STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE UNIVERSITY PARK NEIGHBORHOOD ) ASSOCIATION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 92-0691GM

) DEPARTMENT OF COMMUNITY AFFAIRS, ) and CITY OF GAINESVILLE, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled case on June 23-25 and 29, 1992, in Gainesville, Florida. The following appearances were entered:

For Petitioner, University Park Neighborhood Association: Thomas D. Rider, Pro Se

1624 Northwest 7th Place

Gainesville, Florida 32603 For Respondent, City of Gainesville:

Elizabeth A. Waratuke, Esquire Assistant City Attorney

Post Office Box 1110 Gainesville, Florida 32602

For Respondent, Department of Community Affairs:

Michael P. Donaldson, Esquire Andy Smith, Legal Intern

2740 Centerview Drive

Tallahassee, Florida 32399-2100 STATEMENT OF THE ISSUE

The issue in this case is whether the comprehensive plan adopted by the City of Gainesville (City) is "in compliance" pursuant to Chapter 163, Part II, Florida Statutes, and Chapter 9J- 5, Florida Administrative Code.

PRELIMINARY STATEMENT

The City on May 23, 1991, submitted a proposed comprehensive plan to the Department of Community Affairs (Department) for review. After reviewing the

plan the Department prepared an Objections, Comments, and Recommendations Report (ORC Report) concerning the proposed plan. The ORC Report was forwarded to the City on September 13, 1991.

After considering the Department's ORC Report and making the necessary revisions, the City, by ordinance, adopted the plan on November 13, 1991. The adopted plan was received by the Department on November 22, 1991, and reviewed.

The Department on December 19, 1991, determined that the plan as a whole was "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. The "in compliance" determination was published in the Gainesville Sun on January 6, 1992.

On January 24, 1992, the University Park Association, Inc. (Association), filed with the Department a petition challenging the "in compliance" determination. The petition generally alleged that the plan's increase in densities in the College Park Neighborhood was inconsistent with Chapter 163, Part II, Florida Statutes, and provisions of Rule 9J-5, Florida Administrative Code. The petition also attacked the inclusion of a limited amount of non- residential office use in portions of the College Park Neighborhood which had been historically residential.

At the final hearing, the Association called 5 witnesses and introduced into evidence 5 exhibits. The City called six witnesses and introduced into evidence 23 exhibits. The Department called one witness and introduced into evidence one exhibit. A transcript of the final hearing was filed with the Division of Administrative Hearings on August 12, 1992. In accordance with provisions of Rule 22I-6.031, Florida Administrative Code, the parties, by request and agreement to a deadline for filing proposed recommended orders more than 10 days after the filing of the transcript, waived provisions of Rule 28- 5.402, Florida Administrative Code.

Proposed findings of fact submitted by the parties, to the extent possible, are addressed in the appendix to this recommended order.

FINDINGS OF FACT

Parties

1. The Department is the state land planning agency charged with the responsibility of reviewing plans and plan amendments pursuant to Chapter 163, Part II, Florida Statutes, also known as The Local Government Comprehensive Planning and Land Development Regulation Act (Act).

   
   

2. The Association is a non-profit Florida Corporation, whose members reside, own property, or conduct business generally within the boundaries of the City of Gainesville and specifically the College Park Neighborhood (College Park). The purpose of the Association is to maintain and improve the quality of life for the residents of College Park. The Association submitted written objections concerning the plan during the review and adoption proceedings. Further, the Association participated more in the comprehensive plan development process than any other part of the

   City.

   
   

3. The City is a local government required to adopt a revised comprehensive plan pursuant to Sections 163.3164(12) and 163.3167, Florida Statutes.

   City Background

   
   

4. The City is located in north central Florida and is the county seat for Alachua County. The City encompasses approximately 20,000 acres, of which approximately 3,600 acres remains vacant. The City is approximately 83%-85% "built out". The development of the remaining 15%-17% vacant and undeveloped land will be limited by constraints of soil types, floodplains and wetlands. There is an acute lack of unimproved land suitable for higher density development, necessitating the major focus of the comprehensive plan's Future Land Use Element (FLUE) upon redevelopment of underdeveloped areas of the City.

   
   

5. As of 1991, the City had an estimated population of 92,723, with a projected population in the year 2001 of approximately 97,116. The population is more densely concentrated around the major activity centers which include the Oaks Mall area, the University of Florida (University) campus and the older central part of the City.

   
   

   UNIVERSITY OF FLORIDA

   
   

6. The University and the surrounding areas, make up an area described by the plan as the University Oriented Area. The area includes the College Park neighborhood and is one of the biggest activity centers in North Central Florida. The University is the major activity generator within the City limits. The University itself occupies approximately 1,100 acres within the City limits and has an enrollment of approximately 36,000 students. The data and analysis indicates that the students and faculty of the University will play a major role in the future development of the City.

   
   

7. The University provides on campus housing for approximately 6,800 single students in dormitories located throughout the campus. The University also provides approximately 987 units for single parent and married students. Total housing provided by the University accounts for only 18-20% of the total student population and future development of on-campus housing will be limited due to the lack of room to build future dormitory facilities. The University is heavily dependent upon "off campus" housing offered by the areas surrounding the campus to meet student housing needs.

