STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MODERN, INC. and CHARLES F. ) MOEHLE, )

)

Petitioners, )

)

vs. )

) DEPARTMENT OF COMMUNITY AFFAIRS ) and BREVARD COUNTY, )

)

Respondents. )

Case No. 00-3913GM

)

RECOMMENDED ORDER OF DISMISSAL

Final hearing was commenced in this case on February 21-22, 2001, in Titusville, Florida, before J. Lawrence Johnston, Administrative Law Judge (ALJ), Division of Administrative

Hearings.

APPEARANCES

For Petitioners: Charles F. Moehle, pro se

Modern, Inc.

Post Office Box 321417 Cocoa Beach, Florida 32932

For Respondent (Brevard County):

Eden Bentley, Esquire

Brevard County Attorney's Office 2725 St. Johns Street

Viera, Florida 32940

For Respondent (DCA):

Andrew S. Grayson, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

STATEMENT OF THE ISSUE

The issue in this case is whether Brevard County's 1999 Comprehensive Plan Amendments B.12, B.13, and B.14 (the Plan Amendments) are "in compliance."

PRELIMINARY STATEMENT

Brevard County adopted the Plan Amendments (along with other 1999B amendments) by Ordinance 2000-33 on May 16, 2000. On July 12, 2000, the Department of Community Affairs (DCA)

published its Notice of Intent (NOI) to find the Plan Amendments (as well as the other 1999B amendments) "in compliance." On September 6, 2000, Modern, Inc., and Charles F. Moehle (Petitioners) filed an Amended Petition for Formal Review of DCA's NOI as to the Plan Amendments (B.12, B.13, and B.14), and the matter was referred to the Division of Administrative Hearings (DOAH) on September 21, 2000.

On October 5, 2000, the County demanded expeditious resolution, and final hearing was scheduled for November 1-2, 2000. However, on October 24, 2000, the County moved for a continuance to allow time for completion of a mediated settlement.

After several status reports on the mediation, the County reported impasse on January 16, 2001, and requested rescheduling of final hearing. Final hearing was rescheduled for

February 21-22, 2001.

On January 29, 2001, the County filed a Motion for Summary Order on the Pleadings, and Petitioners filed a response in opposition. An Order Denying Summary Order on the Pleadings was entered on February 12, 2001.

At the outset of final hearing, consideration was given to limiting the issues based on argument presented in the Motion for Summary Order on the Pleadings. As a result, several parts of the Amended Petition were stricken at that time.

Several portions of the Amended Petition alleging that the Plan Amendments were invalid rules under Section 120.52(8), Florida Statutes, or otherwise violated Chapter 120, Florida Statutes, were stricken because Chapter 120 does not apply to the County and because the Plan Amendments are not rules subject to rule challenge under Chapter 120. This ruling eliminated: paragraph 8.I.A.1.; the last clause of paragraph 8.I.B.; the fifth sentence and Chapter 120 statutory citations in paragraph 8.I.C.,D., E.; paragraph 8.I.F.; all but the last sentence of paragraph 8.II.B.; and the last sentence of paragraph 8.II.C.

Paragraph 7.II. alleging "vested rights" violations of Section 163.3161 and Florida Administrative Code Rule 9J-

5.005(9) were stricken because the statute is not a compliance criterion under Section 163.3184(1)(b) and the rule is permissive only (it allows but does not require plan provisions to recognize vested rights.)

Paragraph 7.III. alleging duplication of state and federal plant and animal species regulations in violation of Rule 9J- 5.005(10) was stricken because the rule does not prohibit such duplication (it only prohibits DCA from requiring such duplication) or require the least costly alternative (which, in any event, is a rule validity criterion under Section 120.52(8)(g).)

After the issues were limited, Petitioners called Susan Poplin, a planning manager in the Bureau of Local Planning for DCA, as an adverse witness; and Charles F. Moehle testified on Petitioners' behalf. Petitioners also had Petitioners' Exhibits 1-2 and 5-8 admitted in evidence. In addition, County Exhibit 1 was admitted in evidence out-of-order during Petitioners' presentation without objection.

When Petitioners rested, the County moved ore tenus for involuntary dismissal on the ground that Petitioners' evidence was insufficient to prove their case. Since the Uniform Rules of Procedure did not provide for such a motion, but rather provided for an opportunity for post-hearing submission of proposed recommended orders, with proposed findings of fact and

proposed conclusions of law, DCA and County suggested an alternative procedure: continuance of final hearing; preparation of a transcript; an opportunity for DCA and County to file a motion for involuntary dismissal (with proposed findings of fact and proposed conclusions of law, if desired); and an opportunity for Petitioners to file a response (likewise, with proposed findings of fact and proposed conclusions of law, if desired). Petitioners agreed to the alternative procedure, and final hearing was continued.

The Transcript was filed on March 19, 2001. On March 22, 2001, DCA and County filed a Joint Motion for Additional Time to File Respondents' Motion to Dismiss. The motion was granted, and the time to file was extended until April 6, 2001. DCA and County filed a Motion to Dismiss and to Relinquish Jurisdiction on April 3, 2001. Petitioners then requested and were given an extension of time until April 25, 2001, in which to file their response. The motion and response have been considered, along with the Transcript and exhibits.

Unless otherwise specified, all citations to statute sections are to Florida Statutes (2000), and all rule citations are to the Florida Administrative Code.

FINDINGS OF FACT

General

1. Besides the introduction of the Plan Amendments themselves and a few other documents, Petitioners case-in-chief consisted of examination of Susan Poplin, a Planning Manager for DCA, as an adverse witness, and the testimony of Petitioner, Charles F. Moehle. Most of Poplin's testimony was directly contrary to the positions Petitioners were seeking to prove. Moehle's testimony consisted primarily of conclusions and statements disagreeing with the Plan Amendments. Petitioners provided no data or analysis in support of Moehle's statements and conclusions. Often, Moehle's testimony did not identify specific errors allegedly made by the County. Much of Moehle's presentation was disjointed and difficult to understand.

2. Petitioners also challenged several items which should have been challenged following prior amendments to the County's Plan. For example, Poplin testified that all of the wetland provisions in the challenged Conservation Element B.12 amendments were part of a prior plan amendment and were not changed by the Plan Amendments. See Findings of Fact 7-8, infra.

