STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1000 FRIENDS OF FLORIDA )

and ROBERT JENKS, )

)

Petitioners, )

)

vs. ) CASE NO. 93-4863GM

)

CITY OF DAYTONA BEACH and ) DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Respondents, )

and )

)

PATRICIA LAGONI, as Trustee, and ) INDIGO DEVELOPMENT, INC., )

)

Intervenors. )

) ADALINE JONES, MARTA PEREZ, )

and NELSON PEREZ, )

)

Petitioners, )

)

vs. ) CASE NO. 93-4864GM

)

CITY OF DAYTONA BEACH and ) DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Respondents, )

and )

)

PATRICIA LAGONI, as Trustee, and ) INDIGO DEVELOPMENT, INC., )

)

Intervenors. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matters were heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on January 24-27, 1994, in Daytona Beach, Florida.

APPEARANCES

For Petitioners: Richard J. Grosso, Esquire (Case No. 93-4863GM) Jaimie A. Ross, Esquire

Post Office Box 5948 Tallahassee, Florida 32314

For Petitioners: Paolo G. Annino, Esquire

(Case No. 93-4864GM) 308 South Martin Luther King Drive

Daytona Beach, Florida 32014-4872

Jonathan W. Hewett, Esquire

216 South 6th Street Palatka, Florida 32177-4608

For Respondent: Frank B. Gummey, III, Esquire (City) Marie S. Hartman, Esquire

Post Office Box 2451

Daytona Beach, Florida 32115-2451

For Respondent: Karen A. Brodeen, Esquire (DCA) 2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Intervenors: James F. Page, Jr., Esquire

Thomas A. Cloud, Esquire Michele P. Scarritt, Esquire Post Office Box 3068 Orlando, Florida 32802-3068

Robert F. Apgar, Esquire Post Office Box 10809

Daytona Beach, Florida 32120 STATEMENT OF THE ISSUE

The issue in these cases is whether Amendment No. 93D2 is consistent with the goals, policies, and objectives of the City of Daytona Beach comprehensive plan, the regional policies, state comprehensive plan and pertinent statutes and rules.

PRELIMINARY STATEMENT

These cases have their origin on June 2, 1993, when respondent, City of Daytona Beach (City), adopted an amendment (No. 93D2) to its comprehensive plan by Ordinance No. 93-219. After reviewing the amendment, on July 26, 1993, respondent, Department of Community Affairs (DCA), issued its notice of intent to find the plan amendment in compliance. Thereafter, petitioners, 1000 Friends of Florida and Robert Jenks, filed a petition for formal administrative hearing on August 16, 1993, alleging that the plan amendment was inconsistent with certain state comprehensive plan goals, certain regional policy plan issues, and various provisions within Chapter 163, Florida Statutes, and Chapter 9J-5, Florida Administrative Code. This petition has been assigned Case No. 93- 4863GM. On the same date, petitioners, Adaline Jones, Mattie Jones, Annette Pelote, Marta Perez and Nelson Perez, filed a petition for formal hearing alleging generally that the plan amendment violated various provisions within Chapters 163 and 187, Florida Statutes, and Chapter 9J-5. Florida Administrative Code. This petition has been assigned Case No. 93-4864GM. Because Mattie Jones and Annette Pelote later decided not to participate in these proceedings, they were dismissed as parties at the outset of the final hearing. The matters were referred by the DCA to the Division of Administrative Hearings on August 24, 1993, to be set for hearing. On September 3, 1993, intervenors, Patricia Lagoni, as Trustee, and Indigo Development, Inc., filed a petition for leave to intervene. The petition was granted by order dated September 21, 1993.

By agreement of the parties, the matters were heard on January 24-27, 1994, in Daytona Beach, Florida. At final hearing, petitioners jointly presented the testimony of Dr. Charles E. Connerly, an associate professor of urban and regional planning at Florida State University and accepted as an expert in affordable housing, Patricia McKay, a planning director for 1000 Friends of Florida and accepted as an expert in comprehensive planning and growth management, James F. Murley, executive director of 1000 Friends of Florida and accepted as an expert in growth management and comprehensive planning, Robert P. Hahn, a land planner and accepted as an expert in affordable housing and comprehensive planning, Terry James, a legislative analyst and former urban planner, Johnnie Wright, third vice-president of the Daytona Beach chapter of the NAACP, and Frances A. Mobley, president of the Mary McLeod Bethune Community Center in Daytona Beach. Also, they offered petitioners' exhibits 5, 115, 116, 117, 118, 120, 124, 131, 146, 160 and 179. All were received except exhibits 5 and 117, on which a ruling was reserved. The City presented the testimony of Janet R. Hamer, deputy director of the City's community development program, and Francine G. Abazzio, an employee of the Housing Partnership of Volusia County.