   
   

   SPECIAL TRANSPORTATION AREA

   
   

8. In order to permit further redevelopment in the University Oriented Area, the City needed a mechanism to permit that further development in view of the potential degrading of level of service standards for traffic circulation. This was particularly so since the City had experienced traffic circulation deficiencies in the University Oriented Area, including College Park.

   
   

9. To mitigate the traffic congestion in the vicinity of the University, the City proposed to make these areas a Special Transportation Area (STA). As defined by data and analysis, an STA is a compact geographic area for which the Florida Department of Transportation (FDOT), the Florida Department of Community Affairs and the local government, in consultation with the Regional Planning Council and the Metropolitan Transportation Planning Organization, mutually agree to set specific standards for level of service standards and use and transportation services in order to reach growth management goals.

   
   

10. By letter dated August 30, 1991, the FDOT approved an Interim STA for the central city which included the University Oriented Area and College Park.

    The specific strategies to be developed in the Interim STA are set forth in Traffic Circulation Element (TCE) policy 1.1.7 and read as follows:

    
    

    The following specific strategies and guidelines shall be applied within the Interim STA consistent with the conditions of approval by FDOT:

    1. The level of service of all arterial roadways in the Interim STA shall be evaluated using the ART

       by FDOT, to evaluate such traffic variables as green

       flow in order to determine the exact condition of each facility. This evaluation shall be done cooperatively with FDOT and the Metropolitan Transportation Planning Organization (MTPO).

    2. The City shall coordinate with the MTPO and the FDOT through the Technical Advisory Committee of the MTPO to review strategies for improved level of service such as signalization, adjustments in green dedicated turn lanes, and roundabouts.

    3. The City shall limit the development of new drive

       service or sales to customers while in their automobiles. In the STA, the City shall prohibit additional or expanded

       drive

       constrained roadways. Drive

       facilities on other roads within the STA shall be regulated by special use permit. Criteria shall include minimum separation of

       400 feet for such facilities and shall provide minimal interruption of the urban streetscape.

       
       

       COLLEGE PARK NEIGHBORHOOD

       
       

11. College Park consists of approximately 145 acres and is located immediately north of the University. College Park is bordered on the south by West University Avenue, on the east by NW 13th Street, on the west by NW 20th Street, and on the north by NW 5th Avenue. College Park also includes a small nine block area immediately northeast of the main boundaries. This additional area is bounded by NW 5th Avenue on the south, NW 15th Street on the west, NW 7th Avenue on the north and NW 13th Street on the east.

    
    

12. College Park is one of the oldest residential neighborhoods in the City and has long served as a student residential area offering low to moderate apartment housing and duplex units. The area has a friendly environment for walking and biking. It has a number of crossing points to the campus and close proximity. The width of the street and the amount of on

    constrain the speed of the traffic to bicycling speed and walking speed so that it is compatible for walking and bicycling.

    
    

13. The southern and eastern outermost boundaries of College Park, University Avenue and NW 13th Street respectively, consist of a mixture of commercial and institutional land uses. The western boundary, NW 20th Street,

    is predominantly fronted by single family residential land uses. The northern border, NW 5th Avenue, consists of single family and duplex dwellings, small apartment buildings and institutional facilities which include several churches and their ancillary buildings.

    
    

14. Many of the single family housing units that previously existed in the core of College Park have been converted into multi- unit or garden apartment dwellings to better accommodate demands for student housing. The innermost core of College Park is almost devoid of true single family homes and the single family neighborhood character of the neighborhood has long since evolved into a student community.

    
    

15. The large number of streets in College Park are arranged in a traditional grid pattern. Most of the streets in the neighborhood do not have curbs or gutters.

    
    

    COLLEGE PARK DENSITIES

    
    

16. In 1970 the City, by ordinance, adopted the Comprehensive Development Plan for the Gainesville Urban Area (1970 Plan). The 1970 Plan had the provision of a framework for logical development decisions, both by the private and public sectors as its primary goal. The 1970 Plan in several provisions addresses the framework for allowable densities in College Park. One of those provisions, Premise C, Principle 7 provides:

    
    

    High density residential development should be encouraged to locate near concentrations of non-residential activities such as the University of Florida and the Central Business District, and adjacent to the major traffic arteries.

    
    

    Another provision, Premise B, Principle 2 provides:

    
    

    mixed dwelling types and housing densities should be permitted in those areas where prior planning will permit such a mixture.

    
    

17. Prior to the 1970 Plan, the density in the innermost core of College Park was unlimited. The City Commission, in preparing the 1970 plan, determined that unlimited densities were not appropriate anywhere in the City. The actual numerical densities for College Park were established at that time by zoning regulations with the highest density being 43 units per acre in the innermost core.

    
    

18. With the creation of the first Growth Management Act in 1975, local governments were asked to develop comprehensive plans. The City used the opportunity to enhance the existing 1970 plan. The revised plan was entitled "Gainesville Comprehensive Plan 1980 to 2000" (1980 Plan). The 1980 Plan continued to promote higher densities around the University of Florida, including College Park.

    
    

19. The 1980 Plan also contained guiding principles which directly assisted the improvement of public facilities in College Park and incorporated recommendations made in a special neighborhood study of College Park conducted in 1975. The recommendations supported a number of zoning categories in a

    transitional approach, with higher densities near NW 13th Street and West University Avenue and decreasing densities moving into the core of the neighborhood.

