STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUMTER CITIZENS AGAINST ) IRRESPONSIBLE DEVELOPMENT, )

1. D. FARNSWORTH and )

   JAMES E. BOYD, )

   )

   Petitioners, )

   )

   vs. ) CASE NO. 94-6974GM

   ) DEPARTMENT OF COMMUNITY ) AFFAIRS and SUMTER COUNTY, )

   )

   Respondents, ) and )

   ) VILLAGES OF LAKE SUMTER, ) INC., )

   )

   Intervenor. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its assigned hearing officer, Donald R. Alexander, on May 22, 1995, in Bushnell, Florida.

   
   

   APPEARANCES

   
   

   For Petitioners: T. D. Farnsworth, pro se

   12364 County Road 223

   Oxford, Florida 34484

   
   

   For Respondent: Felix M. Adams, Esquire (County) 236 North Main Street

   Bushnell, Florida 33513-5928

   
   

   For Respondent: David L. Jordan, Esquire (DCA) 2740 Centerview Drive

   Tallahassee, Florida 32399-2100

   
   

   For Intervenor: Nancy G. Linnan, Esquire

   Post Office Drawer 190 Tallahassee, Florida 32302-0190

   
   

   R. Dewey Burnsed, Esquire Post Office Box 491357 Leesburg, Florida 34749-1357

   STATEMENT OF THE ISSUE

   
   

   The issue in this case is whether Sumter County comprehensive plan amendment 94D1 adopted on September 20, 1994, by Ordinance No. 94-6 is in compliance.

   
   

   PRELIMINARY STATEMENT

   
   

   This case began on December 1, 1994, when petitioners, Sumter Citizens Against Irresponsible Development, T. D. Farnsworth, and James E. Boyd, filed a petition for an administrative hearing alleging that Sumter County plan amendment 94D1 was not in compliance in a number of respects with Chapters 163 and 187, Florida Statutes, and Chapter 9J-5, Florida Administrative Code. An amended petition containing minor amendments was later filed on December 9, 1994. The petition, as amended, was forwarded by respondent, Department of Community Affairs, to the Division of Administrative Hearings on December 15, 1994, with a request that a Hearing Officer be assigned to conduct a hearing.

   
   

   By notice of hearing dated January 9, 1995, a final hearing was scheduled for November 14-16, 1995, in Bushnell, Florida. By order dated May 2, 1995, intervenor, Villages of Lake Sumter, Inc., was authorized to intervene as a party. At the same time, intervenor's motion to expedite hearing under Section 163.3189(3)(a), Florida Statutes, was granted, and the final hearing was rescheduled to May 22 and 23, 1995, in Bushnell, Florida.

   
   

   At final hearing, petitioners presented the testimony of Dr. Preston D. Morgan, Sumter County superintendent of schools; Dr. William Lyall, a veterinarian and adjacent property owner; Jack Reynolds, chief of the Oxford, Florida, volunteer fire department; Arnold Floyd, a property owner; Glenn Nelson, Sumter County director of planning and zoning; Steve Farnsworth, a Palm Beach County environmental analyst and accepted as an expert in flooding and map interpretation; and Jeffrey E. Bielling, a DCA planning manager. Also, they offered petitioners' exhibits 3-6, 12, 15 and 18-20. All exhibits were received in evidence. Respondent, Department of Community Affairs, presented the testimony of Jeffrey E. Bielling, accepted as an expert in comprehensive planning. Also, it offered DCA exhibit 1 which was received in evidence.

   Intervenor presented the testimony of Jackson E. Sullivan, a planner and accepted as an expert in comprehensive planning; Tony Arrant, a planner and accepted as an expert in comprehensive planning; and Ronald Grant, a professional engineer and accepted as an expert in engineering. Also, it offered intervenor's exhibits 2 and 4-8. All exhibits were received in evidence. Finally, the parties stipulated into evidence joint exhibits 1-4.

   
   

   The transcript of hearing (two volumes) was filed on June 1, 1995.

