STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

QUADRANGLE DEVELOPMENT )

a Florida joint venture, )

)

Petitioner, )

)

vs. ) Case No. 99-3722DRI

)

ORANGE COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Orlando, Florida, on March 23-24 and May 9, 2000.

APPEARANCES

For Petitioner: Timothy A. Smith

Akerman, Senterfitt & Eidson, P.A. Post Office Box 231

Orlando, Florida 32802-0231

For Respondent: William D. Palmer

Palmer & Palmer, P.A. 3117-B Edgewater Drive Orlando, Florida 32804

STATEMENT OF THE ISSUE

The issue is whether Petitioner is entitled to a final order amending the development order for the Quadrangle DRI to authorize the replacement of office space with multifamily residential units.

PRELIMINARY STATEMENT

In 1984, Respondent approved the original development order for The Quadrangle DRI, which is located west of the University of Central Florida in east Orange County. The original development order authorized office, commercial, and hotel development. In 1994, Respondent approved an amendment to the development order to authorize multifamily residential development.

In 1999, Respondent denied Petitioner's request to amend the development order to replace previously approved office with multifamily residential development. By Petition for Appeal of a Development Order filed May 7, 1999, Petitioner requested that the Florida Land and Water Adjudicatory Commission enter an order approving the denied request. By letter dated August 31, 1999, the Florida Land and Water Adjudicatory Commission referred the case to the Division of Administrative Hearings to conduct a formal hearing and prepare a recommended order.

At the hearing, Petitioner called four witnesses and offered into evidence 51 exhibits: Petitioner Exhibits 1-51. Respondent called two witnesses and offered into evidence 17 exhibits: Respondent Exhibits 1-3, 9-10, 16 (not for the truth), 18, 25,

29-31, 37, and 39-43. All exhibits were admitted.

The court reporter filed the Transcript on June 5, 2000.

The parties filed their proposed recommended orders on June 20, 2000.

The parties identify various issues in their proposed recommended orders. At pages 3-4 of its proposed recommended order, Petitioner identifies four issues: 1) Petitioner's standing; 2) the ripeness of Petitioner's request for a development approval, given the fact that the number of residential units for which Petitioner seeks approval is contingent upon the approval or denial of another, pending request for a development approval concerning another parcel; 3) the incompatibility of multifamily residential with nearby single-family residential and the resulting inconsistency with

the Orange County Comprehensive Plan; and 4) the insufficiency of the request, which addresses only units of residential and square feet of office, rather than acreages of residential and office.

At page 3 of its proposed recommended order, Respondent identifies four issues: 1) the failure of Petitioner's request to comply with the acreage limitations in the current development order; 2) the inconsistency of Petitioner's request with the Orange County Comprehensive Plan; 3) the incompatibility of multifamily residential with nearby single-family residential; and 4) the ripeness of Petitioner's request for a development approval, given the fact that the number of residential units for which Petitioner seeks approval is contingent upon the approval or denial of another, pending request for a development approval concerning another parcel.

Ignoring the issue of Petitioner's standing, which was omitted by Respondent, the parties raise identical issues. Restated slightly, these issues are: 1) the extent to which Petitioner's request for additional residential units is contingent upon another, pending request; 2) the effect, if any, of the residential acreage stated in the current development order upon Petitioner's request for additional residential units with acreage limitations contained in the current development order; 3) the compatibility of the proposed location of the requested multifamily residential with nearby single-family residential; and 4) the consistency of the proposed location of the requested multifamily residential with the Orange County Comprehensive Plan. This recommended order considers these issues in pairs. The first two issues occupy the first section of the recommended order, and the second two issues occupy the second section of the recommended order.

FINDINGS OF FACT

1. The Roles of Residential Units and Residential Acreages in Quadrangle Development Orders

   
   

   1. Petitioner is a joint venture. Its partners are Weyerhauser Realty Company and RMDC Quadrangle Company. RMDC Quadrangle Company is a subsidiary of Reynolds Metal Development Company. (Tr., p. 320.) The partners have divided development rights between themselves, but legal title remains in Petitioner. (Tr., p. 321.) All references to "Petitioner" include Petitioner's predecessors in interest.

   2. On November 5, 1984, Respondent issued a development order (DO) approving the application for a development of regional impact (DRI) known as The Quadrangle (Quadrangle). (Resp. Ex. 3.) Quadrangle is located on 465 acres immediately west of the University of Central Florida in east Orange County. Quadrangle occupies about two-thirds of the area bounded by University Boulevard on the south, Alafaya Trail on the east, Rouse Road on the west, and McCulloch Road on the north. (Resp. Ex. 1.) At this location, McCulloch Road separates Orange and Seminole counties. (Tr., p. 87.)

   3. As originally proposed, Quadrangle was to have been a corporate business center with over two million square feet of office space and nearly one-half million square feet of supporting uses, including hotels and restaurants. (Resp. Ex. 1, pp. 10 and 13.) (All page references are to the actual number of pages starting with the first page of the exhibit and typically do not correspond to the page numbers shown on the exhibit.) The original DRI application identified 21 parcels: 13 for office, two for hotel, one for professional office/health center, one for retail, one for restaurant, one for bank/office, one for restaurant/recreation/park, and one for professional office. (Resp. Ex. 1, Table 1.) The original DRI application designated as office what is now known as Tract 7, which is the parcel at issue in this case. (Cf. Resp. Ex. 1, Land Use Plan, with Pet. Ex. 2A.)

   4. Ensuing requests for approvals of proposed land use changes addressed the requirements of local and state law governing, respectively, planned developments (PD) and DRIs. This case involves exclusively the DRI process. The documents initiating amendments to the DRI DO are contained in packages entitled "Notice of Change for the Quadrangle DRI" (NOPC). (The first such package bears a slightly different name.) The NOPCs contain the same information as that contained in the packages used to initiate PD amendments. (Each of these PD packages is

      called an "Amended Land Use Plan" (ALUP) and contains a map known by the same name.

   5. In December 1993, Petitioner filed an NOPC requesting a DO amendment approving residential development. (Pet. Ex. 3.) This was the first request to add any form of residential development, exclusive of hotels, to Quadrangle.

