the Florida Intrastate
2034Highway System), including the disputed portion of U.S. Highways
204317 and 92. The applicable LOS standards and STA provisions are
2054found in Policies 3.1.7 and 3.1.10, respectively, of the
2063Transportation Circulation Element of the plan. They read as
2072follows:
20733.1.7 For those roadways listed in
2079Policy 3.1.6 [which include U.S. Highways 17
2086and 92], the City of Deland may permit
2094development to occur until the peak hour
2101traffic volumes exceed a 20% increase over
2108the peak traffic counts published in the
2115FDOT's affic Data Report.
21193.1.10 As a result of FDOT's approval of the
2128STA designation for US 17/92 (Woodland
2134Boulevard), from Beresford Avenue to Michigan
2140Avenue, and SR 44 (New York Avenue), from SR
214915A to Hill Avenue, the following maximum LOS
2157and/or traffic volumes shall be permitted.
2163ROADWAY SEGMENT
2165US 17/92, from Beresford to Michigan = 22,028
2174SR 44, from SR 15A to US 17/92 = LOS E
2185SR 44, from US 17/92 to Hill = LOS E
2195*The proposed maximum traffic volume is
2201compatible with the maximum LOS for this
2208section of roadway, as stated in Policy
22153.1.7.
2216These two policies have been found to be in compliance and are
2228not subject to challenge in this proceeding.
223518. Although the STA is identified as a specific area, the
2246City's Comprehensive Plan anticipates that development from
2253outside of this area will impact the STA. As noted above,
2264however, the undisputed GLA study demonstrates that the plan
2273amendment will not allow development which would cause these
2282adopted LOS standards to be exceeded.
228819. The STA was approved in May 1992, or prior to the
2300enactment of Section 163.3180, Florida Statutes (1993), which
2308allows certain exceptions from the otherwise blanket requirement
2316to adopt and enforce a transportation LOS standard for roadways.
232620. Two planning tools made available to local governments
2335by Section 163.3180(5), Florida Statutes (1993), are a
2343Transportation Concurrency Exception Area (TCEA) and a
2350Transportation Concurrency Management Area, both of which allow
2358exceptions to transportation concurrency requirements. The
2364practical effect of a TCEA is to allow development to proceed
2375without having to comply with transportation concurrency.
238221. Petitioners essentially contend that the STA created by
2391the City for the central business district and certain outlying
2401areas is "the substantial equivalent of a TCEA," and thus it
2412should be treated as one for purposes of this proceeding. They
2423go on to argue that while the City may grant an exception to
2436concurrency requirements for transportation facilities for
2442projects located within a TCEA, those benefits cannot be extended
2452to any other area, including the Berman property. Based on this
2463premise, Petitioners conclude that without the benefit of the
2472TCEA exception, the anticipated traffic from the new development
2481on the Berman property will cause a "continuation of a [LOS]
2492failure on the constrained segments of US 17/92 and on the
2503unconstrained segment from SR44 to Wisconsin Avenue," in
2511violation of the law.
251522. Petitioners' contention is based on an erroneous
2523assumption. The evidence shows that the City has never adopted a
2534TCEA. Neither has the STA "transformed" into a TCEA, as
2544Petitioners suggest. Moreover, as noted above, the undisputed
2552GLA study shows rather clearly that the plan amendment will not
2563allow development which would cause the adopted LOS standards to
2573be exceeded.
257523. Petitioners further contend that the plan amendment is
2584somehow inconsistent with the transportation exception
2590requirements in Section 163.3180(5)(b) and (c), Florida Statutes
2598(2000). However, these provisions apply to developments "which
2606pose only special part-time demands on the transportation
2614system[,]" that is, "one that does not have more than 200
2626scheduled events during the calendar year and does not affect the
2637100 highest traffic volumes." The evidence shows that the
2646Highway Commercial land use category is not designed for such
2656developments and, in fact, encourages far more intense uses.
2665e. Is There a Need for Additional Commercial Land?