   Proposed findings of fact and conclusions of law were filed by all parties on June 14, 1995. A ruling on each proposed finding is set forth in the Appendix attached to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   Based upon all of the evidence, the following findings of fact have been determined:

   
   

   1. Background

      
      

      1. The parties

         1. Respondent, Sumter County (County), is a local government subject to the comprehensive land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered and enforced by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive land use plans and amendments made thereto.

            
            

         2. Petitioners, T. D. Farnsworth and James E. Boyd, own property and reside within the northern part of unincorporated Sumter County. Petitioner, Sumter Citizens Against Irresponsible Development (SCAID), is an organization founded by a small group of citizens for the purposes of preserving the "rural lifestyle" of the County, preventing urban sprawl, and ensuring "that development will not be a burden to the taxpayers" of the County. Farnsworth is president of the group while Boyd serves as its treasurer. By stipulation of the parties, petitioners are affected persons within the meaning of the law and have standing to bring this action.

            
            

         3. Intervenor, Villages of Lake Sumter, Inc. (Villages), is a Florida corporation and the owner and developer of the Tri-County Villages development of regional impact, which is the subject property of this proceeding. Villages submitted oral and written comments during the plan amendment review and adoption proceeding and thus has standing as an affected person to participate in this proceeding.

            
            

      2. Tri-County Villages

         
         

         1. To place this dispute in proper perspective, it is necessary to trace the history of the development which has occurred in and around the subject property. As noted earlier, intervenor is the owner and developer of the Tri- County Villages development located in unincorporated Sumter County. Development which predated the existing Tri-County Villages development commenced in approximately 1968 with Orange Blossom Garden North (OBGN). OBGN was an approximately 1,000-acre project owned and operated by Orange Blossom Hills, Inc. as a mobile home retirement community located mostly in the Town of Lady Lake, Florida. That community lies in the northwestern corner of Lake County, which adjoins the northeastern corner of Sumter County. Because the development of OBGN commenced prior to July of 1973, it is vested for purposes of development of regional impact (DRI) review pursuant to Section 380.06(20), Florida Statutes.

            
            

         2. In 1987, Orange Blossom Hills, Inc. submitted an Application for Development Approval (ADA) with the Town of Lady Lake which requested authorization to develop Orange Blossom Gardens South (OBGS). The OBGS development was an approximately 595-acre extension of the vested OBGN retirement community and was determined by the DCA and Town of Lady Lake to be a DRI. On January 18, 1988, the Town of Lady Lake approved the proposed OBGS development.

            
            

         3. In 1989, Orange Blossom Hills, Inc. submitted to the Town of Lady Lake and the County an ADA requesting a substantial deviation from the OBGS DRI. The substantial deviation request sought authorization to develop Orange Blossom Gardens West (OBGW). OBGW was planned as an approximately 1,700-acre extension to the OBGS DRI. The Town of Lady Lake approved the substantial deviation request through the issuance of an Amended Development Order on May 7, 1990.

            The County approved the development within its jurisdiction on May 29, 1990.

            
            

         4. In September 1993, intervenor, as successor to Orange Blossom Hills, Inc., submitted an ADA to the County which requested a substantial deviation

            from the OBGS and OBGW DRI's. By submitting this latest development, intervenor sought to add approximately 1,960 acres to the existing OBGS and OBGW DRI's and modify the development already approved by adding a total of 6,250 residential units and 910,000 square feet of commercial square footage. The overall development was renamed Tri-County Villages. The development order approving the substantial deviation for Tri-County Villages was adopted by the County on September 20, 1994.

            
            

      3. The Challenged Amendment

1. On September 20, 1994, or prior to approval of the Tri-County Villages development substantial deviation, but in conjunction with it, the County adopted plan amendment 94D1 by Ordinance No. 94-6. On November 10, 1994, the DCA determined the amendment to be in compliance. That amendment amended the plan's Future Land Use Map (FLUM) to revise the land use designations on approximately 1,960 acres of land. Specifically, the plan amendment designated as Planned Unit Development (PUD) all areas of the approved OBGW DRI and the additional 1,960 acres referred to in Exhibit 1 of 94D1 as parcels 5 and 8. Prior to the amendment, parcels 5 and 8 had been designated predominantly as agricultural, with small pockets of rural residential.

