STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD M. BROOKE, )

)

Petitioner, )

)

vs. )

) UNIVERSITY OF CENTRAL FLORIDA, )

)

Respondent. )

Case No. 06-0327

)

RONALD M. BROOKE, )

)

Petitioner, )

)

vs. )

) UNIVERSITY OF CENTRAL FLORIDA, )

)

Respondent. )

Case Nos. 06-0328

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in these consolidated cases before Daniel M. Kilbride, Administrative Law Judge of the Division of Administrative Hearings, on March 6 through 10, 2006, and continued to completion on March 13 through 15, 2006, in Orlando, Florida.

APPEARANCES

For Petitioner: Ronald M. Brooke, pro se

2421 Brixham Avenue

Orlando, Florida 32828

For Respondent: Brenna M. Durden, Esquire

Melissa Gross-Arnold, Esquire Lewis, Longman & Walker, P.A.

245 Riverside Avenue, Suite 150 Jacksonville, Florida 32202

W. Scott Cole, General Counsel University of Central Florida Board of Trustees

4000 Central Florida Boulevard Orlando, Florida 32816

STATEMENT OF THE ISSUES AS TO CASE NO. 06-0328

Whether the Campus Master Plan Amendments adopted by Respondent, University of Central Florida's, Board of Trustees, on November 30, 2004 (2005-2015 Campus Master Plan), complies with the requirements of Section 1013.30, Florida Statutes,1/ and Florida Administrative Code Chapter 6C-21;

Whether Petitioner, Ronald M. Brooke, was provided a clear point of entry to the administrative process, but failed to timely file the Petition challenging the 2005-2015 Campus Master Plan Amendments; and

Whether Respondent should be awarded reasonable attorneys' fees and costs under either Subsection 120.569(2)(e) or 1013.30(8)(d), Florida Statutes.

AS TO CASE NO. 06-0327

Whether the Campus Master Plan Amendments adopted by Respondent, University of Central Florida's, Board of Trustees, on November 9, 2005 (the 2005 Stadium Amendment), complies with

the requirements of Section 1013.30, Florida Statutes, and Florida Administrative Code Chapter 6C-21; and

Whether Respondent should be awarded reasonable attorneys' fees and costs under either Subsection 120.569(2)(e) or 1013.30(8)(d), Florida Statutes.

PRELIMINARY STATEMENT

On December 14, 2005, Petitioner, Ronald M. Brooke (Petitioner), filed a Petition with Respondent, the University of Central Florida (UCF or Respondent), challenging two actions of UCF's Board of Trustees (BOT): (1) Numerous amendments to the previous Campus Master Plan (CMP), which became known as the 2005-2015 CMP Amendment, adopted on November 30, 2004;

and (2) A "major" amendment to the 2005-2015 CMP Amendment relating to the addition of an on-campus football stadium (2005 Stadium Amendment) adopted on November 9, 2005. The general counsel for UCF and the BOT responded to the Petitions by issuing an Order Dismissing Petition with Leave to Amend within

15 days of service of the Order dated December 20, 2005. An extension of time was granted while Petitioner was in Germany in late December 2005 until early January 2006, permitting Petitioner leave to file an amended Petition in each case until January 23, 2006. On January 23, 2006, Petitioner filed two Amended Verified Petitions, one for each case with UCF.

On January 25, 2005, after a determination that each of the Amended Petitions substantially complied with the statutory and rule provisions governing challenges to amendments to a CMP, the General Counsel's Office of UCF forwarded the Petitions to the Division of Administrative Hearings (DOAH) for a formal administrative hearing, pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.

Upon receipt of the Amended Petitions, the 2005 Stadium Amendment was assigned DOAH Case Nos. 06-0327, and the 2005-2015 CMP Amendment was assigned DOAH Case No. 06-0328. Both cases were assigned to the undersigned ALJ on January 26, 2006. After notice and a pre-hearing telephonic conference, Orders were entered consolidating both cases for hearing and setting an expedited discovery schedule.

As to DOAH's jurisdiction over Case No. 06-0328 (2005-2015 CMP Amendment), Petitioner argues that DOAH does not have jurisdiction because that Petition must be reviewed in accordance with the procedures set forth in Subsection 1013.30(8), Florida Statutes. This provision, in the prior version of the statute, required UCF, after the failure of mediation, to forward the Petition to the Department of Community Affairs (DCA) for an informal administrative hearing with final agency action authority resting with the Administration Commission. In 2005, amendments to Subsection

1013.30(8), Florida Statutes, changed the process and procedures related to challenges to CMPs and became effective July 1, 2005. Florida law is clear that, absent a clear legislative intent, a statutory amendment that relates to remedies or procedures has a retrospective effect and is applied immediately upon its effective date. Rothermel v. Florida Parole and Probation

Commission, 441 So. 2d 663, 664-665 (Fla. 1st DCA 1983), approved by Griffith v. Florida Parole and Probation Commission, 485 So. 2d 818, 820 (Fla. 1986). In this matter (the 2005-2015 CMP Amendment), Petitioner's challenge was first filed on December 14, 2005, more than five months after the effective date of the amendment. Therefore, the amended version of Subsection 1013.30(8), Florida Statutes, applies and DOAH has jurisdiction over this matter.

In addition to several motions relating to discovery, Petitioner's motion for a continuance of both cases was denied by Order dated February 28, 2006, based on the fast-track requirements contained in Subsection 1013.30(8)(b), Florida Statutes. Respondent's Motion for Summary Final Order, as to DOAH Case No. 06-0328, was denied. Each of the parties timely filed unilateral pre-hearing statements. Respondent's Motion for Official Recognition filed March 3, 2006, numbered a through g and revised (i), (j), (s), and (r), was granted at the commencement of the final hearing on March 6, 2006. During the

course of the hearing, Respondent's Motion to Strike and Motion in Limine were granted, in part; denied, in part; and ruling reserved, in part. Numerous Emergency Motions to Quash Subpoenas were also resolved.

Respondent's Motion to Strike certain references in both the 2005-2015 CMP Amendment Petition and the 2005 Stadium Amendment Petition were granted as follows:

1. References to Subsections 1013.30(15) and (22), Florida Statutes, were stricken. These

   subsections relate to campus development agreements and provide a separate cause of action to challenge such agreements in the circuit court where the university is located. Neither the 2005-2015 CMP Amendment Petition, nor the 2005 Stadium Amendment Petition contains allegations regarding campus development agreements. In addition, it is agreed that UCF and Orange County have not yet finalized a campus development agreement related to either amendment. Thus, these subsections are not applicable to this proceeding.

2. References to the "mandatory compatibility provisions" of Florida Administrative Code Rule

   28-105.201 were stricken. As to Florida Administrative Code Rule 28-105.201, no such section

   exists in the Florida Administrative Code. While Florida Administrative Code Rule 28-106.201 exists, it pertains to procedural matters and has no "mandatory compatibility provisions." Thus, this subsection is not applicable to this proceeding.

3. All references to provisions in the Orange County Comprehensive Plan regarding Policies 2.1.8, 2.1.9, 2.1.12, 2.1.18, and 3.2.9, which relate to "Rural Settlements" or the "Rural Service Area," were stricken. UCF is not designated a "Rural Settlement," is not located within a "Rural Service Area," and none of the adjacent areas to UCF are designated as "Rural Settlements" or located within a "Rural Service Area." Therefore, the "Rural Settlement" and "Rural Service Area" provisions have no relevance to UCF or this proceeding.

4. All references to provisions in the Orange County Comprehensive Plan regarding Policies 3.1.33, 3.2.6, 3.2.7, 3.2.8, 3.2.9, 3.2.12, and 4.1.9, relating to office, commercial, hotel, multi-family, and industrial uses, were stricken. UCF is designated on the Orange County Future Land Use Map as an "Institutional" land use, and not a commercial, office, hotel, multi-family, or industrial land use.

   Therefore, the commercial, office, hotel, multi- family, and industrial land use provisions have no relevance to UCF or this proceeding.

5. The reference to Policy 4.1.1 of the Orange County Comprehensive Plan was stricken. This policy sets forth requirements whereby Orange County must adopt certain provisions in its own Land Development Code and does not pertain to UCF.

   As to Issues Raised Solely in the 2005 Stadium Amendment Petition

   
   

6. The following allegation in paragraph 6, page 7: "I believe that these acts and the use of State funds in this manner violate State statutes governing the use of State funds and fiscal

   responsibility per the UCF BOT By-laws," was stricken. Section 1013.30, Florida Statutes, does not provide an administrative remedy for alleged violations of State statutes governing the alleged misuse of State funds or the alleged violations of UCF's BOT by-laws.

7. The following allegation in paragraph 10, page 8: "UCF has included in neither the 2005-2015 CMP nor in this stadium amendment all additional construction projects, . . . ." was stricken. Section 1013.30, Florida Statutes, does not provide an

   administrative remedy to challenge amendments that have not yet been proposed to a CMP.

8. The reference to violation of UCF's BOT by-laws in paragraph 11, page 8, was stricken. As discussed above in paragraph f, Section 1013.30,

Florida Statutes, does not provide an administrative remedy for alleged violations of UCF's BOT by-laws. Therefore, no findings of fact or conclusions of law relative to them will be included in this Recommended Order.