   Standing

   
   

3. Petitioners' allegations of standing are in paragraph 6 of the Amended Petition for Formal Review:

   EFFECT ON PETITIONERS' SUBSTANTIAL INTERESTS

   Petitioner, MODERN owns property in Brevard County, the value of which will be reduced by THE AMENDMENT. Additionally, petitioners MODERN and MOEHLE own property in Brevard County and pay property taxes in Brevard County. Additionally, THE AMENDMENT will cause property tax receipt's of Brevard County to decline because of the reduction in value caused to MODERN'S, MOEHLE'S, and other similarly situated property in the county. Additionally, THE AMENDMENT will cause MODERN'S and MOEHLE'S property taxes to increase due to the additional government employees required to implement and enforce THE AMENDMENT and due to the fact that the property taxes imposed upon property which are not effected [sic] by THE AMENDMENT will necessarily increase in order to offset the loss of property tax revenue from private property which is devalued as a result of THE AMENDMENT. MOEHLE and MODERN have

   appeared before the Brevard County Board of County Commissioners at public meetings and hearings as well as communicating (verbally and in writing) with their growth Management/Planning & Zoning Departments concerning these matters for several years.

   
   

4. In an attempt to prove Petitioners' standing, Moehle testified that he has been a resident of Brevard County since 1958. He also testified that he is President of and owns a substantial interest in Petitioner, Modern, Inc. He testified that both he himself and Modern own real property in Brevard County, and that, as such, both are taxpayers.

5. Moehle also testified that he is "affected by these regulations." He gave no specifics as to how he is affected. He also did not testify that Modern was affected.

6. Before concluding his brief testimony on standing, Moehle asked the ALJ if he had to "ramble on some more" about standing and was asked whether he submitted "oral or written comments, comments, recommendations or objections to the County between the time of the transmittal hearing for the Plan amendment and the adoption of the Plan amendment." Moehle answered:

   I submitted during the whole period of this - I attended a number of hearings that

   I knew about during this whole process and I would say that, yes, I did, but not all hearings. Some were questionable - some of my problems or some of the meetings that the action was taken on. So they do have my comments, they've had my comments from me on various issues complete back before and including the Settlement Agreement.

   
   

7. The evidence was that all hearings and meetings relating to the "Settlement Agreement" to which Moehle referred in his testimony occurred prior to the transmittal hearing for the Plan Amendments at issue in this case on November 30, 1999. The referenced "Settlement Agreement" was the Stipulated Settlement Agreement entered into in May 1997 to resolve DOAH Case No. 96-2174GM. The County amended its Comprehensive Plan to implement the Stipulated Settlement Agreement on August 24, 1999, by Ordinance 99-48. By Ordinance 99-52, adopted

   October 7, 1999, the remedial amendments were clarified to include the correct Forested Wetlands Location Map.

8. Ordinance 99-49 and 99-52 both state that the plan amendments adopted by them "shall become effective once the state planning agency issues a final order determining the adopted amendment to be in compliance in accordance with Florida Statutes, Section 163.3184(9), or until the Administration Commission issues a final order determining the amendment to be in compliance in accordance with Florida Statutes, Section 163.3184(10)." The stated "Justification" for Policy 5.2 of the

   B.12 Plan Amendments at issue in this case was: "The above language was part of a stipulated settlement agreement between DCA and the County. This agreement became effective after the transmittal of the 99B Plan Amendments." Apparently for that reason, the B.12 Plan Amendments at issue in this case, specifically under Objective 5 and Policies 5.1 and 5.2, underlined the wetland provisions previously adopted by Ordinance 99-48. This underlining may give the misimpression that these wetlands provisions were being amended through adoption of Ordinance 2000-33. To the contrary, those amendments already had been adopted, and all hearings on those amendments already had occurred prior to transmittal of the Plan Amendments at issue in this case.

9. Other than testifying that he attended hearings and made submittals "before and including the Settlement Agreement," Moehle did not specify when he attended, or what if anything he

   said or submitted. Nor did he offer any testimony or evidence that he appeared on behalf of Modern. No minutes or other evidence were produced for the record showing his appearance or comments, recommendations or objections. To the contrary, Petitioners' evidence indicates that Moehle was not one of the

   individuals who offered public comment at either the transmittal hearing on November 30, 1999; the Land Use Citizens Resource Group meeting on November 4, 1999; or the Local Planning Agency Adoption Meeting on May 15, 2000.

10. Paragraph 6 of the Amended Petition, also alleged:

    
    

    1. that the value of property owned by Modern will be reduced;

       
       

    2. that the Plan Amendments will cause property tax receipts to decline because of a reduction in the value caused to Petitioners' property; and 3) that the Plan Amendments will cause Petitioners' property taxes to increase due to additional government employees required to implement and enforce the Plan Amendments and due to an increase in taxes for properties not directly affected by the Plan Amendments. None of these allegations were supported by record evidence.

    Notice

    
    

11. Petitioners' allegation of improper notice is contained in paragraph 7.I. of the Amended Petition:

    Petitioners allege that THE AMENDMENT is subject to the notice requirements of Florida Statute subsections 163.3161(18),

    163.3181, 163.3184(15), 125.66(2), and or

    125.66(4) and that Respondent COUNTY has failed to comply with said statutes.

    
    

    (Several other paragraphs of the Amended Petition also allege inadequate notice. See Findings of Fact 19, 28, 44, 50, 54, 63,

    65, and 76, infra.)

    
    

12. Petitioners filed copies of the applicable advertisements. Moehle testified that the type was "wrong" and the size was "wrong" - the exact nature of the alleged error was not stated. But review of the advertisements for the transmittal and adoption hearings reveals that both are two columns wide, and the headline appears to be in a very large, bold type. Other than Moehle's general complaint about the type being "wrong," there was no testimony or other evidence that the type is not 18-point.

13. Other aspects of the advertisements do not appear to be challenged by Petitioners. The advertisements themselves show that the transmittal hearing was held on November 30, 1999 (a Tuesday) and that the advertisement was run on November 22, 1999, eight days prior to the day of the hearing. They also show that the adoption hearing was on May 16, 2000 (a Tuesday). The advertisement for the adoption hearing was run on May 10, 2000, six days prior to the meeting. The proof of publication shows that the advertisements were not in a portion of the

    newspaper where legal notices or classified ads appear and that the Florida Today is a newspaper of general circulation.

14. The evidence also included advertisements for local planning agency hearings and meetings relating to the Plan Amendments other than the transmittal and adoption hearings. These other advertisements appear to have been published in legal ad sections, and the type is smaller than that used for the transmittal and adoption hearings. It appears that Moehle was referring to these advertisements when he said the type and size was "wrong."

    Species and Wetlands Preservation Versus Promoting Infill Development

15. Paragraph 7.IV. of the Amended Petition alleges: The challenged provisions of the THE

    AMENDMENT, as set forth herein below,

    violate the legislative intent and spirit of Fl. Stat. Ch. 163, Part II because they place species and wetland preservations over the stated policy goal of promoting infill and development in areas which have concurrency and infrastructure available.

    The challenged provisions promote leap frog development by making the development of parcels of private property which have concurrency and appropriate infrastructure but also have any quantity of listed species habitat or wetlands unusable. Fl. Stat.