   
   

2. The plan amendment also revised the FLUM by extending the urban expansion area to include all of parcels 5 and 8. Prior to the amendment, only a small section of parcel 8 was included in the urban expansion area.

   
   

3. The plan amendment further included several textual revisions to the Future Land Use Element (FLUE), including a revision to FLUE Policy 1.5.7 concerning the ratio of commercial square footage to residential units and the addition of FLUE Objective 1.14 and Policies 1.14.1 - 1.14.6, which essentially incorporated the concept of sector planning into the plan.

   
   

4. Finally, the plan amendment revised Policy 2.1.5 of the Sanitary Sewer Element which, subject to submission of appropriate data and analysis, and Department of Environmental Protection approval, reduced the established level of service for sanitary sewer throughout the Tri-County Villages development.

   
   

5. The Tri-County Villages DRI and ADA and plan amendment are related in that Section 380.06(6), Florida Statutes, requires that the local government's review of the DRI and corresponding comprehensive plan amendment be initiated and concluded at the same time.

   
   

6. In the instant case, the Tri-County Villages ADA served as much of the background data and analysis for the plan amendment. The Tri-County Villages DRI also served as the sector plan for the area covered by the amendment.

   
   

7. In addition to the voluminous data and analysis included in the Tri- County Villages ADA, the plan amendment also included detailed data and analysis. The data and analysis accompanying the amendment included a compatibility and land use suitability analysis, a soils analysis, an evaluation of urban sprawl related issues, an analysis of environmental considerations, a population and housing analysis, a concurrency analysis, and an analysis to ensure that the amendment was consistent with the adopted comprehensive plan. The data and analysis collectively demonstrated that the urban development proposed by the amendment was appropriate for the designated area.

   C. Is the Plan Amendment in Compliance?

   
   

8. In their proposed recommended order, petitioners summarize their objections to the plan amendment as follows: (a) the amendment fails to protect agricultural lands, (b) the amendment encourages urban sprawl, (c) the future land use map is internally inconsistent, (d) there is no demonstrated need for 1,960 acres of PUD land use, (e) PUD is not a valid land use category, (f) the amendment does not ensure adequate fire and emergency medical services, (g) the County failed to coordinate with the local school board, (h) there is no reasonable protection from flooding, (i) the amendment does not provide adequate parks and recreational facilities, (j) affordable housing needs are not met, and

   1. there is no requirement that the developer install water and sewer facilities at its own expense. These contentions will be discussed separately below.

      
      

      1. Protection of agricultural lands

         
         

9. Under the amendment, 1,960 acres of agricultural land will be converted to urban type uses. Petitioners contend that the amendment fails to protect agricultural land as required by FLUE objective 7.1.2 and Rule 9J- 5.006(5)(g)5., Florida Administrative Code. The cited objective "establishes agriculture as the primary use outside of the urban expansion area" and "insures retention of agricultural activities." If the plan amendment fails to "adequately protect adjacent agricultural areas," the cited rule considers this failure to be a prime indicator that the amendment does not discourage the proliferation of urban sprawl.

   
   

10. The rule and objective do not prohibit the conversion of agricultural lands to urban uses. Indeed, FLUE objective 1.2 and the corresponding policies allow for the conversion of suitable agricultural lands as the need for additional urban land is demonstrated. The policies also require that the conversion be done in a well planned, orderly and logical fashion based on need and suitability.

    
    

11. The agricultural lands being converted as a result of the plan amendment are appropriate for conversion. The plans, FLUE data and analysis demonstrate that one of the best areas for urban development in the County is the northeast portion of the County which covers the agricultural lands in the plan amendment. This determination was based on an extensive analysis of various factors including soil suitability, environmental constraints, and other planning criteria such as proximity to existing urbanized areas.

