STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUMTER CITIZENS AGAINST ) IRRESPONSIBLE DEVELOPMENT, )

T. DANIEL FARNSWORTH, RUSSELL ) WEIR, LINDA LATHAM, and KENNETH ) ROOP, )

)

Petitioners, )

)

vs. )

) DEPARTMENT OF COMMUNITY AFFAIRS ) and SUMTER COUNTY, )

)

Respondents, )

)

and )

) VILLAGES OF LAKE-SUMTER, INC., )

)

Intervenor. )

Case No. 00-3027GM

)

RECOMMENDED ORDER

On December 6-7, 2000, a formal administrative hearing was held in this case in Bushnell, Florida, before J. Lawrence Johnston, Administrative Law Judge (ALJ), Division of

Administrative Hearings.

APPEARANCES

For Petitioners: Jane M. Gordon, Esquire

Jonas & LaSorte

United National Bank Tower

1645 Palm Beach Lakes Blvd., Suite 1000 West Palm Beach, Florida 33401-2204

For Respondent: Terry T. Neal, Esquire (Sumter County) Post Office Box 490327

Leesburg, Florida 34749-0327

For Respondent: Geoffrey T. Kirk, Esquire

Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

For Intervenor: Martha Harrell Chumbler, Esquire

Nancy G. Linnan, Esquire Calton, Fields, Ward, Emmanuel,

Smith & Cutler Post Office Box 190

Tallahassee, Florida 32302-0190 STATEMENT OF THE ISSUES

The general issue for determination in this case is whether Amendment 00-D1 to Sumter County’s comprehensive plan (the “Plan Amendment”) is "in compliance" with the Local Government Comprehensive Planning and Land Development Act, Sections 163.3161 through 163.3217, Florida Statutes. (All statutory references are to the 2000 codification of the Florida Statutes.)

The initial Petition to Request Administrative Hearing (Petition) alleged numerous reasons why the Plan Amendment should be found not "in compliance." But from the time of the initial Petition--through the Joint Prehearing Stipulation, opening statement at final hearing, and Proposed Recommended Order (PRO)--Petitioners reduced the number of reasons why they contend that the Plan Amendment is not "in compliance" to the following: simultaneous conversion of Future Land Use (FLU)

from Agricultural to PUD allegedly inconsistent with parts of the County's Plan's; alleged lack of demonstrated need for land use allocations contrary to Section 163.3177 and Florida Administrative Code Rules Chapter 9J-5 (all rule citations are to the Florida Administrative Code); conversion of FLU from Agricultural to PUD allegedly inconsistent with the Plan's Policy 4.6.1.1 (the so-called "90% rule"); and alleged failure to discourage urban sprawl contrary to Rule 9J-5.0006(6). These are the only compliance issues that still have to be addressed in this proceeding.

In addition, Intervenor contends that Sumter Citizens Against Irresponsible Development (SCAID) does not have standing.

PRELIMINARY STATEMENT

On May 9, 2000, Sumter County (the County) adopted Amendment 00-D1 by Ordinance No. 00-14. The Plan Amendment changed the Future Land Use Map (FLUM) designation of 4,677 acres of land from Agricultural to Planned Unit Development (PUD) and simultaneously extended existing Urban Expansion Area (UEA) to include the site. The Plan Amendment was forwarded to the Department of Community Affairs (DCA), which found it to be "in compliance" on June 30, 2000.

On July 24, 2000, SCAID, T. Daniel Farnsworth, Russell Weir, Linda Latham, Kenneth Roop (collectively, the “Petitioners”)

filed their pro se Petition to Request Administrative Hearing

(the Petition) to challenge the Plan Amendment under Section 163.3184(9). DCA referred the Petition to the Division of Administrative Hearings (DOAH) for assignment of an ALJ.

On August 7, 2000, the Villages of Lake-Sumter, Inc. (Intervenor) filed a Petition for Leave to Intervene and Request for Expedited Hearing, as provided in Section 163.3189. On August 9, 2000, ALJ Alexander entered an order granting intervention and scheduling final hearing for August 30, 2000.

But on August 16, 2000, Intervenor filed a Motion for Renotice of Hearing and requested that its Request for Expedited Hearing be treated as if filed on that date. Intervenor's motion was followed, on August 18, 2000, by a Motion to Rescind Order to Intervene filed by Petitioner Farnsworth, who also requested that the expedited hearing be denied.

Oral argument on the pending motions was heard on August 21, 2000, at which time the parties informed ALJ Alexander that Petitioner Weir was scheduled for surgery on

August 23, 2000. Finding extraordinary circumstances sufficient to warrant a reasonable delay in the proceedings, ALJ Alexander rescheduled final hearing for October 18 and 19, 2000.

On August 22, 2000, Jane Gordan entered her appearance as counsel for Petitioners. The case was subsequently reassigned from ALJ Alexander to the undersigned ALJ.

On September 20, 2000, Petitioners once again sought a continuance of final hearing, citing Weir's continued health problems, the inability of their expert witness to properly prepare for final hearing, and the need for three days to complete the hearing. Oral argument was heard on September 27, 2000, and an order was entered granting a continuance and rescheduling final hearing for December 6 through 8, 2000.

The parties filed a Joint Prehearing Stipulation on December 1, 2000.

At final hearing, Joint Exhibits 1 through 5 were admitted into evidence. Then, after opening statements, Petitioners called the following witnesses: Farnsworth; Henry Iler, who was qualified as an expert in land use planning; Weir, who was qualified as an expert in real estate auctions; and Russell Day. Petitioners also had their Exhibits 81, 125, 126, and 127 admitted into evidence. (Petitioners' exhibits were marked for identification in accordance with their filed exhibit list; other exhibits on the list either were not offered in evidence, or objection to their admission was sustained.)

In its case-in-chief, the County called the following witnesses: Roberta Rogers, who was qualified as an expert in the County's Comprehensive Plan, the Plan Amendment and land use planning; and Gail Easley, who was qualified as an expert in

land use planning. The County had also its Exhibits 1 through

14 admitted into evidence.

In its case-in-chief, DCA called Scott Rogers, who was qualified as an expert in land use planning and developments of regional impact. DCA also had its Exhibits 1 through 4 admitted into evidence. (DCA Exhibit 4 was the transcript of the deposition of Maria Abadal-Cahill, including opinion testimony on comprehensive planning and land use, admitted in lieu of live testimony.)

