STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
NICK GERACI; PETER GERACI; and ) ADVANCE LEASING AND DEVELOPMENT, ) INC., )
)
Petitioners, )
)
vs. ) Case No. 95-0259GM
) DEPARTMENT OF COMMUNITY AFFAIRS ) and HILLSBOROUGH COUNTY, )
)
Respondents, )
)
and )
) SIERRA CLUB, INC.; DR. RICHARD ) HOFFMAN; and BONNIE HOFFMAN, )
)
Intervenors. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on March 23-25, 1998, and March 30-April 2, 1998, in Tampa, Florida, before Lawrence P. Stevenson, a duly designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioners: Lee Wm. Atkinson, Esquire
Tew, Zinober, Barnes, Zimmet & Unice
2655 McCormick Drive Prestige Professional Park Clearwater, Florida 34619
For Respondent Alfred O. Bragg, III, Esquire Department of David Jordan, Esquire
Community Affairs: Department of Community Affairs
2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
For Respondent H. Ray Allen, II, Esquire Hillsborough County: Assistant County Attorney
601 East Kennedy Boulevard Tampa, Florida 33602
Gordon J. Schiff, Esquire MacFarlane, Ferguson & McMullen 2300 Park Tower
400 North Tampa Street Tampa, Florida 33602
For Intervenors: Thomas W. Reese, Esquire
2951 61st Avenue South
St. Petersburg, Florida 33712 STATEMENT OF THE ISSUES
The issue presented for decision in this proceeding is whether a future land use map (“FLUM”) amendment, adopted by Hillsborough County on October 27, 1994, as part of its Comprehensive Plan update for the planning time frame through 2015 (variously referred to as the “Comprehensive Plan” or "CPU-2015"), that changed the future land use category on a 253 acre parcel1 in Northwest Hillsborough County ("the Geraci Parcel") from Regional Commercial ("RC") to Community Mixed Use-12 ("CMU-12") complies with the requirements of Chapter 163, Part II, Florida Statutes, as defined in Section 163.3184(1)(b), Florida Statutes.
PRELIMINARY STATEMENT
By Petition for Formal Administrative Hearing (the “Petition”) filed with the Department of Community Affairs (“DCA”) on January 17, 1995, pursuant to Section 163.3184(9), Florida Statutes, Peter and Nick Geraci and Advance Leasing and Development, Inc. (“Advance Leasing”), challenged the adoption by Hillsborough County of a FLUM
amendment on the Geraci Parcel and the issuance by the DCA of a Notice of Intent to find the CPU-2015 in compliance with Chapter 163, Part II, Florida Statutes. On January 26, 1995, the DCA forwarded the Petition to the Division of Administrative Hearings (“DOAH”) for assignment of an Administrative Law Judge and to conduct a formal administrative hearing in the matter, pursuant to Chapter 120, Florida Statutes.
The case was originally assigned to Judge J. Lawrence Johnston on February 6, 1995, and scheduled for hearing on October 9-18, 1995. Based upon matters discussed by the parties in a telephonic hearing, the case was continued by order entered July 24, 1995. By notice dated August 28, 1995, the case was rescheduled to commence on May 28, 1996. On January 2, 1996, the parties filed a joint motion to continue the case indefinitely, which was granted by order dated January 8, 1996. The parties pursued settlement discussions, which were ultimately unsuccessful, and the case was reassigned to the undersigned and rescheduled for hearing on March 23-April 3, 1998.
On March 3, 1998, Petitioners filed a motion for summary recommended order, arguing that the proposed amendment to the FLUM was contrary to the December 17, 1993, Final Order of the Administration Commission in Case No. ACC-92-070 (DOAH Case Nos.
89-5157GM and 90-6639), which will be explained more fully below. After a hearing, the undersigned denied the motion by order dated March 19, 1998, determining that the question of whether
Hillsborough County has complied with the Final Order raised issues of fact and law that could not be resolved on the pleadings.
At the final hearing, Petitioners presented the testimony of David L. Anthony, a Vice President with Wade-Trim, Inc., and an expert in planning and consistency issues under Chapters 163 and 187, Florida Statutes, and Rule 9J-5, Florida Administrative Code; William A. Ockunzzi, President of Ockunzzi & Associates (environmental and land use consultants) and also an expert in planning and consistency issues; David W. Scussel, owner of a market and economic consulting firm, Vice President of BW General Contractors/Bruce Williams Homes, and an expert in market analysis;
G. Jeffrey Churchill, President and Senior Ecologist with Environmental Analysis & Permitting, Inc., and an expert in biology, zoology, ecology, species of concern, and upland habitat and its protection; and Peter J. Schreuder, President and Senior Hydrologist with Schreuder, Inc., and an expert in hydrology.
Respondent Hillsborough County presented the testimony of Robert B. Hunter, Executive Director of the Hillsborough County City-County Planning Commission (the “Planning Commission”); James
Hosler, a Research Director with the Planning Commission and an expert in demographics and population projections; David Sumpter, an expert in wildlife biology and photo interpretation; Joe R. Zambito, a Senior Planning Manager with the Planning Commission and an expert in transportation planning; Ramond A. Chiaramonte, Assistant Executive Director of the Planning Commission; and
Lorraine Duffy, a Senior Planning Manager with the Planning Commission and an expert in urban and land use planning.
Respondent DCA presented the testimony of J. Thomas Beck, Chief of the Bureau of Local Planning of the DCA; Bernard O. Piawah, Planning Manager in the Bureau of Local Planning of the DCA and an expert in regional, urban and comprehensive planning; and Darrin Taylor, Planning Manager in the Bureau of Local Planning of the DCA and an expert in regional, urban and Comprehensive Planning.
Intervenors Sierra Club, Inc. (“Sierra Club”) and Dr. Richard and Bonnie Hoffman presented the testimony of Michael A. McElveen, a real estate appraiser and analyst with Urban Economics Incorporated and an expert in real estate valuation and evaluation; and Dr. Richard Hoffman, a clinical psychologist, presented to prove standing of Dr. Richard and Bonnie Hoffman in the proceeding.
Petitioners' Exhibits 1-3, 6, 10-28, and 30 were admitted into evidence, subject to objections from Respondents and Intervenors.
Respondents' and Intervenors' Joint Exhibits 1-22, 24-36, 39,
40(d), 41, 43, 45-46, 47-68, and 69-72 were admitted into evidence. Petitioners’ Exhibits 12-17 and 24, and Respondents’ and
Intervenors’ Joint Exhibits 47-68 and 69-72 were admitted provisionally, as Respondents and Intervenors took the position that any evidence regarding Petitioners’ Development of Regional Impact (“DRI”) application was irrelevant to this proceeding.
A transcript of the final hearing was filed at the Division of Administrative Hearings on April 23, 1998, and the parties filed proposed recommended orders on May 11, 1998.
FINDINGS OF FACT
Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made:
PARTIES
Petitioners Nick and Peter Geraci are the fee simple owners of a parcel of land comprising approximately 450 acres located on the northeast corner of the intersection of North Dale Mabry Highway and Van Dyke Road, two hundred fifty-three (253) acres of which are at issue in this proceeding.
Advance Leasing is a Florida corporation that was a contract vendee for a portion of the Geracis’ property intended for development as a “super regional” or “regional scale” mall, and was the applicant in the amended applications for DRI approval of that mall. Hillsborough County’s motion to dismiss Advance Leasing as a party for failure to establish standing as an affected person under Section 163.3184(1)(a), Florida Statutes, was granted at the final hearing. Advance Leasing failed to establish that it was an entity that either owned or operated a business within Hillsborough County or owned property in Hillsborough County as of October 27, 1994.
Respondent DCA is the state land planning agency, with responsibility to review plan amendments under Chapter 163, Part
II, Florida Statutes, pursuant to Sections 163.3184, 163.3187 and 163.3189, Florida Statutes, and to determine compliance with the relevant provisions.
Respondent Hillsborough County is a local government with responsibility to prepare and adopt a Comprehensive Plan and any required amendments thereto pursuant to Sections 163.3167, 163.3171 and 163.3174, Florida Statutes. The Hillsborough County Board of County Commissioners makes the final, legislative decision on all Comprehensive Plan amendments in Hillsborough County.
Hillsborough County Charter Section 9.09 specifies that a single local planning agency, created by special law, "shall have responsibility for Comprehensive Planning and related activities[.]" The Hillsborough County Local Government Comprehensive Planning Act, as amended by Chapter 97-351, Laws of Florida, designates the Hillsborough County City-County Planning Commission ("Planning Commission”) as Hillsborough County's local planning agency. The Planning Commission is charged with preparing Comprehensive Plans and making recommendations to the public bodies for Hillsborough County and the incorporated municipalities within Hillsborough County. The role of the Planning Commission is advisory and its recommendations are not binding upon Hillsborough County.
Intervenors Sierra Club and Dr. Richard and Bonnie Hoffman have established their standing to participate in this proceeding as "affected persons" pursuant to Section 163.3184(1)(a), Florida
Statutes. Sierra Club represents numerous members who reside in Hillsborough County, and also operates a business within the boundaries of Hillsborough County by way of its local affiliate. The Hoffmans own property within Hillsborough County. Both Sierra Club and the Hoffmans participated in the local government proceedings in accordance with Section 163.3184(1)(a), Florida Statutes.
BACKGROUND
On July 12, 1989, Hillsborough County adopted its Comprehensive Plan for the time period through 2010, which included a change in the designation of the Geraci Parcel from Agricultural (“A”) to RC. The Hillsborough County FLUM containing the adopted RC designation was adopted by the Board of County Commissioners and transmitted to the DCA as part of that Comprehensive Plan.
The RC future land use category was the only land use category under the 1989 Comprehensive Plan that allowed for consideration of a maximum retail component in excess of 300,000 square feet of development. The RC category also allowed for consideration of a maximum floor area ratio ("FAR") of 1.0 and consideration of maximum residential density of 20 dwelling units per gross acre.