Also, it offered City's exhibit 3. The exhibit was not received in evidence. The DCA presented the testimony of Russell Grace, a former DCA employee who was accepted as an expert in comprehensive planning, and Robert J. Pennock, chief of the DCA's bureau of local planning and accepted as an expert in comprehensive planning. Intervenors presented the testimony of Michael W. Poole, president of the Coalition for Homeless of Central Florida and accepted as an expert in planning and affordable housing, James A. Sellen, an urban planner and accepted as an expert in comprehensive planning, DRI's and land use development and permitting, and Susan Caswell, a planner for the East Central Florida Regional Planning Commission. Also, they offered intervenors' exhibits 1, 4, 13, 26, 41,

44 and 54-57. All exhibits were received in evidence. Finally, the undersigned took official notice of Sections 166.043 and 187.201 and Chapter 421, Florida Statutes, and the final order entered in DOAH Case No. 92-7438GM.

The transcript of hearing (ten volumes) was filed on March 14, 1994.

Proposed findings of fact and conclusions of law were due no later than April 15, 1994, and the same were timely filed by respondents and intervenors on that date. A ruling on each proposed finding of fact has been made in the Appendix attached to this Recommended Order. On April 18, 1994, petitioners filed a joint proposed order which was untimely and violated Rule 60Q-2.031(3), Florida Administrative Code, by exceeding the forty-page limitation imposed therein.

Nonetheless, the same has been considered by the undersigned in the preparation of this recommended order. Intervenors' motion to strike the joint proposed order is dealt with in the conclusions of law.

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

FINDINGS OF FACT

1. Background

   
   

   1. Respondent, City of Daytona Beach (City), is a Florida municipal corporation subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered by respondent, Department of Community Affairs (DCA). The City is responsible for the comprehensive planning for the entire municipality. Its most recent comprehensive plan (Plan) was adopted on May 16, 1990, and was found to be in compliance with the law in July 1991.

   2. On October 1, 1992, the City made application for what is known as the LPGA Plan Amendment (plan amendment). Generally, the plan amendment changes land uses and densities on approximately 4,000 acres of land within the City and adds various policies to the Plan. Public hearings on the plan amendment were held on October 22, 1992, April 21, 1993, and May 19, 1993. The plan amendment was adopted on June 2, 1993, and it was found to be "in compliance" by the DCA on July 26, 1993.

      
      

   3. Petitions challenging the plan amendment were filed in Case No. 93- 4863GM by petitioners, 1000 Friends of Florida and Robert Jenks. 1000 Friends of Florida is a non-profit tax-exempt corporation formed expressly for the purpose of overseeing implementation of Florida's growth management laws at all levels of government. Jenks is a property owner within the City and a member of 1000 Friends of Florida. A petition was also filed in Case No. 93-4864GM by petitioners, Adeline Jones, Marta Perez and Nelson Perez. Those individuals are adults residing within the City. Petitioners contended, among other issues, that the housing element of the plan, which has been revised by the amendment, would not assure the provision of adequate affordable housing within the City. Finally, a petition to intervene in support of the plan amendment has been filed in both cases by intervenors, Patricia Lagoni (Lagoni), as trustee, and Indigo Development, Inc. (Indigo). Lagoni is the trustee for two trusts that own approximately 4,600 acres of land within the City that are the subject of the plan amendment. Indigo is the developer of the trustee's property. The parties have stipulated that petitioners and intervenors are "affected persons" within the meaning of the law and have standing to participate in these proceedings.

      
      

2. The Plan

   
   

   1. The plan is a twenty year long range planning document. It includes and applies to the entire City except for approximately 16,400 acres which has subsequently been annexed into the City limits since the adoption of the plan. The portions adopted by ordinance are goals, objectives, and policies; the Neighborhood Development Policies; Capital Improvement Element Implementation; Monitoring, Updating and Evaluation Procedures (Appendix); the Future Land Use Map Series; the Future Traffic Circulation Map; the Future Mass Transit Map; and the Future Aviation Facilities Map. Because a local government may choose not to adopt support documents such as data and analysis, the City did not adopt by ordinance the supporting data and analysis to the plan.

