STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOAZ BAR-NAVON and ) ENTERPRISES INTERNATIONAL, INC., )

)

Petitioners, )

)

vs. ) CASE NO. 92-2990GM

)

BREVARD COUNTY, )

)

Respondent, )

and )

) DEPARTMENT OF COMMUNITY AFFAIRS, ) and FISKE-MAR LAND TRUST, )

)

Intervenors. )

)

RECOMMENDED ORDER

On February 4-5, 1993, a formal administrative hearing was held in this case in Melbourne, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bradley Roger Bettin, Esquire

Amari Theriac Eisenmenger & Woodman

96 Willard Street, Suite 302 Cocoa, Florida 32922

For the County: Lisa Troner, Esquire

County Attorney's Office 2725 St. John's Street Melbourne, Florida 32940

For the DCA: Karen Brodeen, Esquire

Assistant General Counsel Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Fiske-Mar: John Kabboord, Esquire

Reinman, Harrell, Graham, Mitchell & Wattwood

775 East Merritt Island Causeway Merritt Island, Florida 32952

STATEMENT OF THE ISSUE

The issue in this case is whether the County's comprehensive plan amendment 91B.9 is "in compliance" under the Local Government Comprehensive Planning and Land Development Regulation Act. (It must be found to be "in compliance" if the County's determination that it is "in compliance" is at least "fairly debatable.")

PRELIMINARY STATEMENT

On or about February 27, 1992, Brevard County adopted Amendment 91B.9 changing the future land use designation of a 17.42 acre parcel of property in the county from "Residential" to "Mixed Use." The Department of Community Affairs (DCA) issued a notice of intent to find the plan amendment to be "in compliance." On or about May 11, 1992, the Petitioners, Boaz Bar-Navon and Enterprises International, Inc., filed a Petition for Administrative Hearing.

The Petition for Administrative Hearing asserts, essentially, that the plan amendment is not "in compliance" because "the Land Use Designation is inconsistent with the Comprehensive Plan's Future Land Use Element" in that the parcel in question "does not . . . qualify for any Mixed Use classification." The petition also alleges that the County has made no provisions or plans "to remove such inconsistencies within the planning period."

The Petitioners and the County agreed at the outset to the intervention of the DCA as a party respondent. On September 30, 1992, an Order Granting Leave to Intervene was entered, making Fiske-Mar Land Trust a party respondent.

By Notice of Hearing issued on June 2, 1992, final hearing was set for October 28-30, 1992, in Melbourne.

On June 25, 1992, the County's Motion in Opposition and Motion to Dismiss Petition for Administrative Hearing was heard by conference telephone. An Order Denying Motions to Dismiss was entered on the same day.

On September 8, 1992, Brevard County's Motion for Summary Judgment (and Memorandum of Law) was filed. On the same day, the Petitioners moved for a continuance of the final hearing. These motions were heard by conference telephone on October 19, 1992. On October 20, 1992, an Order Denying Summary Judgment and Continuing Final Hearing was entered. Final hearing was rescheduled for February 4-5, 1993.

Before the final hearing, the parties filed a Joint Stipulation. At the hearing, the parties had Joint Exhibits 1 through 3 admitted in evidence.

The Petitioners called one witness in their case-in-chief and had Petitioners' Exhibits 1, 2A-D, 3A-B, 4, 5A, 5D, 5E, 6, 8A, 8B, 8E, and 10 through 13 admitted in evidence. (The objections to Petitioners' Exhibits 11 through 13 on the basis of Chapter 90, Fla. Stat. (1991), and the Florida Rules of Civil Procedure are well taken; but the evidence nonetheless is admissible under Section 120.58(1)(a), Fla. Stat. (1991)).

The County called three witnesses and had County Exhibits 1 through 21 admitted in evidence. (County Exhibit 5 is the same as Petitioners' Exhibit 1.) The DCA called one witness and had DCA Exhibits 1 through 4 admitted in evidence. Fiske-Mar did not present any evidence. The Petitioners called one additional witness in rebuttal.

At the close of the evidence, the parties requested, and were given, until February 25, 1993, in which to file proposed recommended orders. All parties except Fiske-Mar filed one. Explicit rulings on the proposed findings of fact contained in the proposed recommended orders may be found in the attached Appendix to Recommended Order, Case No. 92-2990GM.