    Sections 163.3177(10)(h), 163.3177(11).

    
    

16. No evidence was offered supporting the claim that species and wetland preservation were "placed over" the goal of promoting infill. Nor was there any evidence provided by

    Petitioners to show that leapfrog development or urban sprawl was caused by protecting wetlands.

17. To the contrary, Poplin's testimony discussed urban sprawl and leapfrog development in terms of impacts to services and facilities. She clearly stated: "[T]here are no set priorities. We look at each individual local government on a case by case basis. . . . So . . . [it] depends on the context in which its based [sic] in the plan." Poplin also testified that the County had levels of service in place for facilities and services pursuant to Rule 9J-5.0055(1)(a), and that the County's Plan and the subject Plan Amendments have level of service standards which meet the requirements of Rule 9J- 5.0055(2). Poplin also testified that the County had a Capital Improvements Element which was in compliance with Rule 9J- 5.0055(1)(b). She also testified that there was coordination of the various comprehensive plan elements as required by Section 163.3177. Thus, she concluded, the conservation and capital improvements (infrastructure) elements interacted properly. There was no evidence to the contrary.

18. Section 163.3177(10)(h) states that it is the intent of the Legislature to provide public services concurrently with development. Section 163.3177(11) discusses the legislative intent to have innovative planning to address urbanization, protection of environmentally sensitive areas, land use

    efficiencies in urban areas and conversion of rural land uses. No evidence of any kind was presented regarding these provisions. Certainly, no data and analysis showing failure to meet these statutory provisions were presented by Petitioners.

    Listed Species Definition

    
    

19. Paragraph 8.I.A.2 of the Amendment Petition states:

    
    

    Listed Species definition - pg 11. This change should not be made because the updated Glossary of the Comprehensive Plan was not made available timely for public review and public comments per the hearing and notice requirements of Fl. Stat.

    Sections 163.3161(18), 163.3181,

    163.3184(15), 125.66(2) and or 125.66(4).

    
    

20. Prior to the Plan Amendments, the Conservation Element had a Directive entitled "Wildlife." The "Wildlife" directive stated in part: "Development projects should avoid adverse impacts to species listed as endangered, threatened, or species of special concern." The directive also included a definition of the term "listed species": "those species which are listed as either endangered, threatened or as species of special concern." The Plan Amendments deleted these provisions. The stated Justification for deleting the first provision was: "Objective 9 embodies the intent of this directive." The stated Justification for deleting second provision was: "'Listed species' have been defined in the updated Glossary of the Comprehensive Plan."

21. As in several other places in the Amended Petition, Petitioners complain about lack of notice and an opportunity for a hearing as to the updated Glossary. Actually, it appears that the Glossary was not updated along with the Plan Amendments.

    For that reason, there were no Glossary changes to be noticed.

    
    

22. Although the Glossary was not updated to provide the definition of the phrase "listed species," as indicated in the Justification for deleting it from the Directives, the phrase is commonly used to refer to species are listed as threatened or endangered under various state and federal regulations. Rule

    9J-5.013(1)(a)5. requires identification and analysis of natural resources including "species listed by federal, state, or local government agencies as endangered, threatened or species of special concern." Species that are federally listed as endangered or threatened (50 C.F.R., Section 17.11) fall under the jurisdiction of the U.S. Fish and Wildlife Service in accordance with the Endangered Species act of 1973, as amended (16 U.S.C. Section 1531, et. seq.). Listed and unlisted bird species, other than waterfowl and game birds, are also federally protected by the Migratory Bird Act (16 U.S.C. Section 703 et. seq.). The bald eagle has additional federal protection under

    the Bald and Golden Eagle Protection Act (16 U.S.C. Section 668- 668d). Marine animals (including whales, dolphins, and the West Indian Manatee) are also protected by the Marine Mammal

    Protection Act of 1972 (16 U.S.C. Section 1361 et. seq.) In

    
    

    addition, 24 species of vertebrates are listed by the State as endangered, threatened or species of special concern and are under the jurisdiction of the Florida Fish and Wildlife Conservation Commission, Chapter 39, Florida Administrative Code. Both snook and Atlantic sturgeon receive further state protection under Chapter 46, Florida Administrative Code. The Florida Endangered and Threatened Species Act, 1977, also protects species listed as endangered, threatened or species of special concern under Chapter 372, Florida Statutes (2000).

    Chapter 372, Florida Statutes (2000), provides additional protection for the American alligator as defined in the Alligators/Crocodilla Protection Act. Sea turtles and the West Indian manatee are further protected by the State through the Marine Turtles Protection Act (Chapter 327, Florida Statutes (2000)) and the Florida Manatee Sanctuary Act (Chapter 327, Florida Statutes (2000)).

23. Petitioners did not prove beyond fair debate that the phrase "listed species" cannot be understood without a specific definition within the comprehensive plan.

    Conservation Element Policy 8.5, Protection Of Vegetative Communities

    
    

24. Paragraph 8.I.B. of the Amended Petition states:

    
    

    Policy 8.5 - pg 41. This change should not be made because the justification is not

    correct. These referenced lists were not made available to the public at the relevant public hearing for review and comment in violation of the requirements of Fl. Stat.

    Section 163.3184. The modification goes beyond the stated intent to merely improve readability and clarify the existing policy in that it actually modifies existing policy. . . . (The last clause was stricken. See Preliminary Statement.)

    
    

25. Again, there were no changes to the Glossary to be noticed for hearing.

26. Before the Plan Amendments, Policy 8.9 of the Conservation Element provided that the County would develop a program for the protection of vegetative communities from inappropriate development by 1992. The former provision was replaced with Policy 8.5, which revises the action date to 2002 and states that the County shall protect vegetative communities from inappropriate development. G1 and G2 vegetative communities, as contained in the Florida Natural Areas Inventory, were added to S1 and S2 communities (which were already in the Plan) for consideration for protection.

27. Poplin testified that the G1 and G2 categories were defined by the Florida Natural Areas Inventory and were synonymous with the S1 and S2 categories which were already defined in the Plan. The adopted "Justification" for new Policy

    8.5 itself indicates that the addition of the G1 and G2 categories "did not add additional vegetative communities that

    may be considered for protection." In other words, nothing actually changed as to the vegetation (or types of vegetation); only the nomenclature or titles of categories changed.

    Conservation Element, Objective 9 and Policy 9 Species of Special Concern, Crucial/Critical Habitat

    
    

28. Paragraph 8.I.C.,D., and E. of the Amended Petition

    
    

    states:

    
    

    Objective 9 and Policy 9, including sub- sections A, B, C, D, E, of 9.2 (species of special concern, crucial/critical habitat) - pg 43. Species of special concern should not be added. It was discussed at a properly advertised public hearing and its addition was rejected. It was added back at a subsequent and not properly noticed workshop meeting and did not allow proper public input. It is unjustifiably onerous to the regulated public as added, in violation of Fl. Stat. 120.52(8)(g).

