STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. WILLIAM C. PYLE, )

)

Petitioner, )

)

vs. ) Case No. 08-4772GM

)

CITY OF ST. PETE BEACH, )

)

Respondent, )

)

and )

) SAVE OUR LITTLE VILLAGE, INC., ) LORRAINE HUHN, and DEBORAH ) NICKLAUS, )

)

Intervenors. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its assigned Administrative Law Judge, Donald R. Alexander, on February 10 and 11, 2009, in St. Pete Beach, Florida.

APPEARANCES

For Petitioner: Ross Stafford Burnaman, Esquire

1018 Holland Drive

Tallahasssee, Florida 32301-4508

For Respondent: Suzanne Van Wyk, Esquire

Bryant Miller Olive, P.A.

101 North Monroe Street, Suite 900 Tallahassee, Florida 32301-1546

For Intervenors: Robert K. Lincoln, Esquire

Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A.

2033 Main Street, Suite 600

Sarasota, Florida 34237-6093 STATEMENT OF THE ISSUE

The issue is whether the plan amendments adopted by the City of St. Pete Beach (City) by Ordinance No. 2008-15 on August 26, 2008, are in compliance.

PRELIMINARY STATEMENT

As described in the transmittal package, City Ordinance No.

2008-15 adopted plan amendments which amended the Future Land Use Element (FLUE) and Future Land Use Map (FLUM) of the City's Comprehensive Plan (Plan) to include a new Community Redevelopment District on Eighth Avenue; amended two parcels comprising 0.607 acres from Residential Low Medium to Residential High with Resort Facilities Overlay; and amended the FLUE and Housing Element (HE) to include new Community Development Districts along Gulf Boulevard and the Downtown area. The amendments were adopted under the Alternative Review Process Pilot Program (Pilot Program), which is codified in Section 163.32456, Florida Statutes.1

On September 24, 2008, Petitioner, Dr. William C. Pyle, a resident and owner of property within the City, filed with the Division of Administrative Hearings his Petition for

Administrative Hearing (Petition) in which he contended the amendments are not in compliance for numerous procedural and substantive reasons. A Motion for Stay or Abatement accompanied the filing, but that request was later denied by Order dated December 1, 2008.

On October 15, 2008, Intervenors, Save Our Little Village, Inc. (SOLV), Lorraine Huhn, and Deborah Nicklaus, filed their Petition to Intervene in support of the challenged amendments. Although opposed by Petitioner, intervention was granted by Order dated November 17, 2008.

On December 24, 2008, the City filed a Demand for Expeditious Resolution under Section 163.3189(3)(a), Florida Statutes. By agreement of the parties, the matter was then scheduled for final hearing on February 10 and 11, 2009, in St. Pete Beach, Florida.

On January 16, 2009, Intervenors filed an Amended Motion to Strike Claims from the Petition (Amended Motion). By Order dated January 30, 2009, the Amended Motion was granted in part and paragraphs 4, 8, 32, 34, 35, and 43 were stricken as being immaterial. The stricken paragraphs essentially alleged that the amendments were not in compliance because after the amendments were adopted by the City, it failed to send the Department of Community Affairs (Department) a complete

transmittal package, including all of the data and analyses that support the amendments. The bases for that ruling are found in the Order.

In support of their respective positions on the Amended Motion to Strike, Petitioner and Intervenors requested that numerous matters be officially recognized. No objections to these requests were lodged, and they were granted by Order dated January 30, 2009.2

A Pre-Hearing Stipulation was filed by the parties on February 6, 2009. At final hearing, Petitioner testified on his own behalf and presented the testimony of D. Sullins Stuart, III, a land use planner and accepted as an expert, and Karl E. Holley, Director of the City's Community Development Department. By agreement of the parties, Petitioner submitted as his Exhibit

32 the deposition testimony of Michael McDaniel, Chief of the Department's Office of Comprehensive Planning. Also, he offered Petitioner's Exhibits 1-5, 8, 9, 12, 13, 15, 17, 19, 21-26, 30, 31, and 33. All were received except Exhibit 22, on which a ruling was reserved, and Exhibit 25. The objection to Exhibit 22, which is a guide for forecasting population growth published by the Department in 1986, is sustained. The City presented the testimony of Karl E. Holley, Director of the Community Development Department and accepted as an expert. Also, it

offered Respondent's Exhibits 1, 3, 7, 8, 16-21, 24, and 33, which were received in evidence. Intervenors presented the testimony of Deborah L. Nicklaus, a local resident and part owner of the 377-unit Sirata Hotel located in the City. Also, they offered Intervenors' Exhibits 4, 5, and 8-12, which were received in evidence. The parties offered Joint Exhibits 1-8, which were received in evidence. Finally, on March 27, 2009, Petitioner filed his Third Request for Official Recognition, while the City filed a second Request for Official Recognition on March 27, 2009. An objection to the City's request was filed by Petitioner on April 6, 2009. Both requests are hereby granted.3

The Transcript of the hearing (four volumes) was filed on March 19, 2009. By agreement of the parties, Proposed Recommended Orders were filed on April 2, 2008, and they have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