On September 5, 1989, the DCA filed a Notice of Intent to Find the Hillsborough County Comprehensive Plan Not in Compliance, and a Statement of Intent to Find Comprehensive Plan Not in Compliance. The Statement of Intent provided, in pertinent part:
The Future Land Use Map is not supported by adequate data and analysis. A quantitative analysis of future land uses needed to accommodate the projected population is not included. The plan does not explain the methodology used to determine land use needs, their densities and intensities of use or the estimated gross acreage needed by land use category. The Future Land Use Map reflects residential uses in excess of the projected need (based on population projections) which allows for less guidance and direction as to where development will occur and contributes to the proliferation of urban sprawl. Rules 9J-5.005(21), 9J-5.006(2)(c) and 9J-5.006(4),
F.A.C.; Section 163.3177(6)(a), F.S.
On September 20, 1989, the DCA filed a petition challenging the 1989 Comprehensive Plan as not in compliance, pursuant to Section 163.3184(10), Florida Statutes, based in part upon the lack of appropriate data and analysis to support the densities and intensities set forth therein. The case was assigned to DOAH as Case No. 89-5157GM. Sierra Club, the Tampa Bay Regional Planning Council, Manasota-88, the Big Bend Area Group, and Tom Traina intervened in the proceeding.
The DCA entered into a settlement agreement with Hillsborough County. DOAH Case No. 89-5157GM was abated while Hillsborough County held public hearings and adopted amendments on August 6, 1990, as set forth in Ordinance No. 90-24. The DCA, after reviewing the amendments, issued a Notice of Intent to Find the Amendments in Compliance on September 21, 1990.
After the adoption of the settlement agreement, all intervenors, except for Sierra Club and Big Bend Area Group, voluntarily dismissed their petitions in Case No. 89-5157GM.
On October 20, 1990, Sierra Club and Manasota-88 filed a petition with the DCA pursuant to Section 163.3184(9), Florida Statutes, adopting the allegations of the DCA in DOAH Case No. 89- 5157GM, and setting forth new issues. The second proceeding was assigned DOAH Case No. 90-6639GM.
By order dated October 30, 1990, Case Nos. 89-5157GM and 90-6639GM were consolidated for final hearing.
None of the Petitioners in the instant proceeding were parties or intervenors in either Case No. 89-5157GM or Case No. 90- 6639GM.
A final hearing on DOAH Case No. 89-5157GM and 90-6639GM was held on September 23-27, 1991.
On December 19, 1991, the Board of County Commissioners adopted Ordinance No. 91-31, which identified certain property in Hillsborough County, including the Geraci Parcel and the planning area to the east of the Geraci Parcel, as Environmentally Sensitive Area for uplands, the definition of which includes significant wildlife habitat. This overlay classification was part of Comprehensive Plan Amendment 90-06. The DCA issued a Notice of Intent to Find Amendments in Compliance on February 5, 1992. Comprehensive Plan Amendment 90-06 was not challenged and, therefore, the adoption became final agency action.
On December 8, 1992, a Recommended Order was entered in consolidated Case Nos. 89-5157GM and 90-6639GM. The Recommended Order concluded that the Comprehensive Plan's levels of densities and intensities in Northwest Hillsborough County were not supported by data and analysis.
During 1993, in the interim between entry of the Recommended Order and the Administration Commission’s consideration of final agency action, representatives of the Geracis participated in negotiations intended to settle the case. The Geracis agreed to change the designation of their property from RC to Urban Mixed Use* (“UMU*”), with a floor area ratio (“FAR”) of 0.5 and a minimum open space requirement of 25%. The County Attorney’s office for Hillsborough County included the substance of this agreement in a December 1, 1993, “remedial package” it proposed to present to the Administration Commission on December 14, 1993.
In a letter dated December 6, 1993, counsel for Sierra Club transmitted to DCA Secretary Linda Shelley objections to the proposed UMU* designation for the Geracis property, arguing that the FAR of 0.5 would permit an excessively large retail use and that the UMU* ignored the Recommended Order’s findings concerning the failure of the FLUM to reflect the mapped significant wildlife habitat on the site.
On December 14, 1993, the Administration Commission considered at its meeting the entry of a Final Order in Administration Commission Case No. ACC-92-070. During the hearing
members of the Administration Commission asked for clarification of the meaning of the proposed Final Order. Administration Commission staff stated that the provisions of the Final Order would be interpreted flexibly to allow Hillsborough County to follow the statutory procedure for amending a Comprehensive Plan, including holding public hearings and adopting amendments to the Comprehensive Plan based upon relevant and appropriate data and analysis:
MR. GREG SMITH [Commission staff]: This is a remediation plan which will go back to the county, and they will go through the process of amending their plan, and this will be, there are stages at which citizens in the area can be heard, and that will be noticed, and all that due process will be allowed. So I just wanted to clarify that one point.
COMMISSIONER CRAWFORD: Let me ask a
question. Could it be interpreted as one of the speakers said that our vote today is instructing the county to in fact reduce the density on certain lands, say, from one structure per five acres to one for 40 acres? Would that be the effect of this vote today?
MR. GREG SMITH: What our remediation would do would be to suggest something that of course the parties that were heard from have settled on as being a way to fix the Hearing Officer’s concerns.
The process does allow some flexibility, so that as long as the parties can come to terms and meet the problems that were addressed in the recommended order, and then that, of course, would be reviewed by DCA, but as long as those problems have been addressed, that there is some flexibility.
* * *
COMMISSIONER CRAWFORD: I understand, but I support the county’s process, and I know when
the county takes up the density issue they hear from the landowners, which rightfully they should, and they make the best decision they can make, but now we have a, it seems to me now we’ve got a system where we have taken that decision making, moved it somewhere, somewhat out of the Sunshine, and now taken that process and instructing the county to follow suit, and you didn’t have everybody at the table. That concerns me.
MR. GREG SMITH: I think Mr. Dingfelder could answer your question, who is the County Attorney, and can assist you in understanding the process the county will go through.
* * *
MR. DINGFELDER: The bottom line is we’re happy with this agreement. The way we will implement this is via the comp plan amendment process. We are also doing our comp plan update process, and we will merge them into one. We will thoroughly and thoughtfully review all of these 11 areas [including the Geraci Parcel] again with two public hearings, a minimum of two public hearings, and many public workshops, and we will go through the process.
We feel like we can handle this. You have given us guidance as to the density reductions, you have given us guidance as to density reductions, and it’s our obligation to follow that guidance or to follow it or to be substantially similar to it or come up with data and analysis to say otherwise why that’s not right.
If we say it’s not right, we’ll send it back to you again and let you know what the data and analysis was to support the change.
SECRETARY SMITH: I guess we can assume these public hearings, these property owners will have the opportunity to be heard?
MR. DINGFELDER: Absolutely. They will be noticed, and you can guarantee the newspapers
will have this right up there, in addition to the advertisements.
Administration Commission Item 5, December 14, 1993, Cabinet
Meeting, transcript pp. 42-44, 47-48.
The Administration Commission entered its Final Order No. AC-93-087, for Case No. ACC-92-070 (DOAH Case Nos. 89-5157GM and
90-6639GM), on December 16, 1993 (“Final Order”). The Administration Commission adopted, except as noted, the Findings of Fact and Conclusions of Law of the Recommended Order and set forth recommended remedial actions.
The Final Order mandated the following remedial actions for Area 3(c), which includes the Geraci Parcel, in accordance with the Geracis’ agreement and the Hillsborough County attorney’s “remedial package” of December 1, 1993:
In response to the Hearing Officer’s conclusions, the County shall amend the area designated RC on its FLUM... and described as follows: Three (3) “outparcels” along Dale Mabry and Van Dyke Roads currently designated Regional Commercial (RC) will be designated Commercial Office (CO).... The main area currently designated RC with a Floor Area Ratio (FAR) of 1.0 will be amended to designation of Urban Mixed Use* (UMU). The CO and UMU areas will be subject to a special reduction in FAR to 0.5 and will allow development with a minimum 25% open space requirement.
Final Order, p. 20-21.
The Final Order contained a “Statement on the Commission's Intent,” which provided, "No action taken today by the Commission in addressing remediation of the Hillsborough
Comprehensive Plan regarding area 3(c) should be interpreted to comprise an endorsement or rejection of any particular development." Final Order, p. 37.
The Final Order determined that the RC classification was not supportable by relevant and appropriate data and analysis. The Final Order contained recommendations and guidance concerning the need to reduce densities and intensities in Hillsborough County to be in compliance with Chapter 163, Part II, Florida Statutes. Pursuant to the Final Order, Hillsborough County was required to hold public hearings and make a determination of appropriate land use classifications, including that on the Geraci Parcel. Hillsborough County's future land use determinations would have to be supported by relevant and appropriate data and analysis, and would be subject to public hearings in accordance with Chapter 163, part II, and due process.
The Administration Commission expressly retained jurisdiction of the proceeding for purposes of a final determination on the compliance of Hillsborough County's plan after the adoption of remedial amendments. Final Order, p. 37.
None of the named parties to the case appealed the Final Order. The Geracis, who were not parties to the Administration Commission proceeding but did participate in the settlement negotiations subsequent to entry of the Recommended Order, did not attempt to appeal the Final Order.
THE 1994 COMPREHENSIVE PLAN UPDATE
Beginning in 1992, the Planning Commission, the local planning agency for Hillsborough County, the City of Tampa, Temple Terrace, and Plant City, began assembling and collecting data and analysis to prepare the periodic Evaluation and Appraisal Report ("EAR") of Hillsborough County's Comprehensive Plan.
The EAR was the statutorily required first step for updating the Comprehensive Plan through the time frame 2015. Section 163.3191(1), Florida Statutes.
Ms. Duffy testified that Hillsborough County merged the EAR and Comprehensive Plan update process with consideration of remedial amendments pursuant to the Final Order.