   6. The December 1993 NOPC explains the purpose of this request:

      The proposed amended development program has been designed to introduce multi-family housing into the project in an attempt to address a current deficiency in the marketplace as well as provide a more diverse mixture of land uses within The Quadrangle and the University Activity Center. As demonstrated in Table 1, the currently proposed changes include a reduction of office space by 825,000 square feet, the addition of 960 multi-family units and an increase of 250,000 square feet in the retail land use. The multi-family parcels will be developed with densities up to 18 dwelling units per acre.

      (Pet. Ex. 3, p. 3.)

      
      

   7. Explaining the flexibility that Petitioner sought for the Quadrangle DRI, the December 1993 NOPC adds:

      Exhibit 1--Development Plan (Revised) illustrates the proposed changes to the master development plan. The applicant requests approval to consider each remaining development parcel as a potential site for either commercial/retail, multi-family residential, or office land uses, thereby providing the flexibility needed to adequately incorporate the new land use proposed for the project.

   8. Table 1 of the December 1993 NOPC is a Substantial Deviation Determination Chart. This table provides Respondent and other reviewing agencies with information to help them determine, in the DRI process, if the proposed land use change is a substantial deviation from the development already approved by the DO, as previously amended. The Substantial Deviation Determination Chart contains six rows of land uses and four columns: land use, change category, proposed plan, and approved plan. (Pet. Ex. 3, Table 1.)

   9. Under Residential, Table 1 states, for the approved plan, "not applicable" because the then-current DO authorized no residential uses. For the proposed plan, Table 1 indicates 960 multifamily units and 56 acres. For "site locational changes," Table 1 refers to Exhibit 1. (Pet. Ex. 3, Table 1.)

   10. Exhibit 1, which is also mentioned in paragraph 7 of this recommended order, is the "Development Plan (revised)." The Development Plan comprises a color map, "land use legend," table

       entitled "Amended Development Program," and untitled table showing tracts, land uses, and acreages. (Pet. Ex. 3, Ex. 1.)

   11. Reflecting the proposal that was the subject of the December 1993 NOPC, the land use legend shows Tract 7 as "Office/M.F. [Multifamily] Residential." The Amended Development Program reports an introduction of 960 multifamily residential units, increase of 250,000 square feet of commercial retail/service, and decrease of 825,000 square feet of office/showroom. (Pet. Ex. 3, Ex. 1.)

   12. The untitled table on the Development Plan identifies specific, authorized land uses for each parcel. Also reflecting the proposal that was the subject of the December 1993 NOPC, the untitled table states:

       Tracts Land Use Acreage

       
       

       1	Commercial/Office/Hotel	20.75	ac.
       4A	Office/M.F. Residential	23.87	ac.
       4B	Office/M.F. Residential	15.00	ac.
       5	Office/M.F. Residential	18.13	ac.
       7	Office/M.F. Residential	24.62	ac.
       12	Office/M.F. Residential	12.63	ac.
       17B	Office/M.F. Residential	04.02	ac.
       17C	Office/M.F. Residential	07.70	ac.
       21	Commercial/Office/Hotel	11.27	ac.
       25B	Commercial/Office	02.19	ac.
       25C	Commercial/Office/Hotel	03.89	ac.
       (Pet. Ex.	3, Ex. 1.)	TOTAL 144.07	ac.

       
       

   13. Attachment B to the December 1993 NOPC is a traffic analysis prepared in November 1993 by Kimley-Horn Associates, Inc. The analysis explains adequately how no additional traffic

       impacts would result from the replacement of 825,000 square feet of office and office/showroom with 960 multifamily dwelling units and 250,000 square feet of retail. (Pet. Ex. 3, Attach. B.)

   14. Respondent is not challenging Petitioner's request for an amended DO on the basis of traffic impacts. (Tr., p. 283.) In any event, the single measure of the impact of Quadrangle was traffic trips. (Tr., pp. 120-21.). The November 1993 Kimley-

       Horn analysis established a formula by which Petitioner could and did demonstrate that all amendments to the DRI DO that Petitioner sought, including the subject amendment, did not generate offsite traffic impacts due to the decreases in Office that accompanied increases in Multifamily Residential. (Tr., pp. 279 et seq.)

   15. Each NOPC concludes with a proposed DO. The proposed DO attached to the December 1993 NOPC contains the Development Plan, which is described in paragraphs 10-12 of this recommended order. Although the hearing exhibit is incomplete, the proposed DO presumably incorporates by reference, in the same manner as described below for subsequent NOPCs, "the development quantities" set forth in the Development Plan. (Pet. Ex. 3, last two pages.)

   16. The DO actually approving the December 1993 NOPC is the Non-Substantial Deviation Amendment to Development Order for the Quadrangle Development of Regional Impact, dated May 10, 1994. The DO states that the "development quantities and land uses . .

       are . . . amended as described and stated in the attached Exhibits 'A' and 'B.'" (Stipulated Facts filed December 20, 1999 (Stip.), Ex. D, p. 2.)

   17. Exhibit A to the May 10, 1994, DO sets exchange ratios of one multifamily unit for 300 square feet of office and 1000 square feet of retail for 2400 square feet of office, in both cases up to the maximum measures of intensity approved by this DO. Exhibit A subjects these exchange ratios to the "following maximum result: Office--2,744,263 square feet[;] Commercial-- 397,000 square feet[;] Hotel--450 rooms[; and] Residential--960 units." (Stip., Ex. D, Ex. A.)

   18. Exhibit B to the May 10, 1994, DO is the Development Plan that is attached to the December 1993 NOPC. (Stip., Ex. D, Ex. B.)

   19. The ALUP accompanying the December 1993 NOPC is dated January 1994. (Pet. Ex. 4.) The January 1994 ALUP contains design standards for the newly added residential land use. (Pet. Ex. 4, p. 15.) For the most part, these standards involve buffers, setbacks, and net livable areas (Pet. Ex. 4, Ex. 3 (ALUM map)), although the PD approval presumably added other design standards to all residential development within Quadrangle.