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

1. The Parties

   
   

   1. The City is a municipality in southwestern Pinellas County. Following an Evaluation and Appraisal Report (EAR) process, the City adopted its current Plan in 1998 (also known

      as the 2010 Plan), which has been found to be in compliance. Since 2007, municipalities within Pinellas County have participated in the Pilot Program for adoption of comprehensive plan amendments. The statutory process is described in

      Section 163.32465, Florida Statutes. Under the Pilot Program, municipalities have "reduced state oversight of local comprehensive planning," and plan amendments may be enacted in "an alternative, expedited plan amendment adoption and review process." Id. Although the City must send a transmittal package to the Department (and other designated agencies and entities) for its preliminary review, the Department does not issue an Objections, Recommendations, and Comments Report or a notice of intent. Instead, the Department "may provide comments regarding the amendment or amendments to the local government." Id. It may also initiate an administrative proceeding to challenge whether such amendments are in compliance, but it chose not to do so here. The amendments in dispute were adopted under the Pilot Program.

   2. Petitioner is a resident of, and owns property in, the City, and he submitted oral and written comments and objections concerning the proposed amendments. As such, he is an affected person and has standing to participate in this proceeding.

   3. The parties have stipulated that Lorraine Huhn and Deborah Nicklaus reside and own property within the City, and that both individuals submitted comments to the City during the transmittal public hearing on June 16, 2008, and/or the adoption public hearing on August 26, 2008. Therefore, they are affected persons and have standing to participate.

   4. According to the parties' Pre-Hearing Stipulation, SOLV is a Florida non-profit corporation with a principal address of 6370 Gulf Boulevard, St. Pete Beach, Florida. The parties have also stipulated that SOLV operates a business within the City. Whether it submitted comments to the City between the transmittal hearing on June 24, 2008, and the adoption hearing on August 26, 2008, is in dispute. SOLV's President, Lorraine Huhn, presented comments at the City's adoption hearing on August 26, 2008. See Petitioner's Exhibit 15, pages 63-64. During her brief oral presentation to the City Commission in support of the amendments, she did not state that she was speaking on behalf of SOLV, and at no time did she refer to that organization. However, on August 2, 2008, Ms. Huhn sent an email on behalf of SOLV to the City Clerk, which arguably can be interpreted as written support for the Ordinance being challenged. See Intervenors' Exhibit 9. Also, an email authored by the City Manager on August 1, 2008, indicates that

      SOLV representatives met with City representatives on July 31, 2008, to discuss the proposed amendments. See Intervenors' Exhibit 10. Since these written and oral comments were submitted between the transmittal and adoption hearings, SOLV meets the definition of an affected person and has standing to participate in this proceeding.

2. Background

   
   

   1. By way of background, the City was initially incorporated in 1957 as St. Petersburg Beach by consolidating the towns of Pass-a-Grille, Don CeSar, Belle Vista, St. Petersburg Beach, and certain unincorporated areas of Pinellas County. It occupies a six-mile long barrier island (known as Long Key), which lies between the Gulf of Mexico and Boca Ciega Bay, with a maximum width of three-quarters of a mile and an area of approximately 2.25 square miles or 1,286.14 acres. The name was shortened to St. Pete Beach in 1994 to lessen the confusion with the City of St. Petersburg, which lies to the east. The City has about 4.5 miles of beaches and is very densely populated. Most of the City has been developed with only 13.40 acres, or around one percent of the land, vacant and undeveloped. The entire City is within the flood plain, and much of the City is within the Coastal High Hazard Area (CHHA). The current population is around 10,000.

   2. To place the current dispute in proper perspective, a history of events that began in 2002 is necessary. With the assistance of a consulting firm, beginning in April 2002 the City initiated redevelopment planning efforts for various areas within the City including Corey Avenue/Blind Pass Road, Pass-a- Grille, Gulf Boulevard, and residential neighborhoods. The intention of this effort was to define the starting point for subsequent master planning efforts by the City. A Final Report (also known as the Visioning Statement or Plan) was issued by the consulting firm in July 2002. See Respondent's Exhibit 1. This was followed by a master planning process by another consulting firm, which was intended, among other things, to develop a strategy for dealing with the redevelopment of older and outdated properties within the resort area of the City (along the Gulf of Mexico), rather than having them converted into residential condominiums because of existing regulatory restrictions. The final Master Plan was presented to the City Commission in August 2003. See Respondent's Exhibit 3.

   3. In response to the Master Plan, on June 28, 2005, the City enacted Ordinance 2004-24, known as the City's Community Redevelopment Plan (Redevelopment Plan), which implemented many of the recommendations in the Master Plan. See Respondent's Exhibit 8. Among other things, the Redevelopment Plan created a

      new land use category, the Community Redevelopment District, which included two sub-districts, the Gulf Boulevard Redevelopment District, depicted on Map 10 of Exhibit 8, and the Downtown Redevelopment District, depicted on Map 11 of the same exhibit. The amendment was intended to establish standards for redevelopment in the so-called "resort" area of the City, which runs north-south along Gulf Boulevard adjacent to the beach on the western side of Long Key, while the same thing was intended for the core downtown area. Although Petitioner is correct that Ordinance No. 2008-15 differs from Ordinance No. 2004-24 in some respects, there are many similarities between the two, including the creation of the two Redevelopment Districts, additional character districts within the two main Districts, and the maps of the Districts. Also, both Ordinances have many of the same Goals, Objectives, and Policies, and both include unnumbered narrative text setting out allowable uses as density and intensity standards.

