Anna Current v. Town of Jupiter and Department of Community Affairs, DOAH Case No. 03-0718GM, DCA Final Order No. DCA04-GM-021 (April 8, 2004)

     The Town of Jupiter adopted four amendments to the text of its comprehensive plan, one amendment to the transportation map series, and one amendment to the future land use map series. Following the Department’s publication of a Notice of Intent to find these amendments in compliance, Anna Current filed a petition for administrative hearing. Ms. Current alleged that the amendments to the conservation and transportation elements were not supported by data and analysis, and that the entire adoption process was flawed due to purported shortcomings with respect to advertising and public participation.

     After a formal hearing, Administrative Law Judge Johnston entered a Recommended Order upholding the Department’s initial determination that the amendments are “in compliance.” Judge Johnston found that the text amendments were supported by data and analysis, and that Petitioner had not proven the contrary beyond fair debate. Judge Johnston also concluded that the issue of whether a local government followed its public participation procedures in adopting a comprehensive plan amendment is not to be considered when determining whether the amendment is in compliance.

     The Department entered a Final Order adopting the Recommended Order en toto. Like Judge Johnston, the Department concluded that State law requires that a local government adopt procedures for public participation in the amendment process, but does not allow the Department to review whether these procedures were followed in determining whether an amendment is in compliance.

     For more information on this proceeding, please contact Tim Dennis, Assistant General Counsel.


T & P Enterprises of Bay County, Inc. & Edgar Garbutt v. Bay County & Barbara S. Harmon, DOAH Case No. 03-2449GM, DCA Final Order No. DCA04-GM-041 (March 22, 2004)

     On June 3, 2003, Bay County adopted an ordinance which redesignated a 2.35-acre parcel from “Seasonal Resort” to “Residential” on its future land use map series. The “Residential” future land use map designation allows only residences; the “Seasonal Resort” category allows a variety of uses such as high-rise development, bars, and T-shirt shops. The purpose of the amendment was to ensure that the 2.35 acre parcel, which is currently developed with single-family residences known as the “Laguna Beach Subdivision,” remains the same and is not redeveloped with more intense tourist-dependent uses.

     T & P Enterprises, a Florida corporation doing business in the County as “The Laguna Beach Christian Retreat,” and Edgar Garbutt, a County resident, filed a Petition for Administrative Hearing challenging the amendment. Because the amendment was adopted as a “small scale” under Section 163.3187, Florida Statutes, the Department did not review the amendment or issue a Notice of Intent, and was not involved as a party litigant.

     Petitioners alleged that the amendment was internally inconsistent with the County comprehensive plan and not supported by data and analysis because the 2.35 acre parcel being redesignated to Residential was surrounded by Seasonal Resort land uses. Administrative Law Judge Richard Hixson rejected these arguments and recommended that the Department find the amendment in compliance. The Department agreed with the Administrative Law Judge that the redesignation protected neighborhood character consistent with the comprehensive plan and available data and analysis, and entered a Final Order deeming the amendment “in compliance.”

     For more information on this proceeding, please contact David Jordan, Deputy General Counsel.


Gregory Strand v. Escambia County & Department of Community Affairs, DOAH Case No. 03-4415GM, DCA Final Order No. DCA04-GM-121 (June 25, 2004)

     On September 4, 2003, Escambia County adopted an ordinance that redesignated a 43.76-acre parcel from “Low Density Residential” to “Commercial” on its future land use map series. Following the Department’s issuance of a Notice of Intent to find the amendment in compliance, Gregory Strand, a resident of the County, filed a Petition for Administrative Hearing. Mr. Strand contended that the amendment was not supported by adequate data and analysis regarding wetlands, transportation concurrency, and urban sprawl.

     Administrative Law Judge Alexander conducted a formal administrative hearing, and entered his Recommended Order rejecting Petitioner’s arguments. Judge Alexander found that the County plan prohibited certain land uses in high quality wetlands, but that the thirteen acres of wetlands implicated by this amendment were not of that quality. Moreover, the Judge found that the County plan would direct development away from these wetlands at the time of rezoning and site plan approval. Continuing, the Judge found that the County had relied upon adequate data and appropriate analyses of transportation impacts, and had not exacerbated urban sprawl by placing this Commercial designation in a rapidly urbanizing portion of the County.

     No exceptions were filed, and the Department adopted the Recommended Order en toto.

     For more information on this proceeding, please contact Tim Dennis, Assistant General Counsel.


Jim Durham & Citizens for Proper Planning, Inc. v. Polk County & Jack M. Berry, Inc., DOAH Case Nos. 03-0593GM & 03-0933GM, Administration Commission Final Order No. ACC-04-002 (June 25, 2004)

     On January 22, 2003, Polk County adopted an amendment to redesignate a 9.99 acre parcel from “Residential Low-1" to “Convenience Center” and “Business Park Center.” On March 6, 2003, the County adopted an ordinance to correct “scrivener’s errors in describing the property subject to the comprehensive plan amendments.” Jim Durham and Citizens for Proper Planning, Inc. timely filed Petitions for Administrative Hearing following both of these adoptions. Because the amendment was adopted as a “small scale” under Section 163.3187, Florida Statutes, the Department did not review the amendment or issue a Notice of Intent, and was not involved as a party litigant.

     Administrative Law Judge Alexander conducted a formal hearing in Bartow on December 18 and 19, 2003. By virtue of stipulations and dismissals, the only issues submitted to Judge Alexander for consideration were (1) whether the amendment actually exceeded the 10-acre threshold to qualify as a small scale amendment, and (2) whether the amendment was internally consistent with the Polk County comprehensive plan. Judge Alexander rejected the argument that the 9.99 parcel should be aggregated with other parcels being donated by Berry to the County for use as future rights-of-way, and thereby should be disqualified from consideration as a small scale amendment. However, the Judge agreed with Petitioners that the amendment was inconsistent with the County’s plan with respect to the location and size requirements for Business Centers, and found the County’s interpretation of these provisions “unreasonable and contrary to the plain language in the policy.”

     The Judge also found that Citizens for Proper Planning lacked standing because they did not “operate a business” for purposes of qualifying as an “affected person” under Section 163.3184(1)(a), Florida Statutes. While Citizens conducted meetings, solicited donations, and engaged in educational activities with respect to growth management, the Judge found that “none of these activities constitutes a ‘business’ as that term is commonly understood.”

     The Administration Commission adopted the Recommended Order with two exceptions. First, the Commission rejected all of the Administrative Law Judge’s Conclusions of Law regarding Citizens’ standing, finding that it need not and would not rule on that issue since another Petitioner – Jim Durham – has proven standing, and Citizens were allowed to participate below. The only other modification to the Recommended Order was to correct a typographical error.

     For more information on this proceeding, please contact Shaw Stiller, Assistant General Counsel.