      
      

   2. The plan support documents include population projections through the year 2010. The population projections used in support of the plan are based on the 1980 U. S. Census. A census is an estimate of population at a particular time while a population projection is an analysis using estimates of past existing populations, such as a census, to predict future population. When the plan was prepared and adopted, the City was required to rely on the 1980 U. S. Census. At that time, the City's Evaluation and Appraisal Report (EAR) was due in 1995. Based on a 1993 change in the law, the EAR is now due in 1997. Under the Department's interpretation of the Act, which is found to be reasonable, a local government need not apply the 1990 U. S. Census until it submits its EAR. Therefore, between the adoption of the original plan and submittal of the EAR, a local government may amend its plan without having to base the amendment on a newly released U. S. Census. Such a comprehensive evaluation and updating of the plan and its data source is not required until the EAR is due because it would be a very exhaustive and expensive burden on local governments.

   3. The existing land use map is a support document of the plan. It generally depicts how land is used in various parts of the City at the time of transmittal of the proposed plan and includes six classifications: residential, vacant/undeveloped, commercial, industry, government and institution, and parks and recreation. On the other hand, a future land use map series is an adopted portion of the plan which generally depicts where the local government wants to have particular land uses by the end of its planning period. The future land use classifications include the following broad categories of land uses: residential, commercial, industry, government and institutional, parks and recreation, and miscellaneous. It is noted that the future land use map has no "vacant" classification since "vacant" is not an actual use which can be assigned a density or intensity and direct future development.

      
      

3. The plan amendment

   
   

   1. Adoption and contents

      
      

      1. On October 1, 1992, Indigo made application for the plan amendment. Public hearings were held for the review and discussion of the amendment on October 22, 1992, and resolution number 92-460 was subsequently enacted by the City authorizing the proposed amendment to be forwarded to the DCA for review. After the amendment was submitted to the DCA, the agency conducted an in-house review of the amendment and thereafter issued its objections, recommendations and comments (ORC) on February 19, 1993. That document contains the DCA's objections and comments as well as more than twenty recommendations which address those concerns. A notice of intent was published by the DCA to advertise that fact.

         
         

      2. After considering the ORC, the City made various changes in its proposed plan amendment and issued its response to the ORC on March 24, 1993. Also, it conducted further public hearings on April 21 and May 19, 1993. On June 2, 1993, the City adopted plan amendment 93D2 by Ordinance No. 93-219. On July 8, 1993, the amendment was found by the East Central Florida Regional Planning Council (ECFRPC) to be consistent with its Comprehensive Regional Policy Plan. Finally, on July 26, 1993, the amendment was found by the DCA to be in compliance.

         
         

      3. The plan amendment (a) amends the future land use map to provide new classifications for approximately 4,000 acres within the City, (b) includes some textual changes to the future land use, conservation, coastal management, traffic, and housing elements, and (c) changes the future traffic circulation map in certain respects. The acreage in question is located mostly to the west of I-95 except for some portions east of I-95 where 11th Street crosses the Interstate. The property is intended to be developed by Indigo as a "world- class golf resort and accompanying planned community." Prior to the amendment, the predominant land use category on the property was Level 1 residential with some designation for government or institutional use and retail commercial.

         
         

      4. As originally proposed by the City, the amendment reduced Level 1 residential acreage, increased Level II residential acreage, and created new categories of passive park/buffer area, interchange commercial and mixed use. After the DCA issued its criticisms in the form of an ORC, the City revised its amendment by redistributing the future land uses and adding policies to the housing element.

      5. The land use changes include a 1,375 acre reduction in Level 1 residential (a single-family residential future land use category with 1 to 8 units per acre) caused by conversion of land to a golf course and dedication of 831 acres for conservation purposes, a 575 acre increase in Level 2 residential (a residential future land use category with 9 to 20 units per acre), and a 98 acre increase in Level 3 residential (a mixed residential/retail category with

         21 to 40 residential units per acre), or a net effect of an overall increase in the residential land use density of approximately 4,300 units of higher density housing than that density which existed prior to the plan amendment.

         
         

      6. The plan amendment proposes a mixed use future land use category to allow a wide range of urban uses, including light industrial, office, tourist accommodations, retail and multi-family residential. In neighborhoods K, S, T and U, a minimum of 12 percent and a maximum of 30 percent of the total area designated as mixed use must be developed as residential with a minimum of 15 dwelling units per acre and a maximum of 25 dwelling units per acre.

         
         

      7. Increased density on the property from both the increased Levels 2 and

         3 land use designations, as well as the mixed use residential requirements, provide opportunities that foster increased availability of affordable units.

         
         

   2. Housing element

      
      

      1. Every comprehensive plan must contain a housing element with goals which state the aspirations for where a community wants to be. Goal 1 of the housing element is "to assure the availability of sound and affordable housing for all current and future residents of Daytona Beach." This means that the City will assure the availability of housing for all segments of the population.