   4. On August 19, 2005, Petitioner and a non-profit association filed a challenge to Ordinance No. 2004-24 under Section 163.3184, Florida Statutes. See Citizens for

      Responsible Growth and William C. Pyle v. Department of Community Affairs and City of St. Pete Beach, DOAH Case No. 05- 3159GM. The challengers later voluntarily dismissed their

      petition, the case was closed on October 17, 2005, and the Department found the amendments to be in compliance. Under the City's Charter, however, citizens may petition to require reconsideration by the City Commission of any adopted ordinance and, if the City Commission fails to repeal an ordinance so reconsidered, to approve or reject it at a City election. See Petitioner's Exhibit 26; § 7.02, City Charter. (Ten percent of the qualified registered voters in the City must sign a petition in order to have an ordinance placed on the ballot for approval or disapproval.) Petitioners in DOAH Case No. 05-3159GM were instrumental, at least in part, in securing the necessary number of voters to sign a petition, and a majority of the registered voters in the City later voted to repeal the Ordinance in 2006. Pursuant to that vote, the City Commission repealed Ordinance No. 2004-24 and it never took effect.

   5. In 2008, six ordinances (Ordinance Nos. 2008-09 through 2008-14) were proposed as citizen initiatives. After the City refused to act on the six initiatives, SOLV and others filed suit against City officials seeking a vote on the six ordinances. See Save Our Little Village, Inc., et al. v.

      Commissioner Linda Chaney, et al., Case No. 08-2408-CI-8 (6th Circuit, Pinellas County). On March 31, 2008, the City adopted Resolution 2008-09 approving a Settlement Agreement in the law

      suit. See Joint Exhibit 1, Appendix C. The Settlement Agreement required the City to transmit and adopt the Ordinance being challenged here subject to various conditions and limitations, if the voters approved Ordinance No. 2008-10, which was a Petition by SOVL proposing an ordinance to amend the Countywide Future Land Use Plan. (The City is required by the Countywide Plan Rules to transmit the countywide plan map amendment to the Pinellas County Planning Council for its review in order to adopt the City plan amendment. This process is described in Petitioner's Exhibit 33.) Notably, the City's staff did not prepare the text or the accompanying supporting data for Ordinance No. 2008-15; rather, the text and all supporting data were prepared by SOLV. The voters approved Ordinance No. 2008-10 on June 3, 2008, which provided for the review and approval of the amendments being challenged here.

   6. Pursuant to the results of the referendum, on June 16, 2008, the City approved Ordinance Nos. 2008-15, 2008-24, and 2008-25. Only the first Ordinance is in issue here; the other two are not contested. As required by Section 163.32465(4)(a), Florida Statutes, the amendments were then transmitted to the Department, Department of Environmental Protection, Department of Education, Department of State, Department of Transportation District Seven, Tampa Bay Regional Planning Council, Southwest

      Florida Water Management District, and Pinellas County Planning Department for their review and comment, if any. Comments on the amendments were offered by the Department on August 1, 2008, and by the Department of Transportation, Department of Education, and Tampa Bay Regional Planning Council.

   7. On August 26, 2008, the City adopted Ordinance No.

      
      

      2008-15. Petitioner's challenge was then timely filed with the Division of Administrative Hearings on September 24, 2008. See

      § 163.32465(6)(a), Fla. Stat. ("[a]ny 'affected person' as defined in s. 163.3184(1)(a) may file a petition with the Division of Administrative Hearings . . . within 30 days after the local government adopts the amendment").

3. The Ordinance

   
   

   1. Ordinance No. 2008-15 establishes a new land use category, the Community Redevelopment District, which includes the Downtown and Gulf Boulevard Redevelopment Districts comprised of eleven character districts, and implements that change by amending the FLUM and certain text provisions within the FLUE and HE. The two new Districts comprise approximately twenty percent of the total land area of the City, or around

      248.25 acres. The amendments are found in Attachment A, consisting of 115 pages, which is attached to the Ordinance. Attachment A includes six maps found on page 40 (Map 1 -

      Community Redevelopment Districts Location); page 41 (Map 2 - Gulf Boulevard Redevelopment Character Districts); page 42 (Map

      3 - Downtown Community Redevelopment District 1); page 110 (Map

      
      

      10 - Future Land Use Map - Gulf Boulevard Redevelopment District, Proposed Future Land Use); page 111 (Map 11 - Future Land Use Map - Downtown Redevelopment District, Proposed Future Land Use); and page 112 (Map 12 - Coastal High Hazard Area - Storm Surge for Category 1 (2007), St. Pete Beach, FL). Pages 1 through 6 are introductory material outlining the need for redevelopment. Pages 7 through 112 pertain to the Future Land Use Element, while pages 113 through 115 relate to the Housing Element. Because SOLV (rather than the City) prepared Attachment A, this is probably the reason why some parts of the lengthy Attachment A have been drafted in narrative style.