    
    

12. The evidence establishes that the conversion of agricultural land contemplated by the plan amendment was justifiable because of the extent of urban development already existing in the area and the urban infrastructure currently in place. In addition, future populations will be directed away from the remaining agricultural lands throughout the County and to the development proposed by the plan amendment. The open space required by the PUD and Tri- County Villages amended development order sector plan will also serve to buffer and ensure compatibility of land covered by the plan amendment and the adjacent agricultural and rural lands.

    
    

13. In view of the above, it is found that petitioners have not shown to the exclusion of fair debate that the plan amendment fails to protect agricultural land.

    1. Urban sprawl

       
       

14. In the same vein, petitioners contend that the amendment fails to discourage urban sprawl because of the conversion of 1,960 acres of agricultural land to urban uses. In support of this contention, they cite a number of provisions within Chapter 9J-5, Florida Administrative Code, all dealing with urban sprawl, and which have allegedly been violated. They also point to the fact that large portions of the existing development have not been sold or built out, only 2 percent of the 1,960 acres will be devoted to commercial land use, the multiplier for the plan amendment is in excess of 1.25, which is an indicator of urban sprawl, and no future public facilities and services are planned for the lands covered by the amendment prior to its adoption.

    
    

15. The plan amendment includes an evaluation of urban sprawl. That evaluation references FLUE policy 1.2.5.(a), which was adopted by the County specifically as a mechanism for discouraging urban sprawl. A review of that policy indicates that, for a PUD to be allowed in an agricultural area, it must score approximately 50 points based on factors including, but not limited to, proximity to the urban expansion area, proximity to urban services, including water, sewer, and roads, and proximity to other services such as fire protection and emergency medical services. If a proposed amendment or PUD failed to score

    50 points, it was deemed to encourage urban sprawl and would not be approved by the County. The plan amendment scored 130 points, well in excess of the 50 point threshold.

    
    

16. In addition to satisfying FLUE policy 1.2.5.(a), the plan amendment is consistent with FLUM maps VII-18A and VII-18C, which are the future land use constrained area overlay and urban sprawl evaluation overlay, respectively. As the FLUE data and analysis indicate, these maps were prepared for the purpose of directing urban development into areas most suitable for such development. Map VII-18A demonstrates that the land included in the plan amendment has only slight limitations for urban development. Similarly, Map VII-18C indicates that the land has only slight limitations in regard to urban sprawl. In fact, portions of land covered by the plan amendment are already within an established urban expansion area which is the OBGW DRI.

    
    

17. Finally, the PUD mixed land use category and sector plan concept adopted by the plan amendment are planning methods specifically recognized and encouraged by prior DCA policy as reflected in the DCA's Technical Memo Special Edition 4-4 and the urban sprawl provisions incorporated into Rule 9J- 5.006(5)(l), Florida Administrative Code, effective May 18, 1994, as methods of discouraging urban sprawl. Indeed, the rule provides in part that mixed use development and sector planning . . . will be recognized as methods of discouraging urban sprawl and will be determined consistent with the provisions of the state comprehensive plan, regional policy plans, Chapter 163, Part II, and this chapter regarding discouraging the proliferation of urban sprawl.

    
    

18. Given the above, it is found that petitioners have not shown to the exclusion of fair debate that the plan amendment encourages urban sprawl.

    
    

    1. The consistency of the future land

       
       

19. Petitioners next argue in general terms that the FLUM does not "reflect policies which call for maintaining agricultural lands, discouraging urban sprawl, promoting land use compatibility, protection from flooding, providing for adequate public recreation facilities, and other objectives," and thus it is internally inconsistent.

20. The FLUM series in the plan as well as the FLUM series as amended by the plan amendment is a pictorial representation of the goals, objectives, and policies of the comprehensive plan. In the absence of any credible evidence to the contrary, it is found that petitioners have failed to show to the exclusion of fair debate that the FLUM is internally inconsistent as alleged in their petition.

    
    

    1. Demonstrated need

       
       

21. Petitioners next allege that the plan amendment "is premature in time and fails to provide demonstrated need" as required by various provisions within Chapter 9J-5, Florida Administrative Code. They further allege that the FLUM "is not based upon adequate surveys, studies, or data regarding the amount of land needed to accommodate anticipated growth."

