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  5. PAUL HUNTER, KELLY HUNTER, GEORGE L. KELLGREN AND RUBI KELLGREN vs CITY OF COCOA, FLORIDA AND DEPARTMENT OF COMMUNITY AFFAIRS, 05-001221GM (2005)

PAUL HUNTER, KELLY HUNTER, GEORGE L. KELLGREN AND RUBI KELLGREN vs CITY OF COCOA, FLORIDA AND DEPARTMENT OF COMMUNITY AFFAIRS, 05-001221GM (2005)

Court: Division of Administrative Hearings, Florida Number: 05-001221GM Visitors: 40
Petitioner: PAUL HUNTER, KELLY HUNTER, GEORGE L. KELLGREN AND RUBI KELLGREN
Respondent: CITY OF COCOA, FLORIDA AND DEPARTMENT OF COMMUNITY AFFAIRS
Judges: CHARLES A. STAMPELOS
Agency: Department of Community Affairs
Locations: Cocoa, Florida
Filed: Apr. 04, 2005
Status: Closed
Recommended Order on Monday, July 3, 2006.
Latest Update: Oct. 02, 2006
Summary: Whether the Large Scale Comprehensive Plan Map and Text Amendment No. 04-2 (Plan Amendment) to the City of Cocoa's (City) Comprehensive Plan (Plan), adopted by Ordinance No. 39- 2004, is "in compliance" as that term is defined in Section 163.3184(1)(b), Florida Statutes.1Petitioners did not prove beyond fair debate that amendments to the City of Cocoa`s Text and Future Land Use Map portion of its Comprehensive Plan were not "in compliance."
STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS BREVARD COUNTY, Petitioner, Vv. CITY OF COCOA, FLORIDA and DEPARTMENT OF COMMUNITY AFFAIRS, Respondents, and FLORIDA SPACE NEEDLE, LLC, and HAGEN- NICHOLSON, LLC, Intervenors. a PAUL R. HUNTER, KELLY M. HUNTER, GEORGE L. LELLGREN, and RUBI KELLGREN, Petitioner, Vv. CITY OF COCOA, FLORIDA and DEPARTMENT OF COMMUNITY AFFAIRS, Respondents, and FLORIDA SPACE NEEDLE, LLC, and HAGEN- NICHOLSON, LLC, Intervenors. Final Order No. DCAb6.GM-24 DOAH CASE No. 05-1220GM DOAH CASE No. 05-1221GM Final Order No. DCA06-GM-249 FINAL ORDER S, ‘ This matter was considered by the Secretary of the Department of Comps ‘5 Respondent, and FLORIDA SPACE NEEDLE, LLC, and HAGEN-NICHOLSON, LLC, Intervenor. CITY OF COCOA AND FLORIDA SPACE NEEDLE’S JOINT RESPONSES 'To PETITIONER BREVARD COUNTY’ g EXCEPTIONS TQ RECOMMENDED ORDER eS RE ED RECOMMENDED ORDER Respondent City of Cecoa and Intervenor/Raspondent, Florida Space Needle, LLC (collectively, “Respondents” } by and through 1of8 JUL~28-2886 14:22 GRAYROBINSON 487 418 6554 P.a3/a9 their undersigned counsel respectfully submit the following Tesponses to Brevard County's Exceptions to the Recommended Order entered in the above-styled case on July 3, 2006 by Administrative Law Judge Charles A, Stampelos, Response to Exception 1 The subject comprehensive plan amendments were based upon population projections, aa tequized by subsection 163.3177 (6) (a) of tha Florida Statutes and Rules 93-5.005(2) (e) and 9g~ 5.006(2) (a) of the Florida Administrative Code, (1) Brevard County objects to the findings of fact in the first sentence of Paragraph 27 to the extent that it implies that the “population figures based on BEBR” provided by the City are the population projections required by subsection 163.3177(6) (a) of the Florida Statutes and Rules 93~5.005 (2) (a) and 9J-5.006(2) (c) of the Florida Administrative Code. There are no specific requirements in the aforementioned statue and rules with regard to how Population projections must be presented by the City for the purpose of an “in compliance” determination. As recognized in Paragraph 28 of the Recommended Order, a needs analysis for property “typically” consists of an examination of the Projected population over the planning time period, the land uses that exist within the local government, the amounts of the land uses, and then a determination of whether the local government has eneugh land to meet the 20f8 JUL~28-2686 14:22 GRAYROBINSON 467 418 6554 PP. @4veg . 