   2. Besides Attachment A, support documentation for the amendments is attached to the Ordinance and includes the legal notices published in a local newspaper; Citizen Courtesy Information Lists; Commission and Planning Board Agendas; excerpts from Division 31 of the City's Land Development Code; copies of various Ordinances; and a 127-page Special Area Plan submitted to the Pinellas Planning Council and Countywide Planning Authority in support of the amendment that was necessary in order for the City to adopt the Ordinance. In

      addition, the data and analyses used for the adoption of Ordinance No. 2004-24 were relied upon to support the amendments, including the Visioning Plan and the Master Plan.

4. Petitioner's Objections

1. In paragraphs 9 through 25 of his Petition, which are in the section entitled "Disputed Issues of Material Fact And/or Mixed Disputes [sic] Issues of Fact and Law," Dr. Pyle contends that the amendments adopted by the Ordinance are not in compliance for numerous reasons. The parties' Pre-Hearing Stipulation also states that "the Disputed Issues of Material Fact and/or Mixed Questions of Fact or Law set forth in the Petition for Administrative Hearing in this matter remain disputed issues for the purposes of the final hearing." In his Proposed Recommended Order, however, Petitioner states in a more concise fashion that the amendments are not in compliance because they:

   are not clearly based upon appropriate data, including data required for the FLUE; [are not] based upon and supported by an appropriate analysis of the best available data; did not demonstrate "need"; [are] inconsistent with the State Comprehensive Plan; [are] not "financially feasible"; [do] not meet format requirements; [do] not contain two planning periods; establish a mixed-use FLUM designation of CRD [Community Redevelopment District] that [does] not meet the statutory and rule requirements; [are] internally inconsistent; and [do] not meet

   the minimum procedural and notice requirements.

   
   

   These objections will be considered below, although not in the order listed above.

   1. Procedural Irregularities

      
      

2. Petitioner contends that the City failed to follow certain notice requirements and therefore he was unduly prejudiced by these irregularities. Specifically, he claims that the notices published by the City in the St. Petersburg

   Times on June 8 and August 20, 2008, did not advise the public of all amendments, particularly one relating to the Resort Facilities Overlay District; did not include a map showing areas subject to the FLUM amendments in relation to major streets; did not advise that the City was amending the coastal construction control line (CCCL) definition in the Preservation land use category; and the actual changes being made "did not comport with the title of the adopted Ordinance." Copies of the published notices, albeit in very small and sometimes illegible print, are found in Joint Exhibit 2.

3. Assuming all of these notice deficiencies are true, Petitioner did not establish that he was prejudiced by any irregularities. Besides being intimately involved in this controversy since its inception in 2002, the evidence shows that he attended both the transmittal and adoption hearings of

   Ordinance No. 2008-15; that he addressed the City Commission at both meetings; that he was provided copies of all pertinent documents; that through counsel he filed a Petition requesting a formal evidentiary hearing, which raises a litany of compliance issues; that he was allowed to conduct discovery; and that he was given an opportunity to fully litigate each issue in his Petition. The contention that he was prejudiced by procedural irregularities is hereby rejected.

   1. Planning Time Frames

      
      

4. Petitioner alleges that the Plan, as amended, does not set forth either a short-term planning time frame for the five- year period following adoption, or a long-term planning timeframe for at least a ten-year period following adoption. He contends that this is inconsistent with Florida Administrative Code Rule 9J-5.005(4), which requires that "[e]ach local government comprehensive plan shall include at least two planning periods: one for at least the first five year period subsequent to the plan's adoption and one for at least an overall 10-year period." See also § 163.3177(3)(a)5., Fla. Stat.

5. The existing Plan includes at least two planning periods, a Capital Improvements Plan (CIP) covering the first five years after the adoption of the Plan in 1998, and the

   School Board's Five-Year Work Program for fiscal year 2007-08 through 2011-2012. Although the CIP was first adopted in 1998, the statutory deadline for all local governments to transmit an updated CIP was December 1, 2008, or after the amendment was adopted. Also, the existing Plan utilized a population estimate from the Bureau of Economic and Business Research (BEBR) to project population for the City for the upcoming ten-year period.

6. Besides the above time frames, the new amendment contains two other planning time frames for implementation of the redevelopment incentives in the Plan. First, it contains a Residential Unit Reserve section for the new District, holding specific numbers of residential units in reserve in three of the character districts (Downtown Core Residential District, Commercial Corridor Blind Pass Road District, and Commercial Corridor Gulf Boulevard District) for the first five years after adoption of the plan amendments. See Joint Exhibit 2, pages 106-107. This allows the City to evaluate the effectiveness of the redevelopment incentives in the amendment without releasing all residential density otherwise authorized. Second, the amendment contains a General Residential Unit Density Pool Reserve of 195 residential units in the Large Resort District which cannot be released in the first ten years after adoption

   of the amendment. See Joint Exhibit 2, page 108. Like the other provision, this planning tool allows the City to reevaluate the effectiveness of the redevelopment incentives in the amendment prior to authorizing additional density.

