Okaloosa County BOCC — August 16, 2016 — Planning Commission - Staff response — reading text

ED COX MOTORS, INC. FLUM AMENDMENT & REZONING APPLICANT PLANNING COMMISSION PRESENTATATION 7-14-2016 STAFF RESPONSE The Okaloosa County Planning Commission held a public hearing on July 14, 2016 to consider the following. AGENDA ITEM 1: Consideration of a request changing the use of land submitted CPH, Inc. as agent for Ed Cox Motor Company, Inc. relating to property located on Middle Drive SE between South Street NE and 1st Avenue, Fort Walton Beach. The request is to change the Comprehensive Plan Future Land Use Map (FLUM) designation for the property from Low Density Residential to Commercial (C), or a more restrictive FLUM designation. If the FLUM amendment is approved, request to rezone the property from Residential - 1 (R-1) district to General Commercial (C-3) district, or a more restrictive zoning district. Property contains 2.67 acres, more or less. This item was continued from the June 9, 2016 meeting. At the public hearing the applicant’s representatives provided facts and evidence in support of the requested action. Applicant’s representatives were Mr. Karl Sanders, Esq. who stated to be representing Walmart and the applicant, and Mr. Jason Toole, P.E. stating to represent the applicant. This paper provides a response from staff of the Department of Growth Management to the presentation made by the applicant’s representatives at the public hearing. The responses herein are to excerpts from the meeting minutes (which are not a verbatim record of the proceeding) pertaining to the presentation only (not questions and answers), and the power point presentation given at the hearing. Attorney Sanders Presentation Staff’s report focuses on residential uses and provisions in the Comprehensive Plan. They are not proposing a residential use; they are proposing a commercial development, redevelopment if you will. Staff response: Staff references to Comprehensive Plan policies are required by the policies themselves which state that certain things must be considered as part of all land use amendments and rezonings. It is fundamental that the County follow the policies explicitly set forth in its own Comprehensive Plan. The applicant is not requesting a proposed development or redevelopment. He is requesting a FLUM change and rezoning that would enable a broad range of commercial development. In fact, the majority of the applicant’s presentation was specific to a Walmart store. As stated by the Planning Commission Chairman at the hearing: Mr. Patrick stated for the record that they, the board, are not here tonight to approve a site plan, we are not here to approve a Walmart, certainly if they approve anything that would permit this development to occur we would certainly hope that nothing is misrepresented here as to how the land would be developed. Just so everyone here understands they are here to hear a requested FLUM and Zoning change that would allow this type of development. Since contract or conditional zoning is unlawful, the County cannot condition its land use change approval on one specific permitted use within a broad range of permitted uses, or any other condition of approval. The primary difference between staff’s position and theirs is; they believe it is time to allow the private sector to invest in the redevelopment of this blighted commercial corridor. This is not about commercial 1 intrusion into a residential neighborhood. This is about commercial redevelopment of a blighted commercial corridor. Staff response: A major crux of Attorney Sanders presentation was that a new Walmart store would provide the engine for redevelopment of a blighted commercial corridor. He did not, however, provide any facts to support the existence of said blighted commercial corridor. There is a difference between unsightly and blighted. The commercial buildings along Eglin Parkway in the vicinity could be considered unsightly due to age, lack of landscaping, or other factors but still might not be considered blighted. Indicators of blight for urban redevelopment purposes and private investment are found at ss. 290.0058, F.S. and described as pervasive poverty, unemployment, and general distress. Other indicators of blight can be found in Chapter 163, Part III, F.S. and ss. 570.208, CFR. More importantly, in keeping with these statutes and regulations an area must be officially designated as blighted according to specified criteria. In sum, the area has not been declared as blighted, the applicants offer no reasoning behind their assertions that the area is blighted, or that the requested action including a Walmart store will actually contribute to further redevelopment of the area. Staff’s primary objection to the applications is twofold; one of a compatibility issue and two there is an insufficient transition of uses. Applicant believes that this use will be compatible with the area and the transition of uses will be better than what is in effect today. The current transition of uses is only 20 feet alley way with the proposed changes there would be buffer 5 times greater than what is there today . Staff response: The applicant seems to be intermingling transition and buffer. As stated in FLUE Policy 10.13 “Transition means that there is a gradual decrease in the allowable densities and intensities from one district to the next, with the most intense districts near municipal boundaries or areas of intense urban development.” The transition the applicant refers to is the 20 foot alleyway which will be increased 5 times greater with the addition of the right-of-way of Middle Drive as an additional buffer between the subject property and residences across the street. Neither the alley or Middle Drive should be considered as a transition or a buffer. There are no allowable densities or intensities