At the final hearing, Petitioner testified on his own behalf and called two expert witnesses: John Loper, P.E., hydrologic modeling and stormwater master planning, and Sydney Bacchus, Ph.D., hydro ecologist, and 19 fact witnesses: Renzo Nastasi, manager, transportation planning director, Orange County Public Works Department; Beth Barnes, Ph.D., UCF

vice-president and chief of staff; Steve Orsini, UCF director of athletics; George O'Leary, UCF head football coach; Jeffrey Jones, acting executive director and planning director, East Central Florida Regional Planning Council; Scott Rogers, principal planner, Division of Community Planning, Department of Community Affairs; John Hitt, UCF president; William Carlie, compliance manager, Altamonte Springs Service Center, St. Johns River Water Management District (SJRWMD); Michael Proctor, UCF

associate professor; Christopher Testerman, manager, Orange County Planning Division; Manoj Chopra, UCF associate professor and member of UCF's BOT; Karina Veaudry; George T. Morris, resident, University Estates; Laura D. Klee, resident, Orange County; Susan Lublin, resident, University Estates; Bill Cekala, resident, University Estates; James Davis, UCF design project manager; Peter Newman, director, UCF Facilities Planning; and William Merck, II, vice-presdient, UCF Administration and Finance, and 35 exhibits were admitted into evidence, some with and some without objection. Petitioner was also permitted to proffer 11 documents, which were excluded and not considered in the preparation of this Recommended Order.

Respondent called nine expert witnesses: James Davis, UCF design project manager; Richard Lis, P.E., Harris Civil Engineers; Renzo Nastasi, manager, transportation planning Director, Orange County Public Works Department; Todd Peetz, A.I.C.P., Miller Legg Consulting; Christopher Testerman, A.I.C.P., manager, Orange County Planning Division; Jim Berns, lighting engineer, Musco Lighting; Angela Bowen, senior ecologist, E Sciences, Inc.; Gary Carlin, P.E., program manager, PBS&J, consulting engineers; Ronald Eligator, principal consultant, Acoustic Dimensions, and three fact witnesses: Beth Barnes; William Carlie; and Michael Witte, Gameday Management.

Respondent submitted 29 exhibits which were admitted into

evidence, some with and some without objection. The parties submitted two joint exhibits into evidence: the 2005-2015 CMP Amendment Update and the proposed 2005 Stadium Amendments.

The Transcript, consisting of 13 volumes, was filed with the Clerk of DOAH on March 20, 2006. At the conclusion of the final hearing on March 15, 2006, the parties were given until noon on March 24, 2006, to file their post-hearing submittals. The parties timely filed their Proposed Recommended Orders on March 24, 2006, and each party's post-hearing submittals have been given careful consideration in the preparation of this

Recommended Order.

FINDINGS OF FACT

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

1. UCF is an institution of higher learning that is a part of the statewide university system in Florida. It is located in northeastern Orange County, Florida, on approximately 1,415 acres. The campus is bounded on the north by McCulloch Road, on the west by Alafaya Trail, on the south by an area known as Research Park, and on the east by University Estates and another subdivision. The campus extends easterly across a tributary known as the East Tributary of the Econlockhatchee River, which lies on the east and northeast portion of the campus.

2. Petitioner owns Lot 62, in the University Estates subdivision in Orange County, Florida. The street address of Lot 62 is 4632 Warrington Drive, Orlando, Florida 32826. Petitioner vacated the residence located on Lot 62 in approximately April 2003 and presently resides at 2421 Brixham Avenue, Orlando, Florida 32828. University Estates subdivision lies adjacent to the northeastern boundary of campus. A land area designated as "Conservation" on Figure 4-1, Land Use of the 2005-2015 CMP Amendment, lies adjacent to and west of the University Estates subdivision.

3. Section 1013.30, Florida Statutes (both the 2004 and 2005 versions), contains provisions for campus planning and concurrency management that supersede the requirements of

   Part II of Chapter 163, Florida Statutes. Each university's BOT is required to prepare and adopt a CMP for the university, as set forth in the statute, and must update the CMP at least every five years.

   FINDINGS OF FACT AS TO DOAH CASE NO. 06-0328

   
   

   Notice and Timely Filing of 2005-2015 CMP Amendment Petition

   
   

4. UCF's BOT adopted a set of amendments to its 2000-2010 CMP on November 30, 2004. These amendments were comprehensive in nature and constituted the mandatory update of CMPs required by Subsection 1013.30(3), Florida Statutes. The updated plan is called the 2005-2015 CMP Amendment.

5. UCF held two public hearings on the 2005-2015 CMP Amendment, on July 14, 2004, and on November 30, 2004. In addition, other informational meetings were held both on and off campus over the course of 2004.

6. Petitioner contends that because he personally never received written notice from UCF that the 2005-2015 CMP Amendment was adopted, the 30-day time frame for filing petitions set out in Subsection 1013.30(7), Florida Statutes (2004 and 2005 versions), has never been triggered. He should be allowed to bring his challenge against the 2005-2015 CMP Amendment. Petitioner filed his initial Petition challenging the 2005-2015 CMP Amendment on December 14, 2005.

7. Petitioner testified that he owns two residences in Orange County, Florida. While he sleeps at the Brixham Avenue home, Petitioner considers his Warrington Drive property also to be his residence. However, he moved out of the Warrington Drive to the Brixham Avenue address in April or May 2003, one and one- half years before the hearing on November 30, 2004.

8. Petitioner attended the public hearings held on

   
   

   July 14, 2004, and November 30, 2004. Petitioner presented oral comments at the July 14, 2004, hearing. Transcripts of both public hearings were admitted into evidence. In addition, Petitioner met with UCF planning staff between the two public hearings on October 25, 2004, and provided additional written

   comments, which were forwarded to UCF's BOT prior to the November 30, 2004, public hearing and meeting.

9. A Transcript of the November 30, 2004, BOT meeting, also shows that Petitioner told the BOT that "I live right behind UCF in one of my two houses." It is clear that Petitioner attended the public hearing held on November 30, 2004. Petitioner wrote down the Warrington Drive address when he signed the sign-in sheet provided to all persons who desired to address the BOT at the public hearing and before the BOT voted.

10. The evidence is undisputed that Petitioner was present on November 30, 2004, when the BOT voted to adopt the 2005-2015 CMP Amendment.

11. Respondent established that it had sent, via certified, return-receipt mail, notice to Petitioner at the Warrington Drive address on December 8, 2004. Notice was also sent to the numerous other interested citizens who attended the public hearings. However, the notice was not delivered by the

    U.S. Postal Service and returned to UCF on December 29, 2004.

    
    

    Upon receipt of the undelivered notice, UCF investigated the correctness of the address by confirming that the address matched the one shown on the November 30, 2004, sign-in sheet for Petitioner. No further action was taken by UCF to ensure delivery of the notice to Petitioner.

12. Nothing in this statutory provision requires UCF to do more than it did in this case. UCF timely forwarded the notice on December 8, 2004, to Petitioner to the exact address supplied by Petitioner himself, even though he had not been living at that residence for one and one-half years. In addition, UCF confirmed that it had used the exact address shown on the November 30, 2004, sign-in sheet when the letter was returned. UCF is not required to do more.

13. A CMP or amendment thereto must comply with the requirements of Section 1013.30, Florida Statutes, and any rule adopted under Section 1013.30, Florida Statutes. Under this section, a CMP "must not be in conflict" with the comprehensive plan of the host local government or any affected local government, and it "must be consistent" with the State Comprehensive Plan. § 1013.30(5), Fla. Stat. In addition, rules adopted under the authority of Section 1013.30, Florida Statutes, have been promulgated at Florida Administrative Code Chapter 6C-21. Orange County is the host local government in this proceeding.

14. Assuming arguendo that the 2005-2015 CMP Amendment Petition was timely filed, the 2005-2015 CMP Amendment contains all eight elements required by Subsection 1013.30(3), Florida Statutes, including future land use, intergovernmental coordination, capital improvements, recreation and open space,

    general infrastructure, housing, transportation, and conservation. In addition, the 2005-2015 CMP Amendment contains the following optional elements: Academic Mission, Academic Program, Urban Design, Academic Facilities, Support Facilities, Utilities, Architectural Design Guidelines, Landscape Design Guidelines, and Facilities Maintenance.

15. In the 2005-2015 CMP Amendment Petition, Petitioner challenges the 2005-2015 CMP Amendment as being "in conflict with" certain subsections of Section 1013.30, Florida Statutes, and Florida Administrative Code Rules 6C-21.108 and 28-105.201, specified provisions of the Orange County Comprehensive Plan, and specified portions of the State Comprehensive Plan. (See the 2005-2015 CMP Amendment Petition, pp. 2 and 8 through 23.)

16. Petitioner asserts the following more specific allegations:

    1. That Figure 7-1 of the 2005-2015 CMP Amendment, which shows one student housing structure as "existing," is improper;

    2. That the Executive Summary contained in the 2005-2015 CMP Amendment conflicts with the Executive Summary of the 2000-2010 CMP (the prior version of UCF's CMP);

    3. That the 2005-2015 CMP Amendment failed to properly authorize the extension of Pond 2H, a stormwater retention pond on campus;

    4. That projects approved pursuant to the 2005-2015 CMP Amendment have been done without

       complying with an "Environmental Management Policy";

       
       

    5. That Figure 3-1 of the 2005-2015 CMP Amendment does not match a version of Figure 3-1 that is on UCF's website as of the date of the 2005-2015 CMP Amendment Petition; and

    6. That the projects approved pursuant to the 2005-2015 CMP Amendment will be detrimental to the character of the surrounding neighborhoods and that there was a lack of sufficient data and analysis regarding compatibility with existing land uses.

17. As described in the Preliminary Statement on page 7, paragraph d. above, references to policies of the Orange County Comprehensive Plan were stricken as irrelevant to this proceeding. No other provisions of the Orange County Comprehensive Plan remain at issue in the 2005-2015 CMP Amendment Petition following these rulings. In addition, all references to Florida Administrative Code Rule 28-105.201 and/or 28-106.201 were stricken, as were any references to Subsections 1013.30(15) and (22), Florida Statutes. As to Florida

    Administrative Code Rule 6C-21.108, this section sets forth the procedural requirements for challenging compliance of a CMP or an amendment. The section contains no "mandatory compatibility provisions" as contended by Petitioner and is, therefore, not relevant to this proceeding.