   Petitioner's own planner agreed that these time frames were part of the planning period for the proposed amendment. While Petitioner contends that the time periods are "minimum waiting periods not tied to any fixed time frame," it is reasonable to infer from the evidence that they will become operative once the Ordinance is implemented.

7. The preponderance of the evidence shows that the Plan, as amended, complies with the requirement for two planning time frames and is not inconsistent with either the rule or statute.

   1. Mixed-Use Categories

      
      

8. Florida Administrative Code Rule 9J-5.006(4)(c) encourages mixed use categories of land and provides that if they are used, "policies for the implementation of such mixed uses shall be included in the comprehensive plan, including the types of land uses allowed, the percentage distribution among the mix of uses, or other objective measurement, and the density and intensity of each use." Petitioner contends that FLUE Policy 2.1.1 establishes a new mixed use district (the Community

   Redevelopment District) but the Plan, as amended, does not contain the requirements set forth in the rule.

9. The Community Redevelopment District is a mixed use land use category, as is each of the character districts included within the two sub-districts. The Plan identifies four character districts within the Gulf Boulevard Redevelopment District (Large Resort, Boutique Hotel/Condo, Activity Center, and Bayou Residential) and seven character districts within the Downtown Redevelopment District (Town Center Core, Town Center Corey Circle, Town Center Coquina West, Downtown Core Residential, Upham Beach Village, Commercial Corridor Blind Pass Road, and Commercial Corridor Gulf Boulevard).

10. FLUE Policy 2.1.1 incorporates the development standards found in the "Community Redevelopment District" section of the FLUE for the two larger sub-districts and eleven smaller character districts. Therefore, it provides the policies required for the implementation of the new land use category. These policies govern the distribution, location, and extent of uses and densities and intensities of uses within the sub-districts. They also establish the boundaries, uses, densities, and intensities of use for the eleven character districts.

11. The types of land uses allowed in each character district are clearly listed in a section of the text amendment corresponding to each character district titled "Permitted Uses and Standards." See Joint Exhibit 2, Attachment A, pages 75, 79, 82, 84, 91, 93, 98, 100, 102, and 105. For example, in the Large Resort District, primary uses are hotel, motel, resort condominium, and medium density multi-family residential. Id. at page 75.

12. The density and intensity standards for each type of use allowed within each character district are also listed in the same sections of the Attachment. For example, the maximum density of residential development in the Boutique Hotel/Condo District is eighteen units per acre. Id. at page 75. Finally, the policies for each character district provide objective criteria governing the actual mix of uses permitted on any redevelopment site within the Community Redevelopment District.

13. The location of each allowable use will be distributed throughout each district. For example, the Downtown Redevelopment District creates a traditional downtown core area with traditional downtown core services surrounded by residential neighborhoods buffered from commercial intrusion. See Joint Exhibit 2, Attachment A, page 36. On the other hand, the Gulf Boulevard Redevelopment District is a core resort and

    shopping destination for residents and visitors. Id. The Community Redevelopment District does not use a percentage distribution among the mix of uses since the City is essentially built out and already has a mix of uses within the newly-created districts. Therefore, the plan amendment accomplishes a distribution of mix of land through location of uses in multi- story buildings, rather than a percentage distribution of mix.

    By doing so, it satisfies the requirement of the rule. See, e.g., The University Park Neighborhood Association, Inc. v. Department of Community Affairs, et al., DOAH Case No. 92- 0691GM, 1993 Fla. ENV LEXIS 19 (DOAH Nov. 2, 1992, DCA Feb. 24,

    2003).

    
    

14. Therefore, it is found that Petitioner failed to demonstrate by a preponderance of the evidence that the amendment is inconsistent with the rule.

    1. Preservation District

       
       

15. The plan amendment is based upon the City's Visioning Plan and Master Plan. See Respondent's Exhibits 1 and 3. Neither document contains any recommendation that the City's Preservation Land Use District be revised in any way.

16. In the existing 2010 Plan, the Preservation District is defined in FLUE Policy 1.1.1 as those beaches seaward of the CCCL, Fuller Island, and other environmentally significant

    natural resource areas. No development is allowed in the Preservation District except dune walkovers. Ordinance No. 2008-15 renumbers Policy 1.1.1 as 2.1.1 and makes a one-word

    change (underscored below) in the definition of the Preservation District so that it now reads as follows:

    Preservation (P), applied to the beaches seaward of the Florida Coastal Construction Control Line, Fuller Island and other environmentally significant natural resource areas; such designated areas shall not be developed except to provide beach access dune walkovers from adjacent developed properties under the provisions of the City's Beach Management Regulations.

    
    

17. Petitioner argues that the effect of this change is to establish a new boundary line for the Preservation District (further seaward in some instances) and to no longer use the setback line previously used by the City, which was known as the Coastal Construction and Excavation Setback Line. He further contends that the City's setback line and the Florida (State) CCCL encompass different areas along the beach. In some cases, the City's setback line is more seaward than the State, and vice versa.