within an alley or a roadway to permit a gradual decrease. Likewise, a buffer must consist of more than open alley or roadway. Buffer strip is defined in the LDC as “A strip of land utilized to separate and protect one type of land use from another; for example, a screen of planting or fencing to insulate the surrounding from the noise, smoke, or visual aspects of an incompatible zoning district or land use.” Even so, it is staff’s position that the compatibility and transition question is rendered moot if the current FLUM designation and zoning is maintained, and single-family houses are constructed on the existing residential lots. The first issue staff points out is the request change would allow a broad range of intense uses which would not be limited to a grocery store. This is true. But we are prepared to do whatever it is that this board or the Board of County Commissioners deems appropriate to effectively condition the development trend to limit it to the site plan and development proposal we have before you today. There are ways to limit development and we are willing to have that discussion with you if and when you deem it necessary. Staff response: Contract or conditional zoning is generally unlawful. Second, staff states that the current owner should have or could have been aware of the property’s FLUM designation and zoning district with the residential restrictions prior to acquiring the property. Mr. Cox knew full well what the zoning and Land Use restrictions were when he purchased the property. But that’s not the point, he is aware of the market conditions, he’s aware that these tracts of land are the same as they were when the plat was recorded. More than 75 years have elapsed, since this land was platted for 2 residential development. Nothing has changed. So the issue is not whether it is appropriate for residential development, clearly it is not. He is proposing to jump start the commercial revitalization of this blighted commercial corridor. Staff response: It is well established in Florida law that diminution of market value or interference with a property owner’s personal plans and desires relative to the property is insufficient to entitle the owner to a rezoning, nor is the fact that rezoning will enhance the value of the property a sufficient reason for rezoning. This property appears to have been in the Cox family a long time and has been zoned residential since 1974. There is no specific evidence to show with certainty that the subject lots have been offered for sale by the Cox family as residential properties. However, nearby residents of long standing provided statements at the public hearing that to their knowledge the lots had never been offered for sale. Even now, staff has been told by a Walmart representative that the property will be leased, not sold. In sum, it cannot be concluded with certainty that the subject property is not suitable for residential development since it is uncertain whether it has been offered for sale as residential property. It is also uncertain as to whether the owner feels as though the proposed change will enhance the value more as commercial property than residential. Third, staff position is that nothing has changed. We’re not here to prove if the property is suitable or not for residential use. We are here to propose a commercial redevelopment. We are here to show that a commercial development can be compatible to residential and in fact more compatible than what is there now. Staff response: The applicant has the burden of proof to demonstrate one or more of the following conditions and circumstances: 1) conditions in the area have changed; 2) time or application has shown the current FLUM/zoning to be unwise; 3) there is a need to correct an injustice brought about by the current FLUM/zoning, and; 4) the reasons for the current FLUM/rezoning restrictions or the circumstances that prompted them have ceased. The applicant’s burden in this proceeding was not to propose a commercial redevelopment. The applicant’s burden is to prove that the requested land use change complies with the Comprehensive Plan, and that one or more of the preceding conditions and circumstances have been met. Fourth, staff provides professional accepted planning practice to designate properties fronting on a major highway as commercial and then separated from other designated uses with a readily identifiable feature such as a road or public alleyway. This is true. The separation in place today is 20 feet; we are proposing a 100 foot separation between the residential and commercial zoning for this parcel. Staff response: The subject property is comprised of residential lots that do not front upon a major highway. It is separated from the existing C-3 by a public alleyway which as of now has not been vacated and does not enable a contiguous property that will front upon a major highway. Again, the 100 foot separation referred to is Middle Drive. Fifth, Mr. Sanders compared a past rezoning located on Highway 4 in Baker in 2014 and this application. The differences between the Highway 4 application and this application are stark. Three issues staff concludes in the application before you tonight. One, staff proposes the FLUM amendment and rezoning does not provide an orderly and logical pattern land uses appropriate to the area. For the Highway 4 proposal, staff had no objection. Two, staff believes the proposal is incompatible and constitutes commercial intrusion in a predominately single family residential area. In 2014, staff has no objection. Three, staff maintains that the commercial FLUM designation and C-3 zoning would allow for a broad range of commercial activities as read earlier in the C-3 permitted uses. In 2014, staff had no objection. 3 There was residential development surrounding the property on Highway 4 is almost the same as we are