    
    

22. Initially, it is noted that the data and analysis in the plan are not subject to the compliance review process. Chapter 163, Florida Statutes, authorizes the DCA in a compliance review to determine only if the plan or plan amendment is based on appropriate data and analysis and whether the data was collected in a professionally acceptable manner. Planning methodologies used in analysis of the data, such as the calculation of a multiplier, must also be prepared in a professionally acceptable manner. In addition, the DCA may not choose one methodology over another.

    
    

23. At hearing, petitioners raised issues concerning the methodology used in calculating the County's residential land use allocation multiplier and contended that other factors such as mortality rates and resale figures should have been used in calculating the multiplier. The preparation of the multiplier in issue came as a result of the DCA's Objections, Recommendations and Comments report. That report recommended that the County provide an analysis which demonstrated that the land use change requested in the plan amendment was based on the amount of additional land needed to accommodate the projected population during the planning time frame (the year 2014) established by the Tri-County Villages Amended Development Order sector plan.

    
    

24. Based on historic data, the County calculated a multiplier which depicted the allocation of residential land countywide. The multiplier was 1.87, which means that the County allocated residential land uses approximately

    87 percent above its demonstrated need for the planning period. The evidence shows that, in order to allow some degree of development flexibility, a local government will routinely allocate more land than is actually needed. Indeed, a multiplier of 1.87 is low when compared to the other multipliers found in compliance in adjacent local governments as well as in other local governments statewide.

    
    

25. In actuality, a 1.87 multiplier is not really the most accurate depiction of the allocation of residential land county-wide because the population for OBGW and the other PUD in the County was not included in the calculation. In an effort to provide a more accurate multiplier, the County added to the equation the projected population for OBGW and the PUD. The resulting revised multiplier equalled 1.46.

    
    

26. Petitioners developed a multiplier of their own of 1.88. However, they failed to show that the County's multiplier was not developed in a professionally acceptable manner. Moreover, petitioners' methodology was unacceptable because it did not project its population over the correct planning

    horizon. Petitioners failed to consider the 2014 planning horizon established by the Tri-County Villages Amended Development Order sector plan which controls the development of land covered by the plan amendment. Instead, petitioners multiplier incorrectly used the 2001 planning horizon established by the plan.

    
    

27. In addressing the need for additional residential allocation, the amount of residential land allocated must be a reflection of the population expected through the end of the Tri-County Villages sector plan 2014 planning horizon. The type of development contemplated by the plan amendment and the additional population has not previously occurred in the County. Since development of OBGW commenced in 1992, the building permits issued in the County have increased by 94 percent. Much of this increase can be attributed to OBGW. The number of yearly certificates of occupancy for OBGW has stayed relatively constant and is expected to remain constant throughout the planning horizon.

    
    

28. Intervenor's marketing scheme for OBGW seeks to attract retirees predominately from the northeastern part of the United States. The residents are not generally County residents prior to moving to Tri-County Villages. This same marketing scheme will be used for the future development of the Tri-County Villages. Thus, the future Tri-County Villages residents are not expected to be from the County.

    
    

29. Tri-County Villages is a new type of development for the County. This new population was not taken into account in the original comprehensive plan which also had a low multiplier. Therefore, the need for residential allocation for this new population was not addressed. Because this new population is a reality which was not comtemplated by the plan, and the plan does not have an excess of allocated residential land, the need for the increased residential densities has been demonstrated. Petitioners have not shown to the exclusion of fair debate that the plan amendment was premature or not based on a demonstrated need.

    
    

    1. PUD as a land use category

       
       

30. Because a planned unit development (PUD) is not "recognized" as a land use category in Rule 9J-5.006(1), Florida Administrative Code, petitioners contend that the use of that category in the plan amendment renders it not in compliance.

    
    

31. For purposes of its compliance review, the DCA used the version of chapter 9J-5 which was in effect at the time of the submittal of the plan amendment. Then existing Rule 9J-5.006(1)(a), Florida Administrative Code, which was effective on March 23, 1994, established the generalized land uses which must be shown on the Existing Land Use Map (ELUM). Rule 9J-5.006(4)(a), Florida Administrative Code, requires that these same generalized land uses must be depicted on the FLUM as well.