    
    

20. The actual densities in College Park through the zoning code followed the density transition approach with the core of the neighborhood remaining a maximum of 43 units per acre. The City also, through the revised zoning ordinance, incorporated urban design standards which contained development within the neighborhood.

    
    

21. With the 1985 amendment of the Growth Management Act, the creation and adoption of a comprehensive plan by the City became mandatory. The City used this opportunity to improve upon the already existing 1980 Plan. In a further effort to better plan for development in College Park, the City hired renowned urban planner Andres Duany. After surveying the College Park neighborhood and interacting with the residents of the neighborhood, Duany developed the Master Plan for College Park.

    
    

22. The Master Plan made many recommendations as to how growth should proceed within College Park. Based on the recommendations of the Master Plan, the City's 1990 comprehensive plan created a land use category for College Park which allowed up to 75 units per acre in the neighborhood core.

    
    

    1990 PLAN

    
    

23. College Park is referenced in several provisions of the 1990 plan and supporting data and analysis. In the second paragraph of the section entitled "Redevelopment" on page 38 of the Future Land Use Data And Analysis Report (accepted in evidence as Petitioner's Exhibit 1.), the following information is provided:

    
    

    Neighborhoods north, east, and south of the University have a large percentage of student residents, but do not accommodate a large enough share of student housing. It is especially desirable to accommodate student housing close to the University to reduce the transportation demand that student housing in outlying areas places on the City and the University. As stated earlier, students at the University of Florida are currently included in the City's population figures.

    As new students enroll in the University dormitories, existing students move out. These are the students that should continue to be housed near the University. Over time, this will have the effect of reducing peak hour traffic problems and help to revitalize downtown. This would also provide the density that is needed to support the mass transit system.

    
    

24. Future Land Use Element Policy 2.4.1 of the 1990

    comprehensive plan provides that the City shall prepare special area plans for certain areas of the City. Specifically, the plan in Policy 2.4.2 provides:

    Special Area plans for the College Park Neighborhood, . . . shall be the first priority.

    
    

    The Future Land Use Element goes on to specifically address development in College Park in Policies 2.4.7, 2.4.8, and 2.4.9., respectively, as follows:

    
    

    1. The City shall only allow development and redevelopment within the College Park Neighborhood that is consistent with the scale and character of the neighborhood.

       Residential development in the neighborhood shall be allowed in Type II buildings with 3.5 stories and Type III buildings with 2.5 stories (measured in the number of floors, each not to exceed 13 feet, floor to ceiling).

       * * *

    2. The following criteria shall be used to guide development in the College Park Neighborhood south of N.W. 5th Avenue:

       1. Type I buildings which allow retail, office and residential uses within four story buildings shall be allowed in areas designated Mixed Use-Low, Retail uses shall be restricted to the first 2 floors, office uses shall be allowed on all fourth floors and residential shall be allowed on the second through the fourth floor.

       2. The Type II buildings which allow office and residential uses within a 3.5 story building shall be allowed in areas designated Mixed Use-Residential, Office uses accessory to the residential use shall be restricted to the first floor.

       3. The Type III buildings which allow residential uses within a 2.5 story building shall be allowed in areas designated Residential Medium Density, Residential uses along with home occupations shall be the only uses allowed.

       * * *

    3. By June 1992, The City shall adopt Land Development Regulations and a Special Area Plan for the College Park Neighborhood based on a Master Plan being prepared for the neighborhood. The Special Area Plan shall be adopted by amending the Comprehensive Plan, Land Development Regulations shall establish the overall density and intensity of uses.

    
    

25. A review of the Future Land Use Map (FLUM) indicates that the following densities and corresponding intensities are allowed in College Park:

    
    

    1. Residential Medium development is designated for land located in northern portions bordering 5th avenue at densities ranging from 8-30 units per acre. This

       designation also applies to predominantly all the areas in the 9 block extension of the northeast corner of College Park.

    2. Mixed Use Low Intensity development is designated along the borders of West University Avenue and NW 13th Street at a density of 8- 30 units per acre and a floor area ratio intensity of 1.00-2.00. In most areas this land use category extends into the neighborhood approximately one block.

    3. Public facilities development is designated for the one area in College Park located on NW 2nd Avenue between NW 16th Street and NW 17th Street. The maximum lot coverage in this category is 80%.

    4. Mixed use residential development is designated for the entire core area of College Park at a density of 75 units per acre with the intensity of office use not to exceed more than 10% of the total residential floor area per development.

    5. Residential low development is designated in the northwest portion of College Park at a density of 5.8 to 12 units per acre.

    6. Single family development makes up the remainder of the northwest portion of College Park at a density of 0 to 8 units per acre.

       
       

26. The several land use designations found within the neighborhood are arranged so that the most intensive development (75 units per acre) is located in the innermost core of the neighborhood and the lesser intense development on the outermost core (8-30 units per acre). This density arrangement ensures that the adjacent neighborhoods with single family character will be buffered from the more intensive University oriented development of College Park.

    
    

27. The major change in land use planning proposed by the 1990 plan which relates specifically to College Park is that within the mixed use residential land use category the maximum allowable densities in certain areas increased from 43 units per acre to 75 units per acre. Additionally, an intensity for commercial use of not more than 10% of the total residential floor area for the development was also added, although there is no allocation of solely commercial use in the interior of College Park.