    State Comprehensive Plan

    
    

18. Petitioner alleged the 2005-2015 CMP Amendment was also in conflict with certain portions of the following policies contained in the State Comprehensive Plan, as set forth in Section 187.201, Florida Statutes: (5) Health; (7) Water Resources; (9) Natural Systems and Recreational Lands; (10) Air Quality; (11) Energy; (13) Mining; (14) Property Rights;

    (15) Land Use; (16) Urban and Downtown Revitalization;

    
    

    (17) Public Facilities; (19) Transportation; (20) Governmental Efficiency; (21) Economy; and (25) Plan Implementation. Petitioner presented no competent evidence directly related to the allegations regarding inconsistency with the State Comprehensive Plan.

19. A CMP must be consistent with the State Comprehensive Plan. See § 1013.30(5), Fla. Stat. A CMP will be considered consistent with the State Comprehensive Plan if the CMP is compatible with and furthers the State Comprehensive Plan. See

    Fla. Admin. Code R. 6C-21.213(1). The State Comprehensive Plan is intended to be a direction-setting document and is to be

    construed as a whole. See § 187.101, Fla. Stat. No specific goal or policy in the plan is to be construed or applied in isolation from the other goals or policies of the plan. The plan does not create regulatory authority. In addition, the policies of the State Comprehensive Plan may be implemented only to the extent that financial resources are provided, pursuant to appropriations of a public entity. See § 187.101(2), Fla. Stat. The decision regarding which particular State Comprehensive Plan goals or policies will be furthered by the expenditure of a university's financial resources in any given year is a decision which rests with the university's BOT. See Fla. Admin. Code R. 6C-21.213(5).

20. Numerous provisions in the 2005-2015 CMP Amendment are compatible with and further various goals and policies of the State Comprehensive Plan. For example, specific provisions in the Transportation Element, the Land Use Element, the Intergovernmental Coordination Element, and the General Infrastructure Element of the 2005-2015 CMP Amendment are compatible with and further the goals and policies of the State Comprehensive Plan. No evidence was presented by Petitioner, other than his opinion, which showed that the 2005-2015 CMP Amendment was inconsistent with the State Comprehensive Plan. Moreover, not every goal and policy must be furthered by a CMP.

    That decision is within the jurisdiction of UCF itself. See

    
    

    § 187.101, Fla. Stat., and Fla. Admin. Code R. 6C-21.213(5).

    
    

21. Based on the preponderance of the evidence presented, the 2005-2015 CMP Amendment is compatible with and furthers the State Comprehensive Plan. It is, thus, consistent with the State Comprehensive Plan.

    Compliance With Section 1013.30, Florida Statutes

    
    

22. Petitioner contends that the 2005-2015 CMP Amendment does not comply with provisions of Section 1013.30, Florida Statutes, in the following areas:

    Housing

    
    

23. Petitioner contends that Figure 7-1 of the Housing Element improperly shows a seven-story student housing building as "existing," because Figure 7-1 of the 2000-2010 CMP (the prior version of the CMP) did not contain any such building. Petitioner asserts that, therefore, UCF had violated Section 1013.30, Florida Statutes, by proceeding with bonding and construction activities for the housing. Petitioner argues that it should not have been shown as "existing." However, UCF had adopted a "minor" amendment to the 2000-2010 CMP in August 2004 to add the seven-story building. Petitioner believes such amendment did not qualify to be adopted as a "minor" amendment, as set forth in the provisions of Subsection 1013.30(9), Florida Statutes. Essentially, Petitioner argues it was wrong to use

    acreage calculations, rather than the number of new bed calculations to determine whether the change to the 2000-2010 CMP met the criteria for a "minor" amendment. Petitioner offered no other evidence or expert testimony to support this argument, nor any evidence that UCF had violated Section 1013.30, Florida Statutes, as a result of proceeding with bonding and construction activities for the housing.

24. Pursuant to the provisions of Subsection 1013.30(9), Florida Statutes (both the 2004 and 2005 versions), an amendment, which meets the criteria set forth in that subsection, is subject to the review or adoption procedures required under Subsection 1013.30(6) through (8), Florida Statutes. However, a "minor" amendment, which does not meet this criteria, may not be challenged in the context of a petition seeking an administrative hearing filed pursuant to Subsection 1013.30(7), Florida Statutes (either the 2004 or 2005 versions). As a result, any challenge to the "minor" amendment adopted in August 2004 by UCF is not properly within the jurisdiction of this tribunal.

25. Even if the August 2004 "minor" amendment were subject to review, the "minor" amendment provisions contained in Subsection 1013.30(9), Florida Statutes, would apply to acreage, and the UCF staff used acreage when they prepared their analysis. The August 27, 2004, BOT agenda packet for the

    "minor" amendment details the analysis undertaken by UCF. It shows that housing acreage was used to calculate the percentages set forth in Subsection 1013.30(9), Florida Statutes. Based on this evidence, Respondent has shown that the amendment qualified as a "minor" amendment.

26. Figure 7-1 of the 2005-2015 CMP Amendment was adopted on November 30, 2004, and UCF's BOT had previously adopted the "minor" amendment to add the student housing to the 2000-2010 CMP on August 27, 2004. Therefore, it is not improper that Figure 7-1 of the 2005-2015 CMP Amendment showed the housing structure as existing. No violation of Section 1013.30, Florida Statutes, was established as a result of UCF's proceeding with bonding and construction activities for the student housing. Inconsistency With Former Version of an Executive Summary

27. Petitioner contends that Respondent violated Section 1013.30, Florida Statutes, because the Executive Summary adopted with the 2005-2015 CMP Amendment "conflicts" with the Executive Summary that summarized the former version of the CMP (the

    2000-2010 CMP). Petitioner presented no evidence to support his allegation, other than his assertion in the 2005-2015 CMP Amendment Petition that a subsequent version of an Executive Summary should not be different from an earlier version.

28. The purpose of an Executive Summary is to briefly describe the CMP. It is reasonable for one version of an

    Executive Summary to be completely different from another, because CMPs change as updates and amendments are approved. In addition, Executive Summaries are not required to be a part of an adopted CMP, pursuant to Section 1013.30, Florida Statutes. It is reasonable that the Executive Summary for the 2005-2015 CMP Amendment is different from, and may even conflict with, the Executive Summary for the prior CMP, the 2000-2010 CMP.

    Pond 2H Extension

    
    

29. Petitioner contends that the 2005-2015 CMP Amendment did not properly address and authorize the extension of a stormwater pond identified as Pond 2H. Petitioner argues in his 2005-2015 CMP Amendment Petition that the pond expansion would constitute more than a ten-percent expansion of the previously existing pond areas on campus. Petitioner presented no evidence to support his allegation.

30. The first phase of Pond 2H was approximately five acres in size, and the second phase, the "extension," was approximately eight acres in size. Pond 2H had actually been approved as part of the 2000-2010 CMP, and was shown as a

    15-acre pond in Table 2-9.1 of the 2000-2010 CMP. Table 2-9.1 of the 2005-2015 CMP Amendment also shows Pond 2H as being a total of 15 acres in size. Fig. 9-1 of the 2005-2015 CMP Amendment contains an arrow showing the direction of the Pond 2H extension to the south/southeast. This was appropriately shown

    in the 2005-2015 CMP Amendment, as it was not until the SJRWMD had approved a permit for the Pond 2H extension that Respondent knew in what direction (north or south) the pond would actually be expanded.

31. Pond 2H was authorized on Table 2-9.1 as a 15-acre pond in the 2000-2010 CMP. Thus, Petitioner's challenge to enlarging the pond is untimely. In addition, the evidence establishes that it was reasonable for Respondent to show a directional arrow on Figure 9-1, showing the expansion of Pond 2H to the south/southeast as part of its 2005-2015 CMP Amendment. The 2005-2015 CMP Amendment properly addressed the Pond 2H extension in the General Infrastructure Element. Environmental Management Policy

32. Petitioner next contends that the projects that have been developed on the campus and approved pursuant to the 2005-2015 CMP Amendment have been performed without complying with an alleged UCF policy, the "environmental management policy." The alleged environmental management policy was not entered into evidence. The alleged policy was located by Petitioner on UCF's environmental department website. Petitioner presented no evidence that the policy offered was a part of the CMP. Based on the preponderance of evidence presented at the hearing, the alleged environmental management

    policy is not part of the CMP and, therefore, is not relevant to

    Petitioner's challenge to the 2005-2015 CMP Amendment and this proceeding.

    Figure 3-1

    
    

33. Petitioner next contends that the version of Figure 3-1 of the 2005-2015 CMP Amendment that is on the UCF

    Facilities Planning website does not match the version of Figure 3-1 that was adopted by UCF on November 30, 2004, as part of the 2005-2015 CMP Amendment. Petitioner did not enter the website version of Figure 3-1 into evidence and presented no expert testimony regarding why the changes shown on the website version were not proper. Figure 3-1 has been amended twice by the BOT since November 30, 2004: in January 2005 by "minor" amendment to shift softball fields from north of Orion Boulevard to southeast of Orion; and in November 2005 to add the football stadium (2005 Stadium Amendment). No evidence was presented by Petitioner to demonstrate that it was improper to show these two amendments on the UCF Facilities Planning website in Figure 3-1. Based on the evidence, it is reasonable to conclude that Figure 3-1 on the Facilities Planning website as of January 2006 would be different from the Figure 3-1 adopted on November 30, 2004, because UCF's BOT had approved two amendments that affected Figure 3-1 since November 30, 2004.

    Compatibility Issues

    
    

34. Petitioner further contends that (1) the development authorized by the 2005-2015 CMP Amendment will be detrimental to the existing character of his neighborhood, and (2) there was a lack of sufficient data and analysis regarding compatibility with existing land uses and stormwater management. Petitioner presented his own fact testimony and the fact testimony of Renzo Nastasi, Christopher Testerman, George Morris, Laura Klee, Susan Lublin, Bill Cekala and James Davis in regards to compatibility issues; and the fact testimony of Williams Carlie and expert testimony of John Loper, P.E. and Sydney Bacchus, Ph.D., with regard to stormwater management compatibility.