    Crucial habitat should not be allowed to [be] substituted for critical habitat because the new glossary of definitions was not completed timely to allow public review and comment. The resource maps to be used are not identified or indicated that they have been created beyond "draft" status or had proper notice, public review or comment. The reduction from 5 acres to 1 acre in

    9.2.C was improperly added at a workshop subsequent to the properly noticed public hearing at which this item was disposed of with public hearing and comment and leaving the size of 5 acres. The provision that the "acquisition of land by the Brevard County Environmentally Endangered Lands Program shall be voluntary, and shall not include the use of eminent domain" should not be removed in Policy 9.4 (pg. 45). These new provisions do not meet the requirements of Fl. Stat. Sections 120.58(8) and 120.525, Fl. Stat. Sections 163.3161(18), Fl. Stat.

    Sections 163.3181, Fl. Stat. Sections 163.3184(15), Fl. Stat. Sections 125.66(2),

    and or Fl. Stat. Sections 125.66(4). (The identified sentence and references were stricken. See Preliminary Statement.)

    
    

29. Again, there were no changes to the Glossary to be noticed for hearing.

30. As to "crucial habitat," amended Policy 9.2 of the Conservation Element requires that an ordinance be developed by 2002 requiring a "crucial habitat" review at the pre-application stage of certain projects. Previously, the plan required development of an ordinance in 2004 requiring a "critical habitat" review in those situations. Apparently, "critical habitat" was defined in the pre-amendment Glossary. (Neither the Glossary nor the rest of the County's Comprehensive Plan prior to the Plan Amendments was put in evidence.) No regulations regarding "crucial habitat" were in effect as of final hearing.

31. A definition of the term "crucial habitat" might well be desirable. (Apparently, an amendment to the Glossary to include such a definition is being considered by someone--it is not clear from the evidence by whom.) But it is possible to use dictionary definitions of "crucial" and "habitat" to derive a useful meaning of the term "crucial habitat" used in Policy 9.2 of the Conservation Element. Petitioners did not prove beyond fair debate that the term "crucial habitat" cannot be adequately

    understood without a specific definition in the comprehensive plan.

32. "Species of special concern" is a phrase used by Rule 9J-5.013(1)(a)5. in describing natural resources to be identified and analyzed in a local government's conservation element.

33. The "resource maps" mentioned in paragraph 8.I.C., D., and E. of the Amended Petition are not new to the County's Comprehensive Plan. Prior to the Plan Amendments, Policy

    10.2.A. stated that the County's Office of Natural Resources Management must "develop resource maps showing potential areas for critical wildlife habitat for threatened and endangered wildlife species." Amended Policy 9.2.A. requires that Office to "use resource maps which show potential areas of crucial wildlife habitat for threatened and endangered wildlife species and species of special concern." While the descriptions of these maps were changed by the amendment, the general manner in which they are identified is the same. It was not proven beyond fair debate that the amendments cannot be adequately understood without identification in a more specific manner or reference to maps already completed.

34. Petitioners' next complaint in paragraph 8.I.C., D., and E. of the Amended Petition was that the threshold for required crucial habitat review in Policy 9.2.C. of the

    Conservation Element should not have been changed from five-acre projects to one-acre projects. Petitioners' primary argument was that the County discussed this change at a workshop. The only evidence in support of this argument was Moehle's testimony: "[T]he changes that show up in here were rejected in those previous hearings so the public has the impression well, that item is done and settled. Then all of a sudden at a workshop it shows up when nobody - they are not necessarily -- you can't obtain the advance agenda for that and you find a notice in the paper from time to time."

35. In fact, the workshops were noticed in the newspapers.

    
    

    In addition, the transmittal and adoption hearings were noticed. See Findings of Fact 12-14, supra.

36. As for Petitioners' request for reinstatement of the language regarding voluntary acquisition of environmentally endangered lands, former Policy 10.4 addressed development of an acquisition program; amended Policy 9.4 addresses a continuation of that program. The Justification explains that the amendments were "intended to reflect the achievement of this policy as a result of the EELs [Environmentally Endangered Lands] Program." There was no evidence to support the argument that removal of the voluntary acquisition language in any way changes the EELs Program or creates a compliance issue.

    Conservation Element Policy 9.13, Species of Special Concern

    
    

37. Paragraph 8.I.G. of the Amended Petition stated:

    
    

    Policy 9.13 - species of special concern, habitat rarity, pg 48. This change is inconsistent with the same Florida Statutes and for the same reasons as I.C, I.D, I.E (A, B, C, E, E) and I.F above.

    
    

38. Policy 9.13 contains a requirement to develop model management plans for species of special concern dependent on habitat rarity and loss rates. The amendment to former Policy

    10.13 merely changes the target date (from 1990 to 2002) and adds "species of special concern" to the other resources sought to be addressed by the model management plans. The provision does not establish new regulations. It merely calls for future action in the development of model management plans. Again,

    there was no evidence to support the argument that these changes created a compliance issue. See Findings of Fact 32-33, supra.

    Scrub Habitat Map

    
    

39. Paragraph 8.I.H. of the Amended Petition stated:

    
    

    Appendix - List of Maps, pg 52. The Scrub Habitat Map should not be included because it is part of the Scrub Habitat Study done in Brevard County which was not adopted/accepted as a final map by the Brevard County Board of County Commissioners. The map is a "draft" map done over 5 years ago, not finalized, and not accurate. Objections at public meetings, with Brevard County Staff, and with the outside consultants preparing the map have never been addressed on the map. Among the inaccuracies are hundreds (maybe

    thousands) of acres on government lands.

    The map is wholly deficient and incorrect to become an official map representing the scrub habitat of Brevard County. It doesn't come close to accurately depicting the scrub situation of Brevard County. The map is not supported by competent substantial evidence, has not been officially adopted by the County Commission, the requisite public notices have not been held. Any policy or regulation based upon the map would be equally erroneous and would result in unnecessary regulatory costs, and would be arbitrary or capricious and would be based upon inadequate standards.

    
    

40. At final hearing, Moehle testified: "The scrub habitat map as included in the amendments does not include the best available information which information has been available for a number of years." But the Scrub Jay Habitat map Petitioners sought to use to prove this contention (Petitioners' Exhibit 6) was not admitted into evidence because it was not authenticated.

41. The Scrub Habitat Map apparently added to the Appendix of Conservation Element maps through the B.12 Plan Amendments does not appear to map scrub on federal lands. (At least, no scrub is indicated in the extensive federal lands on the map.) But there was no competent evidence as to the significance of the failure to map scrub habitat on federal lands. (Nor did Petitioners cite to any authority for the proposition that excluding federal lands outside the County's jurisdiction is a violation of Chapter 163 or Rule 9J-5.)