    
    

28. The mixed use residential category applies to approximately 36 acres within College Park. Objection to the increase in density and the addition of commercial intensity in this category forms the foundation of Petitioner's challenge.

    
    

29. The mixed use residential category definition in FLUE Policy 2.1.1 of the comprehensive plan reads as follows:

    
    

    This residential district provides for a mixture of residential and office uses. Office uses that are complementary to and secondary to the residential character of the district may be allowed. An essential element of the district is orientation of structures to the

    street and the pedestrian character of the area. Office use as located within this district shall be scaled to serve the immediate neighborhood and pedestrians from surrounding neighborhoods and institutions. Land Development Regulations shall set the district's size; appropriate densities (up to 75 dwelling units per acre); the distribution of uses; appropriate floor area ratios; design criteria; landscaping, pedestrian, mass transit and bicycle access, and streetlighting. Land Development

    Regulations shall specify the criteria for the siting of public and private schools, places of religious assembly, and community facilities within this category when designated in a manner compatible with the adoption of a special area plan for that area. The intensity of office use cannot exceed more than 10 percent of the total residential floor area per development.

    
    

30. As a review of the FLUE data and analysis reveals, land use analysis have been performed to determine the development and redevelopment possibilities within the City limits. Such analysis adequately supports the land use category designations on the FLUM. Specifically the analysis includes traffic circulation, potable water, natural groundwater aquifer recharge, sanitary sewers, stormwater and solid and hazardous waste. A plan policy is not required to contain actual data and analysis. Rather, the plan's Goals, Objectives, and Policies (GOPs) are required to be based on appropriate data and analysis.

    
    

31. The Gainesville Urban Area Land Use Model was used to determine land use requirements. The model focused on market demand and existing and projected relationships between demand and developed space. Future land use and development was allocated by the model to nine market areas. College Park is located in Market Area 3.

    
    

32. Data and analysis submitted by the City in support of the plan indicate that the City will require approximately 15 acres of commercial/office acreage through the year 2001. The data further indicates that there are 260 vacant acres which the FLUM designates for commercial/office usage. College Park contains approximately 5 vacant acres of land designated commercial/office land use, but no commercial/office use is required or needed in Market Area 3.

    
    

33. The lack of projected need for the 5 acres of designated commercial/office land use in College Market would appear to suggest a conclusion that such additional commercial/office land uses should not be permitted in Area 3 and specifically College Park. However, such a conclusion ignores several other criteria which also must be factored into the analysis of the data.

    
    

34. Much of the 260 vacant acres that could accommodate commercial/office land uses appears environmentally constrained. Therefore, in actuality many of the 260 acres will not accommodate future commercial/office development. An example of this can be seen in Market Area 5 which has a surplus of 108 vacant acres. Most of this land, however, is located near a hazardous waste Superfund site or near the airport. These areas clearly would not be appropriate for the

    provision of commercial/office land uses and justify planning for the accommodation of commercial/office land uses within College Park.

    
    

35. The overall planning goals of the City include the redevelopment of urban areas and the promotion of infill and compact development. The City has made a policy decision that in order to further the regional and state planning goal of discouraging urban sprawl, commercial office development will be encouraged in College Park rather than outside of the City's central business core.

    
    

36. Even with this new land use category, the actual increase in commercial uses will not be significantly different than what currently exists in College Park. It is not proven beyond fair debate that Policy 2.1.1 of the Comprehensive Plan and specifically the inclusion of such commercial/office land uses within College Park lacks the support of appropriate data and analysis.

    
    

37. Traffic impacts in College Park that will be caused by the non residential uses allowed by the mixed use land use category have been analyzed by the City. The data and analysis which accompanies the TCE is replete with data concerning traffic circulation and traffic levels of service for the entire City, including College Park.

    
    

38. The City readily acknowledges that certain areas of the City, including the University Oriented Area, have traffic circulation problems. In an effort to correct the traffic circulation deficiencies the City with the approval of FDOT created the Central City STA discussed earlier at paragraph 9. With the creation of the STA, the City analyzed the impacts of future development not only within College Park but within the entire University Oriented Community. This action establishes beyond fair debate that the City has analyzed traffic impacts.

    
    

39. In terms of parking impacts, allowing the non-residential mixed uses will not increase the parking demands within College Park. There will be no significant increase of commercial land uses in the College Park Area over the commercial uses that already exist, absent compliance with concurrency management system requirements. If facilities are not in place at the time development of additional non-residential uses is desired, development can not proceed.

    
    

40. Further, introduction of non-residential uses into College Park will not de-stabilize the neighborhood. Rule 9J- 5.006(4)(c), Florida Administrative Code, specifically encourages local governments to use mixed use categories, provided policies for implementing the mixed uses are included. The plan provides these in FLUE Policies 2.4.7 and 2.4.8., set forth above. These policies, combined with the requirement that any additional office use allowed in the core area of College Park be allowed only in places where people live, will directly prevent de-stabilization. Accordingly, it has not been shown to the exclusion of fair debate that allowing mixed uses in College Park will de- stabilize the neighborhood.

    
    

41. The FLUE is required by Rule 9J-5.006(3)(c)7., Florida Administrative Code, to contain policies which implement standards or intensities of use for each land use category. In reviewing FLUE Policy 2.1.1, specifically the mixed use residential land use category, it is clear that the policy establishes a maximum density (75 units per acre) and an intensity (intensity of office use not to exceed 10% of the total residential floor area).