    
    

32. While it is true that PUD is not one of the generalized land uses listed in chapter 9J-5, the two rules cited above both allow a local government to depict other land use categories on the ELUM and FLUM. Because the plan references PUD as a mixed land use category, the County has properly depicted that category on both the ELUM and FLUM. Petitioners have failed to show that PUD as a mixed land use category is not recognized under the rules in existence when the plan amendment was reviewed.

    1. Compatibility with adjacent agricultural lands

       
       

33. Petitioners have also alleged that the County has "not demonstrated compatibility with adjacent agricultural and rural residential land uses." They point to the fact that the area adjacent to and near the development is a "friendly rural community," and they allege that the development will harm this wholesome atmosphere.

    
    

34. The plan allows for the well planned conversion of agricultural lands in the County. One of the requirements of the plan's PUD provisions is that PUD development be buffered from adjacent lands and contain open space. The purpose of this provision is to ensure compatibility. A review of the PUD application and DRI Master Development Plan, both incorporated into the plan amendment, shows that the Tri-County Villages development will provide approximately 1,100 acres of open space. Much of this open space will act as a buffer between the development and the adjacent agricultural and rural land uses. The project will also cluster its development which serves to separate the more urban development from the adjacent agricultural and rural uses.

    
    

35. Another mechanism which ensures compatibility is the phased method of development proposed for the project. Under the phasing approach, only contiguous portions of the property will be developed at any given time during the planning period. In addition, existing agricultural uses on the property will continue until such time as the proposed development reaches that property. Given these considerations, it is found that petitioners have not shown to the exclusion of fair debate that the plan amendment is incompatible with adjacent land uses.

    
    

    1. Levels of service

       
       

36. In their amended petition, petitioners assert that the plan amendment is in violation of FLUE objective 7.1.6 and FLUE policy 7.1.6.1, objective 1.1 and policy 1.1.1 of the Capital Improvements Element, Rules 9J-5.005(3), 9J- 5.011(2)2., 9J-5.015(3)(b)1., and 9J-5.016(3)(a) and (b)4., Florida Administrative Code, and Section 187.201(16)(b)6., Florida Statutes, all pertaining specifically or generally to levels of service for recreational facilities, schools, fire protection, emergency medical services and flooding.

    
    

37. Policy 1.1.1 of the Capital Improvements Element adopts a recreational facility level of service for such facilities as softball fields, baseball fields, basketball courts, boat ramps and the like. The amount of facilities required is based on population. Under the plan, the County must take the necessary steps to insure that the availability of these facilities is addressed during the concurrency review process and not at the compliance review stage.

    In other words, when a proposed development reaches the stage of requesting a building permit, the County may require as a condition of the issuance of that building permit that a developer provide a certain facility. In this regard, it is noted that Chapter 163, Florida Statutes, requires that any development comply with concurrency requirements while the Tri-County DRI Amended Development Order requires that the developer provide for adequate public facilities.

    
    

38. Both the plan amendment and the development authorized therein generally address the recreational level of service. However, if no additional facilities are constructed in the future, the plan amendment does not provide adequate baseball fields, softball fields, boat ramps or handball courts consistent with policy 1.1.1. In addressing these potential deficiencies,

    intervenor represented to the County that as a retirement community, the development would not generate a demand for these types of facilities. That is to say, the retiree population inhabiting the development would be less likely to participate in activities such as baseball or softball. The population would, however, generate a need for other recreational facilities such as golf courses, swimming pools, shuffleboard courts and bocci ball facilities, all of which the development has a surplus.

    
    

39. In response to this concern, the County concluded that it was not appropriate to require the construction of certain facilities when the project would not generate a need for them. The County indicated that, during the plan evaluation and appraisal stage required in 1998, an amendment to the plan would be transmitted which would revise the plan to take into account such situations. If such an amendment is not adopted, intervenor will need to provide additional facilities necessary to meet concurrency requirements.