         
         

      2. The housing element must also contain specific objectives for each goal statement. In the original plan, the City adopted Objective 1.1 (on page

         5.37 of the plan) entitled "New Construction." It was not revised by the amendment. That objective reads as follows:

         
         

         Assist the private sector in providing 6,400 additional units of diversified (and thus affordable) housing types by 1995.

         
         

      3. The amendment adds seven policies to the housing element, all relating to affordable housing. In the context of a comprehensive plan, a policy is interpreted to mean the specific actions the local government will use to implement its objectives. Proposed policy 1.3.6 reads as follows:

         
         

         Policy 1.3.6 The City, through its land development regulations, shall establish a mechanism that permits density bonuses of at least 10 percent for projects that provide very low and low income housing units, provided that the increased density is consistent with all other goals, objectives and policies of this plan including, but not limited to, environmental and concurrency goals.

         
         

         Under this proposed policy, developers are encouraged to construct affordable housing through the offering of a financial incentive. The incentive, more commonly known as a density bonus, allows them to use a slightly

         higher density than they otherwise would have. This is a common approach in encouraging affordable housing, and while not an absolute guarantee, the policy does have the effect of encouraging additional affordable housing in the City.

         
         

      4. Proposed policy 1.3.7 reads as follows:

         
         

         Policy 1.3.7 The City will continue programs to maximize opportunities for private sector involvement in the formation of

         community-based non-profit organizations to actively participate in the provision of low and moderate income affordable housing.

         
         

         This policy simply reinforces the City's commitment in existing policy

         1.3.2. to "continue to use its CDBG funds to provide seed money and technical assistance to non-profit corporations that construct housing for low and moderate income households including HUD 202 elderly housing and State/County housing finance agency bond-funded rental units."

         
         

      5. Proposed policy 1.3.8 provides as follows:

         
         

         Policy 1.3.8 The City Community Development Department will continue to support

         community-based non-profit organizations such as Habitat for Humanity in their efforts to provide adequate housing at a cost affordable to low-income residents by providing land that is acquired by the City.

         
         

         This policy reiterates the City's commitment in existing policy 1.3.2 and proposed policy 1.3.7 to supporting non-profit organizations which participate in providing affordable housing to low and moderate income households. Although the policy does not add any new assurances in providing affordable housing, it does not adversely affect the provision of affordable housing. No evidence was submitted to show that this policy is inconsistent with any requirements applicable to this proceeding.

         
         

      6. The next proposed policy is 1.3.9. It reads as follows:

         
         

         Policy 1.3.9 The City shall strive to participate in the State Housing Incentives Partnership Program as specified in the 1992 William Sadowski Affordable Housing Act.

         The City will follow its Local Housing Assistance Ordinance which establishes a local housing partnership, administrative responsibilities, and a local Housing Advisory Committee.

         
         

         This policy reflects a new affordable housing program which was enacted by the state subsequent to the plan's adoption. The more credible evidence reflects that the policy will have a positive impact on affordable housing.

         
         

      7. Proposed policy 1.3.10 provides that the City "will encourage the County to provide impact fee waiver programs for schools and transportation as an incentive for affordable housing." In Volusia County, impact fees are a significant cost of housing. Seventy percent of the impact fees applied in the

         City are County assessed. Under the proposed policy, the City is attempting to persuade the County to provide certain impact fee waivers for affordable housing.

         
         

      8. Proposed policy 1.3.11 reads as follows:

         
         

         Policy 1.3.11 By 1995, the City shall complete an assessment of affordable and special housing needs utilizing detailed housing data from the 1990 U. S. Census and an assessment of target areas and population segments representing priority affordable housing needs as a basis for establishing specific quantifiable near and long-term affordable housing programs. Results of the assessment shall be used to update the

         Comprehensive Plan's affordable housing policies.

         
         

         Although this policy will not have the direct effect of producing affordable housing, there is no evidence that the policy is inconsistent with any requirements at issue in this proceeding.

         
         

      9. Finally, the City has proposed a new policy 1.3.12, which reads as follows:

         
         

         Policy 1.3.12 The City will continue to be active in housing isues through the Community Development Department in the following ways:

         providing informational and technical asistance to the public on affordable housing programs, completing housing inventories and assessments, working to increase local utilization of state and federal funding programs, and coordinating with the Redevelopment Department. The City will annually update the Comprehensive Housing Affordability Strategy (CHAS) in compliance with

         U.S. HUD guidelines in conjunction with the State of Florida CHAS.