The Planning Commission held hearings on the EAR and plan update on March 21, 1994; March 23, 1994; March 28, 1994; April 4, 1994; April 11, 1994; and April 25, 1994. On April 25, 1994, the Planning Commission adopted a Resolution recommending to the Board of County Commissioners that it adopt the EAR.
The Board of County Commissioners held hearings on the EAR and plan update on April 27, 1994, continued to April 28, 1994; May 11, 1994; May 19, 1994; June 2, 1994; and June 8, 1994. 33. On June 8, 1994, the Board of County Commissioners of Hillsborough County adopted Resolution No. R94-0136, adopting the EAR and transmitting the EAR-based Comprehensive Plan amendments to the Department.
The EAR-based amendments included an amendment to the FLUM, changing the land use designation on the Geraci Parcel from RC to CMU-12.
The Tampa Bay Regional Planning Council (the “Council") reviewed the EAR-based Comprehensive Plan amendments ("Amendment
94-ER") on July 11, 1994. The Council's review was limited to: (1) the effects of Amendment 94-ER on regionally significant resources or facilities identified in the Future of the Region, Comprehensive Regional Policy Plan for the Tampa Bay Region ("FRCRPP"); and (2) extra-jurisdictional impacts that would be inconsistent with the comprehensive plan of the affected local government.
The Council subsequently issued its Report on Proposed Amendment 94-ER ("Council Report"), in which it stated, regarding the Future Land Use Element ("FLUE") amendments:
The County is to be commended for broadening the scope of the element by including such features as recognizing the importance of the environment and agriculture to the overall character and economic health of the county and the development of the Community Design Component.
Council Report, p. 3. The Council determined that the FLUE amendments as transmitted were consistent with the FRCRPP.
The Council separately addressed the FLUM amendments in its report:
The scope and thoroughness of the map amendments proposed by Hillsborough County go far in its efforts to recognize existing conditions, protect personal property rights, and protect the natural environment, all within the framework of Florida's growth
management efforts. The County is to be particularly commended for reducing densities/intensities of use in those areas were [sic] appropriate.
Council Report, p. 10. The Council determined that the FLUM amendments as transmitted were consistent with the FRCRPP.
On August 16, 1994, Linda Shelley, the Secretary of the Department, sent a letter to David Coburn, the Secretary of the Administration Commission, informing him that Hillsborough County had proposed certain remedial actions in response to the Administration Commission's Final Order No. AC-93-087. Secretary Shelley's letter stated, in relevant part:
One modification the County made which is likely to be controversial is in Area 3 where the Final Order recommended that the area east of Dale Mabry Highway, currently designated Regional Commercial (RC), which allows 0-20 dwelling units per gross acre (du/ga) and 1.0 Floor Area Ratio (FAR) be changed to a more restrictive Urban Mixed Use designation (0-20 du/ga; 0.5 FAR, and 25% open space) and a commercial office category.... However, the remedial amendment proposed by the County is more restrictive than the Final Order because it proposes, for the site currently designated RC, Community Mixed Use (CMU, 0-12 du/ga, 0.5 FAR, 25% open space, maximum of 650,000 sq. ft. retail uses).... A representative of the developer for the site bearing the RC designation has spoken to the Department’s staff about the County’s apparent deviation from the Final Order for this site since the proposed designation will not permit the type of large scale commercial development the developer intended for the site.
The Department's staff has reviewed the
proposed remedial actions and concluded that the modifications are consistent with the terms of the Final Order.
On August 22, 1994, the Department issued its Objections, Recommendations and Comments ("ORC") Report for Hillsborough County Amendment 94-ER.
The Board of County Commissioners held a public workshop on September 28, 1994, and public hearings on October 6, 1994; October 19, 1994; and October 27, 1994, regarding adoption of the CPU-2015.
On October 27, 1994, the Board of County Commissioners adopted CPU-2015, including the redesignation of Geraci Parcel from RC to CMU-12.
At the October 27, 1994, Board of County Commissioners public hearing on adoption of the CPU-2015, a representative of the Geracis and Advance Leasing and Development, Inc., spoke in opposition to the proposed change in classification on the Geraci Parcel, arguing that the Final Order of the Administration Commission bound Hillsborough County to adopt UMU* on the Geraci Parcel.
Ramond Chiaramonte of the Planning Commission responded by citing the August 16, 1994, letter from Secretary Shelley to David Coburn stating that the Department staff found the remedial modifications consistent with the terms of the Final Order.
Ordinance No. 94-10, adopted by the Board of County Commissioners on October 27, 1994, sets forth CPU-2015. CPU-2015 substantially revised the FLUE, including the range of future land use categories and the FLUM under the Comprehensive Plan. CPU-2015
eliminated the RC category, and created several new future land use categories to allow for varying levels of maximum retail uses in excess of 300,000 square feet.
Specifically, the CPU-2015 FLUE included the following categories: Regional Mixed Use-35 (maximum FAR of 2.0); Urban Mixed Use-20 (maximum FAR of 1.0); Community Mixed Use-12 (maximum FAR of
.5, office uses, retail uses up to 650,000 square feet, and residential uses up to 12 units per gross acre); Office Commercial (maximum FAR of .75, office uses, retail uses up to 350,000 square feet); and Neighborhood Mixed Use-4 (maximum FAR of .25, suburban- scale neighborhood commercial development up to 110,000 square feet).
These varying levels of potential retail development reflected a "stair-stepped" approach in the land use categories by Hillsborough County, intending to provide more flexibility than the 1989 plan with its single RC designation covering all potential retail components in excess of 300,000 square feet.
The FLUE defines CMU-12 as:
land use plan category used to designate those areas best suited for urban uses with development occurring as the provision and timing of transportation and public facility services necessary to support these uses are made available. This category of land use shall serve as a transitional area which emphasizes compatibility with adjacent plan categories. Non-residential development intensities up to 0.5 floor area ratio and residential densities up to 12.0 dwelling units per gross acre may be permitted. Rezonings shall be approved through a planned unit development rezoning process which
requires, at a minimum, integrated site plans controlled through performance standards to achieve developments which are compatible with surrounding patterns and the Goals, Objectives and Policies of the Future of Hillsborough Comprehensive Plan.
The CMU-12 classification would allow for consideration of development approval with a theoretical intensity of over 5 million square feet on the 253-acre Geraci Parcel, though it would limit retail uses to 650,000 square feet. The CMU-12 category would also allow for consideration of residential development up to
12 dwelling units per gross acre.
The CMU-12 and UMU* land use classifications both have an FAR of .5 and a 25% open space requirement. However, CMU-12 allows for consideration of unlimited office development and consideration of up to 650,000 square feet of retail development, while UMU* allows for consideration of unlimited office and retail development. Furthermore, CMU-12 allows for consideration of up to
12 dwelling units per gross acre, while UMU* allows for consideration of up to 20 dwelling units per gross acre.
The CPU-2015 removed specific policies in the Comprehensive Plan related to the “North Dale Mabry Corridor Plan,” which had been adopted by the Hillsborough County Board of County Commissioners as a separate document on December 12, 1989.
The North Dale Mabry Corridor Plan designated the northeast corner of Dale Mabry Highway and Van Dyke Road, including the Geraci tract, as a “major activity center.” Among the stated
purposes of the corridor plan and the designation of “activity centers” were to cluster commercial uses, to encourage the development of shopping centers rather than scattered, unplanned commercial development, to discourage strip commercial development, and to provide for a gradual transition of intensities between different land uses.
The specific policies related to the North Dale Mabry Corridor Plan were removed from CPU-2015 because the former was a separate, stand-alone document. Hillsborough County deemed it sufficient to simply state in CPU-2015 that adherence to the North Dale Mabry Corridor Plan is mandatory, thus in effect readopting the North Dale Mabry Corridor Plan by reference. The North Dale Mabry Corridor Plan was in effect at the time CPU-2015 was adopted and was considered in establishing the land use designation for the Geraci tract.
Hillsborough County is approximately 597,240 acres in size. The revisions to the FLUM contained in CPU-2015 as a whole substantially affect 219 parcels, covering approximately 111,613 acres, or more than 19% of Hillsborough County. Petitioners' challenge of CPU-2015 is limited to the future land use classification of CMU-12 on one parcel, consisting of 253 acres, located at the northeast quadrant of Dale Mabry and Van Dyke Road.
The Geraci Parcel is part of the Lutz planning sector. The Parcel is bordered on the west by Dale Mabry Highway and on the
south by Van Dyke Road. Van Dyke connects to Crenshaw Lake Road southeast of the Geraci Parcel.
At the time of the adoption of CPU-2015, the existing land use on the Geraci Parcel was agricultural. The surrounding existing land uses were agricultural, vacant and semi- rural/suburban. There was no heavy commercial land use in the vicinity and minimal light commercial land use. The property immediately to the north of the Geraci Parcel along Dale Mabry (also owned by the Geracis) was agricultural land. The 30-acre property at the southeast corner of Dale Mabry and Van Dyke was agricultural land. To the south of that parcel were rural/suburban residential areas. To the west and north of the corner parcel, in the northwest quadrant, was suburban residential development as well as rural lands. The suburban residential developments to the west are known as Calusa Trace and Cheval.
The Planning Commission examined existing land use patterns in bordering counties and municipalities (including Pasco and Pinellas counties) as required by Rule 9J-5, by taking field visits and/or examining aerial photography.
Under CPU-2015, the 52-acre corner parcel at the northwest quadrant of Dale Mabry and Van Dyke was classified Office Commercial-20 ("OC-20"). The 510-acre property at the southwest quadrant of the intersection was classified as Natural Preservation ("NP") and is known as the Section 21 Wellfield (public water
supply source). The 30-acre property at the southeast corner of Dale Mabry and Van Dyke was classified as OC-20.
The planning area surrounding the corner parcels was classified predominantly as Residential-2 ("R-2"). The vacant agricultural property immediately to the north and east of the Geraci Parcel was classified as R-2.
The most intensive land use classification adopted by the County in the area is the CMU-12 land use on the Geraci Parcel.