267424. Petitioners next contend that "the plan amendment data
2683and analyses continue a failure to show demand for additional
2693'highway commercial' land, as originally asserted by the
2701Department's Notice of Intent and not resolved by the Compliance
2711Agreement."
271225. In the immediate vicinity of the Berman property, near
2722the intersection of U.S. Highways 17 and 92 north of the City,
"2734there is an emerging trend of 'regional-type' commercial
2742developments." This area is already partially developed with
2750commercial uses, and it has additional areas depicted for future
2760commercial and industrial use. There are no other parcels in the
2771City, especially in this area, of a sufficient size to
2781accommodate this type of regional commercial development.
278826. There are numerous ways to project the raw, numerical
2798need for commercial land in the City. The City's Comprehensive
2808Plan, its Evaluation and Appraisal Report, and the GLA study all
2819contain statements regarding projected population and employment,
2826each portraying a slightly different result. In fact,
2834Petitioners' own expert criticized the numbers used in these
2843documents as being unreliable and suspect.
284927. The need calculus basically involves projecting
2856population over a ten-year planning period and then allocating
2865commercial, residential, and other land uses in an amount to
2875match that projection. For the reasons set forth below, this
2885process is imprecise, and it must be tempered by other factors.
289628. First, the planner must project population over the
2905ten-year planning timeframe. Any mistake in this projection will
2914skew the numbers. Second, employment ratios used in the calculus
2924can change from year to year, especially in a smaller community.
2935Also, other planning objectives are inherently subject to change
2944year by year.
294729. Given this imprecision and changing market demands, it
2956is appropriate for professional planners to overallocate land
2964uses. An excess allocation of twenty-five percent (or an
2973allocation factor of one hundred and twenty-five percent) is
2982recognized by professional planners as being appropriate. The
2990evidence supports a finding that this amount is reasonable under
3000the circumstances present here.
300430. There are numerous professionally acceptable ways in
3012which to allocate land uses. The City has not adopted a
3023particular methodology in its Comprehensive Plan.
302931. The specifics of the plan amendment and the City's
3039Comprehensive Plan make application of a strict numerical
3047calculus even more difficult. The prior designation of the
3056property was Industrial, which is not a pure industrial category,
3066but actually allowed up to thirty percent of commercial uses.
3076The amendment here simply changes the land use from Industrial,
3086with some commercial uses allowed, to a mixed-use Highway
3095Commercial designation. As noted earlier, the City's
3102Comprehensive Plan anticipates regional commercial uses in the
3110area of the Berman property. Finally, the parcel is relatively
3120small (less than 40 acres) and is embedded within an urban area.
313232. Given the uncertainty of a numerical calculation of
3141commercial need in the City, the size and location of the
3152property, the property's inclusion in an urban area, and the
3162surrounding commercial land uses, the evidence supports a finding
3171that either Industrial or Commercial would be an appropriate land
3181use for the property.
318533. The evidence further supports a finding that the need
3195question is not a compliance issue here and does not support a
3207finding that the plan amendment is not in compliance.
3216CONCLUSIONS OF LAW
321934. The Division of Administrative Hearings has
3226jurisdiction over the subject matter and the parties hereto
3235pursuant to Sections 120.569 and 163.3184, Florida Statutes
3243(2000).
324435. By stipulation of counsel, all parties except the
3253Brewers have been found to be affected persons within the meaning
3264of Section 163.3184(1)(a), Florida Statutes (2000), and have
3272standing to participate in this proceeding. The Brewers argue
3281that they reside within the "Greater Deland Area," as that term
3292is defined in Chapter 73-441, Laws of Florida, and thus they also
3304qualify as affected persons. However, Section 163.3184(1)(a),
3311Florida Statutes (2000), specifically requires that in order to
3320qualify as an affected person, one must own property, reside, or
3331own or operate a business "within the boundaries of the local
3342government whose plan is the subject of review." The Brewers do
3353not. Moreover, the special act relied upon by the Brewers simply
3364reserves an area outside of the City "as the logical future
3375extension of the City limits of the City of Deland" and prohibits
3387other municipalities from annexing within this area. While it
3396designates the City as the sole provider of potable water and
3407wastewater disposal within that area, the special act expressly
3416reserves planning jurisdiction over the area to the County until
3426the property is annexed. Therefore, the Brewers are not affected
3436persons.