         
         

         This policy adds nothing new to the plan. It simply reiterates commitments expressed in other housing element policies. Again, no evidence was submitted to show that the policy is inconsistent with any other requirements at issue.

         
         

      10. As noted earlier, objective 1.1 is to "assist the private sector in providing 6,400 additional units of diversified (and thus affordable) housing types by 1995." The derivation of the 6,400 units is found on page 5.25 of the housing element of the plan. In general terms, the number of units was derived by taking the population of the City in 1980, updating that figure through 1987, and then projecting the number of households by income category in the year 1995. Of the 6,400 units, 2,601 are projected for the low and very low income household categories. Low income is defined as being 80 percent of the median income ($31,000) for Volusia County, or $24,800, while very low income is defined as being one-half of median income, or $15,500.

          
          

      11. Tables 5-20 and 5-21 of the data and analysis support this objective. Table 5-20 projects housing needs for the City by income category from 1987 to 1995. Table 5-21 projects housing need by income category for the years 1995

          through 2000. The tables break the population into the following income categories: very low, low, moderate, middle, and upper and high.

          
          

      12. The data and analysis concludes that availability of land is not a concern with meeting the projected need for residential units through the year 2000. Rather, the principal concerns center around the current lack of federal and state subsidy programs for housing construction, and the fact that the City is already shouldering more than its regional fair share. As to this latter concern, the City now provides at least 75 percent of the public housing in Volusia County. The amendment, however, provides more opportunities for the new construction of affordable housing units. Also, the mixed use category and its location near retail and office uses and arterial roads will provide a greater diversified housing stock. Between the years 2000 and 2010, the City will need to annex additional acreage to accommodate the anticipated population growth for that period. Since the plan adoption, however, the City has annexed approximately 16,400 acres of land west of I-95 belonging to Indigo.

          
          

      13. The concept of "filtering" in relation to affordable housing is that when a new house is built, an existing household will move into that house and vacate a less expensive house. Filtering is discussed in the plan's data and analysis as a solution to providing the needed additional units for very low and low income households projected in Tables 5-20 and 5-21. The plan assumes that filtering is operative in the City, and the evidence shows that filtering does in fact operate as a source of affordable housing within the City.

          
          

      14. The City uses a large portion of its $1.2 million in federal community block grants in assisting low and very low income residents to rehabilitate existing substandard housing. The City also employs a down payment assistance program to aid in the filtering process. This program consists of homeowner education and grants to low and very low income individuals for down payments on the purchase of an existing home, thereby enabling the individual to qualify for and successfully purchase existing housing stock. The program has not had any difficulty in finding housing stock for purchase by its clients. Finally, the City recently obtained an additional $1 million award of federal Housing Opportunities for People Everywhere (HOPE) funds for use in its rehabilitation and down payment assistance programs.

          
          

      15. While it is not possible to identify the location of future affordable housing on the future land use map, local government can create favorable conditions for affordable housing on the map by utilizing densities and locations. Here, the City has done so. The data and analysis reveal increased minimum floor densities to 15 units per acre minimum and a 25 units per acre maximum of multi-family housing and the location of land uses adjacent to arterial roads of 11th Street and the municipal stadium. They also reveal that the nature of mixed use categories with increased densities could result in three-story, more affordable apartment complexes. Finally, the amendment provides an additional forty-four acres of Level III residential in the area parallel to Williamson Boulevard, south of 11th Street, and increases sites at higher residential densities, and thus increases opportunities for affordable housing. Therefore, it is found that the plan amendment does not preclude the devevopment of affordable housing.

          
          

          b. Data and analysis used in the amendment

          
          

      16. All elements of a comprehensive plan must be based on "appropriate data." According to Rule 9J-5.005(2)(c), Florida Administrative Code, that data must be taken from existing data sources and should be the "best available

          existing data." As to population data, Rule 9J-5.005(2)(e), Florida Administrative Code, requires comprehensive plans to be based on resident and seasonal population estimates and projections provided by the University of Florida, Bureau of Economic and Business Research, the Executive Office of the Governor, or generated by the local government. Finally, where data are relevant to several elements, Rule 9J-5.005(5), Florida Administrative Code, requires that "the same data shall be used, including population estimates and projections." The City has adhered to each of these requirements, and it is found that the plan amendment is based on the best available data and analysis.

          
          

      17. Population projection information is used in several plan elements. If the 1990 Census was used to support one element, as petitioners suggest it should have been, that same census must be used to support the other elements.

          Stated another way, the chosen population estimates and projections must be used consistently throughout the entire plan. Relying on different censuses in different elements would render the plan internally inconsistent.