FINDINGS OF FACT

1. The Subject Parcel.

   
   

   1. Fiske-Mar Land Trust owns property in Brevard County located at the northwest corner of the intersection of Fiske Boulevard, which runs north and south, and Martin Road, which runs east and west. 17.42 acres of the Fiske-Mar property, adjacent to the intersection, is the subject of an amendment to the Brevard County comprehensive plan to change the land use classification of the property from "Residential" to "Mixed Use." It will be referred to as the "subject parcel."

      
      

   2. The incorporated City of Rockledge lies to the east of the subject parcel, across Fiske Boulevard, and to the north of the subject parcel.

      
      

   3. Enterprises International, Inc. (Enterprises), one of the two petitioners in this case, owns approximately 30 acres of commercially-zoned property in the City of Rockledge directly across Fiske to the east of the subject parcel.

      
      

2. The Future Land Use Element.

1. Goal 1 of the Future Land Use Element (FLUE) of the Brevard County comprehensive plan is:

   
   

   TO MANAGE GROWTH IN BREVARD COUNTY IN A MANNER WHICH IS CONSISTENT WITH THE CAPABILITES OF THE NATURAL AND MAN-MADE SYSTEMS AND WHICH MEETS THE PUBLIC'S SOCIAL AND ECONOMIC NEEDS.

   
   

2. Objective 4 under Goal 1 states:

   
   

   Brevard County shall provide for adequate and appropriate lands for the location of commercial land uses, through the Land Development Regulations, to serve the needs of the projected residents and visitors of the County.

   
   

3. Policy 4.1 under Objective 4 is to:

   
   

   Adopt mixed-use districts on the Future Land Use Maps and establish performance standards in the Land Development Regulation for development within the mixed-use districts. The following criteria, at a minimum, should be used in the application

   of the mixed-use districts and formulation of the performance standards:

   Criteria:

   1. The location of mixed-use districts are to be based upon existing commercial development trends, commercial zoning trends and population projections. Appropriate land uses within mixed-use districts include commercial,

      professional office, residential, institutional, conservation, recreational, and public facility land uses.

   2. Performance standards for development occurring within the mixed-use districts should address:

      1. Land use compatibility, buffering and landscaping;

      * * *

      5. Open space provisions;

      * * *

      1. Character of an area;

      2. Guidelines for the appropriate amounts of each land use type within a mixed-use district; and

      3. Limitations for the expansion of mixed-use districts into established residential areas.

   3. The boundaries of the mixed-use districts are intended to be flexible in their application and may extend 700 feet beyond the limits established on the Future Land Use Maps to protect the environment, to accommodate property lines, rights-of-way, or easements, and to allow

      extension to major physical or man-made boundaries; or if a binding development restriction is volutarily submitted to the Planning and Zoning Bord and approved by the County Commission.

      * * *

   4. Commercial development within the mixed-use districts must occur commensurate with the commercial acreage allotments identified to meet the needs of the anticipated population, except for Developments of Regional Impact.

   5. The locational criteria and development standards for specific types of commercial land uses, as provided in Policies 4.3 through 4.11 of this element, shall be utilized in the development of commercial land uses both within and outside

      the mixed-use districts to regulate the distribution and intensity of commercial development in these areas.

   6. The distribution, location and density of residential development within the mixed-use districts shall be determined based upon the density guidelines established in Policies 1.1 through 1.6 of this element; the distribution and density guidelines of Policies 3.1 and 3.2 of this element; and the land use compatibility guideliness established in Figure 1 of this element, except

      [as stated].

   7. Residential development should be encouraged within mixed-use districts as transitioinal uses between commercial uses and established residential land uses.

      * * *

      I. Development within mixed-use districts shall be conditioned upon the availability of public facilities and services at or above the adopted acceptable levels of service as identified in the Capital Improvements element of this Comprehensive Plan.

      * * *

      K. Institutional uses within mixed-use districts should be accommodated as permitted or conditional uses within residential or commercial zoning classifications; these zoning classifications would be subject to the provisions of Criteria E and F of this policy.