42. While Petitioners never clearly articulated their concerns about the Scrub Habitat Map, it appeared that they might have had concerns about the impact of the map on protection of scrub jays. Specifically, Petitioners seem to contend that some scrub jays will not be protected as a result of the map's omission of scrub on federal lands. But, in that regard, amended Conservation Element Policy 9.2. in the B.12 Plan Amendments provides for the development of an ordinance by 2002 that would provide, among other things, that if any endangered or threatened species or species of special concern are found on a project site, or there is evidence that such a species is onsite, the relevant state and federal agency permits would have to be obtained and documented prior to issuance of a building or construction permit. Once adopted, these regulations would protect scrub jays wherever the birds exist.

43. Another apparent concern was that the Scrub Habitat Map allegedly was over 5 years old. Meanwhile, other maps allegedly have been or are in the process of being developed. But Petitioners' evidence was insufficient to prove beyond fair debate that the Scrub Habitat Map was not the best available data at the time of adoption of the Plan Amendments.

    Land Use Element, Administrative Policies

    
    

44. Paragraph 8.II. of the Amended Petition states:

    
    

    Comprehensive Plan Amendment 1999B.13

    1. The Administrative Policies 1 thru 8 (pg iv) which have been proposed for inclusion in the future Land Use Element by

       the County Attorney and added by a April 29, 2000 workshop were not timely provided for public review and comment by a properly noticed hearing in violation of the notice requirements of Florida Statutes subsections 163.3161(18), 163.3181, 163.3184(15),

       125.66(2) and 125.66(4). They are over- broad, too general in nature, vague, and fail to establish adequate standards for county staff decisions, and vest unbridled discretion in the county staff in violation of Florida Statute 120.54(8). Detailed examples of this include:

       1. In Administrative Policy 1 - Brevard County zoning officials, planners and the director of planning and zoning should not be arbitrarily, capriciously, and without adequate defined standards be recognized as expert witnesses. Standards with detailed qualifications should be developed and included for each category of expert before this provision is considered for adoption.

       2. In Policy 2 (page iv) county staff recommendation should not automatically be considered expert testimony without qualifications.

       3. Page 1 under DIRECTIVES. The Future Land Use paragraph should not be deleted until sufficient emphasis has been placed in the requirement to ensure that sufficient land uses are available to support the anticipated population. It has not been at this time, in violation of Florida Statutes subsections 163.3177(2), 163.3177(3)(a), 163.3177(6)(a) and 163.3177(6)(f).

          
          

45. As to 8.II.A., the evidence indicated that the advertisements were published in the time frames required and

    according to the standards set out by statute. See Findings of

    
    

    Fact 12-14, supra. Furthermore, Petitioners failed to establish that the Administrative Policies 1-8 were unavailable at the public hearing or that the Board of County Commissioners was not authorized to consider those policies.

46. The language of the last sentence of paragraph 8.II. should have been stricken with similar provisions at the beginning of the final hearing because of its reliance on Section 120.54(8), which addresses rulemaking activities and not the compliance requirements of Chapter 163.

47. There was no competent, substantial evidence to support any of the other allegations in paragraph 8.II.A. As to 8.II.A.(iii), there was only Moehle's statement regarding the lack of land availability while he was questioning Poplin. Poplin testified that the County should provide an adequate amount of different land uses to accommodate a variety of people and activities. She also testified that the County had provided more than enough residential land to accommodate projected populations. Poplin noted that the County's EAR (Evaluation and Appraisal Report) included or referenced several sources indicating that the County has more than enough land to meet their residential and non-residential needs through the planning time frame. In fact, she testified that land allocated for

    residential use is over 170 percent of the land necessary for the County's projected population.

48. In explaining the "right-sizing" undertaken in the Plan Amendment, Poplin testified that two major changes have occurred since the adoption of the original County Plan. First, the County sold a substantial amount of land to the water management district; this land is now designated as Conservation. Secondly, some developments have been built to less than their full potential. Poplin testified: "My understanding of the County's actions is that this right sizing is to recognize areas that have developed and maybe have developed at lower densities. So by revising the densities on the map, they're recognizing this." Finally, Poplin testified that the future land use map (FLUM) and the policies proposed in the subject Plan Amendment are consistent with previous actions, previous development patterns, and previous purchases that have occurred within the County.

49. As for Section 163.3177(2), cited by Petitioners at the end of paragraph 8.II.A.(iii) of the Amended Petition, the statute requires coordination of the land use elements. Poplin testified that the County has adequate facilities and services to provide for the land use plan proposed in its FLUM. Section 163.3177(6)(f) requires a housing element. There was no

    evidence that these elements do not exist in the County's comprehensive plan.

    Land Use Element Policy 1.1, Residential Land Use Designations

    
    

50. Almost all of Paragraph 8.II.B. of the Amended Petition was stricken. See Preliminary Statement. Only the

    title and last sentence remained:

    
    

    Residential Land Use Designations, Policy

    1.1 (reduced densities - pg 14). Property owners (including PETITIONERS)

    whose land use/zoning classification is no longer in compliance with the comprehensive plan amendment have not been notified as required by Florida Statutes subsection 125.66.

    
    

    Petitioners themselves provided evidence establishing that the statutory notice was properly given. See Findings of Fact 12- 14, supra.

    Land Use Element Policy 1.2, Public Facilities and Services

    
    

51. The last sentence of Paragraph 8.II.C. of the Amended Petition was stricken. See Preliminary Statement. The remaining allegation was:

    Public Facilities and Services Requirements, Policy 1.2 (page 15). In subsection E, the prohibition by use of the words "shall not" are too harsh, restrictive, and confiscatory and should be replaced "shall not be required at the expense of the County."

    
    

    But the language of Criterion F under Future Land Use Element (FLUE) Policy 1.2 already states what Petitioners seek. Simply stated, Petitioners want the policy to state that private

    parties were not prohibited from building additional public facilities. The second sentence of the policy states: "This criterion is not intended to preclude acceptance of dedicated facilities and services by the county through . . . other means through which the recipients pay for the service or facility." Finally, the language of Criterion F under Policy 1.2 existed elsewhere in the Comprehensive Plan prior to the Plan Amendments; it is not new. The Plan Amendments simply changed the location of the language in the Plan.