          
          

      18. Contrary to petitioners' assertion, there is no specific requirement that a local government update its population estimates and projections each time it amends its plan. Such a requirement would impose an unreasonable burden on local governments without advancing any of the purposes of the Act. Petitioners failed to present any compelling reason that the 1990 Census should be the underlying basis for plan amendments before the EARs are due. The fact that the 1990 Census was available in its raw form in the fall of 1991 is not persuasive to overcome the specific requirements of Rule 9J-5.005(2)(c), Florida Administrative Code, as to the approved sources of population estimates and projections. Therefore, it is found that the City was not required to use the 1990 Census in support of its amendment.

          
          

      19. The LPGA property is located within Zone C, one of three zones designated in the future land use element. Of the 3,995 available vacant developable residential acreage, 2,740 acres were originally allocated to Zone C within the City. Under the plan amendment, the available residential land in Zone C has been reduced to 1,313 acres. The reduction of residential land by the amendment reduces the overall residential developable acres to 2,838. The City's total residential acreage need is 2,144 acres. Of that 2,144 acres, approximately 876 acres are required for very low and low income housing. The data indicates that an additional 694 excess acres are available to accommodate affordable housing needs within the City. When added to the 876 acres previously required for very low and low income housing, a total of 1,570 acres are available to accommodate the very low and low income affordable housing needs within the City.

          
          

      20. The data and analysis also indicate that a ratio of 1.8 or 180 percent of the need for affordable housing acreage is being met by the City. The more land that is made available by the City increases the opportunity for market forces to work to provide housing. The ratio of 1.8 is further increased by the recent annexation of the Indigo property of approximately 16,400 acres. Not including the recently annexed property, 46 percent of the total vacant residential acreage in the City is in the LPGA property.

          
          

4. The LPGA Development of Regional Impact

   
   

   1. Intervenors' property which is the subject of this amendment is intended to be the future headquarters site of the Ladies Professional Golf Association (LPGA). If completed as originally planned, it will be the size of the neighboring municipality of Holly Hill. The development is a public-private

      joint venture between the City and intervenors, and the City and State have pledged $23 million of public money for the project. In conjunction with the project, a development of regional impact (DRI) development order was adopted by the City on August 18, 1993. Petitioners did not appeal that order.

      
      

   2. A DRI is a development order issued by a local government. It pertains to approval for a specific type of development requested by a developer for a particular site. In contrast, a comprehensive plan is a different type of document altogether which considers long range planning for an entire jurisdiction, taking into account the cumulative effect of many developments.

      
      

   3. DRIs are subject to the requirements of Chapter 380, Florida Statutes. One of the requirements for a DRI is that it be consistent with the requirements of the local government's comprehensive plan, a determination that is separate and apart from that undertaken here. Conversely, comprehensive plans and amendments must comply with Subsection 163.3184(1)(b), Florida Statutes, which defines "in compliance" as being consistent with Sections 163.3177, 163.3178, and 163.3191, Florida Statutes, the state comprehensive plan, regional policy plan, and Chapter 9J-5, Florida Administrative Code. A plan amendment does not have to be consistent with chapter 380 to be "in compliance."

      
      

   4. A DRI development order does not guarantee that the site will be developed or developed as approved. For example, the development order may be amended through the substantial deviation process to allow for different types of development or increased development over certain thresholds. Then, too, a developer may add up to ten percent more residential units without going through the substantial deviation process. Finally, a development order may expire during the planning period without finishing or even beginning construction.

      
      

   5. In reviewing a plan amendment, the whole range of development possibilities must be evaluated regardless of any development order issued for the affected land. What a DRI development order, or any other development order, allows to be constructed on a parcel of land which is the subject of a plan amendment is therefore irrelevant for amendment review purposes.

      
      

   6. Applications for DRI approval are prepared and submitted to the DCA by the developer. These applications are submitted in response to a set of criteria that differ from those applicable to a plan amendment. It is true, of course, that some information provided by a developer in support of a DRI request may be relevant to the review of a plan amendment. Here, however, the information regarding income range of employees and price range of housing anticipated to be constructed on the project site is speculative and should not guide the scope of review for a long range planning document. Indeed, it was not credibly shown how this information applies to the plan or any requirements in this proceeding. Therefore, petitioners' reliance on various projections used in the DRI application for incremental development approval and other DRI documents is misplaced and not relevant to this action.

      
      

5. The amendment's internal and external consistency

   
   

   1. Rule 9J-5.005(5), Florida Administrative Code, requires comprehensive plan elements to be consistent with each other. The same rule requires the future land use map to reflect the goals, objective and policies within all elements of a plan.