   20. The first two issues, as stated in the Preliminary Statement above, involve the calculation and purpose of the acreage figures supplied by Petitioner for Multifamily Residential. Although over 100 acres bore the designation of

       Multifamily Residential after approval of the amendments sought by the December 1993 NOPC, the same acreage also bore the designation of Office. In calculating the 56 acres used in Table

       1 of the December 1993 NOPC, Petitioner added the acreage of Tracts 4A, 4B, and 5. (Tr., p. 219.) (The total of these three parcels is actually 57 acres; all acreages in this case are approximations.)

   21. Although Tracts 7, 12, 17B, and 17C also bore an alternative Multifamily Residential designation, Petitioner chose to include in Multifamily Residential only the combined acreage of Tracts 4A, 4B, and 5, because Petitioner believed that these were the most likely parcels to be developed for residential, rather than office, uses. Also, Petitioner did not want to distort the Office designation by removing all of these parcels from Office when it was likely that some of them would develop as Office, not Multifamily Residential. Petitioner's acreage assignment is roughly consistent with the maximum allowable density; if each of these tracts developed at its maximum of 18 units per acre, these 56 acres would yield 1008 units, or 48 more units than authorized by the DO approving the December 1993 NOPC.

   22. In February 1997, Petitioner filed another NOPC seeking approval of 290 more residential units. The February 1997 NOPC states that the "approved program is shown on Table 1, Substantial Deviation Determination Chart." Explaining further, the February 1997 NOPC adds: "The proposed amended development

       program has been designed to expand multi-family housing to Tract #1 in an attempt to address a current deficiency in the marketplace and to specify some specific commercial uses so as to provide a more diverse mixture of land uses within The Quadrangle and the University Activity Center." The February 1997 NOPC notes that "Exhibit 1, Development Plan (Revised) illustrates the proposed changes to the master development plan." (Pet. Ex. 7, p. 3.)

   23. Exhibit 1 to the February 1997 NOPC is a Development Plan (revised February 10, 1997) featuring a color map. Tract 7 remains designated as Office/Multifamily Residential, as are Tracts 5, 12, 17B, and 17C. The Development Plan discloses that Tracts 4A, 4B, and 25B have been developed or sold. The table entitled "Amended Development Program" shows an increase of 290 multifamily residential units and a decrease of 72,000 square feet of commercial retail/service. (Pet. Ex. 7, Ex. 1.)

   24. Reflecting the sales of the three parcels and minor acreage recalculations, the untitled table included on the Development Plan provides the following information:

       Tracts Land Use Acreage

       
       

       1	Commercial/Hotel/Office/ M.F. Residential	24.00	ac.
       5	Office/M.F. Residential	15.95	ac.
       7	Office/M.F. Residential	24.62	ac.
       12	Office/M.F. Residential	12.63	ac.
       17B	Office/M.F. Residential	04.02	ac.
       17C	Office/M.F. Residential	07.70	ac.
       21	Commercial/Office/Hotel	11.45	ac.
       25C	Commercial/Office/Hotel	04.13	ac.

       
       

       TOTAL 104.50 ac.

       
       

       (Pet. Ex. 7, Ex. 1.)

       
       

   25. Table 1 in the February 1997 NOPC is the Substantial Deviation Determination Chart. This chart indicates that the proposed plan is for an additional 290 multifamily residential units, to a new total of 1250 such units. Under the row for Residential, the chart shows the approved plan as 56 acres and the proposed plan as "Add Tract 1 77 acreage." (Pet. Ex. 7, Table 1.)

   26. The proposed DO attached to the February 1997 NOPC amends the "development quantities" to reflect the information contained in an exhibit that was omitted from the copy of the February 1997 NOPC admitted into evidence. Presumably, the attached document was the Development Plan. (Pet. Ex. 7, last two pages.)

   27. The DO actually approving the February 1997 NOPC is the Non-Substantial Deviation Amendment to Development Order for the Quadrangle Development of Regional Impact, dated June 24, 1997. The DO states that the "development quantities and land uses

       . . . are . . . amended as described and stated in the attached Exhibits 'A' and 'B.'" (Stip., Ex. E, p. 2.)

   28. Exhibit A to the June 24, 1997, DO is the Development Plan that is attached to the February 1997 NOPC. Exhibit B to the June 24, 1997, DO is the Substantial Deviation Determination Chart that is attached to the February 1997 NOPC. (Stip., Ex. E, Exs. A and B.)

   29. Petitioner calculated the 77 acres for Multifamily Residential by adding the acreage of Tract 1 to the 56 acres represented by Tracts 4A, 4B, and 5. (Tr., p. 222-23.) The reasoning was largely the same as that used when totaling the 56 acres in the December 1993 NOPC. Attempting to distinguish why Petitioner would add the acreage of Tract 1, but not Tract 7 at the time of the next NOPC for more residential units (discussed below), Petitioner explained that Tract 1 had not previously been designated Multifamily Residential. (Tr., p. 153.)

   30. By this time, Tracts 4A and 4B were under development as multifamily residential. (Cf. Pet. Ex. 3, Ex. 1 with Pet. Ex. 7, Ex. 1.) Occupying nearly all of the McCulloch Road frontage of Quadrangle, these parcels were, respectively, Phases I and II of a large apartment complex known as Knights Krossing. (Pet. Exs. 20, p. 20, and 47.) Tract 1 (except for less than two acres devoted to retail) became Phase III of Knights Krossing. (Pet. Ex. 20, p. 20.)

   31. In September 1997, Petitioner filed another NOPC seeking approval of additional residential units. The September 1997 NOPC requests the DO amendment that is the subject of this case.

   32. The September 1997 NOPC states that the "approved program is shown on Table 1, Substantial Deviation Determination Chart." Explaining further, the September 1997 NOPC adds: "The proposed amended development program has been designed to expand multi-family housing previously approved on Tract #7 and hotel rooms and restaurant in Tract #25C in an attempt to address an increasing deficiency in the marketplace, the project and the UCF Activity Center. Due to the tremendous growth of the University of Central Florida (currently 30,000 students), the need for these types of uses has increased." The September 1997 NOPC notes that "Exhibit A, Development Plan (Revised) . . . illustrates the proposed changes to the master development plan." (Pet. Ex. 11, p. 3.)