    Land Use Policies 1.31 and 1.4

52. Paragraph 8.II.D. of the Amended Petition stated: Residential 30, Policy 1.31 and Residential

    15, Policy 1.4 (pgs. 16, 18). In subsections 1.31.A.1.3 and 1.4.A. respectively, the limitation of this designation to east of Interstate 95 is arbitrary, capricious and is not supported by substantial evidence. It imposes excessive regulatory costs upon regulated property owners. It is confiscatory and fails to recognize the vested rights of property owners. There are areas west of Interstate 95 just as suitable and qualifying as areas east of Interstate 95. This policy fails to recognize existing or new infrastructure which services areas west of I-95 and is therefore inconsistent with other policies. New policy 1.4 is similar and related and also limits densities west of Interstate 95 under all circumstances.

    This change and any other related restrictions to all areas west of I-95 should be eliminated.

53. FLUE Policies 1.3 (the proper number, not 1.31) and

    
    

    1.4 deal with residential densities. Pertinent to Petitioners' complaint, Residential 30, allowing up to 30 units per acre, is located east of Interstate 95; generally, maximum residential density west of Interstate 95 is 15 units per acre in Residential 15, except where "adjacent to existing or designated residential densities of an equal or higher density allowance." Petitioners presented no evidence in opposition to these residential densities or designations or the data and analysis supporting them. To the contrary, Poplin testified that there was adequate data and analysis to support the changes. See Finding of Fact 47, supra. The other issues raised, such as excessive regulatory costs, relate to Section 120.52, Florida Statutes (2000), standards and are not at issue in the proceeding.

    Land Use Policy 2.8, Community Commercial Designation

54. Paragraph 8.II.E. of the Amended Petition stated: Locational and Development Criteria for

    Community Commercial Uses, Policy 2.8

    (pg 38). Subsection B regarding community commercial complexes should not be limited to 40 acres at an intersection for properties that have existing land use or zoning designations compatible to the new Community Commercial designation. The same is true for the limitations of subsections, C, D, and E. These new limitations are confiscatory, fail to recognize existing land use and zoning and vested rights of property owners, are arbitrary, capricious,

    are not supported by competent substantial evidence, enlarge existing regulations without justification. They impose additional regulatory costs on regulated property owners when the goal of Florida Statutes Chapter 163 could be met by less restrictive and costly regulatory alternatives.

    
    

    Other provisions of Policy 2.8, Table 2.2, Policy 2.9, Policy 2.10 that exceed the present regulation of properties having existing land use or zoning designations or actual use should not be allowed for the same reasons. Additionally, many of these amendments were added at a April 29, 2000 workshop without complying with applicable public notice requirements. Public review and input as to these elements was therefore lacking.

    
    

55. The plain language of Criterion B under FLUE Policy

    
    

    2.8 demonstrates that the restrictions have been relaxed, not increased. Previously, Criterion C under Policy 2.8 stated: "Sites for community commercial complexes should not exceed 20 acres." The letter designation of the criterion was changed, and the criterion was amended to read: "Community commercial complexes should not exceed 40 acres at an intersection." The Justification for the change states: "Site size has been enlarged to 40 acres maximum at an intersection. Previously, this criterion could be interpreted to permit a maximum of 80 acres at an intersection (20 acres at each corner). Forty acres has been chosen as this is the DRI threshold for commercial development."

56. On its face, the purpose of amended Criterion B under Policy 2.8 was twofold: to enlarge the site size restriction from 20 to 40 acres; and to clarify that the restriction (now 40 acres) was meant to apply to all community commercial regardless whether they are located at intersections; locating a project on different sides of the street at an intersection was not supposed to double, triple, or even quadruple the maximum site size.

57. Petitioners' position that amended Criterion B under Policy 2.8 shrinks maximum allowable the site size is based on Moehle's assumption that 80-acre projects were permitted at intersections under prior to amended Criterion B under Policy

    2.8. But there was no competent, substantial evidence to support Moehle's assumption.

58. Petitioners also seem to contend that the phrase "at an intersection" is imprecise, leading to uncertainty that undermines the required residential allocation analysis. But it is at least fairly debatable that no more precise definition is necessary. Contrary to Moehle's speculation, it is not reasonable to construe the phrase "at an intersection" to also mean "at an indeterminate distance away from an intersection."

59. Petitioners also took the position that "folding" previous land use classifications into Community Commercial greatly expanded the practical effect of the acreage limitation

    in amended Criterion B under Policy 2.8. Petitioners' evidence did not explain their position in any detail or specificity. It is possible that they had reference to Criterion D under Policy

    4.5 prior to the Plan Amendment, which allowed "regional commercial centers to incorporate up to 100 acres." If so, under the B.13 Plan Amendments, amended Policy 2.12 addresses regional commercial centers by requiring their location in a new Development of Regional Impact (DRI) future land use designation. The Justification for this change was: "With the proposed establishment of a Development of Regional Impact (DRI) land use category, regional uses will no longer be permitted in a commercial future land use designation. Review in accordance with Chapter 380, F.S. standards is intended to simplify readability and maintain consistency with state statutes." Reading amended Criterion B under Policy 2.8 together with amended Policy 2.12, commercial complexes larger than 40 acres are not prohibited under the Plan Amendment; they just have to be developed in a DRI land use category under Chapter 380 DRI standards. The reasonableness of these amendments is at least fairly debatable.

60. Meanwhile, Poplin specifically testified that the data and analysis provided by the County were adequate to support the residential and nonresidential changes, including Community

    Commercial and Neighborhood Commercial changes. No contrary evidence was provided.

61. Policies 2.9 and 2.10 allow minimal extensions of commercial boundaries. No evidence was presented addressing these items.

62. The clear evidence was contrary to Petitioners' claim of notice violations. See Findings of Fact 12-14, supra.

    Transitional Commercial Activities

63. Paragraph 8.II.F. of the Amended Petition states: Transitional Commercial Activities -

    Community Commercial - General Tourist Commercial (TU-1) - Highway Transient Tourist (TU-2). Existing properties with Mixed Use Land Use Designations and General Tourist Commercial (TU-1) and Highway Transient Tourist (TU-2) zoning classifications have not been protected with their existing regulation constraint in the transformation into the new Neighborhood Commercial and Community Commercial Regulations as has been asserted by the COUNTY in the revised objective and policies in the provisions covering these classifications as asserted by the COUNTY. Either proposed changes should conform or the changes should not be made. The same objections and changes are made for the new confiscatory provisions of the COUNTY for existing Industrial Land Use Designations and Zoning classifications under Industrial Land Uses (Objective 3, Policy 3, pg 55).

    The same objections and challenges are made for new confiscatory provisions of Agricultural Land Uses (pg 67) for existing Land Use Designations and densities of lands including reductions of densities to 1 unit per 5 acres by changes from a residential classification (including existing recorded

    subdivision plats). Many new items of the above were made at the April 29, 2000 workshop and proper public notices, review, and comment was not available.