35. Four of the witnesses and the Petitioner are residents in the areas surrounding the campus. Each of them testified generally that there was more traffic in the vicinity now compared to five or ten years ago, that they could, at times, see lights and hear activities on campus, and that this resulted in a reduction of wildlife observed in their neighborhood.

36. The manager of the Transportation Planning Division of the Orange County Public Works Department and the manager of the Orange County Planning Division each testified that the 2005- 2015 CMP Amendment had been reviewed and that it was not in conflict with the Orange County Comprehensive Plan. In addition, UCF is designated as "Institutional" on the Orange

    County Future Land Use Map. UCF's CMP Amendments were reviewed in relationship to the surrounding land uses and were determined not to be incompatible with surrounding existing land uses.

37. The project manager for the CMP and its amendments testified extensively as to compatibility issues and onsite/offsite impacts. The 2005-2015 CMP Amendment contains numerous goals, objectives, and policies that address compatibility issues and onsite/offsite impacts with the surrounding community. UCF showed that there were provisions in the Housing Element, the General Infrastructure Element, the Transportation Element, and the Intergovernmental Coordination Element addressing impacts. In addition, the evidence showed that onsite and offsite impacts to infrastructure, public services, and natural systems and recreational lands are also addressed.

38. Further, UCF submitted the draft of the 2005-2015 CMP Amendment to the multiple agencies enumerated in Section 1013.30, Florida Statutes, and received comments from many of them to which Respondent fully responded.

39. A summary of data and analysis for each mandatory element is included in the 2005-2015 CMP Amendment. For instance, a substantial data and analysis summary is included in the Transportation Element. A significant study of data and analysis was completed for the 2005-2015 CMP Amendment, which

    addressed onsite and offsite transportation impacts in the context area. In addition, the 2005-2015 CMP Amendment addressed transportation demand techniques. Further, numerous other governmental agencies had reviewed the data and analysis and found it acceptable.

40. In addition, the 2005-2015 CMP Amendment was reviewed for compliance with Section 1013.30, Florida Statutes, by the Administration Commission in 2005, resulting in AC Order

    No. 05-002. By its terms, that Order found the 2005-2015 CMP Amendment complied with the requirements of Section 1013.30, Florida Statutes, and Florida Administrative Code Chapter 6C-21, including, without limitation, all data and analysis requirements, provided certain provisions were added to the

    2005-2015 CMP Amendment. These additional provisions were approved by UCF's BOT on July 28, 2005.

41. Although several neighbors testified that they heard more noise, much of it, the "beep-beep" noise of construction equipment, saw more lights and encountered more traffic in the area than they did five to ten years ago, the preponderance of the evidence shows that the 2005-2015 CMP Amendment does address compatibility with surrounding areas. Moreover, the 2005-2015 CMP Amendment includes a summary of data and analysis to address onsite and offsite impacts to infrastructure, public services and natural resources. The 2005-2015 CMP Amendment complied

    with the compatibility requirements of Section 1013.30, Florida Statutes.

    Stormwater Compatibility

    
    

42. Petitioner contends that the Pond 2H Extension is not operating as designed and is not compatible with offsite land uses. However, the Pond 2H Extension was properly permitted by the SJRWMD in 2004. As part of its evaluation of permit applications, the SJRWMD reviews secondary and cumulative impacts on natural resources within the Econlockhatchee River Basin. In this way, UCF develops data and analysis to assess onsite and offsite impacts to natural resources, as required by Subsection 1013.30(3), Florida Statutes. To the extent that Petitioner seeks to attack the propriety of the permit issued by the SJRWMD, such actions constitute an improper collateral attack and are outside the scope of this proceeding.

43. Assuming, arguendo, that these issues are relevant and material to this proceeding, Petitioner presented the expert testimony of John Loper, who opined that the Pond 2H Extension was designed improperly and could be acting as a groundwater sink. However, the SJRWMD manager in charge of compliance for the district testified that he had personally inspected the Pond 2H Extension on more than one occasion prior to his testimony at the final hearing. He concluded that it was operating as designed and in compliance with the SJRWMD rules. In addition,

    Richard Lis, who was recognized as an expert and who designed the Pond 2H Extension, testified that he also believed that the pond was operating as designed and within SJRWMD rules. He also testified that having some positive outfall did not necessarily mean the pond was malfunctioning; however, if the SJRWMD determined that this was a problem, there is a simple structural solution.

44. Loper also testified that UCF is not using the best available data and analysis to assess offsite impacts and design in its on-campus stormwater systems. He suggested that in order to properly assess offsite impacts, UCF should update the models developed by Singhoffen and Associates, Inc., and commissioned by Orange and Seminole Counties. However, Lis explained why Loper's recommendations were unreasonable. First, pursuant to Florida Administrative Code Rule 6C-21.203(2), UCF is only required to utilize the best available, professionally accepted, existing data. UCF is not required by law or rule to update studies which are of the magnitude of the Seminole and Orange County models developed by Singhoffen. In addition, Loper admitted himself that the Singhoffen model is not properly calibrated, so it would not be professionally accepted data. These models do not include the flood elevations for the UCF campus. Second, Lis testified that UCF has obtained a Master Stormwater Permit from the SJRWMD that assesses the impact of

    all the anticipated future development on campus. UCF's Master Stormwater Permit is actually based on campus-specific hydrologic data. Moreover, UCF has also addressed its impacts on offsite infrastructure by reducing its pre-development discharge rate by 46 percent. Therefore, Loper's contentions are without merit.

45. Petitioner also testified and elicited testimony from Dr. Sydney Bacchus that the Pond 2H Extension is causing both flooding in University Estates, as well as drawdown to the wetland adjacent to the Pond 2H Extension and within University Estates. Dr. Bacchus also testified through her affidavit (admitted as pre-filed testimony) that the Pond 2H Extension had been excavated to a depth greater than the permitted design. However, Carlie, from SJRWMD, testified that he personally visited with Petitioner and evaluated Petitioner's flooding claims. Carlie stated that he believed the flooding in University Estates was caused by a malfunction in its stormwater system. There was also testimony that surface water flows west from University Estates toward the East Tributary of the Econlockhatchee River (which is inside campus), so it is not likely that discharge from Pond 2H Extension could result in flooding in University Estates. Petitioner did not present any testimony to refute Carlie's assertion regarding the flooding outside of Petitioner's own assertions. In addition, Carlie

    testified that he personally inspected the Pond 2H Extension after it had been excavated and before it was filled with water. He stated that he found the pond was constructed according to the permitted design. In addition, an as-built survey was prepared by a surveyor detailing the depth of the excavation, which was determined to be within the permitted design.

    Therefore, the greater weight of the evidence is that the Pond 2H Extension was built according to the specifications in the SJRWMD permit.

46. Dr. Bacchus gave extensive testimony on what she characterized as stress on wetland and upland vegetation surrounding the Pond 2H Extension, as well as within University Estates. She concluded that the stress was caused by soil subsidence and drawdown impacts from the Pond 2H Extension. However, Dr. Bacchus has not performed any groundwater modeling or taken any recent groundwater measurements to confirm her theory. Her opinion was reached after personal observation and prior experience only. In addition, through her affidavit and testimony, Dr. Bacchus expressed her opposition to the use of stormwater ponds for stormwater retention or treatment.

47. Stormwater ponds are an acceptable form of stormwater treatment, and each of the stormwater ponds on the UCF campus has been properly permitted by the SJRWMD.

48. Angela Bowen, an expert called by Respondent, observed that the wetlands around the Pond 2H Extension were in good health compared to others in Orange County and in the Econlockhatchee River Basin. She also observed that the wetlands in University Estates were not as healthy as those on the UCF campus. She noted that there were no buffers around the wetland in University Estates as there are on the UCF campus. Bowen's wetland assessment was based on a methodology adopted by the State of Florida. Bowen testified that upland buffers are important because wetland areas are susceptible to "edge effect" from invasive and opportunistic species. She also stated that wetlands can become stressed by impacts of residential development, such as pesticide and herbicide runoff.

49. Bowen and Lis both testified that the normal water level in Pond 2H Extension is higher than the water level in the wetlands adjacent to Pond 2H Extension. This is a SJRWMD regulatory requirement. In addition, it is highly improbable that Pond 2H Extension would also be causing drawdown impacts on wetlands and uplands in University Estates, which are farther away and on the opposite side of the East Tributary to the Econlockhatchee River. A review of the aerial photo (presented as Respondent's Exhibit 2) reveals that there are a number of other stormwater ponds in the area that are in closer proximity to the University Estates wetlands than the Pond 2H Extension.

    Therefore, based on the preponderance of evidence, the Pond 2H Extension is not causing drawdown impacts on the wetlands surrounding the Pond 2H Extension.

    FINDINGS OF FACT AS TO THE 2005 STADIUM AMENDMENT

    
    

50. On July 12, 2005, UCF held a workshop regarding the 2005 Stadium Amendment, as required by Subsection 1013.30(6), Florida Statutes. The workshop included a gallery-style presentation of each portion of the proposed Stadium Amendment with appropriate UCF staff available to answer questions posed by attending agencies and the public.

51. On July 25, 2005, and November 9, 2005, UCF held public hearings regarding the proposed 2005 Stadium Amendment, as required by the statute. At the conclusion of the second public hearing on November 9, 2005, a meeting of the BOT was convened and UCF's BOT voted to adopt the proposed 2005 Stadium Amendment, as revised.

52. As originally proposed, the 2005 Stadium Amendment included the following: (a) addition of Policy 1.2.8 to the Recreation and Open Space Element, which provided, "A football stadium shall be located on lands in the northern portion of the UCF main campus, in the area generally bounded by Orion Blvd. to the east and McCulloch Rd. to the north"; (b) addition of the football stadium to the Capital Improvements List in the Capital Improvements Element; (c) addition of the football stadium and

    associated surface parking to the Urban Design Element, Figure 3-1, entitled, "Urban Design/Capital Improvements"; and

    (d) addition of the football stadium and associated surface parking to the Transportation Element, Figure 2.11-13, entitled, "Existing and Planned Parking Structure."