   33. Exhibit A to the September 1997 NOPC is the Development Plan (revised August 1997) featuring a black-and-white map. The Development Plan continues to designate Tract 7 as Office/Multifamily Residential, but shades the tract to show that it is an "amended area." The Development Plan also shades Tract 25C, which bears the underlying designation of Commercial/Office/Hotel. The only other tracts designated as Office/Multifamily Residential continue to be Tracts 5, 12, 17B,

       and 17C, and Tract 1 continues to bear its designation as Commercial/Hotel/Office/Multifamily Residential. The table entitled "Amended Development Program" shows an increase of 53 hotel rooms, 310 multifamily residential units, and 8000 square feet of commercial retail/service and a decrease of 234,863 square feet of office/showroom. (Pet. Ex. 11, Ex. A.)

   34. The untitled table on the Development Plan provides the following information:

       Tracts Land Use Acreage

       
       

       1 Commercial/Hotel/Office/ 24.00 ac.

       M.F. Residential

       5 Office/M.F. Residential 15.95 ac.

       7 Office/M.F. Residential 24.62 ac.

       12 Office/M.F. Residential 12.63 ac. 17B Office/M.F. Residential 04.02 ac. 17C Office/M.F. Residential 07.70 ac.

       21 Commercial/Office/Hotel 11.45 ac. 25C Commercial/Office/Hotel 04.13 ac.

       
       

       (Pet. Ex. 11, Ex. A.)

       
       

   35. Table 1 in the September 1997 NOPC is the Substantial Deviation Determination Chart. This chart indicates that the proposed plan is for an additional 310 multifamily residential units, to raise the total for the Quadrangle DRI to 1560 such units. Under the row for Residential, the chart shows that the approved plan is still for 77 acres. (Pet. Ex. 11, Table 1.)

   36. The proposed DO attached to the September 1997 NOPC amends the "development quantities, land uses and acreage" to reflect "the attached schedules and master plans" as Exhibit A,

       which is the Development Plan. (Pet. Ex. 11, last three pages, and Stip., Ex. F, Attach. B, Ex. A.)

   37. The September 1997 NOPC marks the first time that Petitioner sought additional Multifamily Residential units without increasing the acreage assigned to residential uses in the Substantial Deviation Determination Chart. Petitioner admits that, in retrospect, it probably should have added the 24.62 acres represented by Tract 7. (Tr., p. 200.) As revealed by the shading of Tract 7 and the text quoted in paragraph 32 of this recommended order, Petitioner's purpose in increasing Multifamily Residential by 310 units was to allow residential development of Parcel 7. (Tr., p. 235.) However, Petitioner wanted its acreage figures to balance (Tr., p. 236), and Petitioner was concerned that adding the acreage of Tract 7 to Multifamily Residential would distort the Office acreage. (Tr., p. 233.)

   38. Only later did Petitioner discover, after discussions with a representative of the Department of Community Affairs, that Petitioner could have listed contingent acreages, so as to disclose that the actual use of parcels bearing multiple designations could not be ascertained until their sale or development. (Tr., p. 238.)

   39. The parties eventually bifurcated the requests contained in the September 1997 NOPC, and Respondent approved the exchange of 44,263 square feet of office space for 53 hotel rooms. (Stip., Paras. 8-12.) After discussion with nearby

       homeowners (Tr., p. 168), Petitioner reduced its request for 310 multifamily residential units to 240 such units. (Tr., p. 168 and Stip., Para. 13.)

   40. On March 23, 1999, Respondent conducted a public hearing on the residential aspect of the September 1997 NOPC and accompanying ALUP. (Stip., Para. 15.) Petitioner's present request for additional Multifamily Residential units is for a nonsubstantial deviation to the existing DO. (Stip., Para. 20.) No objection to this aspect of the September 1997 NOPC was lodged by the Department of Community Affairs (Stip., Para. 21), the East Central Florida Regional Planning Council (Stip., Para. 22), or Respondent's Development Review Committee, which found the amendment to be consistent with the Orange County Comprehensive Plan (Stip., Para. 23). In a DO, as defined by Section 380.031(3) and (4), Florida Statutes, Respondent denied the portion of the September 1997 NOPC seeking additional Multifamily Residential units. (Stip., Para. 17.)

   41. The only residential development in Quadrangle is Knights Krossing. (Stip., Para. 14.) Currently constructed and proposed units in Knights Crossing will use 965 of the already- approved 1250 Multifamily Residential units, leaving 285 such units available. (Stip., Para. 14.) Tract 4A has 241 units on

       20 acres, Tract 4B has 217 units on 20 acres, and Tract 1 has 290 units on 19.4 acres, for a total of 748 units on about 60 acres. (Pet. Ex. 20, p. 20.)

   42. The additional 217 units are proposed for Phase IV of Knights Krossing. (Pet. Ex. 20, p. 27.) Phase IV will be developed on Tract 5, if the required land use approvals are obtained. (Tr., p. 191.) The prospective developer of Knights Krossing, Phase IV, is Mr. Davis. (Pet. Ex. 43, p. 1 and Pet. Ex. 19, p. 3.) The 217 units sought for Tract 5 plus the 748 units developed on Tracts 1, 4A, and 4B total the 965 units stated in the Stipulated Facts.

   43. The number of Multifamily Residential units requested by Petitioner in this case is dependent upon the resolution of the Davis proposal. The two obvious alternatives are if the Davis proposal were granted or if the Davis proposal were denied. However, if the Davis proposal were denied, there are two alternatives: if Tract 5 were developed residentially at its maximum density or if Tract 5 were not developed residentially (or, to the same effect, if the DO amendment sought in this case were to ignore subsequent residential development of Tract 5).

   44. Certain facts are common to all three alternatives. First, Petitioner (or its assignee) wishes to develop 420 Multifamily Residential units on Tract 7, regardless whether the Davis proposal were approved. (Tr., p. 327.)

   45. Second, Tracts 5 and 7 are the only unsold parcels bearing the Multifamily Residential designation. (Tr., p. 208.) Tract 17C was sold sometime ago (Pet. Ex. 23), Tract 12 has completed review by the Development Review Committee for office

       use, and Parcel 17B is under contract for hotel use (Tr.,

       
       

       p. 208). (This recommended order shall ignore the possibility that Tracts 12 and 17B may return to the market undeveloped.)