In its case-in-chief, Intervenor called the following witnesses: Dr. Henry Fishkind, who was qualified as an expert in economics with particular expertise in Florida demographics and economic modeling; Jackson Sullivan, who was qualified as an expert in land use planning and developments of regional impact; Arthur Geoffrey McNeil, who was qualified as an expert in community planning design; and John Parker, Vice-President of Development for Intervenor. Intervenor also had its Exhibits 1 through 6 admitted into evidence.

At the conclusion of the hearing, the parties ordered a Transcript, and Petitioners' unopposed request for twenty days from the filing of the Transcript to file proposed recommended orders was granted. The Transcript (in two volumes) was filed on January 2, 2001, and the proposed recommended orders filed on

January 22, 2001, have been considered and used in preparation of this Recommended Order.

FINDINGS OF FACT

1. Intervenor, the Villages of Lake-Sumter, Inc., owns land in the northeast part of Sumter County on which Intervenor plans to construct a mixed-use development of regional impact (DRI) known as the Villages of Sumter. The proposed DRI will encompass approximately 4,679 acres and is anticipated to contain: 11,097 residential dwelling units; 1,250,000 square feet of commercial area; 250,000 square feet of office area; 157,000 square feet of institutional area; 120,000 square feet of hotel (300 rooms); 100,000 square feet convention center; 23,500 square feet of movie theater (8 screens); 512 acres of golf courses (126 holes); 8 marina slips; 602 acres of wildlife management and Kestrel foraging areas; 162 acres of lakes, 162 acres of roads, 31 acres of parks and buffers; and 227 acres of stormwater and open space. The proposed DRI will feature neighborhood and town centers and will extensively utilize clustering, open spaces, and buffering as part of its design. It is anticipated that the Villages of Sumter DRI will have an internal vehicle capture rate of over 60%--i.e., over 60% of

   vehicle trips starting in the DRI will not go outside the DRI. The DRI will provide water, sanitary sewer, stormwater management, aquifer recharge areas, and other governmental

   services as part of its development. Eighty percent of the residents in the Villages of Sumter DRI will have to be occupied by persons 55 of age or older, and no one under 19 will be permitted to reside within this DRI.

2. When Intervenor filed its Application for Development Approval (ADA) for the Villages of Sumter DRI, Intervenor also requested the subject Plan Amendment to accommodate the DRI, including a change in the Future Land Use Element (FLUE) and FLUM from Agricultural use to UEA and PUD. The ADA itself served as a major part of the data and analysis supporting the Plan Amendment. (Another major part of the data and analysis was the Evaluation and Appraisal Report (EAR) prepared by the County in 1995.)

3. The western part of the northern boundary of the Plan Amendment parcel (i.e., the Villages of Sumter DRI) will be the western part of the southern boundary of a related DRI developed by Intervenor known as the Tri-County Villages. From there, the Tri-County Villages DRI extends north to the southern border of Marion County and east to the western border of Lake County. (Towards the east, the northern boundary of the DRI drops just a little south of the southern border of Marion County.) Tri- County Villages is a large mixed-use DRI. It includes residential, commercial, recreational, and open space land uses. Prior to the Tri-County Villages DRI, Intervenor or its

   predecessor also developed other related mixed-use DRIs to the east in Lake County.

4. SCAID was formed in 1993 or 1994 to oppose the Tri- County Villages DRI and 1994 comprehensive plan amendments adopted to accommodate the Tri-County Villages DRI. SCAID,

   T. Daniel Farnsworth, and James E. Boyd filed a petition initiating Sumter Citizens Against Irresponsible Development, T. D. Farnsworth, and James E. Boyd vs. Department of Community Affairs and Sumter County, DOAH Case No. 94-6974GM, to oppose

   DCA's determination that the County's 1994 amendments were "in compliance." SCAID, Farnsworth, and Weir are collaterally estopped to deny facts established in DOAH Case No. 94-6974GM (SCAID I). (Latham and Roop are not estopped.) See Conclusions

   of Law 63-64, infra. In any event, all Petitioners agreed to official recognition of the Final Order entered in DOAH Case No. 94-6974GM.

5. Among the facts established by adoption of the Recommended Order by the Final Order in SCAID I was the history of the earlier DRIs, the Tri-County Villages DRI, and the comprehensive plan amendments required by the Tri-County Villages DRI:

   [¶4] [I]ntervenor [Villages] 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.

   
   

   [¶5] 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.

   
   

   [¶6] 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.

   
   

   [¶7] 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.

   [¶8] 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.

   
   

   [¶9] 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.

   
   

   [¶10] 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.

   
   

   [¶11] 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.

   
   

   SCAID I, 17 F.A.L.R. 4527, 4531-32 (Dept. Community Affairs Aug. 1995). (The Recommended Order may also be found on WESTLAW at 1995 WL 1052949.)

6. At its inception, the Tri-County Villages DRI was projected to build-out in approximately 2015. When the Tri-

   County Villages DRI first began construction in late 1992, the developer pulled 24 building permits. In 1993, the County issued 406 residential building permits, 365 of which were pulled for the Tri-County Villages DRI. In 1997, the developer pulled 1,052 building permits for the Tri-County Villages DRI. To date, approximately 13,000 homes have been built in the Tri- County Villages DRI. Based upon present projections, the Tri- County Villages DRI is anticipated to be substantially built-out in 2003-04, 12 years ahead of its initially projected build-out date of 2015.

7. Presently, there are numerous cultural and recreational activities, shopping options, medical and governmental services available to residents within the Tri-County Villages DRI.

   While still designated as a UEA and PUD on the County's FLUM, the Tri-County Villages DRI in fact is a self-contained urban area, especially in the context of Sumter County.

8. Sumter County is mostly rural. According to the 1995 EAR, the County's permanent (non-seasonal) population was projected to be: 38,961 for 1998; 56,000 for 2005; and 64,200 for 2010. The unincorporated portion of the County contains 334,903 acres, approximately 99,436 acres of which are state- owned conservation lands, and approximately 202,000 acres of which are agricultural lands. There are five municipalities in the County--Wildwood, Bushnell (also the County seat), Center

   Hill, Coleman and Webster. None are as urbanized as the Tri-

   
   

   County Villages DRI.