    
    

40. There is no established level of service in the plan for fire protection or emergency medical services. Intervenor has, however, addressed these services in the Amended Development Order for the development. As reflected in that order, intervenor donated a five-acre parcel and constructed a fire station adjacent to the development. The station may also be used to house emergency medical services, if needed, although an existing emergency medical service provider is located in close proximity. Intervenor also donated to the County $80,000 for the purchase of fire fighting equipment, and each household pays the County a $30 annual fee for fire protection. Therefore, fire protection and emergency medical services have been addressed.

    
    

41. The plan establishes no level of service standard for schools. Because the development is a retirement community, children under age 19 are prohibited. As a consequence, it was determined that impacts to school facilities would be minimal. Intervenor contacted and advised the school board

    of its retirement community development plans and projected student impacts. In response, the school board concluded that minimal impact was expected as a result of the development. To the extent that the development in the future allows school age children to reside therein, the Amended Development Order specifically calls for a substantial deviation determination pursuant to Section 380.06(19), Florida Statutes, to evaluate the potential impacts to school facilities. As a result of further review, intervenor may be required to provide additional school facilities.

    
    

42. The plan establishes a level of service for stormwater drainage in terms of quantity and quality. Based on flooding which has occurred in the existing OBGW development, petitioners suggest that flooding will occur in the development proposed in conjunction with the plan amendment. While such flooding has occurred in the OBGW development, there is no evidence that the flooding was caused by a reduction or violation of the stormwater drainage level of service. Indeed, the evidence shows that the flooding was caused by an unusually heavy period of rainfall in combination with debris clogging the inlets of the stormwater system. The actual stormwater system for OBGW, which was reviewed and approved in the OBGW DRI review process, was designed for and required to meet the plan's drainage level of service. As a concurrency matter, any system designed for the future development contemplated in the plan amendment will also be required to meet the stormwater drainage level of service. Accordingly, it is found that petitioners have not shown to the exclusion of fair debate that the plan amendment violates the plan's level of services standard for stormwater drainage.

    1. Affordable housing

    
    

43. Petitioners further allege that the plan amendment "fails to provide for affordable housing as required by Objective 3.5 of the Housing Element of the (plan)" in violation of various rules and the state comprehensive plan.

    
    

44. The rule alleged to have been violated requires a local government to analyze the affordable housing stock within the local government. The local government must then adopt comprehensive plan goals, objectives, and policies which establish programs to ensure an adequate supply of affordable housing for the present and future residents. Housing Element objective 3.5 and the implementing policies which follow provide one of the mechanisms, coordination with the private sector, which the County uses to address the provision of affordable housing countywide.

    
    

45. The provisions of objective 3.5 and the implementing policies place no specific requirements on the private sector. These plan provisions only require that, in addressing the provision of affordable housing, the County work with the private sector. Contrary to petitioners' assertion, neither the plan provisions nor chapter 9J-5 require the plan amendment to address the affordable housing deficiencies countywide. As a DRI requirement, however, the plan amendment does address the provision of affordable housing.

    
    

46. A detailed housing analysis was provided in the Tri-County Villages ADA. The analysis included a review of the affordable housing stock pursuant to the East Central Florida Regional Planning Council's housing demand, supply and need methodology. The analysis further concluded that after phase 3, additional affordable housing may be necessary. To address this deficiency, the ADA for the development requires intervenor to reanalyze the available affordable housing consistent with objective 3.5 of the Housing Element. Thus, it is found that petitioners have not shown to the exclusion of fair debate that the plan amendment fails to provide affordable housing.

    
    

    i. Infrastructure funding

    
    

47. Finally, petitioners allege that the plan amendment is inconsistent with FLUE policy 1.5.4. That policy provides as follows:

    
    

    All PUDS shall provide for central potable water and sanitary sewer facilities at the developer's expense and provide for fire hydrants and fire flow within the development in accordance with the National Fire Protection Association Standards.