1 projected population, “However, a quantitative analysis is not the only way to perform a naeds analysis.” The fact that Paragraph 27 of the Recommended Order states that “Furthermore, the City provided the DCA with population figures based on BEBR” doeg not imply that the BEBR figures are the figures which represent the “projected population of the area.” The BEBR and Census figure set forth in Footnote 7 of the Recommended Order were additional data and analysis along with the survays and studies performed and provided by the City to indicate that Cocoa’s population was declining. Additionally, as set forth in the Recommended Order, there was competent, substantial evidence that the areas all around the City were growing, so the City’s annexation of the growing area captured the growth. The BEBR figures, along with the studies and surveys conducted by the City as te how the City could begin to grow again along with the data and analysis provided in the Maps and Charts which indicate how much vacant, developable, residential land was located within the City adequately met DCA’s requirements to Find the plan amendment “in compliance” and adequately met the requirements of the statue and rules cited by Brevard County. (2) Brevard County objects to the findings of fact in the second and third sentences of Paragraph 28 and states that the 3 of 8 JUL~-28-2886 14:22 GRAYROBINSON 4a? 418 6554 =P. @5va9 t paragraph “seems to suggest” that the Population projection data requirements of the Florida Statutes and Florida Administrative Code may be waived to accommodate a City’s future plan and aspirations. Additionally, Brevard County claims that these Sentences “appear to comprise a conclusion of law, rather than a finding of fact.” As set forth in Paragraphs 23-26 and 32, Cocoa is a city with a unique set of circumstances. Cocoa had several years where its population was shrinking, rather than growing like all of the rest of the cities and unincorporated areas of Brevard County. Following Brevard County’ s line of reasoning, a City with a declining population, no matter what studies, surveys, data or analysis is presented to DCA, will never be able to justify the need for additional property designated as residential. As stated in the last two sentences of Paragraph 28, DCA explained that a quantitative analysis is not the only way to perform a needs analysis. DCA also takes into consideration a city’s plan for its future, the way it wants to grow, and the growth of the Surrounding areas which could be and Was captured by the City. The explanation of alternative ways that pca performs a needs analysis is a finding of fact, [t is a fact that DCA is not rigid in its requirements, It is a fact that DCA considered Cocoa’s plan for its future, how it wants to grow, how it could 40f8 JUL-28-2886 14:23 GRAYROBINSON 407 418 6554 = P.m6/a9 grow by capturing surrounding growth, and how it Plans to meet its housing element requirements. As set forth in Paragraphs 135 and 136, the findings of law with regard to these findings of fact is that Cocoa conducted the needs analysis required by the Florida Statues and Florida Administrative Code, and Cocoa's use of BEBR estimates and a map demonstrating the vacant lands Was a professionally acceptable methodology. (3) Brevard County objects to the findings of fact in Paragraph 29 to the extent that it suggests that the City’s needs analysis “devoid of population projections” satisfies the data requirements of Florida Statutes and the Florida Administrative Code, Subsection 163.3177(6) (a) provides that the future land use plan shall be based upon “data regarding the area .. , the projection population of the area + + 2 4” (Emphasis added). The City’s needs analysis was not devoid of population projections, As set forth in the findings of fact, the City’s needs analysis demonstrated that the Population had been declining, the steps taken by the City was turning around the declining population, the areas Surrounding the City were growing, to capture some of that growth and future population the City had to annex, and the City had a “need” for vacant developable land which was designated as residential. 5 of 8 JUL-28-2886 14:23 GRAYROBINSON 4@? 