   
   

   Simultaneous Conversion

   
   

9. Objective 7.1.2 of the County's comprehensive plan provides in pertinent part:

   Upon adoption of this plan, Sumter County shall . . . provide for a compatible and coordinated land use pattern which establishes agriculture as the primary use outside of the urban expansion area boundary and insures retention of agricultural activities, preserves natural resources and discourages urban sprawl.

   
   

10. In pertinent part, the County Plan's Policy 7.1.1.2(e) provides that the County's land development regulations governing PUDs should be based on and consistent with the following standards for densities and intensities:

    1. Within the Urban Expansion Area, a base density of up to 8 residential units per gross acre in residential areas and 6 units per gross acre in commercial areas are allowed. . . . .

    2. Outside of an Urban Expansion Area, a base density of up to 4 residential units per gross acre in residential, commercial and agricultural areas are allowed.

       
       

11. Policy 7.1.5.1 allows PUDs "in the following land use districts and at the following densities/intensities of use":

    8 dwellings per gross acre in "Residential Areas Inside UEA";

    
    

    6 dwellings per gross acre in "Commercial Areas Inside UEA"; and

    
    

    4 dwellings per gross acre in "Res./Comm. Uses Outside UEA."

12. Petitioners contend that the foregoing objective and policies somehow combine to preclude the simultaneous conversion of Agricultural FLU to UEA and PUD; they appear to contend that these policies necessitated an intermediate conversion to UEA. (Protection of agricultural lands was raised in a more general sense, but this precise issue was not raised prior to final hearing.) But Petitioners argument not only is not persuasive, it is not even easily understood. It is at least fairly debatable that the objective and policies do not combine to

    preclude simultaneous conversion of Agricultural FLU to UEA and PUD.

13. Even without prior notice of this precise issue, one of the County's expert witnesses in land planning persuasively testified that the cited objective and policies do not combine to preclude simultaneous conversion of Agricultural FLU to UEA and PUD. Even Petitioners' expert land planner ultimately agreed that there is nothing in the Florida Statutes or Florida Administrative Code Rules Chapter 9J-5 to prevent conversion of agricultural uses to more urban uses.

    Demonstrated Need

    
    

14. As reflected in previous Findings of Fact, the subject Plan Amendment is for a highly mixed-use PUD. Of the many mixed uses involved, Petitioners focus on the allocation of land for residential use in their challenge to the demonstration of need

    for the Plan Amendment. In this context, demonstrated need refers to the existence of adequate data and analysis to demonstrate the need for additional allocation of residential dwelling units on the FLUM. Petitioners assert that the methodology utilized by the County to project need is flawed.

15. Determination of the need for a certain allocation of residential densities starts with a projection of population on the planning horizon (2020). In doing so, all available data and analysis must be considered. (Petitioners also assert that Policy 7.1.2.5(b)1. of the County's comprehensive plan requires such an analysis "utilizing professionally accepted methods," but that policy speaks to additional densities and allocations of land use for developments proposed in agricultural areas,

    while the Plan Amendment in this case converts the agricultural land to UEA and PUD.)

16. For the purpose of analyzing whether there is a demonstrated need for this Plan Amendment, the County's planner, Roberta Rogers, relied upon need projections made in conjunction with the preparation of the County's EAR. The EAR, prepared in 1999, included a projection of the County's population for the 2020 planning horizon. The EAR projected that the permanent population of unincorporated Sumter County, by the year 2020, will be 79,475. (The total County permanent population is

    projected to be 94,205.) One of the purposes of an EAR is to provide data and analysis for comprehensive plan amendments.

17. In preparing the population projections reflected in the EAR, Rogers began her analysis by referring to the projections for Sumter County formulated by the Bureau of Economic and Business Research ("BEBR"), as reported in 1996. The 1996 BEBR Report actually reflected projections made in 1995. BEBR publishes yearly reports that state both the estimated current and the projected future populations for each Florida county.

18. The population projections reflected in BEBR Reports are based upon historical trends of 10-15 years' duration. Because the development in the Tri-County Villages DRI is a relatively recent phenomenon, Rogers believed that reliance upon the BEBR projections alone would have resulted in a significant under-projection of the County's future population.

19. As a consequence, Rogers added an annual rate of growth of 1000 building permits per year through 2005 and 500 permits per year through the remaining portion of the planning period for the Tri-County Villages and the Villages of Sumter. Her approach was a conservative approach, since the actual number of building permits issued for the Tri-County Villages DRI in the past two years has significantly exceeded 1000 per

    year. Rogers conferred with BEBR, prior to completing her analysis, and was assured that her approach was appropriate.

20. Such an adjustment for the Villages is particularly appropriate since the Villages cater to a very specific segment of the population, i.e., persons 55 and above. Over the twenty-

    year planning horizon relevant to the Plan Amendment, the population of persons in Florida aged 55 and above will increase dramatically as the "baby boomer" population ages. The demand for residential housing for these senior citizens will show a similar dramatic increase.

21. Henry Iler, the Petitioners' land planning expert, took the contrary position, opining that no additional growth factor should be added to the 1996 BEBR projections. However, Dr. Henry Fishkind, an expert in demography who was involved in the original development of the BEBR population projection methodologies, directly contradicted Iler's opinion, concluding instead that Ms. Rogers' methodology was appropriate. As Dr.

    Fishkind stated that

    
    

    [Sumter] county has experienced a dramatic structural change to its population growth and development because of the Villages, and that has altered the characteristics of its population growth.

    
    

    In light of that, the use of past trends, which is what the bureau [BEBR] does, is simply extrapolate past trends, would not be appropriate, for it would not have taken into account that major structural change.

    Ms. Rogers identified the structural change, she measured its amount, and then she added on to the bureau's projections, which were extrapolations of the past trends. That's a very appropriate adjustment, and it's the kind of adjustment that econometricians and economists make on a regular basis.

    
    

    DCA's analysis concurred that the high absorption rates in the Tri-County Villages DRI had to be taken into account.

22. To have ignored the explosion of growth in the Tri- County Villages DRI, particularly in view of the generally accepted expectation that the population to be served by the Tri-County Villages and by the Villages of Sumter will experience tremendous growth, would have resulted in an inaccurate population forecast. Even Iler had to concede that he was aware of building permit data being used to project population figures. It is simply not his preferred methodology to use such information. Thus, Rogers' projection of the County's total population for the year 2020 appropriately incorporated all available and relevant data and was formulated using an accepted methodology.