Hillsborough County took into consideration that the Geraci Parcel was located on the edge of the Urban Service Area when it classified the Parcel as CMU-12.
On December 26, 1994, the DCA issued its Notice of Intent to find CPU-2015 in compliance with Chapter 163, Part II, Florida Statutes and Rule 9J-5, Florida Administrative Code.
On January 10, 1995, Petitioners filed the Petition with the DCA.
THE PETITION
The Petition makes numerous particular allegations regarding the consistency of the CMU-12 designation with the Comprehensive Plan, the North Dale Mabry Corridor Plan, and the regional and state comprehensive plans. These particular allegations will be discussed in the “Data and Analysis” section below. However, certain general allegations and arguments made by Petitioners deserve mention at the outset.
The Petition sets forth extensive factual allegations regarding the procedural history of the DRI and rezoning applications that Advance Leasing and its predecessors in interest presented to Hillsborough County commencing in 1988.
For purposes of this recommended order, it is unnecessary to detail the various permutations that the DRI proposal underwent during the five years of the application process. In essence, Advance Leasing proposed to build a “regional scale” or “super regional” mall on the Geraci Parcel, i.e., a retail facility in excess of 1 million square feet.
Respondents argued that evidence regarding the DRI application and rezoning are irrelevant to this growth management proceeding. Petitioners concede this would be the case in an ordinary proceeding, but argue that here the DRI application is inextricably entwined with Hillsborough County’s decision to “downplan” the Geraci Parcel from RC to CMU-12.
Petitioners allege that Hillsborough County’s original adoption of the RC designation, the North Dale Mabry Corridor Plan, and the designation of the Geraci Parcel as a “major activity center” were all designed to support large scale retail development on Petitioners’ lands, and that the subsequent CMU-12 designation with a 650,000 square foot limit on retail development was based solely on a zoning condition proposed by the Board of County Commissioners for the Advance Leasing project on the Geraci Parcel.
Petitioners contend that the Comprehensive Plan amendment redesignating the Geraci Parcel as CMU-12 is based entirely on an arbitrary desire to prevent Petitioners from ever being able to build a regional scale mall on this site, in effect accomplishing a de facto rezoning this parcel via “spot planning” absent the requisite data and analysis to support a 650,000 square-foot limit on retail development of this parcel.
The alleged motive for this purported “spot planning” is political pressure placed on the Hillsborough County Board of County Commissioners by the residents of the Lutz area where the Geraci Parcel is situated. Petitioners allege that in every instance in which professional staff reviewed their proposals, approval was recommended, but that the politically motivated members of the Board of County Commissioners consistently thwarted their project.
Implicit in Petitioners’ allegations is the assertion that the data and analysis performed by Hillsborough County in the
1994 amendments to its Comprehensive Plan cannot support the designation of the Geraci Parcel as CMU-12, leaving the assertedly illicit motive of preventing large scale retail development in the Lutz area as the only basis for the CMU-12 classification.
The subjective motives behind the proper vote of an elected legislative body is not within the jurisdiction of this tribunal. However, even accepting arguendo the logic of Petitioners’ allegations, it is noted that the converse must also hold: if there is sufficient data and analysis to support the CMU-
12 classification pursuant to Chapter 163, Florida Statutes, and Rule 9J-5, Florida Administrative Code, then the political motivations of the Board of County Commissioners are redundant, if not entirely irrelevant.
As more fully explained below, the undersigned finds that Hillsborough County presented the DCA with more than ample data and analysis to support the CMU-12 classification for the Geraci Parcel. Thus, there is no need to address the details of Petitioners’ DRI and rezoning applications in this growth management proceeding.
Petitioners allege that the 1994 amendments violate the Final Order. The basis of this argument is that Hillsborough County was required to comply literally with the terms of the Final Order, and that the classification of the Geraci Parcel as anything other than UMU* violates those express terms. As more fully discussed in the conclusions of law below, these allegations are
not within the jurisdiction of this tribunal and were, in any event, mooted by the Administration Commission's subsequent finding of compliance.
Petitioners allege that the DCA has an unadopted rule of never disapproving a comprehensive plan amendment that downplans an existing land use category, and that this unadopted rule was applied here to downplan the Geraci Parcel. No evidence was submitted to support this allegation.
Finally, Petitioners allege that the actions of Hillsborough County and the DCA have effected an inverse condemnation of their property and a taking thereof without the due process provided by the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 9 of the Constitution of the State of Florida. As further discussed in the conclusions of law below, the undersigned is without authority to make a determination on this constitutional issue.
DATA AND ANALYSIS
GENERAL
Petitioners have generally alleged that Hillsborough County has not presented data and analysis sufficient to support the redesignation of the Geraci Parcel from RC to CMU-12, and that the data and analysis actually support the Final Order’s designation of the property as UMU*.
Because of the similarity of the CMU-12 and UMU* designations, Petitioners’ proof necessarily focused on the only
real distinctions between the two: CMU-12 caps retail development at 650,000 square feet, while UMU* does not cap retail development; and, of lesser importance to Petitioners, CMU-12 limits residential development to 12 dwelling units per gross acre, while UMU* caps residential development at 20 dwelling units per gross acre.
Much of Petitioners’ proof went toward demonstrating that UMU* was more consistent with and better supported by the data and analysis. In this, Petitioners appear to assume either that data and analysis can be found to support only one land use designation for a particular parcel, or that Hillsborough County was required to select the “best” designation for the Geraci Parcel. Neither assumption is correct.
The data and analysis presented by Hillsborough County could have supported the UMU* designation. Petitioners may be correct in asserting that the data and analysis could better support the UMU* designation in certain respects. However, Hillsborough County is not required to prove that the data and analysis support the CMU-12 designation to the exclusion of all other possible designations, or even that CMU-12 is the “best” designation. As discussed in the conclusions of law below, Hillsborough County need only demonstrate that its designation of the Geraci Parcel as CMU-12 meets the “fairly debatable” standard. Hillsborough County’s data and analysis more than meets this standard.
The CPU-2015, including the designation of the Geraci Parcel as CMU-12, is supported by relevant and appropriate data and analysis, including, but not limited to, population and growth projections; demographic concerns; natural resource concerns; suitability/compatibility concerns; infrastructure concerns; transportation and constrained facility concerns; urban sprawl concerns; overallocation concerns; data and analysis employed by the Department; and the EAR, background documents, reports and maps that were transmitted by the Planning Commission to the DCA on June 15, 1994.
In "A Vision for the Future of Our Community," which the Planning Commission transmitted to the Department as part of its EAR, the Planning Commission set forth twelve (12) goals for the future of Hillsborough County: embrace diversity; master good government; cultivate prosperity; produce balanced growth; provide effective transportation; nurture a healthy environment; build efficient infrastructure; recreate thriving neighborhoods; provide excellence in education; achieve a safe environment; strengthen families and social services; and foster a sense of place. The "Vision" document was the product of approximately three years of joint effort by the Planning Commission and the municipalities within Hillsborough County.
The "visioning” effort also resulted in the January 28, 1993, Joint Motion of the Hillsborough County Board of County Commissioners, the Tampa City Council and the Planning Commission,
enumerating a series of goals for the future of the community, including the recognition of downtown Tampa as the business, cultural and entertainment center for the region and the direction of future growth in areas with existing utilities and infrastructure.
The FLUE EAR summarized the major changes being proposed for the Future Land Use Element as generally consisting of density reductions within the I-75 Corridor and the Keystone area in the Northwest area of the County, and density increases northwest of Plant City as a result of zoning conformance.
The FLUE EAR described several changes that occurred since the FLUE was adopted in 1989. These changes included a decrease in the rate of population growth, the impact on development of the early 1990s' economic recession, problems with major roadway projects, the provision of permanent farm worker housing, the necessity of phasing new commercial uses to coincide with the long range transportation plan, and zoning nonconformities. In describing the decrease in population growth, the EAR stated:
The population growth has been slower than expected. In 1980, unincorporated Hillsborough County's population was 347,418; in 1990 it was 514,841. The 1993 population estimate is only 533,400. The Planning Commission has recalculated the population projections for the unincorporated County.
The 1986 population projections used in the creation of the existing Comprehensive Plan projected the unincorporated County's population in the year 2010 (the horizon date of the existing plan) to be 932,800. The
horizon date for this plan update is now the year 2015, and the population projection has been down sized to 782,600.
FLUE EAR, p.3.
The FLUE EAR explained the change in land use classification from RC to CMU-12 on the Geraci Parcel as follows:
In that portion of area 3, located at the northeast corner of Van Dyke Road and Dale Mabry Highway, the Final Order identifies remedial action for a land use category of UMU** (Urban Mixed Use-- 20 du/ga) and Commercial Officer** [sic]. The [sic] indicated that the uses on this site are further restricted not to exceed a Floor Area Ratio of 0.5 and that open space on the site must be at a minimum of 25%. As previously stated, this issue was brought before the Administrative [sic] Commission on December 14, 1993. This site is part of an ongoing DRI review and was scheduled for final action by the Board of County Commissioners on December 16, 1993. In deference to that process, the Order indicates that nothing in the Order would prohibit Hillsborough County from revisiting the appropriate land use on this through a Plan Amendment process.
On December 16, 1993, the Board of County Commissioners indicated their intent to approve a much less intense development on the site than had been proposed by the applicant and far less intense than the maximum intensities of the existing Regional Commercial land use category. On that same day, the [Board of County Commissioners] instructed the planning staff to revisit the land use on this site and recommend a land use designation that more closely reflected the Board’s intent on the site. On March 29, 1994, the Board of County Commissioners denied the DRI request on this site, but set out conditions which would reflect the same intent as discussed on December 16, 1993.