    
    

64. Petitioners failed to demonstrate any impact on actual development as a result of these future land use designation changes. No defect in notice was established by the evidence. Rather, the evidence indicated that all advertising requirements were met. See Findings of Fact 12-14, supra. Finally, Poplin testified that the majority of land uses remained the same based on existing uses, and that all changes were supported by data

    and analysis.

    
    

    Future Land Use Maps Update

    
    

65. Paragraph 8.III.A. of the Amended Petition states: Comprehensive Plan Amendment 1999 B.14.

    The Future Land Use Maps Update Report - The Geographic Information Systems (GIS) maps are not consistent with the existing FLUM and RDG maps. There are corrections and amplifications needed before they are acceptable. The COUNTY did not either have available or make available to the public for review and comment the map(s) as transmitted to DCA at any properly noticed Public Hearing. It was asserted by the COUNTY that no Land Use Designations, Zoning, or Density Allocation changes, were being made to property owners. That is not true. Some specific examples are Sections 3 & 15, located within Township 22 South, Range 34 East, which were changed from Residential to Agriculture Use (density from

    1 unit per acre to 1 unit per 5 acres) and Sections 1, 2, 11, 12, 13, 14 within Township 22 South, Range 34 East, from

    density of 1 unit per acre to 1 acre per 2.5 acres.

    
    

66. The FLUM Report explains that the FLUM series was converted from graphic format to computerized geographic information system (GIS) format; as a result, the Residential Density Guidelines (RDG) map series could be combined with the FLUM series.

67. Petitioners failed to establish any facts demonstrating that the new GIS FLUM series was not available or discussed at properly noticed public hearings. As to notice, see Findings of Fact 12-14, supra.

68. There was no evidence of errors on the GIS maps.

    
    

    Petitioners complained that the GIS maps are unusable because they are too hard to read, especially because they were black and white. But actually the FLUM series is in color. There was no competent, substantial evidence that the color maps were too hard to read or unusable.

69. Petitioners generally complained about residential density reductions but failed to present any competent, substantial evidence as to what supposedly was wrong with those reductions.

70. Petitioners seem to believe that they should be able to obtain all information regarding their property from the Comprehensive Plan. There is no regulation cited by Petitioners

    requiring that the maps be of sufficient detail to enable someone to determine all possible uses of property based solely on a review of the maps. As a practical matter, additional site-specific information is nearly always necessary. In addition, GIS maps are computerized maps which are merely referenced by the Plan. The GIS system must ultimately be consulted regarding site-specific information.

71. Poplin testified that the GIS updating of the FLUM and RDG map series was done primarily to streamline and consolidate the two previously separate maps. Contrary to Petitioners' assertions, Poplin testified that the conversion from two graphic maps to the GIS maps was a very positive change.

    Mixed Use District Conversion

    
    

72. Paragraph 8.III.B. of the Amended Petition stated:

    
    

    Under the MIXED USE DISTRICT CONVERSION (pg

    1) - Mixed Use District (MUD) land use designation and zoning classification of General Tourist Commercial (TU-1) or Highway Tourist Commercial (TU-2) existing classifications were not listed as being reclassified (to be designated as Community Commercial).

    
    

73. Petitioners base this contention solely on the FLUM Update in the B.14 Plan Amendments. Petitioners' contention ignores FLUE Policy 2.7 in the B.13 Plan Amendments, one of the operative policies relating to the conversion from MUD. Policy

    2.7 states which uses are allowed under the Community Commercial

    designation. Subparagraph "c" lists "Tourist Commercial uses" as being a use under Community Commercial.

74. In their response to the motion for involuntary dismissal, Petitioners finally acknowledged Policy 2.7 but still maintain that it cannot be determined whether TU-1 and TU-2 zoning will be classified as Community Commercial or as Neighborhood Commercial. In making this argument, Petitioners ignore FLUE Policy 2.5, another operative policy in the B.13 section of the Plan Amendment, relating to the conversion from MUD. Policy 2.5 lists "[d]evelopment activities which may be considered within Neighborhood Commercial" and omits any "tourist commercial" development activities.

75. Based on the evidence, it seems clear that both TU-1 and TU-2 zoning will be classified as Community Commercial, and not as Neighborhood Commercial. Petitioners' allegations that they were omitted from the MUD conversion are incorrect.

    More About the Glossary

    
    

76. Paragraph 8.I.V. of the Amended Petition stated:

    
    

    Glossary, Definitions, Thresholds, Maps relating to Comprehensive Plan Amendments 1999 B.12, 1999 B.13 and 1999 B.14.

    
    

    1. Revised Glossary. A new Glossary and definitions was never completed and made available to the public before any properly noticed Public Hearing to properly allow public review, input, comment, etc. Incomplete or inaccurate data on thresholds and maps relating to Comprehensive Plan

       Amendments 1999 B.12, 1999 B.13 and 1999

       B.14 were also not available.

       
       

77. As previously found, the Glossary was not amended, and it would be inappropriate to advertise the Glossary for changes. There is no requirement that a glossary be included in a comprehensive plan. When a glossary is included, not every word in a comprehensive plan must be included.

    Forested Wetlands Location Map

    
    

78. At final hearing, Petitioners asserted that the Forested Wetlands Location Map referred to and incorporated by reference in Policy 5.2.F.3. of the Conservation Element was not the best available data. This issue was not raised in the Amended Petition, and consideration of the merits of the assertion has been waived. In addition, as previously found, the language of Policy 5.2.F.3. was adopted prior to the Plan Amendments at issue in this case. See Finding of Fact 8, supra.

79. On the merits of the argument, three forested wetlands maps were offered into evidence (as Petitioners' Exhibits 2, 3, and 4.) Only Petitioners' Exhibit 2 was admitted into evidence. Petitioners' Exhibit 2 reflects the Forested Wetlands Location Map incorporated by reference as part of the County's comprehensive plan. Without Petitioners' Exhibits 3 or 4 being in evidence, or any other evidence on the issue, Moehle's testimony was insufficient to prove beyond fair debate that the

    Forested Wetlands Location Map incorporated by reference as part of the County's comprehensive plan was not the best available data at the time of incorporation.

    CONCLUSIONS OF LAW

    
    

80. Section 163.3184(9)(a) permits an "affected person" to file a petition challenging DCA's notice of intent to find comprehensive plan amendments to be "in compliance."

    Standing

81. Section 163.3184(1)(a) states: "Affected person" includes the affected

    local government; 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; and adjoining local governments that can demonstrate that the plan or plan amendment will produce substantial impacts on the increased need for publicly funded infrastructure or substantial impacts on areas designated for protection or special treatment within their jurisdiction. Each person, other than an adjoining local government, in order to qualify under this definition, shall also have submitted oral or written comments, recommendations, or objections to the local government during the period of time beginning with the transmittal hearing for the plan or plan amendment and ending with the adoption of the plan or plan amendment. (Emphasis added.)