419 6554 =P. a7vag (4) Brevard County objects to the conclusions of law set forth in Paragraph 135 claiming that the City relied on an “outdated, flawed population projection”, and that the comprehensive plan amendments were not based upon projected population data and analysis. To the contrary, as explained above, the City’s comprehensive plan amendments were supported and approved hy the DCA based on the declining population, the surrounding growing population, there was little or no available vacant developable land designated as residential within the City, and the surveys, studies, data and analysis that provided that the City needed the plan amendment to meet its requirements set forth in the housing element of the comprehensive plan. (5) Brevard County objects to the conclusions of law seat forth in Paragraphs 136-137 in that the City “could not have Conducted the proper needs analysis mandated by statute and rule” because there was no competent substantial evidence that the City based the comprehensive plan amendments upon population projection data. DCA is the party responsible for performing the needs analysis set forth in the Florida Statutes and Florida Administrative Code. The data and analysis that was provided by the City was sufficient to satisfy the DCA’s needs analysis. 6o0f8 JUL-28-2886 14:23 GRAYROBINSON 4@7 418 6554 =P. @8vag (6) Based on the foregoing, Respondents respectfully request that the Recommended Order be adopted in its entirety finding the comprehensive plan amendments adopted by the City “in compliance”, and that Brevard County's Exceptions to the Recommended Order be rejected, Respectfully submitted, » CLOUD} . Florida Bar Number: 2 26 HEATHER M, BLOM-RAMOS, BSQ. Florida Bar Number: 588601 GRAYROBINSON, P.A, 301 East Pine Street, Suite 1400 Orlando, Florida 32801 Telephone (407) 843-8880 Facsimile (407) 244-5690 Attorneys for Intervenor/Respondent Florida Space Needle, LLC CHER, ESQUIRE Florida Bar Number: 996580 Brown, Garganese, Weiss D’ Agresta 225 East Robinson Street, Ste 660 P. 0, Box 2873 Orlando, Florida 32902 Telephone (407) 425-9566 Attorney for City of Cocoa 70f8

Docket for Case No: 05-001221GM
Issue Date Proceedings
Oct. 02, 2006 Final Order filed.
Jul. 03, 2006 Recommended Order (hearing held August 16-18, 2006 and December 13, 2005). CASE CLOSED.
Jul. 03, 2006 Recommended Order cover letter identifying the hearing record referred to the Agency.
Jun. 09, 2006 Letter to Judge Stampelos from L. Bryson regarding scriveners` errors in the Joint Proposed Recommended Order filed.
May 25, 2006 Order Denying Joint Motion to Retain Jurisdiction.
May 22, 2006 Petitioners` Joint Response in Opposition to City of Cocoa and Florida Space Needle`s Joint Motion to Retain Jurisdiction to Award Fees and Costs filed.
May 22, 2006 Department of Community Affairs` Response in Opposition to Petitioners` Joint Request for Official Recognition filed.
May 22, 2006 Hagen-Nicholson LLC`s Opposition to Petitioners` Motion to Strike Reservation of Right to Seek Attorney`s Fees filed.
May 19, 2006 Order (motion to strike the respective notices of intent to seek fees and costs and alternative request for a more definite statement are moot; ruling on the motion to retain jurisdiction is reserved pending a response to the motion).
May 17, 2006 City of Cocoa and Florida Space Needle`s Joint Opposition to Petitioners` Motion to Strike Reservation of Right to Seek Attorney`s Fees filed.
May 16, 2006 Petitioners Notice of Filing of Certificate of Service to Petitioners Joint Request for Official Recognition filed.
May 16, 2006 Certificate of Service to Petitioners Joint Request for Official Recognition filed.
May 15, 2006 Petitioners Joint Request for Official Recognition filed.
May 11, 2006 City of Cocoa and Florida Space Needle`s Joint Motion to Retain Jurisdiction to Award Fees and Costs filed.
May 08, 2006 Petitioners` Joint Motion to Strike Respondent City`s and Intervenors` Notices of Reservation of Right to Seek Attorney`s Fees, or in the alternative, Motion for More Definite Statement (filed in Case No. 05-1221GM).
May 08, 2006 Letter to Judge Stampelos from M. Richardson regarding two Scriveners` errors in the conclusions of law section of the PRO filed.
May 08, 2006 Hagen-Nicholson LLC`s Notice of Reservation of Right to Seek Attorney`s Fees filed.
May 04, 2006 City of Cocoa`s Notice of Reserving Right to seek Fees and Costs filed.
May 01, 2006 Joint Proposed Recommended Order of Respondents Department of Community Affairs and City of Cocoa and Intervenors Florida Space Needle and Hagen-Nicholson filed.
May 01, 2006 Notice of Filing Joint Proposed Recommended Order of Respondents Department of Community Affairs and City of Cocoa, and Intervenors Florida Space Needle, LLC and Hagen-Nicholson Properties, LLC filed.