18. Petitioner contends that the data and analysis for the 2010 Plan "implies" that the location of the Preservation land use category should be based upon the more restrictive of the City setback line or State CCCL, that is, whichever is less

    seaward. It is fair to infer from the evidence that the underlying reason for raising this claim is that an old Travelodge motel sits just south and east of Petitioner's condominium building and is scheduled to be redeveloped as a new high-rise condominium. Petitioner is concerned that if the State CCCL (rather than the City setback line) is used, it will allow the new building to be constructed closer to the Gulf of Mexico, presumably reducing his view and beach access.

19. The City's witness Holly established that the City does not have a CCCL. Rather, it has an excavation and setback line. He further established that the City has consistently enforced the Preservation District geographically as the area seaward of the State CCCL. Also, the City's land development regulations implementing the existing Plan define the Preservation District as the property seaward of the State CCCL. The Countywide Plan also uses the State CCCL. The amendment is clarifying in nature and is intended to make the text in the City's Plan consistent with the Countywide Plan and existing enforcement practices. As explained by Mr. Holly, the City's setback line predates the establishment of the State CCCL, and functions much in the same manner as the State CCCL "in that it precludes structural development seaward of that line without

    specific application for approval of variance for those standards." See Transcript, page 415.

20. Petitioner has failed to establish by a preponderance of the evidence that this clarifying change in the definition of the Preservation District in FLUE Policy 2.1.1 is not supported by adequate data and analysis.

    1. Format of Plan Amendment

       
       

21. Petitioner next contends that the plan amendment is inconsistent with Florida Administrative Code Rule 9J-5.005(1), which contains general format requirements for comprehensive plans. For example, he points out that there are lengthy unnumbered narrative sections in Attachment A that apparently supplement the numbered sections, that the references to the land development regulations do not identify the specific land development regulation adopted by reference, that the series of maps are not labeled properly, and that the maps do not include north-south arrows or a scale.

22. The amendment contains specific goals, objectives, and policies for the Community Redevelopment District. See Joint Exhibit 2, pages 43-48. It also contains goals, objectives, and policies for the two redevelopment districts, numbered policies for each character district, as well as unnumbered text setting forth permitted uses and standards for each character district.

    See Joint Exhibit 2, pages 67-70, 71-77, 78-80, 83-85, 86-90,

    
    

    90-92, 92-94, 94-97, 97-98, 99-101, 101-103, and 104-106. The

    
    

    deposition testimony of Michael McDaniel, Chief of the Department's Office of Comprehensive Planning, established that while they are not typically used, the narrative sections of Attachment A are permissible to explain the goals, policies, and objectives. He further stated that nothing in the governing statutes or rules requires that all material adopted as part of a plan be labeled as, or be in the form of, a goal, policy, or objective, that many variations of format are found in plans adopted by local governments throughout the State, and that the Plan, as amended, is not inconsistent with any requirement. As to the makeup of the maps, Mr. McDaniel stated that while the Department prefers that maps be labeled as future land use maps, and that they contain the detail suggested by Petitioner, a failure to do so does not render the plan amendment not in compliance. Finally, he stated that the Department staff had no difficulty in understanding the maps or map series when they were reviewed by the Department in July 2008. Notably, the Department did not address any of these format issues when it prepared comments to the proposed amendment on August 1, 2008.

23. Petitioner has failed to show by a preponderance of the evidence that the plan amendment is inconsistent with the requirements of Florida Administrative Code Rule 9J-5.005(1).

    1. Data and Analyses

       
       

24. Petitioner alleges that the City failed to rely upon the best available data sources to support the amendment, that a proper analysis of the data was not made, and that the City did not react to the data in an appropriate way, as required by Florida Administrative Code Rule 9J-5.005(2).

25. Petitioner presented no expert testimony or other evidence supporting the claim that the plan amendment lacked supporting data and analysis. Although he introduced into evidence various documents on the theory that this information constituted better data than that used by the City, the evidence does not support this allegation.

26. For example, various documents concerning hurricane evacuation times were submitted, including the Tampa Bay Regional Hurricane Evacuation Study Update 2006, the Pinellas County Local Mitigation Strategy (LMS), and the 2008 Statewide Emergency Shelter Plan. See Petitioner's Exhibits 4, 16, and

1. Since the plan amendment does not increase density, however, it does not conflict with established hurricane evacuation times. Also, the City is not increasing population

   to be evacuated to other zones; therefore, the Statewide Emergency Shelter Plan is irrelevant. Finally, the amendment is not contrary to any mitigation strategies in the LMS.

   1. Population estimates for the year 2006 prepared by the BEBR were introduced by Petitioner, presumably for the purpose of showing that more current population data should have been used, rather than the 2000 Census data relied upon by the City. See Petitioner's Exhibit 21. However, there is no requirement that the City update its population estimates and projections each time it adopts an amendment. According to Mr. McDaniel, this is normally done every seven years at the time of the EAR. In any event, the BEBR estimates an increase in population in the City of only 48 persons during the six-year period from 2000 to 2006 (from 10,002 to 10,050).