23. While not part of their PRO, Petitioners previously attacked the County's population projections by questioning the continued success of the Villages to attract out-of-state retirees. Primarily through Weir's testimony, they attempted to raise the specter of a reduction of sales and Intervenor's subsequent financial ruin. But there was no credible evidence

    to support Petitioners' prophecy of doom. On the evidence presented in this case, it would be more rational from a planning standpoint to expect the Villages to continue to be a marketing and financial success.

24. Having reasonably projected future population, it was then incumbent upon the County to determine how many dwelling units would be needed to accommodate anticipated housing needs. This determination was made by Gail Easley, an independent planner retained by the County to assist Rogers in preparation of the EAR. Easley performed this calculation for the County. Easley used 2.46 as the average number of persons per dwelling unit in the County, a figure taken from the BEBR reports (not from 1990 census information, as Iler incorrectly surmised.) There was no evidence that a number other than 2.46 was appropriate.

25. It would not be appropriate for the number of dwelling units needed in the future to be calculated simply by the division of the anticipated population by the average household size. Rather, it is appropriate to apply a "market factor" (or multiplier) in order to ensure that there is a choice of types of housing and to accommodate lands that are not actually useable for residential construction. Even Petitioner's expert, Henry Iler, agreed that the use of a market factor was

    appropriate in order to ensure sufficient housing supply and to avoid an increase in housing prices.

26. Easley furnished Rogers with the market factor for the EAR. The market factor chosen by Easley was 1.5, a factor she viewed as conservative and as appropriate for a jurisdiction that is beginning to urbanize. In more rural counties, a higher market factor, such as 2.0, should be used. While Iler implied that a lower marker factor would be more suitable, the record clearly established that the market factor used by Easley fell within the range of reasonable choices. (In SCAID I, the ALJ expressly found, in paragraph 31 of the Recommended Order, that the 1.87 market factor used by the County on that occasion was reasonable and actually low compared to factors used for other comprehensive plans that had been found to be "in compliance." As reflected by this Finding of Fact, facts and circumstances bearing on the choice of a market factor for Sumter County have not changed significantly to date. Cf. Conclusion of Law 64,

    infra.)

    
    

27. Applying the 1.5 market factor to the projected population and average household size, the County determined that 62,274 dwelling units will have to be accommodated during the twenty-year planning horizon. (This includes 48,461 units in permanent housing, 9,113 in seasonal housing, and 4,700 in

    transient housing.) The County then allocated those dwelling units in various land use categories.

28. Much of Petitioners' PRO on this point was devoted to criticizing parts of the evidence in support of the demonstration of need. They state the obvious that Easley did not perform a demonstration of needs analysis for the Plan Amendment in the EAR, but that was not the purpose of the EAR; nonetheless, the EAR contained valuable data and analysis for use in the demonstration of need analysis for the Plan Amendment. Petitioners also questioned DCA's reliance on the DRI ADA in conducting its demonstration of need analysis, based on the timing of the ADA and Plan Amendment submissions and decisions; but it is not clear what it was about the timing that supposedly detracted from DCA's demonstration of need analysis, and nothing about the timing made it inappropriate for DCA to rely on the data and analysis in the ADA. Petitioners criticized Rogers' reference to up-to-date building permit information that was not offered in evidence; but this information only further supported Rogers' demonstration of need analysis. Petitioners asserted that one of Intervenor's witnesses may have overstated residential sales in the Tri- County Villages DRI (1,750 sales a year versus evidence of 1,431 building permits for 1999); but the witness's statement was not used in any of the demonstration of need analyses. Finally,

    Petitioners attacked one of Intervenor's witnesses for an alleged "conflict of interest, a lack of professional integrity and an indication of bias"; but the basis for this allegation supposedly was evidence that the witness worked for the County while also working for Intervenor or its predecessor for a few years in the late 1980's, not enough to seriously undermine the credibility of the witness's testimony in this case (which in any event had little or nothing to do with the demonstration of need analyses.)

29. It is at least fairly debatable that the County's demonstration of need was based on relevant and appropriate data, and professionally acceptable methodologies and analyses. Likewise, it at least fairly debatable that the County's

    projections regarding housing needs, the growth in the retirement population, and the absorption rates achieved in the existing Tri-County Villages DRI adequately support the allocation of 11,000 dwelling units permitted by the Plan

    Amendment.

    
    

    So-called "90% Rule"

    
    

30. The County's Plan Policy 4.6.1.1 provides:

    
    

    The County shall maintain approximately 90% of its land area in land uses such as agricultural (including timberland, mining and vacant), conservation, and open (recreation, open space etc.) land uses for this planning period. (Emphasis added.)

    This policy is found in the Utilities Element of the County's comprehensive plan under a goal to protect and maintain the functions of the natural groundwater aquifer recharge areas in the County and under an objective to protect the quantity of aquifer recharge. Although couched as an approximation, the policy has been referred to as the "90% rule."

31. Based on the evidence presented in this case, it is at least fairly debatable that the subject Plan Amendment is not inconsistent with Policy 4.6.1.1. The primary debate had to do with the proper treatment of certain "open space" provided in the Tri-County Villages DRI and the Villages of Sumter DRI-- 1,032 acres in the former and 2,135 acres in the latter. This "open space" consists of golf courses, preserves, wetlands, parks/buffers, and some stormwater/open spaces. Petitioners' expert refused to count any of this acreage for purposes of the so-called "90% rule" because, while the FLUE and FLUM have Agricultural, Conservation, and Recreation land use categories, there is no category designated "Open Space." (Meanwhile, there is an entire element of the plan entitled "Recreation and Open Space.") The witnesses for the County and DCA counted those 3,167 acres. They reasoned persuasively that the policy's express mention of "open space" (as opposed to a specific land use category designated "Open Space") supports their position. They also argued persuasively for the logic of including "open

    space," which serves the objective of the policy to "protect quantity aquifer recharge quantity," even if there is no specific land use category designated "Open Space."

32. Counting the 3,167 acres of "open space" in the two DRIs, the percentage calculated under Policy 4.6.1.1 exceeds 90% for existing land uses. Omitting that land, as well as another

    500 acres that should have been counted, Petitioners' expert calculated 88.96%.