53. The 2005 Stadium Amendment was supported by data and analysis, which included: a Summary of Impact and Need Data Analysis; Conceptual Financing Structure; Feasibility Analysis; Physical Review/Renderings; Construction Concept; Opinion on Cost; Traffic and Parking Impacts; Transportation and Parking Concept Plan; Stormwater, Potable Water and Sanitary Sewer Impacts; Noise Study; Sight Line Study; permits from the SJRWMD; and additional data and analysis provided to DCA. The data and analysis for the stadium also included an evaluation of the need for an on-campus football stadium.

54. As a result of comments made by the DCA, the East Central Florida Regional Planning Council, Orange County, and the public, UCF staff proposed that the new Policy 1.2.8 to the Recreation and Open Space Element be amended to read as follows:

    Recreation and Open Space Element Goal 1.2.8

    
    

    A football stadium shall be located on lands in the northern portion of the UCF main campus, in the area generally bounded by Orion Blvd. to the east and McCulloch Rd. to the north. The University shall develop a Traffic Management Program that will include Traffic Demand Management strategies, such

    as the SCOOT System, parking management program, game day traffic management techniques, public transit/park-and-ride mode share, pre-trip traveler information, bicycle accommodations, guide signing, one- way reversible travel lanes on campus, on- campus post-games activities, and the creation of a local traffic stakeholder group, all as described in the Final Traffic and Parking Study, prepared by PBS&J, dated July, 2005, in order to minimize game day traffic and parking impact. UCF will work with Orange and Seminole County staff to address lighting and noise mitigation during the design and construction phase of the stadium.

    
    

    This was the version of Policy 1.2.8 that was ultimately adopted by UCF's BOT on November 9, 2005.

55. Petitioner asserts that UCF may convert the proposed 45,000-seat football stadium to a 65,000-seat facility at any time. Although the construction concept envisions the possibility of a 65,000-seat facility, UCF must amend its CMP in order to expand the facility beyond 45,000 seats and comply with the requirements of the statute for a "major" amendment, if and when such expansion should occur.

56. Petitioner contends that there is inadequate data and analysis to support the 2005 Stadium Amendment in the following areas: transportation and parking; land use compatibility, including noise and lighting impacts; height and compatibility with single-family residential homes; and consistency with the

    land uses and intensities of use allowed on the Future Land Use Map within the CMP.

    Noise

    
    

57. Prior to the adoption of the 2005 Stadium Amendment, UCF contracted with Acoustic Dimensions to conduct an analysis of the sound expected to be generated by the proposed football stadium, as well as the level of noise currently existing in the area surrounding the proposed football stadium site ("Noise Study"). It is proposed that the sound system for the proposed football stadium will utilize a new technology that directs sound into the stadium seats, keeping as much sound as possible away from the outside of the stadium. Excess noise would be directed out of the stadium in a southerly direction, toward the center of campus, and away from the residential neighborhoods to the east and north.

58. Although UCF is not subject to the noise regulations in the Orange and Seminole County Ordinance Codes, the anticipated noise levels at the proposed stadium were compared to the levels deemed acceptable within Orange and Seminole County. Both Orange and Seminole County exempt sporting events from their noise codes. However, even if sporting venues, such as the proposed football stadium, were subject to Orange and Seminole County noise regulations, the Noise Study predicted that noise generated by a public address system, crowd noise,

    and marching bands within the proposed stadium would each fall below the levels set forth in the Orange County Code, selected at three locations close by the proposed stadium.

59. Based on the Noise Study, which appears to be reliable, the sound coming from the proposed football stadium would not be overly intrusive into the residential neighborhoods to the east and north. There is anecdotal evidence that intrusive noise will impact the surrounding neighborhoods, and additional noise mitigation measures should be considered during the design and construction phase of the stadium. However, the projected noise levels are not incompatible with the surrounding area.

    Lighting

    
    

60. Prior to the adoption of the 2005 Stadium Amendment, it was determined that lighting technology has improved dramatically, particularly over the past five years. UCF has chosen lighting for the football stadium, which requires

    40 percent less lighting fixtures than older technology, uses less electricity, directs more light toward the field, and results in less increase in light in surrounding areas (also known as "spill light"). A computer modeling analysis of the spill light was created at 300 feet, 600 feet, and 900 feet from the outer wall of the proposed football stadium modeling the type of lights UCF plans to use for the football stadium. This

    includes 36 light fixtures mounted on 140-foot poles located at the four corners of the stadium, for a total of 144 fixtures.

    In addition, the spill analysis assumed there were no trees or other physical barriers to block any light emanating from the football stadium. The spill analysis predicted both horizontal and vertical foot candles. Horizontal foot candles are measured light that falls on a horizontal surface. Vertical foot candles are light measured by directing a light meter toward the light source, so vertical foot candles are more relevant to the amount of light capable of being seen from outside the stadium. Based on the spill analysis, average vertical foot candles at 900 feet from the edge of the stadium would be .0004 foot candles.

61. The amount of spill light decreases by one-fourth

    
    

    (one-quarter) as the distance from light is doubled. Therefore, without any trees or other barriers, the amount of spill light created by the football stadium lights in the closest residential community (University Estates)(which is more than 900 feet from the wall of the proposed stadium) would be nearly immeasurable.

62. Light measurements in University Estates were taken around 8:00 p.m., during the week prior to the hearing, in front of 4632 Warrington Drive, which is a home owned by Petitioner. The light measurements at this location were 1.1 foot candles and 0.6 foot candles at the north end of the property.

    Therefore, the amount of light currently existing in University Estates during the normal evening hours will exceed any minuscule increase in ambient light generated by the football stadium.

63. Orange County's lighting standards do not apply to UCF. However, they are instructive in determining whether the lighting at the football stadium will be compatible with the surrounding community. Orange County Ordinance Article XVI,

    s. 9-649(a)(5), provides that illumination levels at the property line should not be more than 0.5 foot candles, where the project is next to a residential use, and 1.0 foot candles, where the project is next to any other use. Considering, the worse case scenario, the vertical light at 900 feet from the stadium, which is well within the UCF campus boundaries, would be a maximum of .01 foot candles. Therefore, the light produced by the proposed UCF stadium is not incompatible with the standards set by Orange County for the surrounding community.

64. UCF staff also prepared a Sight Line Study to determine the ability of residents in University Estates and Carillon subdivision to view the stadium lights themselves given the amount of treed buffer which lies between these neighborhoods and the proposed football stadium location. The Sight Line Study is determined not to be reliable. However, the ability to see the stadium lighting fixtures from their property

    does not mean that such lights are incompatible with the surrounding uses.

    Traffic and Parking

    
    

65. Prior to the adoption of the 2005 Stadium Amendment, UCF commissioned a transportation study ("Transportation Study") by PBS&J consultants and a parking analysis ("Parking Plan") by Gameday Management Group, to assess the transportation and parking impacts of the proposed football stadium.

66. The Transportation Study evaluated the onsite transportation impacts within the "Context Area" surrounding UCF, as is required by Florida Administrative Code Rule

    6C-21.205(1) and (2). The Context Area used in the Transportation Study was the same Context Area identified in the Transportation Element of the CMP.

67. Because a football stadium is not one of the standard uses studied and evaluated by the Institute of Transportation Engineers ("ITE"), the football stadium was analyzed as a "special generator." Carlin and his staff collected all of the available data regarding transportation impacts from other football stadiums in order to develop a methodology to evaluate the impacts of the proposed UCF football stadium. The methodology was independently peer reviewed by a company called Rizzo and Associates. Rizzo and Associates was qualified in peer review methodology as they had performed similar analyses

    for the recently constructed Boston College and New England Patriots football stadiums. The Boston College football stadium is located in a suburban area similar to the proposed location for the UCF football stadium. The methodology for assessing the impacts from the proposed football stadium was also reviewed and approved by the Florida Department of Transportation, Orange County, Seminole County, and the City of Oviedo.

68. The Transportation Study analyzed the impacts on onsite and offsite roadways from the inbound peak traffic and outbound peak traffic for a 45,000 attendee Saturday football game. This was a worse-case scenario, as the inbound peak traffic and the outbound peak traffic would not actually occur at the same time. The Transportation Study concluded that, with the exception of only two roadway segments and intersections, roadway conditions would remain at or below the levels of service set for the onsite and offsite intersections and roadways with the Context Area. The Transportation Study also recommended a variety of Traffic Demand Management strategies, which would mitigate overall transportation impacts, as well as the impacts to the few roadway segments and intersections which exceeded the level of service in the analysis.

69. Examples of Traffic Demand Management techniques recommended in the Transportation Study include: the "SCOOT" System, parking management program, game day traffic management

    techniques, public transit/park-and-ride mode share, on-campus post-game activities, pre-trip traveler information, bicycle accommodations, guide signing, one-way reversible travel lanes on campus, and the creation of a local traffic stakeholder group. The "split cycle offset optimization timing technique" or "SCOOT" System would be particularly helpful because the two primary roadways that access the UCF campus are constrained, meaning that they cannot be widened any further. The SCOOT system effectively expands the capacity of existing roads by improving the timing of signals based on actual use. Therefore, the SCOOT system alone could bring several of the roadway links and intersections back to their designed levels of service.

    Orange County is one of the few local governments in the United States that already utilizes the SCOOT system, and it, along with Seminole County, supports the use of the SCOOT system for UCF football games.

70. Although the Transportation Study did not specifically address transportation impacts for a weekday game, the Traffic Demand Management strategies recommended in the Transportation Study would mitigate roadway impacts for UCF football games, which may occasionally be scheduled on weekdays.

71. As a result of the Transportation Study and recommendations from various government entities, UCF added specific requirements to Policy 1.2.8 of the Recreation and Open

    Space Element that UCF implement the Traffic Demand Management strategies recommended in the Transportation Study.