    
    

48. Intervenor has created community development districts as a mechanism to fund the development infrastructure. Intervenor is able to raise funds by the sale of bonds through these districts. The residents of the development will ultimately repay the bonds. Even so, petitioners allege that this funding mechanism is inconsistent with the cited policy because the infrastructure is not funded "at the developer's expense."

    
    

49. The purpose and intent of the policy was to insure that the County not be obligated to fund infrastructure related to the PUD development. The developer, and ultimately the residents, of the project will fund the infrastructure through the community development districts. The County will not be obligated. This funding mechanism is consistent with policy 1.5.4. in that

    the County is not responsible for the funding of the PUD-related infrastructure. Accordingly, petitioners have not shown to the exclusion of fair debate that the plan amendment is inconsistent with the cited policy.

    
    

    CONCLUSIONS OF LAW

    
    

50. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.57(1) and 163.3184(9), Florida Statutes.

    
    

51. The broad issue in this case is whether the plan amendment is "in compliance" with Part II of Chapter 163, Florida Statutes, and Chapter 9J-5, Florida Administrative Code. "In compliance," as defined in Section 163.3184(1(b), Florida Statutes, means the plan is consistent with the applicable provisions of Part II of Chapter 163, Florida Statutes, the state comprehensive plan, the regional policy plan, and Chapter 9J-5, Florida Administrative Code.

    
    

52. This case arose under Section 163.3184(9)(a), Florida Statutes, following DCA's notice of intent to find the County's plan amendment in compliance. Under that statute, the plan amendment must be determined to be "in compliance" if the local government's determination of compliance is fairly debatable. Therefore, the action of the County must be approved "if reasonable persons could differ as to its propriety." B & H Travel Corporation v. Department of Community Affairs, 602 So.2d 1362, 1365 (Fla. 1st DCA 1992). In other words, petitioners bear a heavy burden in proving the legitimacy of their claims.

    
    

53. The more credible and persuasive evidence shows that petitioners failed to prove to the exclusion of fair debate that the plan amendment is inconsistent with, or violates, the plans, goals, objectives, and policies as alleged in the amended petition. They have also failed to prove to the exclusion of fair debate that the plan amendment is not in compliance within the meaning of the law. This being so, the amended petition should be denied and a final order entered by the Department of Community Affairs finding the plan amendment to be in compliance.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order

determining that Sumter County's comprehensive plan amendment 94D1 is in compliance.

DONE AND ENTERED this 11th day of July, 1995, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11 day of July, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6974GM

Petitioners:

8-9. Rejected as being unnecessary.

10. Partially accepted in findings of fact 7-9. 11-14. Rejected as being unnecessary.

1. Partially accepted in finding of fact 8.

2. Partially accepted in finding of fact 7.

3. Rejected as being unnecessary.

4. Partially accepted in finding of fact 8. 19-21. Partially accepted in finding of fact 2. 22-23. Covered in procedural statement.

24-29. Partially accepted in findings of fact 16-20. 30-41. Partially accepted in findings of fact 21-25.

42. Rejected as being unnecessary.

43-77. Partially accepted in findings of fact 28-36. 78-85. Partially accepted in findings of fact 37-39. 86-95. Partially accepted in findings of fact 40-42. 96-148. Partially accepted in findings of fact 43-49. 149-162. Partially accepted in findings of fact 50-53. 163-166. Partially accepted in findings of fact 54-56.

Respondents/Intervenor:

With certain changes, the substance of proposed findings 1-53 has been generally incorporated into this recommended order.

Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary for a resolution of the issues, irrelevant, not supported by the more credible, persuasive evidence, subordinate, or a conclusion of law.

COPIES FURNISHED:

Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Dan R. Stengle, Esquire General Counsel

Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Mr. T. D. Farnsworth 12364 County Road 223

Oxford, Florida 34484

Felix M. Adams, Esquire

236 North Main Street Bushnell, Florida 33513-5928

David L. Jordan, Esquire Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Nancy G. Linnan, Esquire Post Office Drawer 190

Tallahassee, Florida 32302-0190

R. Dewey Burnsed, Esquire Post Office Box 491357 Leesburg, Florida 34749-1357

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 94-006974GM

Orders for Case No: 94-006974GM