The recommended land use on this site is Community Mixed Use* (CMU) which permits up to
12 du/ga, a maximum FAR of 0.5, at least 25% of the site left in open space and a maximum retail commercial component of 650,000 sq. ft. This category is complimentary to the intent expressed by the [Board of County Commissioners] on December 16, 1993, and which were [sic] set out in the conditions described in their denial of this application on March 29, 1994. This category is also more reflective of the expected development trends and growth projections for this area. Since 1989, the population projections for Hillsborough County have substantially decreased, meaning fewer new residents will be moving into the area. Additionally, when the original Regional Commercial designation was placed on this site in 1989, a major east-west road was planned to connect Veteran's Expressway and I-75. This road is no longer planned to be built in this area. The Community Mixed Use continues to identify this site as a major activity center for the area but is more moderately scaled to keep in character with planned growth and infrastructure in the area. FLUE EAR, p. 22- 23.
URBAN SPRAWL
Petitioners allege that the CMU-12 designation encourages urban sprawl, in violation of Rule 9J-5.006(3)(b)8., Florida Administrative Code, and FLUE Policy D-2.3.
Rule 9J-5.003(140), Florida Administrative Code, defines "urban sprawl" as follows:
urban development or uses which are located in predominantly rural areas, or rural areas interspersed with generally low-intensity or low-density urban uses, and which are characterized by one or more of the following conditions: (a) The premature or poorly planned conversion of rural land to other uses; (b) The creation of areas of urban development or uses which are not functionally related to land uses which predominate the adjacent area; or (c) The creation of areas of
urban development or uses which fail to maximize the use of areas within which public services are currently provided. Urban sprawl is typically manifested in one or more of the following land use or development patterns: Leapfrog or scattered development; ribbon or strip commercial or other development; or large expanses of predominantly low-intensity, low-density, or single-use development.
Rule 9J-5.006(5), Florida Administrative Code, sets forth the criteria under which the DCA reviews Comprehensive Plans and plan amendments to discourage the proliferation of urban sprawl, including a list of 13 "primary indicators" of urban sprawl derived from the definition quoted above.
All of the parties to this proceeding agreed that urban sprawl was a relevant consideration. The parties disagreed on the impact of the redesignation of the Geraci Parcel from RC to CMU-12.
Mr. David Anthony, an expert in planning and consistency issues testifying on behalf of Petitioners, opined that the CMU-12 designation unduly limits the retail development of the Geraci Parcel. Mr. Anthony based his opinion on the facts that this area has been targeted for growth and development for several years, that the public facilities were in place, and that the property had been designated as an "activity center" by Hillsborough County and was ready for regional commercial activities.
Mr. Anthony testified that the UMU* designation would be more appropriate to address urban sprawl concerns, because it would allow for clustered development at the intersection of Dale Mabry Highway and Van Dyke Road.
Mr. William Ockunzzi, another expert in planning and consistency issues on behalf of Petitioners, testified that the CMU-12 designation would encourage urban sprawl because it sets a substantially lower density than the UMU* designation, and the
limits on retail development make it less likely to serve as a node for development.
Mr. Ockunzzi opined that commercial development unable to locate on the Geraci Parcel due to the limits of the CMU-12 designation will spread itself up and down Dale Mabry Highway.
This opinion is not credited, because Mr. Ockunzzi assumes there is a pent-up demand for a certain level of retail development in the vicinity of the Geraci Parcel that will inevitably find its way there.
Petitioners did not offer competent substantial evidence of such a demand. Mr. Michael McElveen, an expert in real estate valuation and evaluation, testified that there is no unserved market in northwest Hillsborough County for a regional mall on the scale and of the type proposed by Petitioners. Mr. David Scussel, Petitioners’ expert in market analysis, criticized the methodology employed by Mr. McElveen, but did not affirmatively establish that there is a market demand for the mall.
Ms. Duffy testified that agricultural and single family homes are the dominant uses in the areas surrounding the Geraci Parcel, and that there are no heavy commercial uses in the vicinity.
Mr. Darrin Taylor, a DCA expert in Comprehensive Planning, testified that the CMU-12 designation provides a better fit for the area, allowing development without creating additional adverse impacts on the adjacent areas. Mr. Taylor testified that CMU-12 allows for a gradual intensification of uses from one property to the next, encourages incremental growth, better complies with the urban sprawl rule's preference for providing a clear separation between rural and urban uses, and does a better job of preventing leapfrog urban sprawl, i.e., development in rural areas at substantial distances from existing development.
On balance, it is found that the CMU-12 designation discourages urban sprawl, as that term is employed in Rule 9J- 5.006(5), Florida Administrative Code. Even if all of Petitioners' evidence on this issue was credited, Petitioners would at most establish that the UMU* designation does a marginally better job of discouraging urban sprawl than does CMU-12. Such proof would fall short of demonstrating that the CMU-12 designation in not in compliance with Rule 9J-5.006(5), Florida Administrative Code, or FLUE Policy D-2.3.
NEIGHBORHOOD COMPATIBILITY
The FLUE EAR described shortcomings in the 1989 Comprehensive Plan, as well as the manner in which CPU-2015 would address those shortcomings:
The Plan does not adequately articulate a strategy for neighborhood protection and preservation, particularly as these goals are impacted by major roadway changes and
new development is proposed to infill on vacant land within the already built-out areas. This issue is proposed to be addressed not only by policies in the Plan that will provide guidance, but through implementation of individual community plans focused on proposed roadways and improvements as well as major public facilities planned within each community. The Plan has maximum densities, but does not always provide guidance on how to weigh established neighborhood character against the pressures of new development.
Neighborhood or community level plans
would provide more detailed information and provide clearer guidance on appropriate densities.
FLUE EAR, pp. 27-28. To address these criticisms of the 1989 plan, a neighborhood protection/planning section was added to the FLUE of the updated plan.
In "Principles for Good Neighborhoods," which the Planning Commission transmitted to the DCA as part of the backup for its EAR and EAR-based amendments, the Planning Commission stated that its intent was "to outline new policies regarding the development of urban and suburban neighborhoods in Hillsborough County." One specific recommendation of the Planning Commission was to "encourage design compatibility of components within the neighborhood." The Commission stated that "compatibility is established by similar massing and scale of buildings and by their relationship to the street with regard to setbacks, change in elevation from the street, and access from street."
As found in the discussion of urban sprawl above, the dominant uses in the vicinity of the Geraci Parcel are agricultural and single family. The lower retail intensity allowed by CMU-12 would be more compatible with these existing neighborhood uses than the unlimited retail potential allowed by UMU*.
Petitioners attempted to demonstrate, through the testimony of Mr. Ockunzzi, that CMU-12 would actually be more disruptive of the area because it would encourage piecemeal development via “big box” retailers, such as Toys 'R' Us or Circuit City, that could build under a 650,000 square-foot limit, rather than concentrating the retail development on a single site of 1 million square feet or more.
Mr. Ockunzzi’s contentions in this regard are unpersuasive because he also testified that such “big box” retailers generally pursue a strategy of locating in the vicinity of large malls such as that proposed by Advance Leasing on the Geraci Parcel. Thus, the designation of that parcel as UMU* would not guarantee that piecemeal, “big box” development would not occur in the vicinity. If anything, the UMU* designation would make such development more likely.
The CMU-12 designation is consistent with the neighborhood protection/planning section of the FLUE and with the “Principles for Good Neighborhoods” that formed a part of the data and analysis supporting Hillsborough County’s designation.
POPULATION AND GROWTH PROJECTIONS.
The updated population and growth projections were described in five documents drafted and/or used by the Planning Commission and transmitted to the DCA as supporting materials for the CPU-2015: the 2015 Demographic Profile of Hillsborough County, the 1992 Annual Economic Summary for Hillsborough County, the Hillsborough County 1992 Population Projections by Jurisdiction and Census Tract, Socio-Economic Data - Employment Projections by Traffic Analysis Zone, and Buildout Assumptions for 2015.
The 2015 Demographic Profile of Hillsborough County indicated that the population growth rate will be "dramatically slower" between 1990 and 2015 than the rate that occurred in the years 1970 through 1990, though there will still be a “healthy increase” in actual population and number of households.
James Hosler, demographics expert for Hillsborough County, testified that an increase in households does not necessarily indicate an increase in population. The 2015 Demographic profile indicated that average household size has been decreasing in Hillsborough County for the past 25 years. To explain this phenomenon, Mr. Hosler cited factors such as: (1) increase in elderly population, which is usually split off of a main household; (2) single member households; and (3) increase in single-parent households.
Rule 9J-5.005(2)(e), Florida Administrative Code, requires that resident and seasonal population estimates and projections must be generated by the local government, or shall be
those estimates and projections provided by either the Executive Office of the Governor or by the University of Florida, Bureau of Economic and Business Research (“BEBR”). If the local government uses the projections of the BEBR or the Governor’s office, it must use the medium range of those projections or provide a detailed rationale for its use of low or high range projections.
The Planning Commission used the BEBR medium range population projections for the 1992 Annual Economic Summary for Hillsborough County and as the relevant and appropriate data and analysis for the CPU-2015. Mr. Hosler testified that the Planning Commission found no basis to use any other range than the medium projections of the BEBR.
Mr. David Scussel, an expert in market analysis, testified on behalf of Petitioners that the Geraci Parcel presents an ideal site for a regional scale mall because there is a high concentration of high income households in the vicinity of the site and because it lies directly in the growth path of both Hillsborough and Pasco Counties.
Mr. Scussel testified that his analysis indicated that the vicinity of the Geraci Parcel is one of the high growth areas of Hillsborough County, that growth in this area will not slow as much as in the county as a whole, and therefore that the CMU-12 designation was unsuitable for this particular tract, regardless of the overall population projections for Hillsborough County.
James Hosler, an expert on demographics and population projections for the Planning Commission, testified that the 2015 population projections for Northwest Hillsborough County (defined as the Lutz, Carrollwood and Keystone Planning Areas) decreased from 224,170 in 1989 to 191,800 in 1994. There were 32,370 fewer residents projected for Northwest Hillsborough County in 2015, or roughly 14 percent.