72. Based on the Transportation Study and the specific requirements set forth in Policy 1.2.8 of the Recreation and Open Space Element, the proposed football stadium will be compatible with the surrounding community from a transportation perspective.

73. The Parking Plan was based on the parking inventory data assessed through the Transportation Plan and assumed a 45,000 attendee football game. The Parking Plan divides the UCF campus into parking zones and identifies primary and secondary ingress and egress routes, dedicated traffic control points, and law enforcement needs for each zone. In addition, the Parking Plan identifies ways in which to tie parking to ticket purchases by assigning parking areas at the time of ticket purchases. For those who do not have an assigned parking area prior to game day, media releases, open house sessions, and coordination with the stakeholder groups would be used to inform the attendees of parking areas. Based on the Parking Plan, there would be adequate parking for football games. The Parking Plan will be refined through review by a stakeholders group that is being formed as one of the Traffic Demand Management strategies to be implemented by UCF. The Parking Plan will minimize parking impacts on surrounding communities.

74. Petitioner did not present any expert testimony or other evidence regarding transportation or parking impacts from the proposed football stadium. Petitioner did present several fact witnesses who testified generally regarding their concerns about traffic and parking impacts in the future. However, as fact witnesses, their opinions regarding potential future impacts do not have probative value.

75. Policy 1.2.8 of the Recreation and Open Space Element contains reasonable transportation demand management techniques to minimize offsite impacts.

    Overall Onsite and Offsite Land Use Compatibility

    
    

76. Petitioner contends generally that the proposed football stadium is incompatible with residential land uses adjacent to the UCF campus. In support of this allegation, Petitioner cites to letters from the East Central Florida Regional Planning Council, Florida Department of Community Affairs and Orange County commenting on the proposed stadium amendment. However, each of these agencies, through both follow-up letters and expert testimony at the final hearing, indicated that they were satisfied with the analysis provided by UCF and that there were adequate measures in place so that the proposed football stadium would be compatible with the surrounding community.

77. In addition, UCF staff analyzed several alternative sites for the proposed stadium. This alternative analysis, although not exhaustive, included a review of roadways and access, proximity to residential neighborhoods, and proximity to other athletic operations and student housing. By contrast, Petitioner Brooke did not present any expert testimony as to this allegation. Through the matrix submitted as Petitioner's Exhibit 35, Petitioner alleged that UCF had concluded that the currently proposed stadium location was incompatible with residential neighborhoods. However, testimony from UCF witnesses clearly show that the matrix merely identified compatibility with neighborhoods as a concern and did not establish incompatibility. As with traffic and parking impacts, Petitioner also presented several fact witnesses who testified regarding their concerns about potential future compatibility issues. However, as fact witnesses, their opinions regarding potential future incompatibilities is not probative and is certainly outweighed by the expert testimony presented by UCF.

78. Therefore, the preponderance of the evidence shows that the proposed 2005 Stadium Amendment is compatible with the surrounding community and that the data and analysis relied upon adequately addresses the offsite and onsite impacts.

    Conflicts With the Orange and Seminole County Comprehensive Plans

    
    

79. Petitioner contends that the 2005 Stadium Amendment is in conflict with the Orange County Comprehensive Plan. However, all but one of the provisions of the Orange County Comprehensive Plan cited by Petitioner in the 2005 Stadium Amendment Petition were stricken as being wholly irrelevant to the 2005 Stadium Amendment challenge. The only remaining provision of the Orange County Comprehensive Plan with which Petitioner contends the 2005 Stadium Amendment conflicts is Policy 3.2.13 which provides: "The full retail/general commercialization of an intersection shall be avoided unless sufficient justification of need is provided. Office, hotel, and multi-family uses can be used to avoid the full commercialization of an intersection."

80. Petitioner presented no evidence to support this allegation. In fact, expert testimony was that the 2005 Stadium Amendment is not in conflict with the Orange County Comprehensive Plan.

81. Petitioner did not make any allegations regarding conflict with the Seminole County Comprehensive Plan, and accordingly, no evidence was allowed during the hearing regarding this topic.

    Consistency with the State Comprehensive Plan

    
    

82. Petitioner contends that the 2005 Stadium Amendment is not consistent with the State Comprehensive Plan set forth in Section 187.201, Florida Statutes. In the 2005 Stadium Amendment Petition, Petitioner cites to the following subsections of the State Comprehensive Plan, in which Petitioner alleges is in conflict with 2005 Stadium Amendment: (5) health;

    (6) public safety; (7) water resources; (9) natural systems;

    
    

    (10) air quality; (11) energy; (13) mining; (14) property rights; (15) land use; (16) urban and downtown revitalization;

    (17) public facilities; (19) transportation; (20) governmental efficiency; (21) economy; and (25) plan implementation.

83. The State Comprehensive Plan is intended to be a direction-setting document and is to be construed as a whole. See § 187.101, Fla. Stat. No specific goal or policy in the plan is to be construed or applied in isolation from the other goals or policies of the plan. The plan does not create regulatory authority. Id. See also Fla. Admin. Code R.

    6C-21.213(4).

    
    

84. In addition, the policies of the State Comprehensive Plan may be implemented only to the extent that financial resources are provided pursuant to appropriations of a public entity, such as UCF. See § 187.101(2), Fla. Stat. The decision regarding which particular State Comprehensive Plan goals or

    policies will be furthered by the expenditure of a university's financial resources in any given year is a decision which rests with the university's board of trustees. See Fla. Admin. Code R. 6C-21.213(5).

85. Petitioner did not present any expert planning testimony regarding the consistency of the 2005 Stadium Amendment with the State Comprehensive Plan. Respondent did present testimony by an expert in planning. Todd Peetz testified that the 2005 Stadium Amendment is compatible with and furthers various goals and policies of the State Comprehensive Plan. For example, the 2005 Stadium Amendment provisions regarding traffic demand strategy are compatible with and further subsection (19) of the State Comprehensive Plan relating to transportation. No evidence was presented by Petitioner which showed that the 2005 Stadium Amendment was in conflict with the State Comprehensive Plan. Moreover, not every goal and policy must be furthered by a CMP. That decision is within the jurisdiction of a university itself. See § 187.101, Fla. Stat., and Fla. Admin. Code R. 6C-21.213(5). Based on the preponderance of the evidence, the 2005 Stadium Amendment is consistent with the State Comprehensive Plan.

    Other Allegations

    
    

86. Petitioner contends that 2005 Stadium Amendment does not contain all of the required elements as established by

    Section 1013.30, Florida Statutes, and Florida Administrative Code Rules 6C-21.201, 6C-21.203, 6C-21.204, 6C-21.208,

    6C-21.209, 6C-21.210, and 6C-21.213. However, there is no requirement that "major" amendments to CMPs involve changes to every element or that the amendments themselves contain all of the elements required by Section 1013.30, Florida Statutes, and Florida Administrative Code Chapter 6C-21. The 2005 Stadium Amendment amended four portions of the 2005-2015 CMP Amendment, and all other provisions in the 2005-2015 CMP Amendment remained the same. Therefore, the 2005-2015 CMP Amendment contains all the elements required by Section 1013.30, Florida Statutes, and Florida Administrative Code Chapter 6C-21.

87. Petitioner contends that significant land-clearing and construction projects were conducted prior to the adoption of the 2005 Stadium Amendment that were solely in support of, and only required because of the proposed football stadium. The evidence supports the counter-assertion that said land-clearing and construction were not part of the 2005 Stadium Amendment process. Therefore, it cannot be challenged by Petitioner through the 2005 Stadium Amendment Petition.

88. However, even if Petitioner could challenge such actions through the 2005 Stadium Amendment Petition, the preponderance of evidence adduced at the hearing was that the land-clearing and construction projects complained of by

    Petitioner were part of other duly-adopted amendments to the CMP. Petitioner presented evidence regarding two such actions. The first construction project that Petitioner argued was improper was the movement of the Women's Softball Stadium from the Athletics Node to a location on the southeast side of Orion Boulevard. This action was adopted as a "minor" amendment to the 2005-2015 CMP Amendment on January 18, 2005. Even if Petitioner could challenge the "minor" amendment through this proceeding, the adoption package from the BOT meeting adequately shows that the Softball Field Stadium Amendment was below the thresholds set forth in Subsection 1013.30(9), Florida Statutes, and was appropriately adopted as a "minor" amendment. Thus, the preponderance of the evidence demonstrates that the use of the "minor" amendment process was appropriate and that the related land-clearing and construction were properly authorized.

89. Second, Petitioner also complained of land-clearing in the area where the football stadium was ultimately proposed. However, this area was cleared to accommodate the athletic practice fields which were planned for that area prior to the consideration of the football stadium. UCF obtained permits from SJRWMD for both the grading of the area, as well as the stormwater system for the athletic practice fields. The clearing of land itself does not require a change to the CMP.

90. Petitioner contends that the construction of the football stadium and the additional construction which will be associated with the football stadium is inconsistent with the study and information set forth in the Executive Summary for the 2000-2010 CMP. Petitioner presented no evidence to support this allegation other than his personal belief that all amendments must be consistent with the Executive Summary from the 2000-2010 CMP. The purpose of an Executive Summary is to briefly describe the CMP. The Executive Summary of the 2000-2010 CMP was superseded by the Executive Summary in the 2005-2015 CMP Amendment. The 2005 Stadium Amendment amended the 2005-2015 CMP Amendment. Therefore, it only needs to be consistent with the Executive Summary in the 2005-2015 CMP Amendment.

91. Petitioner alleges that the construction projects undertaken by UCF through the 2005-2015 CMP Amendment and the 2005 Stadium Amendment have and will violate the standards and requirements of stormwater management as established by SJRWMD. UCF obtained an Environmental Resource Permit for the proposed football stadium. This permit was not challenged by Petitioner. Petitioner cannot collaterally challenge the SJRWMD football stadium permit through this proceeding. Petitioner provided no evidence that the SJRWMD has issued any notices of violation to UCF regarding its football stadium permit. In fact, the evidence supports Respondent's position that the UCF stormwater

    system is currently in compliance with SJRWMD rules. Petitioner also provided no evidence that UCF is violating this permit.