May 01, 2006 Petitioners` Joint Proposed Recommended Order filed.
May 01, 2006 Florida Space Needle`s Notice of Reservation of Right to Seek Attorney`s Fees filed.
May 01, 2006 Notice of Appearance (filed by M. Richardson).
Mar. 30, 2006 Transcript (Volumes I-III) filed.
Mar. 30, 2006 Notice of Filing of Hearing Transcript filed.
Feb. 17, 2006 Status Report filed.
Feb. 07, 2006 Order (status report shall be filed on or before February 17, 2006).
Jan. 06, 2006 Order (Intervenor, Florida Space Needle, LLC`s Request to Take Official Recognition is granted).
Jan. 03, 2006 Transcript of Proceedings (Volumes I and II) filed.
Dec. 20, 2005 Intervenor, Florida Space Needle, LLC`s Request for Judical Notice filed.
Dec. 16, 2005 Letter to Judge Stampelos from H. Blom Ramos enclosing Hearing Exhibits filed (not available for viewing).
Dec. 13, 2005 CASE STATUS: Hearing Held.
Dec. 09, 2005 Amended Notice of Hearing (hearing set for December 13, 2005; 8:00 a.m.; Cocoa, FL; amended as to time).
Nov. 17, 2005 Amended Notice of Hearing (hearing set for December 13, 2005; 9:00 a.m.; Cocoa, FL; amended as to location).
Oct. 20, 2005 Order Granting Continuance and Re-scheduling Hearing (hearing set for December 13, 2005; 9:00 a.m.; Cocoa, FL).
Oct. 19, 2005 Motion to Continue and Reschedule November 3 Hearing filed.
Sep. 07, 2005 Order Granting Continuance and Re-scheduling Hearing (hearing set for November 3, 2005; 9:00 a.m.; Cocoa, FL).
Sep. 02, 2005 Motion to Continue and Reschedule September 8 Hearing filed.
Aug. 29, 2005 Amended Notice of Hearing (hearing set for September 8, 2005; 9:00 a.m.; Cocoa, FL; amended as to date, time, and location).
Aug. 16, 2005 CASE STATUS: Hearing Partially Held; continued to September 8, 2005.
Aug. 15, 2005 Intervenor, Florida Space Needle, LLC`s Request for Judical Notice filed.
Aug. 12, 2005 Joint Pre-hearing Stipulation filed.
Aug. 12, 2005 Respondent Department`s Motion in Limine Regarding Evidence of Public Participation Issues filed.
Aug. 11, 2005 City`s Motion in Limine to Exclude Evidence Regarding Lack of Public Participation filed.
Aug. 11, 2005 The City of Cocoa`s and Florida Space Needle`s Motion to Strike Brevard County`s Expert Gary Carlin and Motion in Limine to Exclude New Data and Analysis filed (exhibit not available for viewing).
Aug. 10, 2005 Notice of Cancelling Depositions of Todd Corwin and Robin Sobrino, and Rescheduling Deposition Duces Tecum of Steve Swanke filed.
Aug. 09, 2005 Notice of Taking Deposition filed.
Aug. 08, 2005 Notice of Taking Deposition Duces Tecum of Todd Corwin, Steve Swanke, and Robin Sobrino filed.
Aug. 04, 2005 Brevard County`s Responses to Cocoa`s Request to Produce filed.
Jul. 29, 2005 Notice of Cancelling and Rescheduling Deposition of John Denninghoff filed.
Jul. 26, 2005 Notice of Taking Deposition Duces Tecum filed.
Jul. 25, 2005 Notice of Taking Deposition of John Denninghoff filed.
Jul. 25, 2005 Notice of Taking Deposition of Edward J. Williams filed.
Jul. 21, 2005 Notice of Taking Deposition Duces Tecum filed.
Jul. 18, 2005 Brevard County`s Notice of Service of Responses to Florida Space Needle`s First Interrogatories to Brevard County filed.
Jul. 18, 2005 Brevard County`s Responses to Florida Space Needle`s First Request for Production of Documents filed.
Jul. 11, 2005 Intervenor, Florida Space Needle LLC`s Request for Copies to Petitioner George Kellgren filed.