Bernard O. Piawah, an expert in regional and urban planning, Comprehensive Planning, and the application of Chapter 163, Florida Statutes, and Rule 9J-5, Florida Administrative Code, testified that the 1989 population projections for Hillsborough County were vastly overstated, that the 1994 adjustment to those projections was proper and necessitated an adjustment in land use designations.
Mr. Piawah testified that Hillsborough County was required to base its decisions on population projections for the entire county, not just one area or individual census tract. Mr. Piawah agreed with Mr. Scussel that UMU* would be a suitable designation for the Geraci Parcel, but concluded that CMU-12 was more suitable.
Mr. Piawah's testimony is credited. Petitioners offered no evidence to establish that Hillsborough County was required to base its land use designations on population projections for narrow areas of the county, as opposed to countywide projections. Even assuming that Hillsborough County was required to use the more
narrowly focused projections, the population adjustments provide support for the redesignation of the Geraci Parcel from RC to CMU- 12.
TRANSPORTATION AND INFRASTRUCTURE
Petitioners allege that the downplanning involved in the CMU-12 designation will effect an inappropriate utilization of existing capital improvements, resulting in an increased demand for capacity in other areas.
As noted above, Petitioners assumed without proof that there exists a demand for a regional scale mall on the Geraci Parcel, a demand that will inevitably result in the spread of development up and down Dale Mabry Highway if the CMU-12 designation is approved. Absent evidence of such demand, Petitioners’ allegations regarding shifting demand for retail capacity to other areas cannot be credited.
The Petitioners allege that the 1989 RC land use classification on the Geraci Parcel, the adoption of the North Dale Mabry Corridor Plan and the construction of Veteran's Expressway were all for the purpose or the purpose of supporting the concept of Regional Commercial development on Petitioners' lands.
This allegation is not supported by the evidence. Ramond Chiaramonte, Assistant Executive Director of the Planning Commission and an expert in land use planning, testified that he was not aware of any infrastructure plans specifically for the RC classification:
Most of the infrastructure improvements that have occurred there were planned well before the 1989 plan, so they were planned actually, I believe this property was two units an acre prior to that plan, and the Northwest Expressway, Dale Mabry's widening, those were all in plans prior to the 1989 plan being done.
Petitioners allege that the CMU-12 designation is inconsistent with FLUE Policy D-1.3 (requiring phased urban development in a logical manner consistent with urban facilities and services), FLUE Policy D-1.4 (requiring phased development of infrastructure to areas adjacent to existing facilities, rather than prematurely expanding infrastructure to areas outside the Urban Service Area), FLUE Policy D-1.5 (encouraging development within the Urban Service Area), FLUE Policy D-2.1 (encouraging development in areas with excess capacity for public facilities), and FLUE Policy D-2.2 (encouraging infill development in areas with available infrastructure).
Again, the evidence offered by Petitioners arguably demonstrated that the UMU* designation might have better implemented the cited FLUE Policies, but did not demonstrate that the CMU-12 designation is inconsistent with those policies.
The fact that the CMU-12 designation limits a certain type of development is not inconsistent with the FLUE Policies directing development to areas that are already prepared to accept it. The CMU-12 classification is the most intensive land use classification in the area, and would allow for consideration of
development approval with a theoretical intensity of over 5 million square feet on the Geraci Parcel. The CMU-12 classification is consistent with the FLUE Policies and with the identification of the Geraci Parcel as an “activity center” and a “transit emphasis corridor” in the Transportation Element of the Comprehensive Plan.
The Transportation Element EAR noted as a "Major Issue of the Element" that "the growth rate in Hillsborough County has slowed from what was assumed during the original plan development."
The data in the 1989 Comprehensive Plan projected that Hillsborough County would have 1,318,000 residents by the year 2010. The 1994 update projected 1,152,000 residents for the year 2015, 166,000 fewer residents than the 1989 projection despite the additional five years in the 1994 planning horizon. Because of the slower than previously estimated growth rate, the countywide transportation demand was not as great as previously indicated in the Comprehensive Plan. The Transportation Element for CPU-2015 reflected this change in growth rate.
The Transportation Element contained a new Goal 7, to "provide an effective roadway network that does not cause unnecessary harm to the community and the natural environment." Mr. Joe Zambito, Senior Planning Manager in the Transportation Section of the Planning Commission, testified that most of the policies under Goal 7 were new in the CPU-2015, and were designed to ensure that new or improved transportation facilities entail minimum adverse impacts on existing neighborhoods and the environment.
The Transportation Element EAR designated certain roads as “backlogged” or “constrained” if their peak hour minimum level of service standards fell below the standards set by either the Florida Department of Transportation (for state roads) or Hillsborough County (for county roads).
The Transportation Element EAR contained a table titled "Existing Constrained Facilities" indicating that Crenshaw Lake Road, from Dale Mabry Highway to U.S. 41, was a constrained facility because of neighborhood impacts. The table also indicated that Dale Mabry Highway, from Euclid Avenue to Van Dyke Road, was constrained because of neighborhood impacts and right-of-way constraints.
The "constrained" status of these roads would be exacerbated by the placement of a regional scale mall on the Geraci Parcel, and thus provides further support for the CMU-12 classification placed on the Geraci Parcel.
OVERALLOCATION
Petitioners allege that the CMU-12 designation is unsupported by data and analysis regarding the character and magnitude of existing vacant or undeveloped land needed to accommodate the regional commercial needs or the amount of land needed for the projected population.
In "Buildout Assumptions for 2015," the Commission delineated in tabular form the total acreages of land in each land use category, the acreages of vacant and agricultural land in each
category, and the percentage of land vacant or agricultural in each category. There were 9,770 acres of vacant and agricultural land in the CMU-12 category, which was 66.8% of the total 14,616 acres of CMU-12 classified land. There were 4,504 acres of vacant and agricultural land in the UMU-20 category, which was 60.4% of the total 7,456 acres of UMU-20 classified land.
Mr. Darrin Taylor, Planning Manager in the DCA’s Bureau of Local Planning, Division of Resource Planning and Management, testified that this table clearly showed there was no need for additional retail designations in Hillsborough County, and that there is in fact an overallocation of retail uses in Hillsborough County.
Mr. Taylor testified that well over half of the acreage designated for mixed use in Hillsborough County was vacant in 1994, indicating overallocation. Mr. Taylor focused on mixed use because that is where Hillsborough County has chosen to plan for much of its retail development.
Mr. Taylor testified that there are over 10 million square feet of approved DRIs for retail use in unincorporated Hillsborough County, and another 4.7 million square feet of approved retail development in the City of Tampa, supporting his conclusion that there is no need for additional retail designations.
Mr. Ockunzzi testified that overallocation is actually desirable, because it allows the free market to operate without the
inefficiencies and higher costs caused by the artificial restrictions on certain types of development. This opinion cannot be credited. Growth management and land use regulations of any kind constitute "artificial restrictions" on the operation of the free market, but are nonetheless valid enactments.
Mr. Ockunzzi further testified that, even granting that there is overallocation of retail uses and that downplanning in Hillsborough County is desirable, this particular CMU-12 designation is irrational because the vicinity of the Geraci Parcel remains a high growth area in comparison to other parts of Hillsborough County. This opinion is not credited because Hillsborough County was not required to make its land use classification decisions on a census-tract-by-census-tract or other narrow basis.
There is clearly an overallocation of retail uses in Hillsborough County. The data and analysis in this regard supports the CMU-12 designation on the Geraci Parcel, and does not support the UMU* classification sought by Petitioners.
NATURAL RESOURCES
Petitioners allege that the CMU-12 designation is inconsistent with the Conservation and Aquifer Recharge Element (“CARE”) of the Comprehensive Plan in that it unduly restricts the use of the Geraci Parcel without data and analysis supporting the conclusion that RC-level development would adversely affect cones
of influence, water recharge areas, water wells, environmentally significant uplands, or wetlands.
The CARE EAR noted that the FLUM had been amended to include the Environmentally Sensitive Area ("ESA") overlay, which depicted significant wildlife habitat. This revision recognized Comprehensive Plan Amendment No. 90-06, adopted by the Board of County Commissioners in Ordinance No. 91-31 on December 19, 1991, after the adoption of CPU-2010 and prior to the adoption of CPU- 2015.
CARE Objective 13 stated, "the County shall protect significant wildlife habitat and shall prevent any further net loss of essential wildlife habitat in Hillsborough County." The CARE included 12 specific Policies under Objective 13 to carry out its intent, including coordination with state and federal wildlife programs, protection and restoration of essential wildlife habitat in conjunction with the Florida Game and Freshwater Fish Commission, a comprehensive program to protect significant wildlife habitat from development, and the elimination of off-site mitigation for on-site development of significant wildlife habitat capable of being managed or restored on-site.
The Comprehensive Plan defines “significant wildlife habitat” as:
Contiguous stands of natural plant communities which have the potential to support healthy and diverse populations of wildlife and which have been identified on the Florida Game and Freshwater Fish Commission’s natural systems and land use cover inventory map.
The Comprehensive Plan further defines “natural plant communities” in pertinent part as:
Naturally occurring stands of native plant associations exhibiting minimal signs of anthropogenic disturbance. Specific community types can be identified by characteristic dominant plant species composition.
Community types found in Hillsborough County include pine flatwoods, dry prairie, sand pine scrub, sandhill, xeric hammock, mesic hammock, hardwood swamp, cypress swamp, freshwater marsh, wet prairie, coastal marsh, mangrove swamp, coastal strand and marine grassbeds.
David Sumpter, wildlife biology and photo interpretation expert for Hillsborough County, testified that in 1992 he visited the Geraci Parcel to ground truth the environmental overlay maps in the Comprehensive Plan. He testified that, with the exception of improved pasture on the property, the uplands on the Geraci Parcel met the Comprehensive Plan definition of significant wildlife habitat, containing pine flatwoods, cypress swamp, and dry prairie.