    Even if Petitioner had provided such evidence, this proceeding is not the appropriate forum for a determination of whether such allegations can be challenged through an administrative remedy, under Florida's Administrative Procedures Act.

92. Petitioner alleges that the procedures followed during the public hearings on the 2005 Stadium Amendment, held on

    July 25, 2005, and November 9, 2005, violated Administration Commission Final Order AC-05-002, Subsections 1013.30(3), (5) and (6), Florida Statutes, and Florida Administrative Code Chapter 6C-21. Compliance with Final Order AC-05-002 is outside the scope of this proceeding. Nevertheless, Final Order

    AC-05-002 merely states that UCF has agreed to follow the "major" amendment process with respect to the addition of a football stadium on the UCF campus. It is undisputed that UCF has attempted to adopt the 2005 Stadium Amendment pursuant to the "major" amendment requirements set forth in Subsections 1013.30(6) through (8), Florida Statutes. It is also undisputed that Petitioner appeared at both of the public hearings regarding the 2005 Stadium Amendment and was permitted to present oral statements and written comments. Petitioner presented no evidence that he, or any other individual, was prevented from attending or providing oral or written comment at

    either one of the public hearings. Petitioner is upset that the BOT did not engage in a verbal discussion with the citizenry who were in attendance at the public hearing and did not explain themselves prior to their vote. This is not required as part of the public hearing process.

93. Petitioner also alleged that UCF's BOT did not consider all the information provided by the public in making its decision. However, what each member of UCF's BOT considered prior to the vote on the 2005 Stadium Amendment is not relevant in this de novo proceeding, and this tribunal will not go behind the vote of a legally constituted public body.

94. In addition to the statutorily required workshop and public hearings, the UCF staff conducted numerous meetings to discuss the 2005 Stadium Amendment and answer questions from the public. These meetings included Orange County, Seminole County, homeowner associations, and the Florida Department of Community Affairs.

    FINDINGS OF FACT AS TO RESPONDENT'S

    MOTION FOR ATTORNEYS' FEES AND COSTS

    
    

    As to Case No. 06-0328

    
    

95. Based on the testimony of Petitioner during the eight- day hearing and during his deposition in this proceeding, as cited to and described in Respondent's Motion for Attorneys' Fees and Costs, the undersigned ALJ hereby finds that although

    the Petitioner filed his initial Petition, as well as the Amended Verified Petition in this proceeding, late, nevertheless, he vigorously and determinedly presented his case without the assistance of an attorney, sometimes inartfully, but always sincerely and not for a frivolous or improper purpose.

    As to Case No. 06-0327

    
    

96. Petitioner timely filed his initial Petition and Amended Verified Petition in this proceeding, and with great effort of time and expense presented his case, without the assistance of counsel, before this tribunal. The evidence does not support the position that Petitioner filed this proceeding, or pursued it, for a frivolous or improper purpose.

    CONCLUSIONS OF LAW

    AS TO BOTH AMENDED PETITIONS

    
    

    Jurisdiction

    
    

97. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.569 and Subsections 120.57(1) and 1013.30(8), Florida Statutes. (See Preliminary Statement, pps. 4-5 above.)

98. Section 1013.30, Florida Statutes (both the 2004 and 2005 versions), contains provisions for campus planning and concurrency management that supersede the requirements of

    Part II of Chapter 163, Florida Statutes. Each university BOT

    is required to prepare and adopt a CMP for the university, as set forth in the statute, and must update the CMP at least every five years.

99. An "affected person" is defined as one who "submitted oral or written comments, recommendations, or objections to the university during the period of time beginning with the advertisement of the first public hearing under subsection (6) and ending with the adoption of the campus master plan or plan amendment." § 1013.30(2)(b), Fla. Stat.

100. "Any affected person who files a petition under [Fla.

     
     

     Stat. s. 1013.30(7)] may challenge only those provisions in the plan that were raised by that person's oral or written comments, recommendations, or objections presented to the university board of trustees." § 1013.30(7), Fla. Stat.

101. Petitioner is an "affected person" pursuant to Subsection 1013.30(2)(b), Florida Statutes, with respect to the 2005-2015 CMP Amendment and the 2005 Stadium Amendment since he owns a residence near the campus and submitted oral and written comments to Respondent.

102. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in any proceeding before DOAH. Young v. Department of

     Community Affairs, 625 So. 2d 831 (Fla. 1993); Florida

     Department of Transportation v. J.W.C. Company, 396 So. 2d 778 (Fla. 1st DCA 1981).

103. Subsection 1013.30(7), Florida Statutes, requires that any affected person who files a petition challenging a CMP or CMP amendment, "may challenge only those provisions in the plan that were raised by that person's oral or written comments, recommendations, or objections presented to the university board of trustees." In each of his Amended Verified Petitions, Petitioner has not raised issues which were not presented to UCF's BOT prior to its vote on either of the amendment petitions. Subsection 1013.30(7), Florida Statutes, further requires that a petition filed by an affected person must "state each objection, identify its source and provide a recommended action." Based on the allegation requirements in Section 1013.30, Florida Statutes, petitioners who challenge CMPs or CMP amendments are the parties who must affirmatively assert the sections of the proposed CMPs or CMP amendments which are not in compliance with Section 1013.30, Florida Statutes, or the rules implementing said statute. Therefore, it is clear that Petitioner has diligently attempted to do so in these proceedings.

104. All proceedings under Subsection 120.57(1), Florida Statutes, are de novo. (Findings of fact shall be based upon a preponderance of the evidence . . . or except as otherwise

     provided by statute, and shall be based exclusively on the evidence of record and on matters officially recognized.")

     § 120.57(1)(j), Fla. Stat. What a legally constituted public body considered or did not consider prior to its vote on a matter is irrelevant in a de novo hearing. See generally Zemel v. Lee County, 15 F.A.L.R. 2735 (Department of Community Affairs, June 22, 1993), aff'd 642 So. 2d 1367 (Fla. 1st DCA

     1994).

     
     

105. CMPs and CMP amendments are governed by Section 1013.30, Florida Statutes, and Florida Administrative Code Chapter 6C-21. Section 1013.30, Florida Statutes, does not specifically establish the standard of proof for challenges to CMPs or CMP amendments. Therefore, the standard of proof set forth in Subsection 120.57(1)(j), Florida Statutes, applies to this proceeding.

106. CMPs "must not be in conflict with the comprehensive plan of the host local government and the comprehensive plan of any affected local governments. A CMP must be consistent with the [S]tate [C]omprehensive [P]lan." § 1013.30(5), Fla. Stat.; see also Fla. Admin. Code R. 6C-21.213(1). "A campus master plan is consistent with the State Comprehensive Plan if the master plan is compatible with and furthers such plan." Fla. Admin. Code R. 6C-21.213(1). "The term 'compatible with' means that the campus master plan is not in conflict with the State

     Comprehensive Plan or appropriate local government comprehensive plans. The term 'furthers' means to take action in the direction of realizing goals or policies of the state or local plans." Fla. Admin. Code R. 6C-21.213(2). "A campus master plan is in conflict with the adopted comprehensive plans of the host local government and any affected local governments if the master plan promotes an intrinsic or essential lack of harmony with the local government comprehensive plan." Fla. Admin. Code

     R. 6C-21.213(3). "For the purpose of determining whether campus master plans are consistent with the State Comprehensive Plan and not in conflict with appropriate local comprehensive plans, the state or local plan shall be construed as a whole and no specific goal and policy shall be construed or applied in isolation from other goals or policies in the plans." Fla. Admin. Code R. 6C-21.213(4). "Each campus master plan shall address State Comprehensive Plan goals and policies which are relevant to the circumstances or conditions in its jurisdiction. The decision regarding which particular State Comprehensive Plan goals and policies will be furthered by the expenditure of the university's financial resources in any given year is a decision which rests with the [Board of Trustees of the University].

     Fla. Admin. Code R. 6C-21.213(5); Board of Governors Resolution dated January 7, 2003.

107. The CMP must "contain elements relating to future land use, intergovernmental coordination, capital improvements, recreation and open space, general infrastructure, housing, and conservation." § 1013.30(3), Fla. Stat. "Campus master plans may contain additional elements at the discretion of the Board of Governors; however, such elements are not subject to review" pursuant to Section 1013.30, Florida Statutes. § 1013.30(4), Fla. Stat.; see also Fla. Admin. Code R. 6C-21.108(2) and

     6C-21.212(3). Each element of a CMP "must address compatibility with the surrounding community." § 1013.30(3), Florida Statutes.

108. CMPs must consist of goals, objectives and policies; requirements for capital improvements implementation; procedures for monitoring and evaluation of the CMP; and required maps showing future conditions. "All other documentation may be considered as support documents. Support documents do not have to be adopted." Fla. Admin. Code R. 6C-21.203(1)(c). "Data or summaries thereof which are not part of the adopted campus master plan shall not be subject to the compliance review process." Fla. Admin. Code R. 6C-21.203(2)(a).

109. "The transportation element must address reasonable transportation demand management techniques to minimize offsite impacts where possible." § 1013.30(3), Fla. Stat. "'Transportation demand management' means strategies and

     techniques that can be used to increase the efficiency of the transportation system. Demand management focuses on ways of influencing the amount and demand for transportation by encouraging alternatives to the automobile and altering local peak hour travel demand. These strategies may include, but not be limited to, ridesharing programs, flexible work hours, telecommuting, shuttle services and parking management." Fla. Admin. Code R. 6C-21.202(16).