   46. Third, at the maximum, per-tract density of 18 units per acre and ignoring any more restrictive effect of design standards, Tract 7 could accommodate a maximum of 450 Multifamily Residential units. In early Development Plans, Tract 5 was shown as 18 acres, so it could accommodate a maximum of 324 Multifamily Residential units. (See, e.g., Pet. Ex. 3, Exhibit 1.) However, in later Development Plans, Tract 5 was shown as 16 acres, due to the removal of two acres of open space from its northwest corner. (Pet. Ex. 23.) If the density is derived on a gross acreage basis, so as to include the excised open space, Tract 5 can still accommodate a maximum of 324 units.

   47. As for the first alternative, if the Davis proposal were approved, only 285 units of the currently approved 1250 units would remain for development. In this event, Petitioner would need an additional 135 units, so that 420 units could be developed on Tract 7. (Tr., p. 326.) Under this alternative, in which Petitioner needs an additional 135 Multifamily Residential units, Petitioner is seeking a DO amendment approving a total of 1385 Multifamily Residential units in Quadrangle.

   48. As for the second alternative, if the Davis proposal were denied and no proposal for the residential development of Tract 5 emerged (or, at least, were considered at this time), 502

       units would remain for development. After subtracting the 420 units for Tract 7, 82 units would remain, unused. Under this alternative, Petitioner does not need a DO amendment to develop

       420 Multifamily Residential units on Tract 7, except possibly to acknowledge Petitioner's right to develop 420 such units on Tract

       7 for the reasons set forth with respect to the remaining three issues in this case.

   49. As for the third alternative, if the Davis proposal were denied and the DO amendment in this case were to take into account subsequent residential development of Tract 5 at the maximum density, Petitioner would need 242 additional Multifamily Residential units to accommodate 420 units on Tract 7 and 324 units on Tract 5. The calculations supporting these figures begin with the 748 units in Tracts 1, 4A, and 4B. This leaves

       502 units of the presently approved 1250 units. If Petitioner effectively were to reserve the maximum number of units--324--for Tract 5, then 178 units would remain for Tract 7, and Petitioner would need another 242 units to reach 420 units. Under this alternative, in which Petitioner needs an additional 242 units, Petitioner is seeking a DO amendment approving a total of 1492 Multifamily Residential units in Quadrangle.

   50. In this case, Petitioner has chosen to pursue the first and third alternatives. (Petitioner's Proposed Recommended Order, p. 8.) Petitioner's adoption of the third alternative is evidenced by the following statement:

       Because the number of units to develop Tract

       5 might increase, however, if [Petitioner] loses the appeal of the County's denial of the current request (and the current contract for it expires, requiring the formulation of a new development plan for Tract 5), [Petitioner] has continued to request approval for 240 additional units (and a total of 1490 units for the whole development) . . ..

       (Petitioner's Proposed Recommended Order, p. 8.)

       
       

   51. Petitioner's request for 240 units is contingent only upon the approval of 217 units for Tract 5; if this occurs, Petitioner would need only an additional 135 units. However, if the Davis proposal were denied, Petitioner would take all 240 units. After adding them to the 502 units remaining after the development of Tracts 1, 4A, and 4B, the resulting 742 units would provide the 420 units sought for Tract 7 and two units less than the maximum number of units allowable on Tract 5, assuming, again, that the density is calculated on the basis of gross acres (or that Petitioner has forgotten that two acres of open space have been taken from Tract 5).

   52. As Respondent contends, the third alternative is premature and excessively contingent. By seeking 240 units if the Davis proposal were denied, Petitioner is effectively trying to obtain residential units for Tracts 7 and 5 in this proceeding, without consideration of the specific compatibility issues pertinent to Tract 5, which is closer to the already- developed part of Knights Krossing and most of the residential development along McCulloch Road. By obtaining units now for the

       maximum development of Tract 5 through an as-yet identified development proposal, Petitioner would deny Respondent the opportunity of examining the proposal, as Respondent is examining Petitioner's proposal for Tract 7 in this case. Petitioner would also deny Respondent the opportunity of obtaining consistency concessions from the future developer of Tract 5 or its predecessor, as Respondent is doing in this case.

   53. The Davis proposal for Tract 5 has proceeded further in the land use approval process than has Petitioner's proposal for Tract 7. (Tr., p. 207.) Thus, the possibility of an approval of the Davis proposal is not unreasonably contingent, nor is the possibility of a denial. But the possibility of a denial followed by a hypothetical proposal at maximum density for Tract

       5 is unreasonably contingent and prematurely presents land use issues, including compatibility, better left to future consideration by Respondent and the Florida Land and Water Adjudicatory Commission with full knowledge of all relevant facts surrounding a specific development proposal.

   54. The preceding analysis reveals an insubstantial contingency in Petitioner's requested number of additional units, if the Davis proposal were granted; an insubstantial contingency in Petitioner's requested number of additional units, if the Davis proposal were denied and no proposal of residential development for Tract 5 were considered in addressing, in this case, the number of Multifamily Residential units in Quadrangle;

       and an unreasonable contingency in Petitioner's requested number of additional units, if the Davis proposal were denied and an alternative, hypothetical proposal were considered in addressing, in this case, the number of Multifamily Residential units in Quadrangle.

   55. For these reasons, as to the first issue, Petitioner has shown that its request for additional Multifamily Residential units is not so contingent as to preclude informed consideration and approval, provided that, if the Davis proposal were approved, the amended DO approves an additional 135 Multifamily Residential Units and, if the Davis proposal were denied, the amended DO approves no additional Multifamily Residential units, but acknowledges that Petitioner may use the 420 units, subject to design standards, on Tract 7 and based on the favorable resolution of the following three issues.

   56. The second issue requires analysis of the means by which the Quadrangle DOs restrict land uses. Land use restrictions imposed on residential uses at Quadrangle express themselves in four ways: 1) the per-tract density limitation of

       18 units per acre; 2) the design standards found in the ALUPs and PD restrictions; 3) the designation of only certain tracts as eligible for Multifamily Residential; and 4) the maximum number of Multifamily Residential units allowed on those tracts designated Multifamily Residential.