33. Petitioners' expert also calculated a lower percentage (85.34%) by using land uses he projected for the end of the planning period. However, Petitioners' expert conceded that it was not clear that Policy 4.6.1.1 should be interpreted in that manner. If so interpreted, it would be possible for all plan amendments reducing agricultural, conservation, and open FLUs to be prohibited even if existing land uses in those categories did not fall below "approximately 90%" for another 20 years. It is at least fairly debatable whether such a result is logical, or whether it is more logical to wait until existing land uses in those categories did not fall below "approximately 90%" before prohibiting further FLUE and FLUM amendments.

    Urban Sprawl

    
    

34. Petitioners contend that the Plan Amendment fails to discourage urban sprawl. They attempted to prove seven urban

    sprawl indicators. But their evidence was far from sufficient to establish any beyond fair debate.

35. Petitioners did not prove that the Plan Amendment promotes, allows or designates for development substantial areas of the jurisdiction to develop as low intensity, low density, or single-use development or uses in excess of demonstrated need. To the contrary, while gross residential density may be relatively low (2.4-2.6 units per gross acre), the Plan Amendment PUD provides for highly mixed-use development, not

    single-use development, and densities in residential areas within the PUD are significantly higher (up to 5.6 units per acre), especially for Sumter County.

36. Petitioners also did not prove that the Plan Amendment promotes, allows or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development, or that the Plan Amendment promotes, allows or designates urban development in radial, strip, isolated or ribbon patterns generally emanating from existing urban developments. To the contrary, the evidence was that part of the northern boundary of the Plan Amendment parcel coincides with the western part of the southern boundary of the Tri-County Villages DRI, and the Villages of Sumter PUD will be an extension of the Tri-County Villages DRI,

    which already has all the characteristics of an existing urban area. The reason why the eastern part of the northern boundary of the Plan Amendment parcel does not coincide with the southern boundary of the Tri-County Villages DRI is the existence of land in between which is already in use and not available to become part of the Plan Amendment PUD. Development will not be in a radial or ribbon pattern like (usually) commercial development along main roadways; nor will development be isolated.

37. Petitioners did not prove that the Plan Amendment fails to protect adjacent agricultural areas and activities, including silviculture, and including active agricultural and silvicultural activities as well as passive agricultural activities, and dormant, unique and prime farmlands and soils. Obviously, conversion of agricultural land eliminates such land from agricultural use. But the Plan Amendment protects adjacent agricultural land by phasing development starting from existing urban areas in the Tri-County Villages DRI by mixing in open and recreational uses throughout the Villages of Sumter PUD and by providing some additional buffer between the periphery of the PUD and adjacent agricultural lands.

38. Petitioners did not prove that the Plan Amendment fails to maximize the use of existing public facilities and services. Indeed, Petitioners' land use planning expert admitted at the hearing that he "didn’t have the time or

    expertise, really, to try to evaluate this particular question." To the contrary, the evidence was that the Plan Amendment PUD will include water, sanitary sewer, stormwater management, aquifer recharge areas, and other governmental services as part of its development. In addition, impact to schools will be minimal or non-existent due to the character of the PUD as a retirement community.

39. Petitioners did not prove that the Plan Amendment fails to provide a clear separation between rural and urban uses. To the contrary, the evidence was that clustering, open spaces and buffering in the Villages of Sumter PUD will provide a clear enough separation between rural and urban uses.

40. Petitioners did not prove that the Plan Amendment discourages or inhibits in-fill development or the redevelopment of existing neighborhoods and communities. Specifically, Petitioners argued that in-fill in the City of Wildwood will be discouraged. But the evidence was to the contrary. Not only would development of the kind envisioned in the Plan Amendment PUD be unlikely to occur in Wildwood, sufficient land is not available for such a development there. Actually, the Plan Amendment might encourage in-fill in Wildwood, where service

    providers for the Villages of Sumter might be expected to reside.

    SCAID

    
    

41. SCAID was formed in 1993 or 1994 by a small group of Sumter County citizens for the purposes of preserving the "rural lifestyle" of Sumter County, preventing urban sprawl, and ensuring "that development will not be a burden to the taxpayers" of the County. SCAID has about 80 members, who are not required to pay dues. The majority of SCAID's members live in Sumter County, including all of the individual Petitioners in this case.

42. SCAID is not incorporated but has by-laws drafted in 1995 or 1996. The by-laws provide for election of officers for one-year terms, but SCAID has not had an election of officers since 1994. Petitioner, T. Daniel Farnsworth, is and always has been SCAID's president. The evidence was that, when former SCAID member James Boyd resigned, Petitioner Linda Latham was appointed to replace him as secretary.

43. SCAID has held just two meetings since its inception.

    
    

    Approximately 15-20 persons attended each meeting. Most communication with members is by regular and internet mail. Financial contributions are solicited from time to time for litigation efforts initiated by SCAID.

44. Farnsworth, on behalf of SCAID, submitted comments on the Plan Amendment to the County between the transmittal hearing and the adoption hearing. Farnsworth and Weir also testified on

    behalf of Petitioners at final hearing. The other individual

    
    

    Petitioners did not.

    
    

    CONCLUSIONS OF LAW

    
    

45. Under Section 163.3184(1)(b), "in compliance" means "consistent with the requirements of ss. 163.3177, 163.3178, 163.3180, 163.3191, and 163.3245, with the state comprehensive plan, with the appropriate strategic regional policy plan, and with chapter 9J-5, Florida Administrative Code, where such rule is not inconsistent with this part and with the principles for guiding development in designated areas of critical state concern."

46. As reflected in the Statement of the Issues, Petitioners reduced the number reasons why they contend that the Plan Amendment is not "in compliance" to the following: simultaneous conversion of Future Land Use (FLU) from Agricultural to PUD allegedly inconsistent with parts of the County's Plan's; alleged lack of demonstrated need for land use allocations contrary to Section 163.3177 and Florida Administrative Code Rules Chapter 9J-5 (all rule citations are to the Florida Administrative Code); conversion of FLU from Agricultural to PUD allegedly is inconsistent with the Plan's Policy 4.6.1.1 (the so-called "90% rule"); and alleged failure to discourage urban sprawl contrary to Rule 9J-5.0006(6). These are the only compliance issues that still have to be addressed

    in this proceeding. In addition, Intervenor contends that SCAID

    
    

    does not have standing.