   2. When amending a plan, consistency is maintained by using data consistently throughout the plan. In order to be internally consistent, the City was required to use 1980 census data for the plan amendment, as it did here.

      
      

   3. By adding policies to the housing element, the City has assisted with the implementation of objective 1.1 of the housing element. By changing the land use designations on the future land use map, the City has effectively increased the opportunity for higher density housing. Finally, the plan amendment's changes to the future land use element are consistent with and further objective 1.1 of the housing element. Accordingly, the plan amendment is found to be internally inconsistent.

      
      

   4. The state comprehensive plan is found in Chapter 187, Florida Statutes. The appropriate regional policy plan in this case is the East Central Florida Comprehensive Regional Policy Plan. The DCA does not interpret Subsection 163.3177(10(a), Florida Statutes, as requiring a plan or amendment to be consistent with every policy in the state or regional plans. If an inconsistency with an individual policy exists, that policy is not viewed in isolation but rather is considered in the context of the complete state or regional plan. While an amendment may frustrate the achievement of a policy in the state or regional plan, it may further the local government's pursuit of another policy, thus rendering the amendment to be consistent with the state or regional plan construed as a whole.

      
      

   5. Petitioners allege that the amendment is inconsistent with state plan goals 5, 8, 10 and 16 and with regional policy plan issues 19, 37, 43, 44 and

   1. In the joint prehearing stipulation, they also make reference to regional policies 19.1(1), 19.2 and 19.3(4) and state plan provisions found in Subsections 187.201(5)(a), (b)1. and (b)3., Florida Statutes. They did not, however, present any evidence describing how the plan amendment is inconsistent with the foregoing goals, issues or statutes. To the contrary, the more credible and persuasive evidence supports a finding that the amendment is consistent with both the state and regional plans. Therefore, the plan amendment is in compliance.

      
      

6. Attorney's fees

1. Intervenors, but not the DCA or City, have requested sanctions on the theory that the petition initiating Case No. 93-4863GM was filed for an improper purpose within the meaning of Subsections 120.57(1)(b)5., 120.59(6)(a), and 163.3184(12), Florida Statutes. The request is grounded principally on the notion that because the initial petition of 1000 Friends of Florida and Robert Jenks contains allegations pertaining to environmental issues, and no proof was submitted at final hearing as to those claims, the undersigned should draw an inference that the petition was filed for an improper purpose. Having cosidered the totality of the record, the undersigned concludes that insufficient evidence exists to make such an inference. Similarly, there is an insufficient record basis to find that petitioners raised the issue of affordable housing merely to cause unnecessary delay, or that 1000 Friends of Florida's conduct as a whole constitutes "economic harrassment." Therefore, the request for sanctions is denied.

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Subsections 120.57(1) and 163.3284(9)(a), Florida Statutes.

   
   

3. The issue in these cases is whether the plan amendment is "in compliance" with Part II of Chapter 163, Florida Statutes, and Chapter 9J-5, Florida Administrative Code. "In compliance" as defined in Subsection 163.3184(1)(b), Florida Statutes, means the plan is consistent with Sections 163.3177, 163.178 and 163.3919, Florida Statutes, the Regional Policy Plan and Chapter 9J-5, Florida Administrative Code. In resolving this issue, the undersigned has concluded that Subsection 163.3177(6)(f)1., Florida Statutes (1991) applies, and not the present version of the law which became effective July 1, 1993. This is because the the plan amendment was adopted prior to the effective date of the 1993 amendments, and when considered in their totality, the amendments to subsection 163.3177(6)(f)1. are primarily substantive and non- remedial in nature, and thus they have prospective application only. While some of the language in the amendments could arguably be considered to be remedial in nature, other parts are clearly not, and it would be impractical to consider the amendments in toto and hold that some language within the section would be applied retroactively while other language would be applied in a prospective fashion. Parenthetically, it is noted that even if the new law were held to apply, the undersigned would reach the same result on the merits of the case.

   
   

4. Subsection 163.3177(10(a), Florida Statutes, provides that a local plan must be consistent with the state plan and applicable regional plan. Such consistency exists if the local plan is "compatible with" and "furthers" those other plans. "Compatible with" means that the local plan is "not in conflict with" the other plan. "Furthers" means to "take action in the direction of realizing goals or policies of" the other plan. Finally, the same statute provides that in determining the consistency of the local plan with the state or regional plan, "the state or regional plan shall be construed as a whole and no specific goal or policy shall be construed or applied in isolation from the other goals or policies of the plan." See e. g., Department of Community Affairs v. City of Jacksonville, Case No. 90-7469GM (Dept. of Comm. Affairs, February 24, 1994).