42. The Mixed Use Residential Land Use category provides that the Land Development Regulations (LDRs) will control the actual implementation of such things as appropriate floor area ratios, design criteria and distribution of uses. Such language does not inappropriately defer implementation of the plan to LDRs. The Act requires that local governments adopt appropriate regulations to implement their plans. As required by Section 163.3202(2), Florida Statutes, such regulations "shall contain specific and detailed" provisions necessary to implement the adopted plan.

    
    

43. The Plan should, and does, contain general criteria upon which LDRs will be developed. FLUE Policy 2.1.1, specifically the mixed use residential category, contains many general standards which will guide and narrow the focus of future LDRs.

    
    

44. The City has recognized that the mixed use category criteria of FLUE Policy 2.1.1 must be implemented carefully. The plan in FLUE Policy 2.1.3 places a moratorium on zoning changes within the mixed land use categories until new LDRs are developed and the comprehensive plan amended to reflect the new LDRs. In the interim, the plan indicates that Chapter 29, City of Gainesville Code of Ordinances, shall regulate development. It is clear that Policy 2.1.1 in combination with other policies in the FLUE taken as a whole does not inappropriately defer implementation to LDRs.

    
    

45. Increasing density from 43 to 75 units per acre in College Park will not necessarily result in overcrowding and undue concentrations of population. While the previous maximum of 43 units per acre permitted intense urban development, the increase to 75 units per acre requires compliance with design standards that were previously absent. FLUE Policy 2.4.8 establishes the design standards for use in conjunction with the 75 units per acre density. Notably, criteria in FLUE Policy 2.4.8 were incorporated into the plan at the request of the Association. Those criteria and other policies in the FLUE indicate that no undue concentration of population will be allowed. For example, as noted in Policy 2.4.7, set forth above, "[t]he City shall only allow development and redevelopment within the College Park Neighborhood that is consistent with the scale and character of the neighborhood." It has not been proven to the exclusion of fair debate that Policy 2.1.1 and the FLUE will result in overcrowding of land and undue concentration of population.

    
    

46. Densities greater than the 75 units per acre found objectionable in College Park by Petitioner exist in several locations as illustrated by depictions on the FLUM of other neighborhoods surrounding the University which currently have densities upwards of 100 units per acre. As discussed earlier, the City is 83%-85% buildout and development on much of the remaining undeveloped land will be constrained since the land that can be developed will only accommodate low density development. To accommodate City wide future growth, the data and analysis indicates that redevelopment of already existing underdeveloped areas is necessary. Further, redevelopment and infill of areas is required to discourage urban sprawl. The data and analysis indicates that College Park is one of the few remaining underdeveloped areas where redevelopment can occur. As a result, the higher densities proposed for College Park appear justified.

    
    

47. Just as allowing mixed uses in College Park will not result in de- stabilization, the same is true of the proposed higher densities. Although the higher density levels would, if realized, exceed the projected population for College Park, planning for this area of the City must be combined within the overall planning decisions of the City as a whole. The data and analysis

    clearly provides that the City has limited areas which can accommodate future high density development. The population projections for the City indicate an increase in population of approximately 10,000 people over the next 10 years. This population increase will include University students. Sound planning demands that the City not rely on the County to bear the burden of housing this future population increase and thereby promote even more urban sprawl outside of the City with further traffic problems and demands for additional services such as mass transit, police, and fire protection.

    
    

48. Also, the higher densities in College Park are in part an effort to provide developers with an incentive to develop this area rather than the outlying urban areas. This effort is consistent with the conclusions found in the FLUE data and analysis that the FLUE must accommodate high densities close to campus. The overall impact of the increased density will be less urban sprawl, and a more efficient use of existing infrastructure. Such sound planning decisions do not show to the exclusion of fair debate that the FLUE inappropriately overallocated or that the increase in density will de-stabilize College Park.

    
    

49. It has been alleged that FLUE Objective 2.4 and Policies 2.4.3 and

    2.4.4 are not supported by data and analysis which substantiate the need for redevelopment of College Park. FLUE Objective 2.4 provides:

    
    

    Redevelopment shall be encouraged to promote urban infill, improve the condition of blighted areas, to reduce urban sprawl and foster compact development patterns.

    
    

    Policy 2.4.3 provides:

    
    

    Before June 1992, the City shall adopt a special area plan for the College Park neighborhood to identify the appropriate uses and intensity of uses and to provide urban design guidelines for development in the area. In the preparation of the plan the City shall consider recommendations made by the College Park Neighborhood Plan prepared by Wallace, Todd and Roberts.

    
    

    Policy 2.4.4 provides:

    
    

    The City's Future Land use Plan shall accommodate increases in student enrollment at the University of Florida and the relocation of students from the urban fringe by designating appropriate areas for high density residential development and/or appropriate mixed use development within one and half mile of the University of Florida and J. Hillis Miller Medical Center.

    
    

50. As previously noted, the FLUE contains data and analysis which supports the allowance of mixed uses at a density of 75 units per acre within College Park. The FLUE data and analysis also justifies the City's policy decision to increase the potential for redevelopment and infill development within College Park. Housing Element (HE) data and analysis further indicates

    the amount of dilapidated and substandard housing conditions within College Park. As indicated by HE Map 3, the area which includes College Park contains between 16% and 30% substandard housing units.