    
    

    Burden of Proof

    
    

47. Section 163.3184(9) provides that, when DCA has given notice of intent to find comprehensive plan provisions to be "in compliance," those provisions "shall be determined to be in compliance if the local government's determination of compliance is fairly debatable." Since DCA gave such notice as to the Plan Amendment at issue in this case, Petitioners bear the burden of proving, beyond fair debate, that the Plan Amendment is not "in compliance." See Young v. Department of Community Affairs, 625 So. 2d 831, 833-35 (Fla. 1993).

48. "Fairly debatable" is a standard which is "a deferential one that requires affirmance of the local government's action if reasonable persons could differ as to its propriety." B & H Travel Corp. v. Department of Community Affairs, 602 So. 2d 1362 (Fla. 1st DCA 1992), appeal dismissed

    and rev. denied, 613 So. 2d 1 (Fla. 1992). In effect, the "fairly debatable" standard defers not only to the County's determination but also to the DCA's determination that the Plan Amendment is "in compliance."

    Simultaneous Conversion

    
    

49. Petitioners contend that the Plan Amendment is not consistent with the Plan's Objective 7.1.2, Policy 7.1.1.2(e),

    and Policy 7.1.5.1, so as to be inconsistent with Section 163.3177(2) and Rule 9J-5.005(5)(a) (requiring that the several elements of comprehensive plan must be consistent).

50. To be internally consistent, comprehensive plan elements must not conflict. (Contrast the definition of "consistency" between the local, state, and regional comprehensive plans in Section 163.3177(1)(a), which requires not only that the local plan not conflict with other plans but also that, taken as a whole, it "furthers" the other plans.) As reflected in the Findings of Fact, it is at least fairly debatable that the Plan Amendment in this case is consistent with Objective 7.1.2, Policy 7.1.1.2(e), and Policy 7.1.5.1 and, therefore, also with Section 163.3177(2) and Rule 9J- 5.005(5)(a).

51. It also is noted that Section 163.3177(11)(b) provides:

    1. It is the intent of the Legislature that the local government comprehensive plans and plan amendments adopted pursuant to the provisions of this part provide for a planning process which allows for land use efficiencies within existing urban areas and which also allows for the conversion of rural lands to other uses, where appropriate and consistent with the other provisions of this part and the affected local comprehensive plans, through the application of innovative and flexible planning and development strategies and creative land use planning techniques, which may include, but not be limited to, urban villages, new

       towns, satellite communities, area-based allocations, clustering and open space provisions, mixed-use development, and sector planning. (Emphasis added.)

       
       

       The Plan Amendment also is consistent with this statute.

       
       

       Demonstrated Need

       
       

52. Section 163.3177(6)(a) provides in pertinent part:

    
    

    The future land use plan shall be based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth; the projected population of the area; the character of undeveloped land; the availability of public services; and the need for redevelopment, including the renewal of blighted areas and the elimination of nonconforming uses which are inconsistent with character of the community.

    
    

    Section 163.3177(8) also requires all elements of comprehensive plans to be "based upon data appropriate to the element involved."

53. Rule 9J-5.006(2)(c) provides:

    
    

    (2) Land Use Analysis Requirements. The element shall be based upon the following analyses which support the comprehensive plan pursuant to Subsection 9J-5.005(2).

    * * *

    1. An analysis of the amount of land needed to accommodate the projected population, including:

    1. The categories of land use and their densities or intensities of use,

    2. The estimated gross acreage needed by category, and

    3. A description of the methodology used;

54. Rule 9J-5.005(2) provides in pertinent part:

    
    

    (a) All goals, objectives, policies, standards, findings and conclusions within the comprehensive plan and its support documents, and within plan amendments and their support documents, shall be based upon relevant and appropriate data and the analyses applicable to each element. To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue. Data or summaries thereof shall not be subject to the compliance review process. However, the Department will review each comprehensive plan for the purpose of determining whether the plan is based on the data and analyses described in this Chapter and whether the data were collected and applied in a professionally acceptable manner.

    * * *

    (e) The comprehensive plan shall be based on resident and seasonal population estimates and projections. Resident and seasonal population estimates and projections shall be either those provided by the University of Florida, Bureau of Economic and Business Research, those provided by the Executive Office of the Governor, or shall be generated by the local government. . . .

    * * *

    2. The Department will evaluate the application of the methodology utilized by a local government in preparing its own population estimates and projections and determine whether the particular methodology is professionally accepted.

    
    

55. As reflected in the Findings of Fact, it is at least

    
    

    fairly debatable that the Plan Amendment is consistent with the

    Section 163.3177(6)(a) and (8) and Rules 9J-5.006(2)(c) and 9J- 5.005(2).

56. It is noted that, for purposes of demonstration of need required by the statute and rules cited here, it is irrelevant that Intervenor's sales marketing is creating the "need" for future housing units. Put another way, it is more in the nature of a political decision within the prerogative of the County (subject, of course, to compliance with other statutory and rule requirements) to support Intervenor's efforts to attract out-of-state retirees to the County by adopting this Plan Amendment The fact that housing needs would be lower without Intervenor's efforts and the County's support does not invalidate the demonstration of need required by Section 163.3177(6)(a) and Rules 9J-5.006(2)(c) and 9J-5.005(2).

    So-called "90% Rule"

    
    

57. Petitioners contend that the Plan Amendment is not consistent with the Plan's Policy 4.6.1.1, so as to be inconsistent with Section 163.3177(2) (several elements of comprehensive plan must be consistent). As reflected in the Findings of Fact, it is at least fairly debatable that the Plan Amendment is consistent with this policy and, therefore, with Section 163.3177(2).

    Urban Sprawl

    
    

58. It is recognized that the Plan Amendment in this case changes the FLU of a vast amount of land (approximately 4,679 acres) from Agricultural to UEA and PUD. But the amount of land converted does not by itself determine the "urban sprawl" issue. Rather, this issue must be determined by reference to the applicable statutes and rules.

59. In pertinent part, Rule 9J-5.006(3)(b)8 requires that a plan's FLU element (FLUE) contain one or more specific objectives for each goal statement which address the requirements of Section 163.3177(6)(a) and which, among other things: "Discourage the proliferation of urban sprawl "

60. Rule 9J-5.006(5) provides in pertinent part:

    
    

    1. Primary indicators. The primary indicators that a plan or plan amendment does not discourage the proliferation of urban sprawl are listed below. The evaluation of the presence of these indicators shall consist of an analysis of the plan or plan amendment within the context of features and characteristics unique to each locality in order to determine whether the plan or plan amendment:

       1. Promotes, allows or designates for development substantial areas of the jurisdiction to develop as low-intensity, low-density, or single-use development or uses in excess of demonstrated need.