343736. This case first arose under Section 163.3184(10)(a),
3445Florida Statutes (1997), following the Department's Notice of
3453Intent to find portions of the City's plan amendment not in
3464compliance. The original Notice of Intent was later superceded
3473by an Amended Notice of Intent following the execution of a
3484Stipulated Settlement Agreement. Petitioners maintained their
3490challenge to the plan amendment following the Amended Notice of
3500Intent and thus bear the burden of proof.
350837. Where a settlement agreement resolves the issues
3516originally raised by the Department in issuing a notice of intent
3527to find an amendment not in compliance, any challenge is governed
3538by Section 163.3184(9), Florida Statutes (2000). See Section
3546163.3184(16)(f)2., Florida Statutes (2000). The burden of proof
3554is such a proceeding is "fairly debatable."
356138. Petitioners contend, however, that realignment and the
3569change in burden of proof from a preponderance of the evidence to
3581beyond fair debate are not warranted because the City did not
3592adopt a remedial amendment pursuant to a settlement agreement.
3601This contention is based on language in Section 163.3184(16)(f),
3610Florida Statutes (2000), which sets forth procedures to be
3619followed if a local government adopts "compliance agreement
3627amendments."
362839. This statute does not establish the requirement that a
3638comprehensive plan amendment proceeding can be settled only upon
3647the adoption of compliance agreement amendments. While such
3655amendments are mentioned, the referenced statute is procedural,
3663not substantive, and does not impose additional requirements on
3672the settlement of a case involving the Department.
368040. To read the statute in the manner urged by Petitioners
3691would lead to absurd results, especially in a case such as this
3703one. Existing data and analysis, ultimately proven erroneous,
3711formed the sole basis for the Department's initial decision to
3721find the amendment not in compliance. A reanalysis of the data
3732demonstrated serious flaws in the original conclusions of the
3741Department, and compelled issuance of an Amended Notice of
3750Intent. This Amended Notice and realignment of the parties
3759followed the process established in Section 163.3184(16)(f),
3766Florida Statutes (2000). It was unnecessary for the parties to
3776craft a new plan amendment to address a problem caused and cured
3788by data and analysis. Petitioners' argument would impose the
3797additional requirement for no benefit to the local government or
3807the comprehensive plan. Accordingly, the prior ruling as to
3816realignment is reaffirmed, and the burden of proof in this matter
3827is "fairly debatable."
383041. The fairly debatable test asks whether reasonable minds
3839could differ as to the outcome. The action of the City must be
3852approved "if reasonable persons could differ as to its
3861propriety." B & H Travel Corporation v. Department of Community
3871Affairs , 602 So. 2d 1362, 1365 (Fla. 1st DCA 1992). Thus,
3882Petitioners must show beyond fair debate that the plan amendment
3892is not in compliance. Under this test, an extremely heavy burden
3903is placed upon Petitioners to prove the legitimacy of their
3913claims.
391442. "In compliance," as defined in Section 163.3184(1)(b),
3922Florida Statutes (2000), means the plan is consistent with the
3932requirements of Sections 163.3177, 163.3178, and 163.3191,
3939Florida Statutes (2000), the state comprehensive plan, the
3947regional policy plan, and Chapter 9J-5, Florida Administrative
3955Code.
395643. Petitioners raise two issues in their Amended Petition
3965as grounds for finding the plan amendment not in compliance.
3975First, they contend that the most recent traffic studies (the GLA
3986study) "demonstrate a transportation currency failure, and a
3994failure to fall within a lawful transporation concurrency
4002exception under F.S. 163.3180(5)(c) and (d)." Second, they
4010contend that "the plan amendment data and analyses continue a
4020failure to show demand for additional 'highway commercial' land,
4029as originally asserted by the Department's Notice of Intent nd
4039not resolved by the Compliance Agreement."