Mr. Jeffrey Churchill, Petitioners' expert in biology, zoology, ecology, species of concern and upland habitat, testified that this property is not "significant wildlife habitat" as that term is employed in the Hillsborough County Land Development Code. He testified that he observed roads, fire breaks, and evidence of frequent winter burns on the property, which led him to conclude that the site had been disturbed by range management practices over a period of years.
On cross examination, Mr. Churchill admitted that fire breaks and range management practices are not necessarily inconsistent with significant wildlife habitat.
Mr. Churchill testified that the lack of pine seedlings and other species that occur in pine flatwoods and palmetto prairies supported his conclusion. He concluded that there were no sustainable populations of species of concern on the site, and that the soils on site did not meet the criteria set out by Hillsborough County for tortoise preservation management.
Mr. Churchill's conclusions are entitled to less weight than those of Mr. Sumpter because Mr. Churchill was applying the standards of the Hillsborough County Land Development Code, which are not at issue in this proceeding. Mr. Churchill offered no opinion as to whether his conclusion would be the same if he were applying the definitions in the Comprehensive Plan.
Peter J. Schreuder, Petitioners’ expert in hydrology, testified that the impact of development on water quality and recharge to the wellfields in the area would be roughly the same regardless of whether such development is at RC-level or at the less intense retail development envisioned by the CMU-12 designation.
Even if Mr. Schreuder’s opinion is credited, it does not demonstrate that the CMU-12 classification is inconsistent with the CARE. If the impact of either classification would be roughly the
same, Hillsborough County’s choice of CMU-12 cannot be termed arbitrary or contrary to the data and analysis.
THE DEPARTMENT'S COMPLIANCE REVIEW AND FINDING
Among the duties of the DCA is to review plan amendments submitted by local governments and determine if the plan amendments are in compliance with Chapter 163, Part II, Florida Statutes.
Rule 9J-5.005(2), Florida Administrative Code, elaborates that the DCA's review is for the "purpose of determining whether the plan is based on the data and analyses described in this chapter and whether the data were collected and applied in a professionally acceptable manner."
On June 15, 1994, Hillsborough County transmitted its proposed Comprehensive Plan Amendment to the DCA for review. On August 22, 1994, the DCA staff transmitted to Hillsborough County its Objections, Recommendations, and Comments Report (“ORC Report”), pursuant to Rule 9J-11.010, Florida Administrative Code.
On November 10, 1994, Hillsborough County transmitted the CPU-2015 to the DCA for final compliance review. Hillsborough County also transmitted its responses to the ORC Report at this time.
On December 8, 1994, the DCA staff issued a memorandum regarding the staff evaluation of the Notice of Intent for Hillsborough County Amendment 94-1ER, noting that Hillsborough County adequately addressed all concerns in the ORC Report.
On December 22, 1994, the DCA transmitted to Hillsborough County its Notice of Intent to find Comprehensive Plan Amendment in Compliance, thereby finding CPU-2015 in compliance with Chapter 163, Part II, Florida Statutes; Rule 9J-5, Florida Administrative Code; the State Comprehensive Plan; and the FRCRPP.
Petitioners allege that the DCA has an unadopted rule of never disapproving a Comprehensive Plan amendment that downplans an existing land use category, and that this unadopted rule was applied here to downplan the Geraci Parcel.
Petitioners presented no competent substantial evidence that such an unadopted rule exists. Witnesses for the DCA testified that they relied upon the data and analysis provided by Hillsborough County, and their testimony is credited in that regard. Petitioners naturally contend that this data and analysis was insufficient to support the CMU-12 classification, but offered no tangible proof that a sub rosa rule played any part in the DCA’s decision.
TAMPA BAY REGIONAL PLANNING COUNCIL FINAL REPORT
The Council reviewed Adopted Amendment 94-ER on December 12, 1994, pursuant to Section 163.3191, Florida Statutes. The Council's final determinations of consistency were based upon: (1) the Council's report issued on July 11, 1994; (2) a review of the ORC Report, received by the Council on September 9, 1994; and (3) a review of Adopted Amendment 94-ER, received by the Council on November 14, 1994.
The Council subsequently issued a report finding that the Future Land Use Element and the Future Land Use Map of Adopted Amendment 94-ER were consistent with the FRCRPP.
ADMINISTRATION COMMISSION'S DETERMINATION OF COMPLIANCE WITH FINAL ORDER
On March 2, 1998, the Geracis filed a Notice of Violation of Agency Action ("Notice"), based upon their position that the Final Order mandated adoption of UMU* on the Geraci Parcel. On April 14, 1998, the Administration Commission held a public hearing on the Notice.
By letter to counsel for the Geracis, dated April 16, 1998, the Secretary of the Administration Commission informed the Geracis that “the Commission determined that Hillsborough County has acted consistent with the Final Order dated December 16, 1993. Therefore, it is unnecessary for the Commission to take action to enforce the Final Order."
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569 and 120.57(1) and 163.3184(9), Florida Statutes.
PARTIES
Advance Leasing and Development, Inc., does not have standing as an "affected person" under Section 163.3184(1)(a), Florida Statutes, to challenge the CPU-2015 or the DCA's Notice of Intent to find CPU-2015 in compliance.
Peter and Nick Geraci have standing as “affected persons” under Section 163.3184(1)(a), Florida Statutes, to challenge the CPU-2015 and the DCA’s Notice of Intent to find CPU- 2015 in compliance.
Intervenors Sierra Club, Inc.; Dr. Richard Hoffman; and Bonnie Hoffman have standing as “affected persons” under Section 163.3184(1)(a), Florida Statutes, to participate in this proceeding.
BURDEN OF PROOF AND STANDARD OF REVIEW
This is a proceeding pursuant to Section 163.3184(9), Florida Statutes, to determine whether it is beyond fair debate that the land use classification change on the FLUM from RC to CMU-
12 for the Geraci Parcel is not "in compliance."
"In compliance" means consistent with the requirements of Sections 163.3177, 163.3178 and 163.3191, Florida Statutes; the State Comprehensive Plan; the FRCRPP; and Chapter 9J-5, Florida Administrative Code, where such rule is not inconsistent with Chapter 163, Part II, Section 163.3184(1)(b), Florida Statutes.
The Petitioners have the initial burden of going forward with the evidence and the ultimate burden of persuasion to prove
the allegations in the Petition regarding non-compliance to the exclusion of fair debate. Growth and Environmental Organization, Inc., et al. v. Sarasota County and Department of Community Affairs, 97 E.R. F.A.L.R. 108 (Recommended Order, March 20, 1997); Windward Passage, Ltd. v. Department of Community Affairs, 18
F.A.L.R. 2241, 2253 (Recommended Order, April 19, 1996) (Section 163.3184(9), Florida Statutes, places the burden of proof upon the Petitioner).
Amendments to comprehensive plans adopted pursuant to Chapter 163, Florida Statutes, are legislative decisions subject to the “fairly debatable” standard of review. Martin County v. Yusem, 690 So. 2d 1288 (Fla. 1997); see also Section 163.3184(9)(a), Florida Statutes.
The fairly debatable 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 v. Department of Community Affairs, 602 So. 2d 1362, 1365 (Fla. 1st DCA 1992), review denied 613 So. 2d 1 (Fla. 1992); see also Yusem, 690 So. 2d at 1295. Furthermore, "[a]n ordinance may be said to be fairly debatable when for any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction that in no way involves its constitutional validity." Yusem, 690 So. 2d at 1295, quoting City of Miami Beach v. Lachman, 71 So. 2d 148, 152 (Fla. 1953).
The fairly debatable standard “defers not only to the County's determination but also to the DCA's determination that a plan is 'in compliance.' Due to the nature of comprehensive planning, in most cases it is a very difficult standard of proof to meet." Heartland Environmental Council v. Department of Community Affairs and Highlands County, 19 F.A.L.R. 1642, 1666 (Recommended Order, October 15, 1996).
Petitioners are bound by the allegations in their Petition as to the deficiencies in the plan and have the burden of proof as to those allegations. Sections 120.569 and 120.57(1), Florida Statutes.
ADMINISTRATION COMMISSION'S FINAL ORDER
Under Section 163.3184(11)(a), Florida Statutes, the Administration Commission is required to specify remedial actions that "would bring the comprehensive plan or plan amendment into compliance." The Administration Commission is limited to imposing certain statutorily delineated sanctions upon a local government whose comprehensive plan or plan element has been determined to be not in compliance. Section 163.3184(11), Florida Statutes.
Section 163.3184(11)(a), Florida Statutes, sets forth no procedure pursuant to which allegations regarding a local government’s compliance with remedial actions ordered by the Administration Commission may be heard in a DOAH proceeding.
Thus, DOAH has no jurisdiction in this proceeding to make an enforceable determination of compliance with the Final
Order of the Administration Commission in Case No. ACC-92-070 (DOAH Case Nos. 89-5157GM and 90-6639GM). Any argument to the contrary has been rendered moot by the Administration Commission’s determination that the plan amendment was consistent with the Final Order.
Petitioners’ argument that Hillsborough County must adopt literally the land use classifications set forth in the Final Order would render the subsequent public hearing process a sham, and would essentially lock Hillsborough County into land use designations based upon stale data and analysis.
In any event, Hillsborough County essentially complied with the recommendations and guidance of the Final Order. In accordance with the Final Order, Hillsborough County held duly noticed public hearings and adopted certain land use classifications, based upon relevant and appropriate data and analysis.
DATA AND ANALYSIS
GENERAL
Section 163.3177, Florida Statutes, sets forth the "Required and Optional Elements of Comprehensive Plan; Studies and Surveys." Section 163.3177(8), Florida Statutes, requires that all elements be based upon data appropriate to the element involved. Furthermore, Section 163.3177(10)(a), Florida Statutes, states:
The Legislature finds that in order for the department to review local Comprehensive Plans, it is necessary to define the term “consistency.” Therefore, for the purpose of determining whether local comprehensive plans
are consistent with the state comprehensive plan and the appropriate regional policy plan, a local plan shall be consistent with such plans if the local plan is “compatible with” and “furthers” such plans. The term “compatible with” means that the local plan is not in conflict with the state comprehensive plan or appropriate regional policy plan. The term “furthers” means to take action in the direction of realizing goals or policies of the state or regional plan. For the purposes of determining consistency of the local plan with the state comprehensive plan or the appropriate regional policy 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 and policies in the plans.