      
      

4. Policy 4.2 is to:

   
   

   As part of the Land Development Regulations, develop a periodic commercial acreage allocation to be used in the review of applications for commercial development orders. The allocations

   shall be based upon the following minimum criteria:

   
   

   Criteria:

   1. Commercial acreage allocations shall be based upon population projections and allow for fluctuations in the marketplace.

      * * *

      1. Application of Criterion A Under Policy 4.1.

         
         

5. It is clear, and cannot be seriously disputed, that the Brevard comprehensive plan utilizes mixed-use districts to provide for the County's need for commercial development. But that does not mean, as the Petitioners contend, that, in order for land to be designated for mixed-use under Criterion A of Policy 4.1, the present situation (population and built-out commercial development) must establish a present need for new commercial development in the location being considered for mixed-use designation. This is not a certificate of need proceeding.

   
   

6. The "existing commercial development trends, commercial zoning trends and population projections," referred to in Criterion 4.1 of Policy 4.1 as the basis for designation of land as a mixed-use district, means: (1) commercial development trends, as those trends presently exist; (2) commercial zoning trends; and (3) population projections. It does not mean, as the Petitioners seem to assert, that there must be a present need for more commercial land use based on present commercial development, present commercial zoning and present population.

   
   

7. The subject parcel is located to the west of the Enterprises commercially-zoned property, just across Fiske Boulevard. The Enterprises property is northeast of the corner of Fiske and Martin Avenue and continues for some distance to the east of the corner. The trend evident from actual use, and from present zoning, is for the land on either side of Fiske to be used for more

   commercial development. There are a number of properties zoned commercial or some other non-residential zoning along both sides of Fiske to the north of Martin. There is a Knights of Columbus building immediately to the south of the subject parcel, across Martin, on the southwest corner of Fiske and Martin.

   There is property designated mixed-use district further to the south on Fiske, between Martin and the I-95 interchange. (The centerpoint of the interchange is just over a half mile from the subject parcel; the intersection of the exit ramp off the interstate and Fiske is within a half mile of the subject parcel.)

   
   

8. Despite the commercial trend along Fiske, there is considerable commercially zoned property in the vicinity that is still vacant, including the approximately 30 acres owned by Enterprises. But there also has been recent commercial development in the vicinity. Within the last three years, Enterprises has developed a successful child care center that serves approximately 30 children on 0.6 acres at the northern extreme of its property along Fiske. In addition, Enterprises sold five acres of its property along Fiske to Florida Power and Light, which has built an office building on the site. Immediately to the north of the Florida Power building, Enterprises sold another five acres for development of a 20-unit motel and related tennis center. This development on Enterprises property has occurred even though, for approximately three years prior to the final hearing, Enterprises was not actively promoting development of its commercially-zoned property. There also is a real estate sales office in the vicinity. Recently, there has been discussion for the possible development of the Enterprises commercially-zoned property for a regional skating rink that would serve international functions and draw attendance from a regional market.

   
   

9. Population projections for the area also are revealing. The 1988 comprehensive plan was based in part on projections that population in Census Tracts 630 and 631, which lies immediately to the west and to the east of Fiske, respectively, in the vicinity of the subject parcel, would reach 9,758 by 1990. But, accordingly to the data collected in the 1990 Census, the actual population in Tracts 630 and 631 was 12,032 in 1990, 23 percent more than projected.

   
   

10. The Petitioners emphasize that most of this unanticipated population growth occurred within the City of Rockledge and within the permitted development of regional impact to the south known as Viera. The 1988 population projections utilized for the County's comprehensive plan projected that population in Census Tract 631, which lies immediately to the east of Fiske, primarily in the City of Rockledge, would reach 6,382 by 1990. Accordingly to the data collected in the 1990 Census, the actual population in Tract 631 was 9,306 in 1990. The 1988 population projections utilized for the County's comprehensive plan projected that population in Census Tract 630, which lies immediately to the west of Fiske, in part in unincorporated Brevard County, would reach 3,376 by 1990. According to the data collected in the 1990 Census, the actual population in Tract 630 was just 2,726 in 1990.