   
   

5. This case arose under Subsection 163.3184(9)(a), Florida Statutes, following the DCA's notice of intent to find the plan amendment to be "in compliance." Under that statute, the plan amendment shall be determined to be "in compliance" if the local government's determination of compliance is fairly debatable. "That standard is a deferential one that requires affirmance of the local government's action if reasonable persons could differ as to its propriety." B & H Travel Corporation v. Department of Community Affairs, 602 So.2d 1362, 1365 (Fla. 1st DCA 1992).

   
   

6. The evidence presented by petitioners at hearing failed to show to the exclusion of fair debate that the City's plan amendment was not "in compliance" with Chapters 163 and 187, Florida Statutes, the regional policy plan, and Chapter 9J-5, Florida Administrative Code. This being so, a final order should be entered finding the plan amendment to be in compliance. B & H Travel Corporation, supra.

   
   

7. Intervenors' motion to strike the joint proposed order filed by petitioners is hereby denied.

8. Petitioners' exhibits 5 and 117 are received in evidence.

   
   

9. Finally, intervenors have asked that sanctions be imposed against petitioners (in the form of attorney and expert witness fees and costs) pursuant to Subsections 120.57(1)(b)5., 120.59(6), and 163.3184(12), Florida Statutes. Each of those statutes authorizes the imposition of sanctions against a party if the hearing officer determines that the party has filed a paper or otherwise participated in an administrative proceeding for an improper purpose. Since the statutes tend to overlap one another, and subsection 163.3184(12) is specifically designed to apply to a growth management proceeding, that statute shall be used in resolving this issue. Because the facts and circumstances present herein do not permit an inference favorable to intervenors to be drawn, it is concluded that the request must be denied.

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

finding the City's plan amendment to be in compliance with the law.

DONE AND ENTERED this 17th day of May, 1994, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

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 17th day of May 1994.

APPENDIX

Petitioners:

Although the undersigned has considered petitioners' joint proposed order in the preparation of this recommended order, he has not made specific rulings on proposed findings of fact since the proposed order was untimely and it violated Rule 60Q-2.031(3), Florida Administrative Code.

Respondents:

1. Partially accepted in finding of fact 3. 2-3. Partially accepted in finding of fact 1.

1. Partially accepted in finding of fact 3.

2. Partially accepted in findings of fact 1 and 4.

3. Partially accepted in finding of fact 5. 7-8. Partially accepted in finding of fact 6.

9. Partially accepted in finding of fact 5.

Intervenors:

1. Covered in preliminary statement.

2. Partially accepted in finding of fact 1.

3. Rejected as being unnecessary.

78-81. Rejected as being unnecessary.

82-89. Partially accepted in findings of fact 34-39.

1. Rejected as being unnecessary.

2. Partially accepted in finding of fact 14.

3. Partially accepted in finding of fact 15.

4. Partially accepted in finding of fact 16.

5. Partially accepted in finding of fact 14.

6. Rejected as being unnecessary.

7. Partially accepted in finding of fact 25.

8. Rejected as being unnecessary.

9. Partially accepted in finding of fact 14.

10. Partially accepted in finding of fact 24.

100-104. Partially accepted in findings of fact 40-44. 105-106. Partially accepted in finding of fact 5.

107-119. Partially accepted in findings of fact 40-44. 120-160. Rejected. See finding of fact 45.

Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, not supported by the evidence, subordinate, unnecessary to a resolution of the issues, or a conclusion of law.

COPIES FURNISHED:

Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Dan R. Stengle, Esquire General Counsel

Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Karen A. Brodeen, Esquire 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Richard J. Grosso, Esquire Post Office Box 5948 Tallahassee, Florida 32314

Paola G. Annino, Esquire

308 South Martin Luther King Drive Daytona Beach, Floirda 32014-4872

Frank B. Gummey, III, Esquire Marie S. Hartman, Esquire Post Office Box 2451

Daytona Beach, Florida 32115-2451

James F. Page, Jr., Esquire Thomas A. Cloud, Esquire Michele P. Scarritt, Esquire Post Office Box 2068 Orlando, Florida 32802-3068

Jonathan W. Hewett, Esquire

216 South 6th Street Palatka, Florida 32177-4608

Robert F. Apgar, Esquire Post Office Box 10809 Daytona Beach, Florida 32120

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 ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the Department of Community Affairs concerning its rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the Clerk of that agency.

Docket for Case No: 93-004863GM

Orders for Case No: 93-004863GM