    
    

51. As HE Appendix C Tables 46 and 47 clearly indicate, College Park contains approximately 1,342 housing units. Of these units 23.10% are substandard or dilapidated. Based on these figures, the FLUE and HE data and analysis indicates that College Park is one of the areas in the City which should be redeveloped. It has not been shown to the exclusion of fair debate that the challenged plan provisions are not supported by data and analysis or that redevelopment is not appropriate for College Park.

    
    

52. FLUE Policy 2.1.1 is consistent with Rule 9J- 5.006(3)(c)2., Florida Administrative Code, and provides for compatibility of adjacent land uses. The mixed use residential category and the potential densities of 75 units per acre established by the policy does not appear incompatible with the adjacent single family neighborhoods when the existing land development patterns in the area are considered.

    
    

53. Currently, College Park is buffered from the adjacent single family neighborhoods by several churches along 5th Avenue, and J.J. Finley Elementary School. The churches make up much of the northern border of College Park. 5th Avenue itself also works as a separator between College Park and the adjacent neighborhoods. Further, although there has been no showing that the previous 43 unit per acre density caused incompatibility problems, potential compatibility issues are addressed in FLUE Policies 2.4.1, 2.4.2, 2.4.3, 2.4.7, 2.4.8, and

    2.4.9. These policies interact with each other and the FLUM to form a step down in densities. This step down approach means that the lowest allowable densities in College Park will be next to the adjacent neighborhoods. The step down approach of the FLUE policies also ensures that land uses within College Park are compatible. It has not been proven to the exclusion of fair debate that FLUE Policy 2.1.1 fails to provide measures which ensure compatibility with adjacent land uses.

    
    

54. It is alleged that Traffic Circulation Element (TCE) Policies 1.1.8 and 1.1.9 are not in compliance with Section 163.3177(3)(a), F.S., and Rules 9J- 5.007(2)(a) and (b) 9J- 5.007(3)1. and 9J-5.005(1)2., Florida Administrative Code.

    
    

    TCE Policy 1.1.8 provides:

    
    

    The City shall designate areas on the FLUM for housing, which serves the needs of employees and students within walking distance of the University.

    
    

    TCE Policy 1.1.9 provides:

    
    

    Eighteen months from the adoption of this plan the City, in cooperation with FDOT and the MTPD, shall seek permanent designation of the Central City Interim Special Transportation Area or an extension of the interim designation or the elimination of the STA.

    
    

55. These plan provisions outline principles for correcting deficiencies in traffic circulation. TCE Policy 1.1.8 directs the City to provide housing

    closer to the University so that fewer trips will be entering the area from further out in the urban area, thereby eliminating some of the traffic congestion that now exists. Further, TCE Policy 1.1.9 mentions the STA which was the City and FDOT solution to the problem of correcting existing deficiencies while still allowing growth. TCE Policies 1.1.4 through 1.1.10 combine to further provide controls to prevent degradation of traffic level of service standards. It is clear beyond fair debate that TCE Policies 1.1.8 and 1.1.9 outline principles for correcting deficiencies.

    
    

56. Degradation of level of service standards as the result of increased densities in College Park has not been shown to the exclusion of fair debate. The Mass Transit Element (MTE) data and analysis indicates that the relevant transportation bus routes for College Park include Routes 2, 5, 6, 7, 8 and 9. As shown by Table 11 of the MTE data and analysis, each of these routes currently have at a minimum a 54% excess capacity available for ridership. In fact, Route 9 has a 90% excess capacity available for ridership.

    
    

57. While TCE Policies 1.1.8 and 1.1.9 do not specifically provide for capital improvement implementation, each plan provision does not need to trigger capital improvements or concurrency requirements. The plan however does address concurrency and the triggering of capital improvements in the Capital Improvement Element (CIE). For example, CIE Policies 1.2.1, 1.2.6 and 1.2.7 establish how capital improvements through development orders will be implemented. In part, CIE Policy 1.2.1 provides:

    
    

    By June 1992, the City shall issue final development orders conditioned on the following:

    1. The availability of existing public facilities associated with the adopted LOS (level of service standards);

    2. The funding of public facilities (based on existing or projected funding sources) listed in the 5 year schedule of Capital Improvements that are needed to maintain adopted level of service standards.

       
       

58. Petitioner has alleged that FLUE Objective 1.5 and Policy 2.4.4 are not in compliance with Rules 9J-5.015(1)(a) and 9J- 5.015(2)(b), Florida Administrative Code, in that the City failed to assemble and assess data from the Alachua County School Board and the University regarding the shifting of student populations. The referenced rules require a local government to coordinate with adjacent local governments, school boards and other units of local government. Such intergovernmental coordination should address specific problems and needs within each jurisdiction and attempt to resolve the problems and needs through better plan provisions.

    
    

59. FLUE, Objective 1.5 provides that the City will:

    
    

    Ensure that the future plans of state government, the School Board of Alachua County, the University of Florida, and other applicable entities are consistent with this comprehensive plan to the extent permitted by law.

    FLUE Policy 2.4.4 is set forth above in paragraph 49. As established by data and analysis of the Intergovernmental Coordination Element (ICE), the City coordinated planning action with the University of Florida and the Alachua County School Board. The School Board did have concerns about the City's 1990 plan designation of J.J. Finely Elementary School as a recreational facility. Through the intergovernmental coordination process, the City and School Board resolved the issue.