    
    

11. Of the figure for actual population in 1990, 2073 is in Traffic Analysis Zone 225, which includes Viera. The evidence was that the Viera DRI accounted for the provision of adequate commercial property in connection with the population growth in Viera, and that plans probably would not have been made for the Viera residents to heavily utilize commercial development in the vicinity of the subject parcel, due to the available road networks. But the Petitioners did not closely analyze how much of the actual 1990 population in Census Tract 631 is in Viera, or how much of it was anticipated in the 1988 County and City comprehensive plans. The Petitioners also did not quantify the population growth attributable exclusively to Viera, or whether either the

    County or the City accounted for the commercial development in Viera in their comprehensive plans.

    
    

12. Clearly, the City would have attempted to provide for adequate commercial development within the City in its comprehensive plan. The City Manager testified that the City's 1988 comprehensive plan made provision for adequate commercial development within the City for the unexpected population growth in Census Tracts 630 and 631. But it is not clear how the City was able to anticipate and plan for unanticipated population growth.

    
    

13. In addition, the City Manager testified that the City's comprehensive plan is restricted to preserve low to medium intensity residential development and limited commercial development. It would not have planned for more intense commercial uses.

    
    

14. In summary, the Petitioners did not prove that the unanticipated population growth cannot form the basis for making the subject parcel a mixed- use district under Criterion A of Policy 4.1.

    
    

15. Roadways also are an indicator of commercial development trends. Fiske Boulevard, at the location of the subject parcel, is presently classified as a minor arterial roadway. Interstate 95 is approximately a half mile to the south. Murrell, Barnes and Barton are other roads in the area serving the growing population.

    
    

16. The subject parcel is presently at the intersection of Fiske and Martin, a local road. But the Gus Hipp Extension is planned to be constructed in the near future. It is in the City of Rockledge capital improvement element for construction in 1993, and it has been agreed by the County, the City and the State of Florida Department of Transportation that $50,000 from the County's Impact Fee Trust Fund be used for engineering studies for the project. Once built, the Gus Hipp Extension will intersect Fiske at the present Martin intersection and will serve as, and be classified as, at least a collector roadway. It will serve multiple residential areas expected and planned to be developed to the north of the Gus Hipp Extension to accommodate projected population growth.

    
    

17. In summary, the Petitioners did not prove that existing commercial development trends, commercial zoning trends and population projections cannot form the basis for making the subject parcel a mixed-use district under Criterion A of Policy 4.1.

    
    

    1. The Locational Criteria.

    
    

18. Policies 4.3 through 4.11 are minimum locational criteria for different kinds of commercial land uses. See Criterion E under Policy 4.1. They are applicable to zoning and permitting decisions for particular parcels under conditions present at the time of the zoning or permit application. They are not applicable to land use planning for mixed use districts except in one

    respect. The designation of a mixed use district would be inconsistent with the FLUE if it were not foreseeable that, at a point in time within the planning period, the land to be designated would meet criteria for at least some commercial use. Otherwise, for example if it were foreseeable that the subject parcel could be zoned or permitted only for residential development, there would be no reason to designate the land as a mixed use district.

19. At this time, it is foreseeable that the subject parcel could be zoned and permitted for a number of the commercial uses described in the locational criteria. Specifically, and after consideration of the issues addressed in the following findings, it is foreseeable that the subject parcel could be zoned and permitted for the commercial uses described in Policies 4.3, 4.4, 4.6, 4.8, 4.9, and 4.11.

    
    

    1. Acreage Limitations.

       
       

20. Policy 4.3 describes appropriate locations for "neighborhood commercial land uses." Policy 4.4 describes appropriate locations for "community commercial land uses." Under the criteria, the former "should incorporate no more than four acres," and "[s]ites for community commercial complexes should not exceed 20 acres." None of the criteria for the other commercial uses include acreage limitations.

    
    

21. The acreage limitations in Policies 4.3 and 4.4 do not preclude the development of "neighborhood commercial" or "community commercial" land uses on the subject parcel. As for the former, it is not necessary that the entire

    17.42 acres contained in the subject parcel, or more than four acres of it, be developed as "neighborhood commercial." Other commercial uses, as well as uses other than commercial, also are allowed in a mixed use district. (In practice, about 80 percent of the land in mixed use districts are developed commercially.) As for the latter, the entire 17.42 acres, or a part of it, could be developed as "community commercial."