       2. Promotes, allows or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while

          leaping over undeveloped lands which are available and suitable for development.

       3. Promotes, allows or designates urban development in radial, strip, isolated or ribbon patterns generally emanating from existing urban developments.

       4. As a result of premature or poorly planned conversion of rural land to other uses, fails adequately to protect and conserve natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, natural groundwater aquifer recharge areas, lakes, rivers, shorelines, beaches, bays, estuarine systems, and other significant natural systems.

       5. Fails adequately to protect adjacent agricultural areas and activities, including silviculture, and including active agricultural and silvicultural activities as well as passive agricultural activities and dormant, unique and prime farmlands and soils.

       6. Fails to maximize use of existing public facilities and services.

       7. Fails to maximize use of future public facilities and services.

       8. Allows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government.

       9. Fails to provide a clear separation between rural and urban uses.

       10. Discourages or inhibits infill development or the redevelopment of existing neighborhoods and communities.

       11. Fails to encourage an attractive and functional mix of uses.

       12. Results in poor accessibility among linked or related land uses.

       13. Results in the loss of significant amounts of functional open space.

       
       

    2. Evaluation of land uses. The comprehensive plan must be reviewed in its entirety to make the determinations in (5)(g) above. Plan amendments must be reviewed individually and for their impact on the remainder of the plan. However, in either case, a land use analysis will be the focus of the review and constitute the primary factor for making the determinations. Land use types cumulatively (within the entire jurisdiction and areas less than the entire jurisdiction, and in proximate areas outside the jurisdiction) will be evaluated based on density, intensity, distribution and functional relationship, including an analysis of the distribution of urban and rural land uses. Each land use type will be evaluated based on:

    1. Extent.

    2. Location.

    3. Distribution.

    4. Density.

    5. Intensity.

    6. Compatibility.

    7. Suitability.

    8. Functional relationship.

    9. Land use combinations.

    10. Demonstrated need over the planning period.

    (i) Local conditions. Each of the land use factors in (5)(h) above will be evaluated within the context of features and characteristics unique to each locality. These include:

    1. Size of developable area.

    2. Projected growth rate (including population, commerce, industry, and agriculture).

    3. Projected growth amounts (acres per land use category).

    4. Facility availability (existing and committed).

    5. Existing pattern of development (built and vested), including an analysis of the extent to which the existing pattern of development reflects urban sprawl.

    6. Projected growth trends over the planning period, including the change in the overall density or intensity of urban development throughout the jurisdiction.

    7. Costs of facilities and services, such as per capita cost over the planning period in terms of resources and energy.

    8. Extra-jurisdictional and regional growth characteristics.

    9. Transportation networks and use characteristics (existing and committed).

    10. Geography, topography and various natural features of the jurisdiction.

    1. Development controls. Development controls in the comprehensive plan may affect the determinations in (5)(g) above. The following development controls, to the extent they are included in the comprehensive plan, will be evaluated to determine how they discourage urban sprawl:

       1. Open space requirements.

       2. Development clustering requirements.

       3. Other planning strategies, including the establishment of minimum development density and intensity, affecting the pattern and character of development.

       4. Phasing of urban land use types, densities, intensities, extent, locations, and distribution over time, as measured through the permitted changes in land use within each urban land use category in the plan, and the timing and location of those changes.

       5. Land use locational criteria related to the existing development pattern, natural resources and facilities and services.

       6. Infrastructure extension controls, and infrastructure maximization requirements and incentives.

       7. Allocation of the costs of future development based on the benefits received.

       8. The extent to which new development pays for itself.

       9. Transfer of development rights.

       10. Purchase of development rights.

       11. Planned unit development requirements.

       12. Traditional neighborhood developments.

       13. Land use functional relationship linkages and mixed land uses.

       14. Jobs-to-housing balance requirements.

       15. Policies specifying the circumstances under which future amendments could designate new lands for the urbanizing area.

       16. Provision for new towns, rural villages or rural activity centers.

       17. Effective functional buffering requirements.

       18. Restriction on expansion of urban areas.

       19. Planning strategies and incentives which promote the continuation of productive agricultural areas and the protection of environmentally sensitive lands.

       20. Urban service areas.

       21. Urban growth boundaries.

       22. Access management controls.

    2. Evaluation of factors. Each of the land use types and land use combinations analyzed in Paragraph (5)(h) above will be evaluated within the context of the features and characteristics of the locality, individually and together (as appropriate), as listed in Paragraph (5)(i). If a local government has in place a comprehensive plan found in compliance, the Department shall not find a plan amendment to be not in compliance on the issue of discouraging urban sprawl solely because of preexisting indicators if the amendment does not exacerbate existing indicators of urban sprawl within the jurisdiction.

    3. Innovative and flexible planning and development strategies. Notwithstanding and as a means of addressing any provisions contained in rules 9J-5.006(3)(b)8., 9J- 5.011(2)(b)3., 9J-5.003(140) and this subsection, the Department encourages innovative and flexible planning and development strategies and creative land use planning techniques in local plans.

    Planning strategies and techniques such as urban villages, new towns, satellite communities, area-based allocations, clustering and open space provisions, mixed- use development and sector planning that allow the conversion of rural and agricultural lands to other uses while protecting environmentally sensitive areas, maintaining the economic viability of agricultural and other predominantly rural land uses, and providing for the cost- efficient delivery of public facilities and services, 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.

    
    

61. Also pertinent to the "urban sprawl" issue is Section 163.3177(11), which sets out pertinent legislative intent. Subsection (b) already has been quoted at Conclusion of Law 51, supra. Subsections (a) and (c) provide:

    (a) The Legislature recognizes the need for innovative planning and development strategies which will address the anticipated demands of continued urbanization of Florida's coastal and other environmentally sensitive areas, and which will accommodate the development of less populated regions of the state which seek economic development and which have suitable land and water resources to accommodate growth in an environmentally acceptable manner. The Legislature further recognizes the substantial advantages of innovative approaches to development which may better serve to protect environmentally sensitive areas, maintain the economic viability of agricultural and other predominantly rural land uses, and provide for the cost-

    efficient delivery of public facilities and services.