   57. Respondent contends that the acreages cited in the Substantial Deviation Determination Charts are a fifth restriction upon residential uses in the Quadrangle DOs. However, this is a misreading of these DOs, invited, perhaps, by Petitioner's inconsistent treatment of acreages.

   58. At no time did Petitioner add the acreages of all the tracts designated Multifamily Residential in any of its submittals to Respondent. To have done so would have understated--badly, at the start--the potential nonresidential uses in Quadrangle.

   59. In the first two residential DO amendments, Petitioner exercised reasonable judgment in deciding which acreages to include in the total acreage cited for Multifamily Residential. For these DO amendments, Petitioner rationally explained the bases for the totals of 56 and 77 acres, respectively, for Multifamily Residential.

   60. The explanation for omitting Tract 7 from the third requested DO amendment--initiated by the September 1997 NOPC--was unpersuasive. The purpose for again increasing the number of Multifamily Residential units was to allow residential development of Tract 7, and an increase in acreage would have better informed Respondent as to what was being proposed. However, Petitioner clearly revealed its intention to use the additional residential units on Tract 7 by shading the tract on

       the Development Plan and by the text quoted in paragraph 32 of this recommended order.

   61. In the final analysis, Respondent's contention that the Quadrangle DRI DOs restrict land uses by the acreages shown on a Substantial Deviation Determination Chart imposes an unreasonably simple restriction upon the way in which this DRI has operated from its inception. Multiple designations by parcel have preserved maximum flexibility for developers. Treating the acreages listed in the Substantial Deviation Determination Chart as restrictions on land uses frustrates the obvious purpose of multiple designations.

   62. Respondent was never misled by the listed acreages, given the numerous indicators of flexible land uses contained in the NOPCs. The limits upon residential land uses were always derived in this DRI from per-tract densities, design standards, tract designations, and maximum allowable units of Multifamily Residential. A single notation of projected acreage offered by way of background explanation does not defeat the clear purpose of multiple designations.

   63. The impossibility of misunderstanding by Respondent is also confirmed by the evolving nature of Quadrangle itself. The slightest familiarity with this DRI reveals that, in the course of 15 years, Quadrangle, launched as a relatively large office/research park without residential uses, had become a much more mixed-use project, or, perhaps more accurately, two

       projects--an office park/hotel complex in the south and a high- density residential development in the north.

   64. For these reasons, as to the second issue, Petitioner has shown that its request for additional Multifamily Residential units is not precluded by any acreage limitation anywhere in any of the NOPCs or the failure of Petitioner to increase the acreage listed in the Substantial Deviation Determination Chart contained in the September 1997 NOPC.

2. Multifamily Residential on Tract 7 is Compatible with Adjacent and Nearby Residential Land Uses

1. To the north of Knights Krossing is a single-family and multifamily residential development known as Hunter's Reserve. (Tr., 394.) Farther west on McCulloch Road are Riverwalk, on the north of the road, and Riversbend, on the south of the road.

   Both of these single-family residential developments are east of Rouse Road. Between Riversbend and Knights Krossing is Riverchase, formerly known as University Pines. (Pet. Ex. 47.) Riverwalk and Riverchase are predominantly owner-occupied developments. (Tr., p. 470.)

2. Riverchase is a J-shaped parcel extending from McCulloch Road to the lake that separates Tract 7 from Tract 5. (Tr., p. 161 and Pet. Ex. 47.) The eastern half of the north boundary of Tract 7 abuts the south boundary of Riverchase. The western half of the north boundary of Tract 7 abuts undeveloped land outside of Quadrangle. Unlike Tracts 1, 4A, and 4B, which front on McCulloch Road, Tracts 7 and 5 lack such frontage.

   Although interior access across Tract 4B could permit residents of Tract 5 access to McCulloch Road, the lake on the east boundary of Tract 7 would prevent direct access for residents of Tract 7, who likely will access their property by way of an interior road that runs to Rouse Road, about 1200 feet north of University Boulevard. (Pet. Exs. 2C, 16, and 47.)

3. The compatibility issue in this case involves the proximity of Tract 7 to nearby residential areas. Tract 7 will be medium density residential, as defined in the Orange County Comprehensive Plan (Resp. Ex. 24, Policy 1.1.11), and the nearby residential areas are mostly single-family residential, although not at exceptionally low densities. The added compatibility issue in this case is the expectation that, given its proximity to the University of Central Florida, Tract 7 will accommodate a large number of college students.

4. The most serious problems are crime and fear of crime. During 1999, Knights Krossing generated 842 service calls. Over the same period of time, for example, Riversbend generated only

   33 service calls. (Pet. Ex. 47 and Resp. Ex. 41.) However, the great disparity in these numbers is deceptive.

5. The first three phases of Knights Krossing comprise 2624 bedrooms. (Pet. Ex. 20, p. 21.) Assuming no vacancy rate and only one person per bedroom, Knights Krossing would accommodate about 2500 persons. Riversbend has about 80 single- family homes. (Pet. Ex. 47.) Assuming three to four persons per

   home, Riversbend accommodates about 250-300 residents. Thus, adjusted for approximate population, Knights Krossing generated about two-and-one-half to three times the service calls than did Riversbend.

6. Closer examination of the Knights Krossing service calls reduces the apparent disparity even further. Sixty-one of the 842 service calls are commercial in nature; for example, 26 service calls are for commercial alarms. These figures reflect the small amount of commercial/retail uses on Tract 1 and have no bearing on an exclusively residential development, such as that proposed for Tract 7. (Resp. Ex. 41, p. 2.)

7. Of the remaining 781 service calls, 234 are for residential alarms, which are a separate category from residential burglary. (Resp. Ex. 41, p. 2.) Although serious nuisances to law enforcement due to the fact that they require responses, residential alarms, in themselves, do not represent a crime; presumably, alarms activated by an actual intruder, rather than a careless or intoxicated college student, would generate an entry under residential burglary, not residential alarms. To get a better idea of seriously disruptive, potentially criminal activity at Knights Krossing, it is therefore necessary to reduce the service calls by another 234 calls.