404544. As to the transportation issue, Rule 9J-5.0055(2),
4053Florida Administrative Code, mandates that local governments
4060adopt LOS standards for public facilities (including roadways)
4068and services located within the area for which such local
4078government has authority to issue development orders and
4086development permits. The disputed portion of U.S. Highways 17
4095and 92 falls within this category.
410145. The LOS standards for roadways within the City's
4110jurisdiction are found in policies under Objective 3.1 in the
4120Traffic Circulation Element. The undisputed evidence shows that
4128the transportation impacts expected from the plan amendment can
4137be accommodated under the adopted LOS standards in the City,
4147including the STA.
415046. Contrary to Petitioners' claim, the evidence shows that
4159the City has never adopted a TCEA, and there is no provision in
4172Chapter 163, Florida Statutes, which allows a STA to "transform"
4182into a TCEA. Indeed, for this to occur, a plan amendment would
4194be necessary. Because no such amendment was intended or
4203accomplished by the City, Petitioners' claim is rejected.
421147. As to the need issue, the demonstration of "need" is a
4223planning data and analysis requirement under Chapter 163, Florida
4232Statutes. This requirement applies when a local government
4240adopts or amends its comprehensive plan future land use element,
4250and it mandates that the government utilize appropriate and
4259relevant data and analysis for purposes of distributing land uses
4269on the future land use map. Section 163.3177(6)(a) and (10),
4279Florida Statutes (2000); Rule 9J-5.006(2), Florida Administrative
4286Code. The requirement seeks to match the allocation of future
4296land use categories with the projected population in order to
4306ensure sufficient land to accommodate the varying uses of that
4316population. Section 163.3177(6)(a), Florida Statutes (2000).
432248. As established in the Findings of Fact, the evidence
4332shows that the need calculus is imprecise and must be tempered by
4344other factors. The more credible evidence supports a need for
4354additional Highway Commercial acreage in the chosen location.
436249. In summary, Petitioners have failed to prove beyond
4371fair debate that the amendment is not in compliance as that term
4383is defined in Section 163.3184(1)(b), Florida Statutes (2000).
4391Even if the less stringent preponderance of the evidence standard
4401is used, Petitioners have still failed to show that the amendment
4412is not in compliance.
4416RECOMMENDATION
4417Based on the Foregoing Findings of Fact and Conclusions of
4427Law, it is
4430RECOMMENDED that the Department of Community Affairs enter a
4439final order determining Plan Amendment 98-1ER adopted by the City
4449of Deland by Ordinance Number 98-07 on March 16, 1998, to be in
4462compliance.
4463DONE AND ENTERED this 20th day of November, 2000, in
4473Tallahassee, Leon County, Florida.
4477___________________________________
4478DONALD R. ALEXANDER
4481Administrative Law Judge
4484Division of Administrative Hearings
4488The DeSoto Building
44911230 Apalachee Parkway
4494Tallahassee, Florida 32399-3060
4497(850) 488-9675 SUNCOM 278-9675
4501Fax Filing (850) 921-6847
4505www.doah.state.fl.us
4506Filed with the Clerk of the
4512Division of Administrative Hearings
4516this 20th day of November, 2000.
4522COPIES FURNISHED:
4524Steven M. Siebert, Secretary
4528Department of Community Affairs
45322555 Shumard Oak Boulevard, Suite 100
4538Tallahassee, Florida 32399-2100
4541C. Allen Watts, Esquire
4545Cobb, Cole & Bell
4549Post Office Box 2491
4553Daytona Beach, Florida 32115
4557Shaw P. Stiller, Esquire
4561Department of Community Affairs
45652555 Shumard Oak Boulevard, Suite 315
4571Tallahassee, Florida 32399-2100
4574F. Alex Ford, Jr., Esquire
4579Landis, Graham, French, Husfeld,
4583Sherman & Ford, P.A.
4587Post Office Box 48
4591Deland, Florida 32721-0048
4594Mark A. Zimmerman, Esquire
4598James, Zimmerman, Paul & Huddleston
4603Post Office Drawer 2087
4607Deland, Florida 32721-2087
4610David L. Powell, Esquire
4614Hopping, Green, Sams & Smith, P.A.