   2. Petitioner also introduced a list of claims for flood losses within the last ten years in the City for the purpose of demonstrating that the City failed to consider the location of these properties in adopting the amendment. However, the evidence shows that redevelopment policies in the amendment would bring existing older structures up to National Flood Insurance Protection standards.

   3. A list of Licensed Dwelling Units was also introduced to show that the list relied upon by the City was incomplete and

      failed to include a motel in close proximity to Petitioner's condominium. Assuming that this is true, the error was minor and did not affect the overall validity of the City's data.

   4. The plan amendment is supported by the City's visioning project, economic analysis, master planning project, and evaluation of infrastructure capacity and availability of services. It is also supported by data submitted by SOLV to the County in support of the amendment to the Countywide Future Land Use Plan, which includes the Special Area Plan. The more persuasive evidence supports a finding that there is relevant and appropriate data supporting the amendment, that the data was properly analyzed, and that the City reacted in an appropriate manner.

      1. Internal Inconsistency

         
         

   5. Petitioner further alleges that the plan amendment is internally inconsistent with Intergovernmental Element Policy 1.5.3, which requires that the City coordinate with the Pinellas County Emergency Management Department when adopting map amendments resulting in an increase in population within the CHHA.

   6. Under the existing definition of the CHHA in the 2010 Plan, the entire City is within the CHHA. The amendment implements a new definition, as required by Section 163.3178(2),

      Florida Statutes, which removes some parts of the City from the CHHA. Because the new amendment does not relate to either hurricane shelters or evacuation routes, and does not increase the residential density in the CHHA, compliance with the cited policy was not required.

   7. Petitioner further alleged that FLUE Policy 4.1.1 is internally inconsistent with Goals 2 and 3 of the Conservation and Coastal Element as well as the implementing objectives for those Goals. However, no testimony or other credible evidence was offered on this issue and the claim must fail.

   8. The preponderance of the evidence supports a finding that the Plan, as amended, in not internally inconsistent with other Plan provisions.

      1. Need

      
      

   9. Petitioner contends that the City did not prepare an analysis of need for future land uses authorized by the Ordinance, that it did not prepare an updated existing land use map series, that no tabular form of the approximate acreage and general range of density and intensity of each existing land use was prepared, and no population projections were presented, as required by Florida Administrative Code Rule 9J-5.006(1)(a), (b), (c), and (g). Therefore, he argues that the plan amendment

      is not supported by a demonstration of need for the new land use category to accommodate the anticipated growth.

   10. The supporting documentation for the plan amendment demonstrates the need for redevelopment of the City's lodging establishments, the need for additional height for tourist lodging uses in order to prevent conversion of those uses to condominium uses, and the need for aesthetic and other design changes to the City's building facades, streetscapes, and public areas with the redevelopment area. See Joint Exhibit 2, Attachment A, pages 1-3.

   11. The plan amendment does not propose new density to accommodate new populations. In fact, it reduces the overall residential density in the City, and the total amount of dwelling units, temporary lodging units, and non-residential (commercial) floor area ratio will also be reduced.

   12. Because the plan amendment does not increase the total amount of development, but is simply a plan for redevelopment of existing uses, there is no requirement that a need analysis be prepared.

       1. Financial Feasibility

          
          

   13. Petitioner also contends that the Plan, as amended, has not been shown to be financially feasible and does not include an updated five-year CIP. See § 163.3177(3)(a)5., Fla.

       Stat. ("the comprehensive plan shall contain a capital improvements element [which] set[s] forth: . . . [a] schedule of capital improvements . . . ").

   14. The statutory requirement for a CIP applies to projects necessary to ensure that adopted levels of service (LOS) standards are achieved and maintained. It applies to all public facilities and services for which an LOS standard is adopted pursuant to Section 163.3180, Florida Statutes. This was confirmed by the testimony of Mr. McDaniel.

   15. The evidence shows that all relevant City infrastructure facilities are operating at or above the adopted LOS. Therefore, there are no deficiencies which need correction in order to implement the redevelopment plan. As further confirmed by Mr. McDaniel, if a plan has been found to be in compliance, and the local government proposes changes that do not create a need for capital improvements, the plan amendment does not need to include an amendment to its CIP. In this case, the amendment does not increase the total permissible amount of residential density or non-residential use within the Community Redevelopment District, and no additional infrastructure capacity is needed.

   16. Petitioner's expert identified certain infrastructure projects for which he contended an updated CIP is needed, such

       as sidewalks, street lighting, and bike lanes. While these types of projects are all integral to the proposed redevelopment plan, they are not subject to concurrency or the financial feasibility standard. Even if they were, Petitioner's expert agreed such improvements could be accomplished through private investment when permits for projects are issued.

   17. Because Petitioner failed to show that the plan amendment would require the construction of any new or expanded public facilities to provide additional capacity to serve the development, his contention that the plan is not financially feasible must necessarily fail.

       1. Other Contentions

       
       

   18. All other contentions not discussed herein have been considered and rejected because no evidence on the issues was presented or the more credible and persuasive evidence supports a finding that the contentions are without merit.

       CONCLUSIONS OF LAW

       
       

   19. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.569, 120.57(1), and 163.32465(6), Florida Statutes.