    
    

82. Credible proof to establish submittal of the required written comments or their receipt by the local government is required to meet the standing requirement of submitting written

    comments within the specified time frame. See Russ v.

    
    

    Tallahassee-Leon County, et al., DOAH Case No. 97-2950GM (Recommended Order issued August 22, 1997), subsequently settled and voluntarily dismissed, Russ v. Tallahassee-Leon County et al., Department of Community Affairs, Final Order No. DCA96-114-

    FOI-GM, issued June 14, 1996. See also Citizens for a Better Destin, Inc. v. Department of Community Affairs and City of Destin, DOAH Case No. 96-2015GM (Recommended Order of Dismissal issued May 31, 1996), holding:

    The Statute (163.3184(1)(a)) is clear and unambiguous. It requires that an authorized representative (of Petitioner) have made oral or written comments, recommendations or objections to the City during either the transmittal or adoptive phases of the challenged ordinance.

    
    

    Citizens for a Better Destin, Inc. v. Department of Community Affairs and City of Destin, Department of Community Affairs, Final Order No. DCA97-222-FOF-GM, issued August 27, 1997.

83. As found, Petitioners did not prove that they submitted oral or written comments, recommendations, or objections to the County regarding these Plan Amendments, as required by Section 163.3184(1)(a).

    Notice

    
    

84. Section 163.3184(15) requires that a comprehensive plan be adopted by at least two public hearings. Paragraph (b)1. provides that the first public hearing shall be held at

    the transmittal stage on a weekday at least 7 days after the day the first advertisement is published. Paragraph (b)2. provides that the second public hearing shall be held at the adoption stage on a weekday at least 5 days after the day the second advertisement is published. The evidence was that these timing requirements were met.

85. Section 163.3184(15)(c) states that if a comprehensive plan or plan amendment changes the actual list of permitted, conditional, or prohibited uses within a future land use category or changes the actual FLUM designation of a parcel or parcels of land use categories or map, the required advertisements shall be in the format prescribed by Section 125.66(4)(b)2. Section 125.66(4)(b)2 states:

    The required advertisements shall be no less than 2 columns wide by 10 inches long in a standard size or a tabloid size newspaper, and the headline in the advertisement shall be in a type no smaller than 18 point. The advertisement shall not be placed in that portion of the newspaper where legal notices and classified advertisements appear. The advertisement shall be placed in a newspaper of general paid circulation in the county and of general interest and readership in the community pursuant to chapter 50, not one of limited subject matter. It is the legislative intent that, whenever possible, the advertisement shall appear in a newspaper that is published at least 5 days a week unless the only newspaper in the community is published less than 5 days a week. The advertisement shall be in substantially the following form:

    NOTICE OF (TYPE OF) CHANGE

    
    

    The (name of local governmental unit) proposes to adopt the following by ordinance or resolution: (title of ordinance or resolution).

    
    

    A public hearing on the ordinance or resolution will be held on (date and time) at (meeting place).

    
    

    Except for amendments which change the actual list of permitted, conditional, or prohibited uses within a zoning category, the advertisement shall contain a geographic location map which clearly indicates the area within the local government covered by the proposed ordinance or resolution. The map shall include major street names as a means of identification of the general area.

    
    

    The evidence was that the advertisements for the transmittal and adoption hearings were in the required format.

86. Petitioners appear to rely on the advertisements for local planning agency hearings other than the transmittal and adoption hearings to make their case that notice was inadequate. But the "required advertisements" mentioned in Section 163.3184(15)(c) are those described in the preceding paragraph

    (b).

    
    

87. Petitioners also argue that the County's

    
    

    advertisements violate to Sections 163.3174 and 163.3164(18). But these statutes are not compliance criteria under Section 163.3184(1)(b). See Conclusion of Law 88, infra. In addition, while Section 163.3174 requires local planning agencies to

    prepare comprehensive plan amendments after hearings to be held after "public notice," and Section 163.3164(18) defines "public notice" to mean "notice as required by s. 125.66(2) for a county," "notice as required by s. 125.66(2) for a county" is not the same as the notice requirements of Section 125.66(4)(b)2. Section 125.66(2) only requires publication in a newspaper of general circulation in the county at least 10 days prior to the meeting; the more specific requirements of Section 125.66(4)(b)2 are not included.

    Burden and Standard of Proof of Noncompliance

    
    

88. 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."

89. 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 Amendments at issue in this case, Petitioners bear the burden of

    proving, beyond fair debate, that the Plan Amendments are not "in compliance." See Young v. Department of Community Affairs, 625 So. 2d 831, 833-35 (Fla. 1993).

90. The term "fairly debatable" is not defined in Chapter 163, Florida Statutes, or in Florida Administrative Code Rules Chapter 9J-5, the rules promulgated under those statutes. The Supreme Court of Florida has opined that the fairly debatable standard under Chapter 163 is the same as the common law "fairly debatable" standard applicable to decisions of local governments acting in a legislative capacity. In Martin County v. Yusem, 690 So. 2d 1288, 1295 (Fla. 1997), the Court opined: "The fairly debatable standard of review is a highly deferential standard requiring approval of a planning action if reasonable persons could differ as to its propriety." See also B & H Travel Corp. v. Department of Community Affairs, 602 So. 2d 1362 (Fla. 1st DCA), app. dism. and rev. denied, 613 So. 2d 1 (Fla. 1992). Quoting from City of Miami Beach v. Lachman, 71 So. 2d

    148, 152 (Fla. 1953), the Court stated further: "[a]n ordinance may be said to be fairly debatable when for any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction that in no way involves its constitutional validity." 690 So. 2d at 1295. The Court cautioned, however: "even with the deferential review of legislative action afforded by the fairly debatable rule, local

    government action still must be in accord with the procedures required by chapter 163, part II, Florida Statutes, and local ordinances." Id.

91. As found, in addition to failing to prove standing or any notice violations, Petitioners also failed to meet their burden of proof and persuasion as to any of their substantive claims that the Plan Amendments were not "in compliance."

RECOMMENDATION

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

RECOMMENDED that the Department of Community Affairs enter a final order dismissing the Amended Petition and finding that Brevard County's Plan Amendments B.12, B.13, and B.14 are "in compliance."

DONE AND ENTERED this 21st day of May, 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 21st day of May, 2001.

COPIES FURNISHED:

Eden Bentley, Esquire

Brevard County Attorney's Office 2725 St. Johns Street

Viera, Florida 32940

Andrew S. Grayson, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

Charles F. Moehle Modern, Inc.

Post Office Box 321417 Cocoa Beach, Florida 32932

Steven M. Seibert, Secretary Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399-2100

Cari L. Roth, General Counsel 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: 00-003913GM

Orders for Case No: 00-003913GM