4620Post Office Box 6526
4624Tallahassee, Florida 32314
4627Margaret E. Bowles, Esquire
4631Margaret E. Bowles, P.A.
4635205 South Hoover Street
4639Suite 402
4641Tampa, Florida 33609
4644Cari L. Roth, General Counsel
4649Department of Community Affairs
46532555 Shumard Oak Boulevard, Suite 325
4659Tallahassee, Florida 32399-2100
4662NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
4668All parties have the right to submit written exceptions within 15
4679days to this Recommended Order. Any exceptions to this
4688Recommended Order should be filed with the agency that will enter
4699a final order in this case.
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- Date
- Proceedings
-
PDF:
- Date: 09/19/2001
- Proceedings: Respose to Motion for Stay (filed by City of DeLand via facsimile)
-
PDF:
- Date: 09/19/2001
- Proceedings: Notice of Withdrawal of Motion for Stay (filed by Intervenor/Appellee via facsimile).
-
PDF:
- Date: 09/18/2001
- Proceedings: Second Order Extending Time to Respond to Motion filed by Respondents.
-
PDF:
- Date: 09/17/2001
- Proceedings: Appellee City of Deland`s Response to Motion for Stay Pending Review Appellee City of Deland`s Motion for Extension of Time (filed via facsimile).
-
PDF:
- Date: 09/11/2001
- Proceedings: Appellee City of Deland`s Response to Motion for Stay Pending Review Appellee City of Deland`s Motion for Extension of Time (filed via facsimile).
- Date: 02/07/2001
- Proceedings: Final Order filed.
- Date: 12/29/2000
- Proceedings: Second Order Extending Time to File Responses to Exceptions filed.
- Date: 12/21/2000
- Proceedings: Order Extending Time to File Responses to Exceptions filed by S. Seibert.
-
PDF:
- Date: 11/20/2000
- Proceedings: Recommended Order issued (hearing held August 23, 2000) CASE CLOSED.
- Date: 10/10/2000
- Proceedings: Petitioners` Proposed Recommended Order (filed by via facsimile).
- Date: 10/10/2000
- Proceedings: Respondent`s and Intervenor`s Joint Proposed Recommended Order filed.
- Date: 10/09/2000
- Proceedings: Exhibits filed by D. Powell.
- Date: 09/20/2000
- Proceedings: Transcript (Volume 1 and 2) filed.
- Date: 08/25/2000
- Proceedings: Department of Community Affairs` Joinder Prehearing Stipulation filed.
- Date: 08/23/2000
- Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
- Date: 08/22/2000
- Proceedings: Petitioners` Response to Respondent Wal-Mart`s Motion to Strike Witness (filed via facsimile).
- Date: 08/22/2000
- Proceedings: Joinder in Pre-Hearing Stipulation by Petitioners Bollum and Brewer filed.
- Date: 08/21/2000
- Proceedings: Joinder in Pre-Hearing Stipulation by Intervenor Marcia Berman, Trustee filed.
- Date: 08/18/2000
- Proceedings: Prehearing Stipulation (filed via facsimile).
- Date: 08/16/2000
- Proceedings: Notice of Taking Deposition Duces Tecum of T. Brooks filed.
- Date: 08/15/2000
- Proceedings: Petitioners` Answers to Intervenor Wal-Mart Stores East`s Interrogatories (filed via facsimile).
- Date: 08/15/2000
- Proceedings: Motion to Strike Witness, Alternative Motion for Sanctions (filed by Respondent via facsimile).
- Date: 08/07/2000
- Proceedings: Order issued. (the realignment issued stated in paragraph 3(a) of the motion is preserved for review by the agency issuing a final order)
- Date: 08/04/2000
- Proceedings: Petitioner Bollum`s Notice of Service of Answers to Intervenor Wal-Mart Stores East`s Interrogatories (filed via facsimile).