8. The remaining 547 service calls at Knights Krossing compare more favorably to the service calls at Riversbend, whose data are not broken down, but, if like Riverwalk or Hunter's

   Reserve, represent only potentially serious matters. (Resp. Ex. 41, p. 1.) Knights Krossing generates one service call per four- and-one-half residents, and Riversbend generates one service call per seven-and-one-half to nine residents. Thus, the rate of serious service calls is not more than double at Knights Krossing than it is at Riversbend and possibly only fifty percent greater.

9. Additionally, the nature of the service calls at Knights Krossing, as well as at nearby residential areas, reveals that the crime at Knights Krossing has not spilled over into surrounding areas.

10. Only one nearby resident testified at the hearing. A resident of Riversbend (Tr. pp. 446-47), she reported that college students had used the playground reserved for residents of Riversbend, but she could not say if they were residents of Knights Krossing. (Tr., pp. 458-59.) Likewise, she could not link to Knights Krossing residents other disruptive behavior by young people, such as racing cars in the detention pond (Tr., p. 457), or menacingly following neighbors in their cars (Tr. p. 458). This resident admitted that she had never called the police herself due to disruptive behavior (Tr., p. 495) and that, on the two occasions that she was bothered by noise through a closed window, at least one of the times was due to the activities of a neighbor in her development. (Tr., p. 499.)

11. Certain characteristics of Knights Krossing tend toward incompatibility with nearby residential areas. Of the 748 units

    available at Knights Krossing, 492 of them, or two-thirds, are four-bedroom units. (Pet. Ex. 20, p. 20.) Knights Krossing also offers individual, per-bedroom leases. (Tr., pp. 362 and 368.) Knights Krossing experiences considerable tenant turnover. (Tr., pp. 427-28.)

12. However, Petitioner has attempted to eliminate these characteristics in its development proposal for Tract 7. As offered at the hearing, Petitioner has committed itself, and its successors and assigns, to develop no more bedrooms than were previously approved in an earlier proposal for Tract 7 by the Spanos Corporation; not to lease units by individual bedrooms or permit the subleasing or partial assignment of leases so as to achieve the same effect; to provide a single point of access to and from the development; to erect a landscaped fence or landscaped masonry wall around the perimeter of the development except on the borders of lakes; to erect lighting of not more than two foot-candles over all common areas and on poles of not more than 25 feet in height; to include in all leases a strict prohibition against loud noises after 10:00 p.m.; and to incorporate other substantive covenants and restrictions incorporated in a specific agreement among Petitioner, Spanos Corporation, and the Riverchase homeowners association (formerly known as the University Pines Property Owners Association, Inc., dated December 22, 1998. (Pet. Ex. 43.)

13. Spanos Corporation had entered into a since-expired (Tr., p. 328) contract with Petitioner to purchase Tract 7 to build 420 Multifamily Residential units. The three-party agreement contains numerous substantive provisions governing the development of Tract 7. These provisions include a 100-foot natural buffer between Riverchase and Tract 7 with no improvement except a wrought-iron fence, additional wrought-iron fencing along other parts of the boundary of Tract 7, specific details concerning an eight-foot tall masonry wall, a front gate at the entrance to the development constructed on Tract 7, and the use of best efforts to direct street lighting in Tract 7 away from Riverchase homes. (Pet. Ex. 19.) Additionally, the agreement provides for only 804 bedrooms in the 420 units with no four- bedroom units and only 60 three-bedroom units. (Pet. Ex. 19.)

14. In addition to Petitioner's efforts to harmonize the multifamily development with nearby residential developments, the compatibility determination is facilitated by the recognition of the intensification of land uses in the area surrounding Quadrangle. This area has experienced considerable development from 1994 to 1997. (Pet. Exs. 2A, 2B, and 2C and Tr., p. 90.) Agricultural tracts have been converted to other uses in response to the demands placed on this area by, among other things, its close proximity to the University of Central Florida.

15. At the same time, it is undisputed that the proposed development of 420 units on Tract 7 would not adversely affect

    water and sewer services (Stip., Para. 28), stormwater management (Stip. Paras. 29 and 31), recreational facilities (Stip., Para.

    29), schools (Stip., Para. 30), or traffic (Stip., Para. 33).

    
    

16. Additionally, compatibility is facilitated by the design standards contained in Respondent's PD regulations. (Tr., pp. 187-89 and 372-74.)

17. For these reasons, as to the third issue, Petitioner has shown that 420 Multifamily Residential units on Tract 7 would be compatible with all nearby residential development, provided the amended DO incorporates the provisions set forth in paragraphs 76 and 77 of this recommended order.

18. Various provisions of the Respondent's 1990-2010 Comprehensive Policy Plan (Comprehensive Plan) apply to this case. (Resp. Ex. 42; all citations to provisions of the Comprehensive Plan are to this exhibit.)

19. Comprehensive Plan Future Land Use Element (FLUE) Policy 1.1.12.1 authorizes specific land use designations, in addition to those generally used by the Comprehensive Plan, through PD review, which shall "ensure adjacent land use compatibility "

20. FLUE Policy 1.1.14 describes the Future Land Use Map (FLUM) as the "proposed long-range general use of property for a designated target year." The Zoning Map indicates the "specific type of land use that the property is currently suited for based on existing conditions."

21. FLUE Objective 1.6 is: to "alleviate the pressure of urban sprawl, reinforce a more efficient pattern of urban development, . . . reduce excessive travel demands," Respondent may reclassify lands as Traditional Neighborhood Development.

22. FLUE Objective 3.1 is to promote "the physical and functional integration of a mixture of land uses."

23. FLUE Policy 3.1.1 provides: "Continuous stretches of similar types and density of units shall be avoided. A diverse mix of land uses, housing types, and densities shall be promoted."

24. Addressing PDs, FLUE Policy 3.1.20 provides: "A proposed change to an approved PD which would increase the land use intensity within the PD without a corresponding decrease in some other portion of the PD and result in greater off-site impacts, shall be reviewed to determine consistency with the comprehensive plan and whether a plan amendment is necessary."

25. FLUE Policy 3.1.21 adds that the FLUM shall be amended to reflect PDs approved since the last FLUM amendment.

26. FLUE Policy 3.2.25 provides that land use changes must be compatible with the existing development and development trend in an area.