    
    

60. In terms of justifying a shift of student population, the purpose of FLUE Policy 2.4.4 is not to shift student populations. Instead, the City is attempting to accommodate future population and development within College Park since the growing University population will not be completely accommodated on campus. FLUE Objective 1.5 and Policy 2.4.4 are in compliance with the intergovernmental coordination requirements of Rule 9J-5, Florida Administrative Code.

    
    

61. MTE Goal 1 and Objective 1.4 comply with requirements of Rules 9J- 5.008(2)(b) and 9J-5.008(3)(b)1., Florida Administrative Code, and demonstrate that projected mass transportation levels of service are consistent with the proposal to locate increased student populations in College Park.

    
    

62. MTE Goal 1 provides that the City shall:

    
    

    Encourage increased transit usage to reduce the impacts of private motorized vehicles on the social, cultural and natural environment, and provide basic transit for disadvantaged City residents to employment, education facilities and basic services.

    Objective 1.4 provides:

    The future land use plan shall distribute land uses in a way that promotes transit ridership.

    
    

63. Objective 1.4 satisfies the requirements of Rule 9J- 5.008(3)(b)1., Florida Administrative Code, that the plan contain an objective to address the provision of efficient mass transit. Further, as previously noted, there is more than adequate mass transit capacity in the City's system. Petitioner has failed to prove to the exclusion of fair debate that MTE Goal 1 and Objective 1.4 do not comply with provisions of Rule 9J-5, Florida Administrative Code.

    
    

64. Petitioner alleges that Stormwater Management Element (SME) Objective

    1.3 is not in compliance with Rule 9J-5.011(2)(b)1. and 2., Florida Administrative Code, in that the plan fails to address deficiencies in stormwater and drainage in College Park or coordinate the extension of, or increase in the capacity of those facilities to meet projected future needs.

    
    

65. SME Objective 1.3 provides:

    
    

    The City shall ensure that proper and adequate stormwater management facilities are provided to meet future needs.

    
    

66. Appendix C of the SME provides a stormwater need assessment list for the City. Need number 69 of the list specifically references College Park and the need to upgrade inadequate facilities. The City made the correction of these inadequate facilities a priority. In SME Policy 1.2.2, the plan calls for a Hogtown Creek Stormwater master plan to address deficiencies. The Hogtown

    Creek Master Plan is further accounted for in Table 14 of the Capital Improvements Element of the Plan. Petitioner has failed to prove to the exclusion of fair debate that SME Objective 1.3 fails to address deficiencies in stormwater and drainage in College Park.

    
    

67. A final issue raised by Petitioner is whether FLUE Objective 1.4 is in compliance with Rule 9J-5.006(3)(c)3. and 4., Florida Administrative Code, requirements for provision of adequate facilities and services to accommodate densities and intensities of residential and commercial uses in College Park with regard to drainage and stormwater management, open space and convenient on- site traffic flow and vehicle parking. FLUE Objective 1.4 reads as follows:

    
    

    Upon Plan adoption, the City shall ensure the provisions of services and facilities needed to meet and maintain the LOS standards adopted in this Plan. Between Plan adoption and implementation of the Concurrency Management System, the City shall adjust existing facility capacity to reflect the demand created by final development orders as they are issued.

    
    

    As addressed earlier, the Plan, and supporting data and analysis, make provision for adequate facilities and services to accommodate densities and intensities of residential and commercial uses in College Park with regard to these matters.

    Petitioner has failed to show to the exclusion of fair debate that FLUE Objective 1.4 is not in compliance.

    
    

    State And Regional Plans

    
    

68. The City's comprehensive plan is consistent with, compatible with, and furthers the state comprehensive plan construed as a whole. A comprehensive plan not only has to meet the minimum criteria of Rule 9J

    Administrative Code and be generally found consistent with the regional policy plan, it also has to further and promote the goals within the state comprehensive plan. The promotion of infill development, maximizing existing facilities, the separation of urban and rural land uses, and downtown revitalization, are efforts in furtherance of the state comprehensive plan.

    Higher densities within downtown areas are generally considered to be not only sound planning principles but they achieve many of the state's goals.

    
    

69. The plan is also consistent with, compatible with, and furthers the North Central Florida Regional Policy Plan (Regional Plan). The North Central Florida Regional Planning Council's Regional Policy Goals IV, page 1, provides that "Urban sprawl should be minimized and urban development should be directed to a designated urban development area." Regional Policy Goals 16, 4 and 11, IV.2, lists six or seven goals dealing with future development directed to urban development areas. By increasing residential densities and high intensity urban areas, the City of Gainesville Comprehensive Plan implements regional as well as state Growth Management objectives. By providing opportunities for infill development, the plan increases development of potential existing urban areas, thus discouraging urban sprawl. This also serves to encourage the redevelopment of older areas and serves to direct new population growth to areas with existing facilities, thereby promoting the full utilization of those facilities before the expansion of new facilities.

    CONCLUSIONS OF LAW

    
    

70. Pursuant to Sections 120.57(1) and 163.3184(9)(a), F.S., the Division of Administrative Hearings has jurisdiction over the parties and the subject matter.

    
    

71. The City has moved to dismiss the Association from this proceeding on the basis that the Association has failed to establish its qualifications as an "affected person" within the statutory definition set forth in Section 163.3184(1)(a), Florida Statutes.