110. "Data are to be taken from professionally accepted existing sources. Data shall be the best available existing data, unless the university desires original data or special studies. Where data augmentation, updates, or special studies or surveys are deemed necessary by the university, appropriate methodologies shall be clearly described or referenced and shall meet professionally accepted standards for such methodologies." Fla. Admin. Code R. 6C-21.203(2)(c). Universities are not required to collect original data unless specifically required to do so. Fla. Admin. Code R. 6C-21.203(2)(b).

111. Campus [m]aster plans must be updated at least

     
     

     every 5 years." § 1013.30(3), Fla. Stat.; see also Fla. Admin. Code R. 6C-21.203(7)(b).

112. Amendments to CMPs must be reviewed pursuant to Subsections 1013.30(6) through (8), Florida Statutes:

     If such amendment, alone or in conjunction with other amendments, would:

     
     

     1. Increase density or intensity of use of land on the campus by more than 10 percent;

        
        

     2. Decrease the amount of natural areas, open space, or buffers on the campus by more than 10 percent; or

        
        

     3. Rearrange land uses in a manner that will increase the impact of any proposed campus development by more than 10 percent on a road or on another public facility or service provided or maintained by the state, the county, the host local government, or any affected local government.

        
        

        § 1013.30(9), Fla. Stat.; see also Fla. Admin. Code R. 6C-21.108(3).

113. CMP amendments exceeding the thresholds set forth in Subsection 1013.30(9), Florida Statutes, are commonly referred to as "major amendments," while those below the thresholds set forth in Subsection 1013.30(9), Florida Statutes, are commonly referred to as "minor amendments."

114. The "minor" amendment adopted by UCF's BOT on August 27, 2004, relating to the addition of housing in the athletic mode, was adopted as a "minor" amendment and is not subject to review under Subsections 1013.30(6) through (8), Florida Statutes, pursuant to Subsection 1013.30(9), Florida Statutes.

115. The "minor" amendment adopted by UCF's BOT on January 18, 2005, relating to the relocation of a softball stadium was adopted as a "minor" amendment and is not subject to review under to Subsections 1013.30(6) through (8), Florida Statutes, pursuant to Subsection 1013.30(9), Florida Statutes. As to the 2005-2015 CMP Amendment

116. Amendments to Section 1013.30, Florida Statutes, requiring referral of CMP challenges to DOAH were effective on July 1, 2005. The amendments in Section 1013.30, Florida Statutes, changed the process and procedure related to challenges of CMPs. Florida law is clear that, absent a clear legislative intent, a statutory amendment that relates to procedure or remedy is applied immediately upon its effective date whether or not a proceeding is pending at that time. Rothermel v. Florida Parole and Probation Commission, 441 So. 2d 663, 664-65 (Fla. 1st DCA 1983), approved by Griffith v. Florida Parole and Probation Commission, 485 So. 2d 818, 820 (Fla. 1986). In this instance, Petitioner's challenge was not filed until more than five months after Section 1013.30, Florida Statutes, became effective. Therefore, the Amended Verified Petition relating to the 2005-2015 CMP Amendment must be governed by Section 1013.30, Florida Statutes.

117. Petitioner alleges that the UCF general counsel did not have the authority under Section 1013.30, Florida Statutes,

     to dismiss the initial Petition without prejudice. Despite this allegation, Petitioner did, in fact, comply with the UCF general counsel's Order by submitting an amended petition for the 2005 Stadium Amendment Petition and 2005-2015 CMP Amendment.

118. Assuming by these actions that Petitioner has not waived his ability to question the authority of the UCF general counsel, Section 1013.30, Florida Statutes, and the rules implementing that statutory provision which set forth the authority for the UCF general counsel's actions, include the authority to dismiss an insufficient Petition. Florida Administrative Code Rule 6C-21.108(7) provides that "[i]f a petition is filed that does not substantially comply with the requirements of . . . this rule, the Board's General Counsel shall issue an order dismissing the petition with leave to file an amended petition." By resolution dated January 7, 2003, the Board of Governors for the Florida State University System adopted the rules of the State of Florida Board of Regents set forth in Florida Administrative Code Chapter 6C-21 and delegated all authority under said rules to the individual BOTs for each State university. Therefore, the UCF general counsel had adequate authority to dismiss the initial Petition without prejudice.

119. Respondent is required to provide an affected person a "clear point of entry" to administrative proceedings. See

     § 120.569(1), Fla. Admin. Code R. 28-106.111 and McIntyre v. Seminole County School Board, 779 So. 2d 639 (Fla. 5th DCA 2001). When an agency provides a party with notice and a point of entry, failure to file a petition may waive the right to a request for a hearing. See Fla. Admin. Code R. 28-106.111(4); State Department of Environmental Regulation v. Puckett Oil

     Company, 577 So. 2d 988 (Fla. 1st DCA 1991).

     
     

120. Subsection 1013.30(6), Florida Statutes, states, "[i]t is the intent of the Legislature that the university board of trustees comply with the notice requirements set forth in

     s. 163.3184(15) to ensure full public participation" with respect to the adoption of CMPs and CMP amendments.

121. Subsection 163.3184(15), Florida Statutes, clearly states that it is the responsibility of Petitioner (as a member of the public) to provide a correct address in order to receive information. "It is the responsibility of the person completing the form or providing written comments to accurately, completely, and legibly provide all information needed in order to receive the courtesy informational statement." Based on the language in this section, the Legislature did not intend for notice requirements to be more than a courtesy, nor did the Legislature intend for agencies, such as UCF, to expend resources confirming addresses of affected persons. See, e.g., Kidder v. Cirelli, 821 So. 2d 1106, 1107 (Fla. 5th DCA 2002)

     (property owner bore burden of having correct address listed on tax roles, and tax deed would not be overturned because property owner did not receive notice due to incorrect address).

122. Moreover, Petitioner received actual notice of the adoption of the 2005-2015 CMP Amendment because he attended the adoption hearing for the 2005-2015 CMP Amendment on November 30, 2004 and, therefore, was not prejudiced. See Sutterfield v. City of Rockledge, 2002 WL 31125197 (DOAH Case No. 02-1630GM) (adopted in toto.) (City's failure to comply with the seven-day advertising requirement under Subsection 163.3184(15)(b)1., Florida Statutes (2002), was not fatal due to Petitioner's attendance at the transmittal hearings and presentation of comments at these hearings.) See also Edmond J. Gong and

     Dana L. Clay v. Department of Community Affairs and City of

     
     

     Hialeah, 1994 WL 1027737 (DOAH Case No. 94-3506GM)(When a person asserts that statutory notice requirements have not been satisfied, he bears the burden of showing prejudice occasioned by the procedural error, a task made much more difficult when, as here, Petitioner had actual notice of the relevant hearings and agency action and participated throughout the proceeding).

123. Failure to file a Petition in a timely manner without justification is not acceptable. See Fla. Admin. Code R.

     28-106.111(4). Subsection 1013.30(7), Florida Statutes, required Petitioner to file his petition "within 30 days after

     receipt of the notice of adoption of the campus matter plan, or

     
     

     30 days after the date the adopted plan is available for review, whichever is later, . . . ." Petitioner filed his initial Petition challenging the adoption of the 2005-2015 CMP Amendment more than one year after the BOT's action. There was no evidence presented that would show that Petitioner was misled or lulled into inaction by some conduct of Respondent. Therefore, Petitioner has not demonstrated that he is entitled to invoke the doctrine of equitable tolling under Machules v. Department of Administration, 523 So. 2d 1132, 1134 (Fla. 1988).

124. Accordingly, the Amended Verified Petition challenging the 2005-2015 CMP Amendment Petition was not timely filed and should be dismissed.

125. Assuming, arguendo, that the 2005-2015 CMP Amendment Petition was timely filed as set forth in the Findings of Fact above, Petitioner has failed to show by the preponderance of evidence that the 2005-2015 CMP Amendment does not comply with the requirements of Section 1013.30, Florida Statutes, or Florida Administrative Code Chapter 6C-21.

     As to the 2005 Stadium Amendment

     
     

126. For the reasons set forth in the Findings of Fact and based on the foregoing Conclusions of Law, Petitioner has failed to show by a preponderance of the evidence that the 2005 Stadium

     Amendment does not comply with the provisions of Section 1013.30, Florida Statutes.

     As to Respondent's Motion for Attorneys' Fees and Costs

     
     

127. The evidence does not support a finding that attorney's fees and costs should be awarded under either Subsection 120.569(2)(e) or 1013.30(2)(d), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of Law, it is

RECOMMENDED that the Secretary of the Department of Community Affairs enter a final order determining: (1) as to Case No. 06-0328, the Petition filed by Petitioner, Ronald M. Brooke, challenging the 2005-2015 CMP Amendment was not timely filed; (2) the 2005-2015 CMP Amendment and the 2005 Stadium Amendment comply with the requirements of Section 1013.30, Florida Statutes, and Florida Administrative Code Chapter 6C-21;

(3) as to Case No. 06-0327, the Amended Verified Petition be dismissed; (4) as to Case No. 06-0328, the Amended Verified Petition be dismissed; and (5) Respondent's Motion for Attorney's Fees and Costs in both cases be denied.

DONE AND ENTERED this 4th day of April, 2006, in Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

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 4th day of April, 2006.

ENDNOTE

1/ Unless otherwise indicated, all citations are to Florida Statutes (2005).

COPIES FURNISHED:

Thaddeus Cohen, Secretary Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399-2100

David Jordon, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

W. Scott Cole, Esquire University of Central Florida Board of Trustees

4000 Central Florida Boulevard Orlando, Florida 32816

Brenna M. Durden, Esquire Melissa Gross-Arnold, Esquire Lewis, Longman & Walker, P.A.

245 Riverside Avenue, Suite 150 Jacksonville, Florida 32202

Ronald M. Brooke 2421 Brixham Avenue

Orlando, Florida 32828

Vikki R. Shirley, Esquire Florida Board of Governors Turlington Building, 1614

325 West Gaines Street Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

10 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: 06-000328

Orders for Case No: 06-000328