    * * *

    (c) It is the further intent of the Legislature that local government comprehensive plans and implementing land development regulations shall provide strategies which maximize the use of existing facilities and services through redevelopment, urban infill development, and other strategies for urban revitalization.

    
    

62. As reflected in the Findings of Fact, notwithstanding the magnitude of the FLU change, it is at least fairly debatable that the Plan Amendment is consistent with the rules and statute cited here. Not only does consideration of the primary indicators in Rule 9J-5.006(3)(g) demonstrate that the Plan Amendment discourages urban sprawl, the mixed-use nature of the PUD created by the Plan Amendment is recognized in subparagraph

    (l) of the rule as a method of discouraging urban sprawl.

    
    

    Collateral Estoppel

    
    

63. SCAID I raises the question whether the parties to this proceeding are collaterally estopped from denying certain facts found and from disputing certain issues decided in the previous case. (Contrary to Petitioners' argument, there is no requirement under the Uniform Rules of Procedure to plead collateral estoppel as an affirmative defense. See Florida

    Administrative Code Rule 28-106.203.) Clearly, all but Weir, Latham, and Roop were parties to the previous case, one requirement for application of collateral estoppel. See

    Stogniew v. McQueen, 656 So. 2d 917, 919-20 (Fla. 1995); Brown

    
    

    v. Department of Professional Regulation, 602 So. 2d 1337, 1341 (Fla. 1st DCA 1992). While Weir, Latham, and Roop were not individual parties to SCAID I, they also could be subject to collateral estoppel if they were represented by SCAID in SCAID

    I. See Stogniew, 656 So. 2d at 919-20. In this case, it is clear from the evidence that Weir, Latham, and Roop are now members of SCAID; it is also clear that Weir was a member in 1994; but it is not clear from the evidence that Latham or Roop were members during SCAID I. Although they may well have been members during SCAID I, it was encumbent on the parties asserting collateral estoppel to prove all elements of its application. As to Latham and Roop, this was not done.

64. To the extent that the parties are considered "identical" (i.e., as to Intervenor, the County, SCAID, Farnsworth, and Weir), collateral estoppel applies only to issues identical to those litigated in the previous proceeding. See Stogniew, 656 So. 2d at 919. In this case, the doctrine would apply to estop SCAID, Farnsworth, and Weir from denying the factual history of the earlier DRIs, the Tri-County Villages DRI, and the comprehensive plan amendments required by the Tri- County Villages DRI, as established in SCAID I. Similarly, SCAID I decided as a matter of law that the statutes and rules do not per se prohibit conversion of agricultural FLU to UEA and

    PUD. On the other hand, SCAID I did not decide the issue

    
    

    whether the particular conversion accomplished by the Plan Amendment in this case would be inconsistent with the pertinent statutes and rules. Similarly, while SCAID I decided that the

    1.87 market factor used in 1994 was appropriate at that time,

    
    

    the appropriateness of market factors are fact-dependent, and SCAID I did not decide what market factor would be appropriate under the facts and circumstances in the year 2000. Likewise, the doctrine would not apply to estop Intervenor from denying SCAID's standing because standing depends on the present facts about SCAID, not the facts in 1994; in addition, standing was not litigated in SCAID I, it was stipulated.

    SCAID's Standing

    
    

65. Section 163.3184(9)(a) confers standing in this case on "any affected person." There is no dispute as to the standing of Farnsworth, Weir, Latham, and Roop. But Intervenor disputes the standing of SCAID.

66. In pertinent part, Section 163.3184(1)(a) defines "affected person" to include:

    persons owning property, residing, or owning or operating a business within the boundaries of the local government whose plan is the subject of the review . . ..

    
    

    Section 163.3164(17) defines "person" as:

    
    

    an individual, corporation, governmental agency, business trust, estate, trust,

    partnership, association, two or more persons having a joint or common interest, or any other legal entity.

    
    

    Intervenor's contention that SCAID lacks standing is based on the assertion that SCAID is not a "person."

67. In support of its position, Intervenor argues that the rule of statutory interpretation known as noscitur a sociis limits the list of "affected persons" in Section 163.3184(1)(a) to "legal entities," citing Cepcot Corp. v. Dept. of Bus. and Prof. Reg., 658 So. 2d 1092, 1095 (Fla. 2d DCA 1995).

    Intervenor goes on to argue that an "association" that is not a "legal entity" is not an "affected person." Intervenor then asserts that SCAID is not a "legal entity."

68. It is concluded that Intervenor's argument under Section 163.3184(1)(a) is well-taken. Notwithstanding the statement of legislative intent in Section 163.3181(1) that "that the public participate in the comprehensive planning process to the fullest extent possible," standing is still limited by the terms of the statutory definition in Section 163.3184(1)(a). See St. Joe Paper Co. v. Dept. of Community Affairs, 657 So. 2d 27 (Fla. 1st DCA 1995). (It is noted that SCAID did not prove and does not assert standing under Section 120.52(12).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that, under Section 163.3184(9)(b), the Department of Community Affairs enter a final order that Sumter County's Amendment 00-D1 is "in compliance."

DONE AND ENTERED this 20th day of February, 2001, in Tallahassee, Leon County, Florida.

J. LAWRENCE JOHNSTON 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 20th day of February, 2001.

COPIES FURNISHED:

Martha Harrell Chumbler, Esquire Nancy G. Linnan, Esquire Carlton, Fields, Ward, Emmanuel,

Smith & Cutler, P.A. Post Office Box 190

Tallahassee, Florida 32302-0190

Jane M. Gordon, Esquire Jonas & LaSorte

Mellon United National Bank Tower Palm Beach Lakes Boulevard, Suite 1000 West Palm Beach, Florida 33401-2204

Terry T. Neal, Esquire Post Office Box 490327

Leesburg, Florida 34749-0327

Colin M. Roopnarine, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

Steven M. Seibert, Secretary Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399-2100

Cari L. Roth, General Council Department of Community Affairs 2555 Shumard Oak Boulevard Suite 325

Tallahassee, Florida 32399-2100

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 should be filed with the agency that will issue the final order in this case.

Docket for Case No: 00-003027GM

Orders for Case No: 00-003027GM