- Date: 08/02/2000
- Proceedings: petitioners Bollum and Brewers` Response to intervenor Wal-Mart Stores East`s Request to Produce. (filed via facsimile)
- Date: 08/02/2000
- Proceedings: Petitioner`s Brewers` Notice of Service of Anwers to Intervenor Wal-Mart Stores East`s Interrogatories. (filed via facsimile)
- Date: 07/31/2000
- Proceedings: Joint Response to Petitioner`s Motion for Leave to Amend Petition filed.
- Date: 07/31/2000
- Proceedings: Notice of Taking Deposition-J. Bollum (filed via facsimile)
- Date: 07/28/2000
- Proceedings: Notice of Taking Deposition-G. Schindler (filed via facsimile)
- Date: 07/19/2000
- Proceedings: Motion for Leave to Amend Petition (Petitioners) filed.
- Date: 07/14/2000
- Proceedings: Notice of Hearing sent out. (hearing set for August 23 and 24, 2000; 9:00 a.m.; Deland, FL)
- Date: 07/14/2000
- Proceedings: Order of Pre-hearing Instructions sent out.
- Date: 07/11/2000
- Proceedings: Ltr. to Judge D. Alexander from S. Stiller In re: available dates (filed via facsimile).
- Date: 06/28/2000
- Proceedings: Ltr. to Judge D. Alexander from F. Ford In re: notice of appearance (filed via facsimile)
- Date: 06/26/2000
- Proceedings: Notice of Service of Interrogatories filed.
- Date: 06/26/2000
- Proceedings: Notice of Appearance (filed by F.A. Ford)
- Date: 06/26/2000
- Proceedings: Request to Produce filed.
- Date: 06/13/2000
- Proceedings: Response of Intervenors Bollum Et Al. to Department`s Renewed Motion for Realignment (filed via facsimile).
- Date: 06/13/2000
- Proceedings: Order sent out. (the department of community affairs renewed motion for realignment is granted, and order dated 4/28/00, is reaffirmed)
- Date: 06/08/2000
- Proceedings: Department of Community Affairs` Renewed Motion for Relignment (filed via facsimile).
- Date: 05/03/2000
- Proceedings: Order sent out. (the order dated April 28, 2000, is temporarily abated)
- Date: 05/01/2000
- Proceedings: Intervenors` Bollum and Brewer, Et Al., Response to Department`s Motion for Realignment of Parties (filed via facsimile).
- Date: 04/28/2000
- Proceedings: Order sent out. (the department of community affairs motion for realignment of parties is granted, parties shall respond within 15 days from the date of this order)
- Date: 04/25/2000
- Proceedings: Department of Community Affairs` Motion for Realignment of Parties (filed via facsimile).
- Date: 04/04/2000
- Proceedings: Order Continuing Case in Abeyance sent out. (Parties to advise status by July 7, 2000.)
- Date: 03/31/2000
- Proceedings: Stipulated Settlement Agreement filed.
- Date: 03/31/2000
- Proceedings: (Petitioner) Notice of Filing Stipulated Settlement Agreement and Request for Stay of Proceedings filed.
- Date: 02/29/2000
- Proceedings: Order Continuing Case in Abeyance sent out. (Parties to advise status by March 31, 2000.)
- Date: 02/25/2000
- Proceedings: (Petitioner) Status Report filed.
- Date: 01/06/2000
- Proceedings: Order Continuing Case in Abeyance sent out. (Parties to advise status by February 25, 2000.)
- Date: 01/03/2000
- Proceedings: (Petitioner) Status Report (filed via facsimile).
- Date: 11/18/1999
- Proceedings: Order Continuing Case in Abeyance sent out. (Parties to advise status by December 31, 1999.)
- Date: 11/15/1999
- Proceedings: (Petitioner) Status Report (filed via facsimile).
- Date: 10/08/1999
- Proceedings: (Petitioner) Status Report (filed via facsimile).
- Date: 09/07/1999
- Proceedings: Order sent out. (DCA shall file status report by 10/8/99)
- Date: 09/03/1999
- Proceedings: (Petitioner) Status Report filed.