Jul. 11, 2005 Intervenor, Florida Space Needle LLC`s Request for Copies to Petitioner Rubi Kellgren filed.
Jul. 11, 2005 Intervenor, Florida Space Needle LLC`s Request for Copies to Petitioner Brevard County filed.
Jul. 11, 2005 Intervenor, Florida Space Needle LLC`s Request for Copies to Petitioner Paul Hunter filed.
Jul. 11, 2005 Intervenor, Florida Space Needle LLC`s Request for Copies to Petitioner Kelly Hunter filed.
Jun. 30, 2005 Respondent, City of Cocoa`s Request for Copies filed.
Jun. 21, 2005 Respondent City of Cocoa`s Request to Produce to Petitioner, Brevard County filed.
Jun. 21, 2005 Respondent City of Cocoa`s Request to Produce to Petitioner, Paul Hunter filed.
Jun. 21, 2005 Respondent City of Cocoa`s Request to Produce to Petitioner, Kelly Hunter filed.
Jun. 21, 2005 Respondent City of Cocoa`s Request to Produce to Petitioner, George Kellgren filed.
Jun. 21, 2005 Respondent City of Cocoa`s Request to Produce to Petitioner, Rubi Kellgren filed.
Jun. 21, 2005 Notice of Service of First Interrogatories to Rubi Kellgren filed.
Jun. 21, 2005 Notice of Service of First Interrogatories to George Kellgren filed.
Jun. 21, 2005 Notice of Service of First Interrogatories to Kelly Hunter filed.
Jun. 21, 2005 Notice of Service of First Interrogatories to Paul Hunter filed.
Jun. 21, 2005 Notice of Service of First Interrogatories to Brevard County, Florida filed.
Jun. 13, 2005 Florida Space Needle`s First Request for Production of Documents to Brevard County filed.
Jun. 13, 2005 Florida Space Needle`s Notice of Service of Interrogatories to Brevard County filed.
Jun. 10, 2005 Order (Hagen-Nicholson may appear as an Intervenor).
Jun. 06, 2005 Hagen-Nicholson LLC`s Petition to Intervene filed.
Jun. 03, 2005 Notice of Taking Deposition Duces Tecum filed.
May 05, 2005 Order Granting Continuance and Re-scheduling Hearing (hearing set for August 16 through 18, 2005; 9:00 a.m.; Cocoa, FL).
May 02, 2005 Brevard County`s Motion for Continuance filed.
Apr. 20, 2005 Order (denying Petitioner`s opposed motion to abate).
Apr. 20, 2005 Intervenor, Florida Space Needle LLC`s Response in Opposition to Petitioner Brevard County`s Motion to Abate filed.
Apr. 19, 2005 City of Cocoa`s Response to Petitioner`s Motion to Abate filed.
Apr. 18, 2005 Petitioners Hunter and Kellgren`s Response to Initial Order filed.
Apr. 13, 2005 Motion to Abate filed.
Apr. 12, 2005 Order of Pre-hearing Instructions.
Apr. 12, 2005 Notice of Hearing (hearing set for July 6 through 8, 2005; 9:00 a.m.; Cocoa, FL).
Apr. 12, 2005 Order Granting Leave to Intervene (Florida Space Needle, LLC).
Apr. 11, 2005 Florida Space Needle`s Response to Initial Order filed.
Apr. 11, 2005 Joint Response to Initial Order filed.
Apr. 11, 2005 Florida Space Needle LLC`s Petition to Intervene filed.
Apr. 05, 2005 Order Consolidating Cases (consolidated cases are: 05-1220GM and 05-1221GM).
Apr. 04, 2005 Initial Order.
Apr. 04, 2005 Notice of Intent to find the City of Cocoa Comprehensive Plan Amendments in Compliance filed.
Apr. 04, 2005 First Amended Petition for Formal Administrative Hearing filed.
Apr. 04, 2005 Agency referral filed.

Orders for Case No: 05-001221GM
Issue Date Document Summary
Sep. 29, 2006 Agency Final Order
Jul. 03, 2006 Recommended Order Petitioners did not prove beyond fair debate that amendments to the City of Cocoa`s Text and Future Land Use Map portion of its Comprehensive Plan were not "in compliance."
Source:  Florida - Division of Administrative Hearings
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