    
    

72. The proof establishes that the Association and its spokesperson, Thomas Ryder, were actively involved in the City's planning process. That proof, coupled with the legislative intent expressed in Section 163.3181(a), Florida Statutes, that the public "participate in the comprehensive plan process to the fullest extent possible" is sufficient to deny the City's motion for dismissal of the Association from this proceeding.

    
    

73. Chapter 9J

    Department pursuant to Chapter 163, Part II, Florida Statutes, in order to provide guidance as to minimum requirements which plans must meet to be "in compliance". That term is defined in Section 163.3184(1)(b), Florida Statutes, and reads as follows:

    
    

    "In compliance" means consistent with the requirements of ss. 163.3177, 163.3178, and 163.3191, the state comprehensive plan, the appropriate regional policy plan, and rule 9J

    inconsistent with Chapter 163, Part II.

    
    

74. Pursuant to Section 163.3184(9)(a), Florida Statutes,

    the local plan or plan amendment shall be determined to be "in compliance" if the local government's determination of compliance is fairly debatable.

    
    

75. As previously noted, Petitioner's objections to the increase in density and the addition of non-residential density permitted by the plan's application of the mixed use residential category to the approximately 36 acre area known as College Park formed the gravamen of Petitioner's challenge. Petitioner failed to prove the validity of any of his objections, beyond fair debate, including allegations that the City's comprehensive plan does not provide relevant and appropriate data to support commercial land uses; that the plan does not provide relevant and appropriate data to support the higher densities in College Park; that the plan will destabilize the neighborhood; that the plan will adversely affect levels of service; that the plan does not provide for adequate capital improvement implementation; that the City has not performed requisite traffic analysis in support of the plan; or that the plan improperly defers implementation of the plan to land development regulations.

    
    

76. The testimony and evidence presented by Petitioner at hearing failed to show to the exclusion of fair debate that the City of Gainesville's Comprehensive Plan is not "in compliance" with Section 163, Part II, Florida Statutes, Chapter 187, Florida Statutes, the regional policy plan and Rule 9J-5, Florida Administrative Code.

RECOMMENDATION

Based on the foregoing it is RECOMMENDED that a final order be entered finding the comprehensive plan of the City of Gainesville to be in compliance.

DONE AND ENTERED this 2nd day of November, 1992, in Tallahassee, Leon County, Florida.

DON W.DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Fl 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1992.

APPENDIX

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's Proposed Findings.

In lieu of proposed findings, Petitioner submitted a document entitled "Suggested Preliminary Finding". The document consisted of 28 pages containing unnumbered paragraphs with no citation to the record established at the final hearing, contrary to requirements of Rule 22I-6.031(3), Florida Administrative Code. Nonetheless, Petitioner's submittal has been reviewed. Many of the assertions contained in the document appeared to be a cumulative restatement of Petitioner's arguments heard at the final hearing, or proposed findings which are cumulative or subordinate to the findings of the Hearing Officer. To the extent possible, the remainder of Petitioner's suggestions have been reviewed and are addressed by the foregoing findings of fact.

Respondent City's Proposed Findings. 1.-3. Accepted.

4.-6. Rejected, legal argument.

7. Accepted.

8.-9. Rejected, not supported by weight of the evidence. 10.-20 Accepted.

21. Rejected, unnecessary. 22.-24. Accepted.

25.-28. Rejected, unnecessary.

29. Accepted.

30.-34. Rejected, cumulative.

35.-45. Accepted.

46.-47. Rejected, conclusion of law. 48.-49. Rejected, unnecessary.

50.-59. Accepted.

60. Rejected, argumentative. 61.-65. Accepted.

66. Rejected, argumentative. 67.-71. Accepted.

72.-74. Rejected, argumentative.

75.-84. Accepted.

85.-86. Rejected, cumulative.

87.-90. Accepted.

91.-92. Rejected, unnecessary.

1. Accepted.

2. Rejected, unnecessary. 95.-96. Accepted.

97.-98. Rejected, argumentative.

99.-106. Rejected, unnecessary and cumulative. 107.-114 Accepted, not verbatim.

115. Rejected, unnecessary. 116.-135. Accepted.

136.-139. Rejected, cumulative.

140.-142. Accepted.

143.-146. Rejected, cumulative.

147.-157. Accepted.

158. Rejected, no record citation.

Respondent Department's Proposed Findings. 1.-26. Accepted.

27.-50. Adopted in substance, not verbatim. 51.-58. Accepted.

59. Adopted by reference.

COPIES FURNISHED:

Linda Loomis Shelley, Esquire Secretary

Department of Community Affairs 2740 Centerview Dr.

Tallahassee, Florida 32399-2100

1. Steven Pfeiffer, Esquire General Counsel

Department of Community Affairs 2740 Centerview Dr.

Tallahassee, Florida 32399-2100

Michael P. Donaldson, Esquire Assistant General Counsel Department of Community Affairs 2740 Centerview Dr.

Tallahassee, Florida 32399-2100

Elizabeth A. Waratuke, Esquire Assistant City Attorney

Post Office Box 1110 Gainesville, Florida 32602

Thomas D. Rider,

1624 Northwest 7th Place Gainesville, Florida 32603

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to 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: 92-000691GM

Orders for Case No: 92-000691GM