   20. Except for the Department, only affected persons, as defined by Section 163.3184(1)(a), Florida Statutes, have

       standing to challenge a Pilot Program amendment. See

       
       

       § 163.32456(6)(a), Fla. Stat. An intervenor must also be an affected person in order to participate. The parties agree that there are sufficient facts to establish that Petitioner, Lorraine Huhn, and Deborah Nicklaus are affected persons. SOLV contends that it has standing not only as an affected person, but also because it satisfies the "assocational standing" test. As previously found, the evidence establishes that SOLV has standing to participate as an affected person. Because the concept of associational standing does not apply in a compliance case under Chapter 163, Florida Statutes, SOLV's contention that it also has standing on that basis has been rejected.

   21. A petition may be filed by an affected person under Section 163.32456(6)(a), Florida Statutes, to determine whether the plan amendment is in compliance as that term is defined in Section 163.3184(1)(b), Florida Statutes. "The local government's determination that the amendment is 'in compliance' is presumed to be correct and shall be sustained unless it is shown by a preponderance of the evidence that the amendment is not 'in compliance'." See § 163.32465(6)(d), Fla. Stat. This language is identical to the language used in small-scale amendment cases. See § 163.3187(3)(a), Fla. Stat. Therefore, challenges to compliance are evaluated under the preponderance

       of the evidence standard rather than the typical fairly debatable standard. Stated differently, the test is whether the evidence supports or contradicts the determination of the City. Denig v. Town of Pomona Park, DOAH Case No. 01-4845GM, 2002 Fla. ENV LEXIS 220 at *4-5 (DOAH June 18, 2002, Admin. Comm. Oct. 23,

       2002).

       
       

   22. For the reasons given in the Findings of Fact, Petitioner has failed to establish by a preponderance of the evidence that the amendments are not in compliance. Therefore, the evidence supports the City's determination that the plan amendments adopted by Ordinance No. 2008-15 on August 26, 2008, are in compliance.

RECOMMENDATION

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

RECOMMENDED that the Department of Community Affairs enter a final order determining that the plan amendments adopted by Ordinance No. 2008-15 are in compliance.

DONE AND ENTERED this 4th day of May, 2009, in Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 2009.

ENDNOTES

1/ All statutory references are to the 2008 version of the Florida Statutes.

2/ The officially recognized matters include: Florida Administrative Code Rule Chapter 9J-5; Ashley v. State, Administration Commission, 976 So. 2d 1130 (Fla. 1st DCA 2007); the Staff Analysis of HB7203 for Ch. 2007-204, Laws of Fla.; Cochran v. City of Crestview, et al., DOAH Case No. 07-5779GM, 2008 Fla. ENV LEXIS 73 (Admin. Comm. July 30, 2008), 2008 Fla.

ENV LEXIS 75 (DOAH April 21, 2008); the Staff Analysis of HB 7067 of Ch. 2006-1, Laws of Fla.; Benson v. City of Miami Beach, 591 So. 2d 942 (Fla. 3d DCA 1992); without more specificity, the entire 2008 version of the Florida Statutes; Peck v. Palm Beach County Board of County Commissioners, 442 So. 2d 1050 (Fla. 1st DCA 1983); Kawasaki of Tampa, Inc. v. Calvin, 348 So. 2d 897 (Fla. 1st DCA 1977); McCulley Ford, Inc. v. Calvin, 308 So. 2d

189 (Fla. 1st DCA 1975); Current v. Town of Jupiter, et al., DOAH Case No. 03-0718GM, 2004 Fla. ENV LEXIS 209 (DCA April 4, 2004); and Emerald Lakes Residents' Association, Inc. v. Collier County, et al., 2003 Fla. ENV LEXIS 57 (DCA May 8, 2003).

3/ The matters officially recognized pursuant to these two requests are the Recommended and Final Orders entered in Woods

and Recio v. Marion County, et al., DOAH Case No. 08-1576 (DOAH Feb. 4, 2009, DCA Mar. 26, 2009), and Florida Wildlife Federation, Inc., et al. v. Town of Marineland, et al., DOAH Case No. 05-4402GM, 2006 Fla. ENV LEXIS 70 (DOAH April 28, 2006), 2006

Fla. ENV LEXIS 77 (DCA June 9, 2006), and a Final Order entered in Citizens for Responsible Growth, et al. v. Department of Community Affairs, et al., DOAH Case No. 05-3159GM (DCA Nov. 9, 2005).

COPIES FURNISHED:

Thomas G. Pelham, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

Shaw P. Stiller, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

Ross Stafford Burnaman, Esquire 1018 Holland Avenue

Tallahassee, Florida 32301-4508

Suzanne Van Wyk, Esquire Bryant, Miller & Olive, P.A.

101 North Monroe Street, Suite 900 Tallahassee, Florida 32301-1546

Robert K. Lincoln, Esquire Icard, Merrill, Cullis, Timm,

Furen & Ginsburg, P.A.

2033 Main Street, Suite 600

Sarasota, Florida 34237-6093

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days of the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will render a final order in this matter.

Docket for Case No: 08-004772GM

Orders for Case No: 08-004772GM