    
    

    1. Roadway Requirements.

       
       

22. Policy 4.10 (governing "tourist commercial") and Policy 4.5 (governing "regional commercial centers") contain requirements regarding adjacent roadways that would seem to preclude the development of those uses on the subject parcel.

    
    

23. Criterion A under Policy 4.5 provides that regional commercial centers "should be located at intersections of major arterials or roadways of a higher classification."

    
    

24. Criterion F.1. under Policy 4.10 provides in pertinent part that "tourist commercial land uses . . . on the mainland" are limited to the following locations: "Intersections of major 'through-county' transportation corridors with major arterials or roadways of a higher classification."

    
    

25. Other than Policies 4.5 and 4.10, the roadway requirements in the locational criteria would not preclude the other kinds of commercial development described.

    
    

26. Policy 4.9 (governing "transient commercial") provides in pertinent part: "Transient commercial land uses shall be limited to locations at interstate interchanges and should be located within a 1/2 mile radius of the center point of the interchange." The subject parcel is close to, but a little bit further than, 1/2 mile of the center point of the intersection of I-95 and Fiske, but it is within a half mile of the center point of the I-95/Fiske Boulevard interchange, i.e., the intersection of the I-95 exit ramp and Fiske.

    
    

27. The commercial use described in Policy 4.11 also is permissible. Criterion B under Policy 4.11 provides in pertinent part: "Recreational vehicle parks should be located within mixed-use districts with access to interstate

    interchanges and major 'through-County' transportation corridors." (Emphasis added.) There is access to I-95 via Fiske.

    
    

28. The locational requirements regarding adjacent roadways in Policies 4.3, 4.4, and 4.6 all will allow development of the commercial uses set out in those policies concurrent with the construction of the Gus Hipp Extension. See Finding 19.

    
    

29. Criterion A under Policy 4.3 states: "Neighborhood commercial clusters should be located at collector/collector or collector/arterial intersections "

    
    

30. Criterion A under Policy 4.4 states: "Community commercial clusters should be located at minor/major arterial intersections. Collector/arterial intersections are acceptable, however, the collector roadways must serve multiple residential areas."

    
    

31. Criterion A under Policy 4.6 states: "Office land uses should be located with access to roadways of a collector or higher classification, if they are located within mixed-use districts."

    
    

    1. Office Transitional.

       
       

32. Criterion B under Policy 4.6 also provides that office land use "should be utilized as a transitional use between residential and more intense land uses such as commercial, planned industrial parks, or industrial."

    
    

33. Although the criteria under Policy 4.7 would seem to preclude industrial use on the subject parcel, the subject parcel could be used for office use to serve as a buffer between the Enterprises commercially-zoned property to the east and the residential property to the west and north of the subject parcel (or residential use on parts of the subject parcel itself.)

    
    

    1. Strip Commercial.

    
    

34. Criterion A under Policy 4.8 provides: "Additional commercial land uses in strip commercial areas may only be considered where that pattern of development is established or appropriate."

    
    

35. It is fairly debatable that a pattern of strip commercial development already is established along Fiske to the north of the subject parcel and that strip commercial land use would be appropriate under Criterion A at this time. Certainly, it is foreseeable that, once the Enterprises and other commercially- zoned property along Fiske is developed, strip commercial will be established in the area.

    
    

36. Criterion E under Policy 4.8 provides: "Infill development into the established commercial strip areas shall be preferred over the expansion of strip commercial areas."

    
    

37. Although there currently is vacant commercially-zoned property along Fiske, including the Enterprises property, and under Criterion E, that property arguably should be developed as strip commercial before the subject parcel, it is foreseeable that, once the Enterprises and other commercially-zoned property along Fiske is developed, Criterion E would not preclude strip commercial on the subject parcel.

    CONCLUSIONS OF LAW

    
    

38. Section 163.3184(9)(a), Fla. Stat. (Supp. 1992), provides that a comprehensive plan amendment shall be determined to be "in compliance" if the local government's determination of compliance is fairly debatable. The Petitioners' burden is to prove to the exclusion of fair debate that the plan amendment is not in compliance.