27. FLUE Policy 3.8.5 states that a proposed PD amendment shall be determined to be inconsistent with the FLUM if the amendment is inconsistent with the Comprehensive Plan policies ensuring land use compatibility and adequate public facilities or

    if the amendment results in an increase in the intensity of an existing approved land use, with additional offsite impacts, without a corresponding decrease in another approved land use.

28. FLUE Objective 4.1 is for the enforcement of the FLUM and implementation of the PD regulations to "ensure the compatibility of adjacent land uses "

29. The development of 420 Multifamily Residential units on Tract 7 is not inconsistent with any provisions of the Comprehensive Plan. If the Davis proposal were approved, the 135 additional Multifamily Residential units would be offset by a reduction of 40,500 square feet of Office, pursuant to the well- established exchange ratio. Additionally, as long as the previously described compatibility conditions are incorporated into the DO amendment, the addition of multifamily residential, in such close proximity to the employment and educational services provided by the University of Central Florida, heightens the mixture of uses that may lessen the burden placed on area roadways.

30. For these reasons, as to the fourth issue, Petitioner has shown that an DO amendment authorizing the development of 420 Multifamily Residential units on Tract 7 would be consistent with the Comprehensive Plan, provided the amended DO incorporates the provisions set forth in paragraphs 76 and 77 of this recommended order.

    CONCLUSIONS OF LAW

    
    

31. The Division of Administrative Hearings has jurisdiction over the subject matter. Sections 120.57(1) and 380.07, Florida Statutes. (All references to Sections are to Florida Statutes.)

32. The hearing concerning a development order is de novo. See, e.g., Young v. Department of Community Affairs, 625 So. 2d 831 (Fla. 1993). Thus, contrary to Respondent's contention, Petitioner's introduction at the hearing of the development conditions set forth in paragraph 76 of this recommended order was appropriate, even though Respondent had not yet had a chance to consider these conditions.

33. The parties have stipulated that Petitioner has the burden of proof.

34. Section 380.07(5) establishes that the Florida Land and Water Adjudicatory Commission "shall issue a decision granting or denying permission to develop pursuant to the standards of this chapter and may attach conditions and restrictions to its decisions."

35. Section 380.06(14) identifies the criteria for the issuance of DOs for DRIs, such as Quadrangle, that are outside of areas of critical state concern. This section provides that, "in considering whether the development shall be approved, denied, or approved subject to conditions, restrictions, or limitations," Respondent "shall consider whether, and the extent to which:

    1. The development unreasonably interferes with the achievement of the objectives of an adopted state land development plan applicable to the area;

    2. The development is consistent with the local comprehensive plan and local land development regulations;

    3. The development is consistent with the report and recommendations of the regional planning agency . . .;

    4. The development is consistent with the State Comprehensive Plan.

36. The sole question in this case is whether the requested DO amendment would be consistent with the Comprehensive Plan and PD regulations.

37. As already noted, the requested DO amendment, if conditioned by the provisions contained in paragraphs 76 and 77 of this recommended order, is consistent with the Comprehensive Plan and all PD regulations.

38. In its proposed recommended order, Respondent emphasizes the contractual nature of a DO. Although it is true that a proposed DO amendment that violated provisions of the then-current DO would likely violate various provisions of a local government's comprehensive plan and PD regulations, there is no such proof of such a violation in this case. As noted in the first section, the land use restrictions for Quadrangle did not express themselves in acreage limitations.

39. However, Respondent correctly contends that one aspect of Petitioner's request is improper. As noted above, the request for 240 units, in the event that the Davis proposal were denied, improperly restricts the opportunity of Respondent to ensure that

any residential development on Tract 5 is compatible with surrounding residential development--a greater concern with Tract 5, given its probable integration into Knights Krossing, than with Tract 7, given its relative isolation from Knights Krossing. For this reason, the amended DO should approve, subject to the conditions stated in paragraphs 76 and 77 of the recommended order, an additional 135 units, if the Davis proposal is granted, as the Davis proposal is already under review, but deny the request for 240 units, on the grounds that: a) subject to the conditions stated in paragraphs 76 and 77 of this recommended order, Petitioner may proceed with 420 units on Tract 7 if Davis is denied and no further residential units are allocated to Quadrangle and b) allocating the maximum number of residential units to an unidentified, unreviewed development proposal for Tract 5 improperly denies Respondent an opportunity to examine such a proposal.

RECOMMENDATION

It is

RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order approving Petitioner's request for a development order amendment allocating another 135 Multifamily Residential units to the Quadrangle DRI, subject to the limitation of these units to Tract 7, a maximum development of

420 such units on Tract 7, the reduction of 40,500 square feet of Office, applicable design standards, the applicable per-tract

density restriction of 18 units per acre, the conditions stated in paragraphs 76 and 77 of this recommended order, and the approval of the current Davis proposal for Tract 5.

It is

RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order denying Petitioner's request for additional Multifamily Residential units, in excess of 135, for the Quadrangle DRI.

It is

RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order approving Petitioner's request for a development order amendment acknowledging the allocation of 420 of the already-approved 1250 Multifamily Residential units to Tract 7, subject to applicable design standards, the applicable per-tract density restriction of 18 units per acre, the conditions stated in paragraphs 76 and 77 of this recommended order, and the denial of the current Davis proposal for Tract 5.

DONE AND ENTERED this 18th day of July, 2000, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 18th of July, 2000.

COPIES FURNISHED:

Barbara Leighty, Clerk Florida Land and Water

Adjudicatory Commission

Growth Management and Strategic Planning The Capitol, Suite 2105

Tallahassee, Florida 32399

Carol Licko, General Counsel Office of the Governor Department of Legal Affairs The Capitol, Suite 209

Tallahassee, Florida 32399-0001

Timothy A. Smith

Akerman, Senterfitt & Eidson, P.A. Post Office Box 231

Orlando, Florida 32802-0231

William D. Palmer Palmer & Palmer, P.A. 3117-B Edgewater Drive Orlando, Florida 32804

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.

Docket for Case No: 99-003722DRI

Orders for Case No: 99-003722DRI