- Date: 08/06/1999
- Proceedings: (Petitioner) Status Report (filed via facsimile).
- Date: 06/28/1999
- Proceedings: Order sent out. (Parties to advise status by 08/06/1999)
- Date: 06/25/1999
- Proceedings: (Petitioner) Status Report (filed via facsimile).
- Date: 04/15/1999
- Proceedings: Order sent out. (case to remain inactive until 6/25/99; petitioner to file status report by this time)
- Date: 04/14/1999
- Proceedings: (Petitioner) Status Report (filed via facsimile).
- Date: 02/08/1999
- Proceedings: Order sent out. (case shall continue to remain inactive until 4/9/99)
- Date: 02/05/1999
- Proceedings: (Petitioner) Status Report (filed via facsimile).
- Date: 12/18/1998
- Proceedings: Order sent out. (Janet Bollum, et al. Granted Intervenor Status)
- Date: 12/02/1998
- Proceedings: Order sent out. (case to remain inactive; agency to file status report by 2/5/99)
- Date: 12/01/1998
- Proceedings: (Petitioner) Status Report (filed via facsimile).
- Date: 08/12/1998
- Proceedings: Case No/s: 98-2441GM unconsolidated for closure. Order Closing File sent out closing 98-2441GM ONLY per voluntary dismissal.
- Date: 08/11/1998
- Proceedings: (Petitioners) Notice of Voluntary Dismissal (filed in case no. 98-2441GM via facsimile) filed.
- Date: 07/27/1998
- Proceedings: Order sent out. (hearing cancelled; case in abeyance; agency to file status report by 11/15/98)
- Date: 07/23/1998
- Proceedings: Joint Motion to Abate Proceedings (filed via facsimile).
- Date: 07/23/1998
- Proceedings: Order sent out. (Wal-Mart Stores East, Inc. Granted Leave to Intervene in DOAH 98-2441GM)
- Date: 07/16/1998
- Proceedings: (Wal-Mart Stores East, Inc.) Motion to Intervene filed.
- Date: 06/24/1998
- Proceedings: Order sent out. (98-2331GM & 98-2441GM are Consolidated; Hearing set for 9/16/98; Marcia Berman, Trustee Granted Intervenor Status))
- Date: 06/22/1998
- Proceedings: Order sent out. (Marcia Berman, Trustee Granted Intervenor Status)
- Date: 06/17/1998
- Proceedings: Marcia Berman, Trustee`s Petition for Leave to Intervene filed.
- Date: 06/15/1998
- Proceedings: Order sent out. (Wal-Mart Stores East, Inc. Motion to Intervene is Granted)
- Date: 06/09/1998
- Proceedings: Exhibit "A" (attach to Motion to Intervene) filed.
- Date: 06/08/1998
- Proceedings: Department of Community Affairs Response to Motion to Intervene (filed via facsimile).
- Date: 06/08/1998
- Proceedings: Department of Community Affairs Notice of Method of Recordation (filed via facsimile).
- Date: 06/04/1998
- Proceedings: (Wal-Mart) Motion to Intervene filed.
- Date: 06/02/1998
- Proceedings: Notice of Hearing sent out. (hearing set for 9/16/98; 1:00pm; Deland)
- Date: 05/29/1998
- Proceedings: Joint Response to Initial Order (filed via facsimile).
- Date: 05/21/1998
- Proceedings: Initial Order issued.
- Date: 05/15/1998
- Proceedings: Statement of Intent (filed via facsimile).
- Date: 05/15/1998
- Proceedings: Notice of Intent (filed via facsimile).
- Date: 05/15/1998
- Proceedings: Petition of the Department of Community Affairs (filed via facsimile).
Case Information
- Judge:
- D. R. ALEXANDER
- Date Filed:
- 05/15/1998
- Date Assignment:
- 05/21/1998
- Last Docket Entry:
- 09/19/2001
- Location:
- Deland, Florida
- District:
- Northern
- Agency:
- ADOPTED IN TOTO
- Suffix:
- GM