    
    

39. The Local Government Comprehensive Planning and Land Development Regulation Act (the Growth Management Act) does not define what is meant by "fairly debatable." In zoning cases, the "'[t]he fairly debatable' test asks whether reasonable minds could differ as to the outcome of a hearing." (Citations omitted). Norwood-Norland Homeowners' Association, Inc. v. Dade County, 511 So.2d 1009, 1012 (Fla. 3d DCA 1987). "Reasonable minds," for purposes of this test, are informed by relevant facts and law and analyze this information in a reasonable manner in order to reach a logical conclusion based exclusively on the applicable facts and law. See Final Order entered July 11, 1991, and Recommended Order entered March 4, 1991, Pope v. City of Cocoa Beach and Dept. of Community Affairs, DOAH Case No. 90

    could conclude that the County's determination that its plan amendment is "in compliance" is correct, the plan amendment must be found to be "in compliance." See Palm Beach County v. Tinnerman, 517 So.2d 699 (Fla. 4th DCA 1987), rev. denied, 528 So.2d 1183 (Fla. 1988).

    
    

40. In this case, the Petitioners have alleged that the plan amendment in question, a change in the future land use map (FLUM), is not "in compliance" because it is not consistent with parts of the plan's future land use element (FLUE).

    
    

41. Section 163.3177(2), Fla. Stat. (Supp. 1992), describes internal consistency as "coordination" among the several elements. Section 163.3177(9)(b) states that internal consistency also means that the elements are "related" to each other. By the terms of these statutory provisions, they apply to determinations as to whether different elements of a plan are consistent, but clearly the plan amendment in question in this case also must "coordinate" with and "relate" to the rest of the plan's future land use element (FLUE).

    
    

42. Section 163.3177(10)(a), Fla. Stat. (Supp. 1992), states that, for the purpose of determining whether a plan is consistent with the state and regional plans, a plan or plan amendment is consistent if it is "not in conflict with" the relevant plan and "take[s] action in the direction of realizing goals or policies" of the relevant plan. In making these determinations, the state or regional plan "shall be construed as a whole and no specific goal and policy shall be construed or applied in isolation from the other goals and policies in the plan . . .." Id.

    
    

43. The statutory definition of consistency with state and regional plans also makes sense in the context of this case. Not only is the "not in conflict with" portion of the definition suitable, it also is reasonable to insist that the plan amendment in question be consistent with the relevant goal, objectives and policies of the plan and "take action in the direction of realizing" them.

    
    

44. In this case, as found, the Petitioners did not prove either that the plan amendment at issue is "in conflict with" the pertinent parts of the Future Land Use Element or that it does not "take action in the direction of realizing" them.

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 dismissing the Petition for Administrative Hearing in this case and determining that the plan amendment in question is "in compliance."

RECOMMENDED this 14th day of April, 1993, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2990GM

To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact:

Petitioners' Proposed Findings of Fact.

A.1. Accepted: a), unnecessary; b), incorporated. A.2.-A.3. Accepted, but unnecessary.

A.4. Accepted and incorporated.

B.1.-B.3. Accepted but subordinate and unnecessary.

C.1.-D.1. Accepted and incorporated to the extent not subordinate or unnecessary.

D.2. Second sentence of 3)(b), rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

E.1.-E.3. Accepted but largely subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary.

1. Accepted and incorporated.

2. Accepted but subordinate and unnecessary.

F.1.-F.6. Accepted and incorporated to the extent not subordinate or unnecessary.

1. b.1) and 3), rejected as not proven and as contrary to facts found. Third sentence of b.4), subordinate to facts not proven and contrary to those found. Fourth sentence of b.4), same as 3), and also conclusion of law and argument. As to 5), same as 3) and 4). (It was not the County's burden to prove "need.") c.4), rejected as not proven and as contrary to facts found. As to 5), all except the first sentence, same as b.5), above. As to 6) and 7), rejected in part because the Petitioners did not quantify the population growth attributable exclusively to Viera, or whether either the County or the City accounted for the commercial development in Viera in their comprehensive plans. As to 7), it was not the County's burden to prove "need."

2. Generally accepted but subordinate to facts not proven and contrary to those found, and unnecessary.

1. Rejected as not proven and as contrary to facts found, and as argument.

2. As to 1), accepted in part, if "vicinity" means at or near the Fiske- Martin intersection. As to 1)(a), rejected as not proven that the sale was "at a reduced price," or that no additional demand has been created, or has occurred, especially in view of the cessation of active promoting by Enterprises for about three years prior to final hearing. As to (c), rejected as not proven that it was the only "strictly business" transaction, or that the properties "have not been profitable." As to 2), rejected in part as argument and not proven ("overwhelming majority"). As to 3), rejected as not proven and as contrary to facts found, and in part as argument ("drop in the bucket" and "overwhelming majority") and conclusion of law (that the County had to prove "need" and that data and analysis for a plan amendment must exist prior to final hearing.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

I. Rejected in part as conclusion of law (that the County had to prove "need"), in part as argument (great stability) and in part as not proven, and as contrary to facts found, that it is not at least fairly debatable that planning for additional commercial development is supported by commercial zoning trends.

1. a., generally accepted but subordinate and unnecessary.

   1. , rejected in part as not proven and as contrary to facts found: in 1), that the actual commitment of funding was not "new information"; in 3), that the criteria require the roads to be existing and in service; in 4), that there is no possibility that the subject parcel could be used as a transitional zone or that location on a transportation corridor is necessary; and in 6) that it is not fairly debatable that strip commercial uses already exist on Fiske just north of the subject parcel (besides the Enterprises property to the east just across the street from the subject parcel could become strip commercial).

      Otherwise, generally accepted and incorporated to the extent not subordinate or unnecessary.

   2. First sentence, accepted but subordinate and unnecessary. Second sentence, rejected as not proven and as contrary to facts found.

County's Proposed Findings of Fact.

1.-3. Accepted but subordinate and unnecessary.

4.-9. Accepted and incorporated to the extent not subordinate or unnecessary.

1. Characterization "numerous" rejected as argument. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

2. Accepted and incorporated.

3. Rejected as contrary to the evidence that the entire subject parcel is "not desirous" for residential. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

13.-15. Accepted and incorporated to the extent not subordinate or unnecessary.

1. "Need" rejected as conclusion of law. (The issue is planning, not immediate "need.") Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

2. Accepted and incorporated.

18.-21. Accepted but generally subordinate and unnecessary. 22.-23. Conclusions of law.

24. Accepted and incorporated.

25.-27. Generally accepted but subordinate and unnecessary and in part argument.

28. Accepted but subordinate to facts found. 29.-30. Accepted and incorporated.

1. Accepted but subordinate and unnecessary.

2. Accepted. First sentence, subordinate and unnecessary; rest, incorporated.

3. Rejected as to "transient commercial" as being contrary to facts found and to the greater weight of the evidence. Otherwise, accepted. Last sentence, subordinate.

34.-35. Accepted and incorporated to the extent not subordinate or unnecessary.

1. First sentence, accepted and incorporated. Rest, accepted but subordinate and unnecessary.

2. Accepted and incorporated.

DCA's Proposed Findings of Fact.

1.-13. Generally accepted. Largely subordinate and unnecessary.

Incorporated to the extent not subordinate or unnecessary.

14.-16. Accepted and incorporated to the extent not subordinate or unnecessary.

1. Accepted but subordinate and unnecessary.

2. Rejected in part as conclusion of law (that the issue is immediate "need" rather than adequate planning.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

3. Accepted. First two sentences, incorporated; last sentence, subordinate to facts found, and unnecessary.

20.-26. Accepted and incorporated.

COPIES FURNISHED:

Bradley Roger Bettin, Esquire

Amari Theriac Eisenmenger & Woodman Suite 302

96 Willard Street Cocoa, Florida 32922

Lisa Troner, Esquire County Attorney's Office 2725 St. John's Street Melbourne, Florida 32940

Karen Brodeen, Esquire Assistant General Counsel Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

John Kabboord, Esquire Reinman, Harrell, Graham, Mitchell & Wattwood

775 East Merritt Island Causeway Merritt Island, Florida 32952

Linda Loomis Shelley Secretary

Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

G. Steven Pfeifer, Esquire General Counsel

Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Department of Community Affairs written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the Department of Community Affairs concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 92-002990GM

Orders for Case No: 92-002990GM