Rule 9J-5.005, Florida Administrative Code, sets forth the minimum requirements for comprehensive plans and plan amendments. Subsection (2) delineates general data and analysis requirements. The rule states, in relevant part:
All goals, objectives, policies, standards, findings and conclusions within the comprehensive plan and its support documents, and within plan amendments and their support documents, shall be based upon relevant and appropriate data and the analyses applicable to each element. To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue.
Rule 9J-5.005(2)(a), Florida Administrative Code.
Rule 9J-5.0053, Florida Administrative Code, establishes the procedures and criteria for the preparation, transmittal, adoption and sufficiency review of EARs and EAR-based comprehensive plan amendments. EAR-based amendments that a local
government adopts simultaneously with its EAR "shall be adopted in accordance with Sections 163.3184, 163.3187 and 163.3189, F.S., and shall be subject to compliance review." Rule 9J-5.0053(5)(c), Florida Administrative Code.
Data and analysis may support more than one land use classification. "Nothing in Chapter 163, Part II, or Chapter 9J-5 implies that only one land use may be supported by the data and analysis." Wilson v. City of Cocoa and Department of Community Affairs, 13 F.A.L.R. 3848, 3873 (Recommended Order, August 8, 1991)(also noting that nothing in Chapter 163, Part II, F.S., or Chapter 9J-5, F.A.C., requires the addition of new data or analysis to support a plan amendment; the data and analysis for the original comprehensive plan may be used in support of amendments).
Local governments have considerable discretion to make comprehensive plan amendments, and to base those decisions on local considerations, such as land use compatibility. See Bicket v. Hernando County and Department of Community Affairs, 93 E.R.
F.A.L.R. 106 (Recommended Order, February 26, 1993) (discussing the role of public participation in the planning process).
While Hillsborough County takes the position that its Comprehensive Plan is in overall compliance, the DCA has the authority to determine the consistency of a plan amendment even though the plan as a whole has not yet been found in compliance. St. Marks River Protection Association v. Department of Community
Affairs and Wakulla County, 17 F.A.L.R. 4541, 4542-3 (Recommended
Order, March 27, 1995).
Section 163.3184(11)(d), Florida Statutes, which sets forth exceptions to the Administration Commission’s authority to impose sanctions for noncompliance, plainly contemplates that plan amendments may be made to plans that have not been finally determined to be in compliance with Chapter 163, Part II, Florida Statutes.
The motives of the County in its legislative actions are irrelevant and outside of the scope of this proceeding:
It is a fundamental tenet of municipal law that when a municipal ordinance of legislative character is challenged in court, the motives of the commission and the reasons before it which induced passage of the ordinance are irrelevant.
City of Pompano Beach v. Big Daddy's, Inc., 375 So.2d 281, 282 (Fla. 1979). Accord, Rainbow Lighting, Inc. v. Chiles, 707 So. 2d 939 (Fla. 3d DCA 1998); City of Gainesville v. Scotty's, Inc., 489 So. 2d 1196 (Fla. 1st DCA 1986). Motives are neither data nor analysis, and the undersigned specifically stated at the final hearing that subjective political motives would not be considered.
The CMU-12 land use classification on the Geraci Parcel is consistent with the statutory and regulatory requirements for the FLUE. Section 163.3177(6)(a), Florida Statutes, requires a future land use plan to be based upon "surveys, studies and data regarding the area, including the amount of land required to
accommodate anticipated growth; the projected population of the area; the character of undeveloped land; the availability of public services; and the need for redevelopment. . . ." Rule 9J-5.006, Florida Administrative Code, sets forth detailed requirements for land use data, analysis, goals and objectives, and the FLUM.
The Petitioners' evidence does not support their allegation that the elimination of the RC land use classification and the definition of the CMU-12 classification leaves a major portion of unincorporated Hillsborough County without future land use principles, guidelines, and standards for the orderly and balanced future economic, social, physical, environmental, and fiscal development of the County and therefore does not satisfy the requirement of Section 163.3177(1), Florida Statutes, and Rule 9J- 5.005(6), Florida Administrative Code, that the implementation of the Comprehensive Plan be sufficiently described.
Hillsborough County adopted a detailed, "stair-stepped" scheme of mixed land use classifications, which allowed for varying levels of potential retail development, in the CPU-2015.
The Petitioners' evidence does not support their allegation that the CMU-12 classification on the Geraci Parcel is inconsistent with the FLUE Community Activity Centers concept, as required by Rule 9J-5.005(5)(a), Florida Administrative Code.
The CMU-12 land use classification is consistent with the policies of the North Dale Mabry Policy Plan.
URBAN SPRAWL
The CMU-12 land use classification on the Geraci Parcel discourages the growth of urban sprawl more effectively than UMU*.
The Petitioners' evidence does not support their allegation that the CMU-12 classification on the Geraci Parcel is inconsistent with the future land uses, growth patterns and transition of land uses established by the land use designations and actual development approved for surrounding lands, as required by Rule 9J-5.006(3)(b)(1), Florida Administrative Code.
The Petitioners' evidence does not support their allegation that the CMU-12 classification on the Geraci Parcel is inconsistent with FLUE Policy D-2.2 regarding infilling and FLUE Policy D-2.3 regarding discouragement of urban sprawl.
NEIGHBORHOOD COMPATIBILITY
The CMU-12 land use classification on the Geraci Parcel is consistent and compatible with the existing, surrounding land uses.
Specifically, the CMU-12 land use classification on the Geraci Parcel, which is adjacent to existing residential neighborhoods, is consistent with the increased emphasis on neighborhood compatibility in CPU-2015, including the neighborhood protection goals, objectives and policies.
POPULATION AND GROWTH PROJECTIONS
The general decrease in density and intensity of land uses in Northwest Hillsborough County and the specific adoption of
the CMU-12 land use classification on the Geraci Parcel was supported by data and analysis.
Nothing in Chapter 163, Part II, Florida Statutes, or Chapter 9J-5, Florida Administrative Code, required Hillsborough County to base its land use classifications on population projections for narrow portions of the county rather than on overall population projections.
Even the narrow projections for Northwest Hillsborough County showed slower growth than anticipated in 1989, and therefore at least arguably supported the CMU-12 designation for the Geraci Parcel.
TRANSPORTATION AND INFRASTRUCTURE
The CMU-12 classification on the Geraci Parcel is consistent with Transportation Element Rule 9J-5.019, Florida Administrative Code. The Rule requires, as part of the Transportation Element analysis, "an analysis of the growth trends and travel patterns and interactions between land use and transportation, and the compatibility between the future land use and transportation elements...." Rule 9J-5.019(3)(d), Florida Administrative Code.
The CMU-12 classification on the Geraci Parcel is consistent with Goal 7 of the Transportation Element, which provides for the protection of neighborhoods and the natural environment.
The CMU-12 classification on the Geraci Parcel is consistent with Transportation Element Policy 9.1.1:
The planning and construction of transportation facilities linking activity centers, as identified in the Future Land Use Element, shall not by itself provide justification for increasing the density or intensity of land use plan categories along such transportation corridors, outside of the identified activity centers.
The Petitioners' evidence does not support their allegation that the CMU-12 classification on the Geraci Parcel is inconsistent with the Transportation Element classification of the Geraci Parcel as a Transit Emphasis Corridor.
The Petitioners' evidence does not support their allegation that the data and analysis do not support the CMU-12 classification on the Geraci Parcel because such downplanning effects an inappropriate utilization of existing capital improvements resulting in an increased demand for capacity in other areas.
The Petitioners' evidence does not support their allegation that the CMU-12 classification on the Geraci Parcel is unsupported by Hillsborough County's analysis under Capital Improvements Element Rule 9J-5.016(2)(a), Florida Administrative Code.
The Petitioners' evidence does not support their allegation that the CMU-12 classification on the Geraci Parcel is
inconsistent with the goals, objectives and policies of the Capital Improvements Element.
The Petitioners' evidence does not support their allegation that the CMU-12 classification on the Geraci Parcel is inconsistent with FLUE Policy D-1.3 regarding growth phasing; FLUE Policy D-1.4 regarding phased infrastructure; FLUE Policy D-1.5 regarding the Urban Service Area; and FLUE Policy D-2.1 regarding excess and deficient capacities for public facilities.
OVERALLOCATION
CMU-12 is a more appropriate land use classification for the Geraci Parcel than UMU* for addressing the issue of retail need in Northwest Hillsborough County.
The classification of UMU* on the Geraci Parcel would exacerbate the overallocation of retail uses and would not be supportable by data and analysis on the Geraci Parcel because it would allow for allocation of more land than is needed for retail uses.
The Petitioners' evidence does not support their allegation that the CMU-12 classification on the Geraci Parcel is inconsistent with FLUE Policy B-5.7, which discourages scattered, unplanned retail commercial development. Petition paragraphs 87 and 88. The CMU-12 land use classification will not promote scattered retail development in locations outside of the Geraci Parcel because no need for additional retail development was established at the hearing.
NATURAL RESOURCES
The CMU-12 land use classification on the Geraci Parcel is consistent with CARE Rule 9J-5.013, Florida Administrative Code.
The Rule states, "[t]he purpose of the conservation element is to promote the conservation, use and protection of natural resources."
Rule 9J-5.013, Florida Administrative Code. The Rule sets forth the data and analysis requirements for the Conservation Element at Rule 9J-5.013(1), Florida Administrative Code, and sets forth the
requirements for conservation goals, objectives and policies at Rule 9J-5.013(2), Florida Administrative Code.
The Petitioners' evidence does not support their allegations that a regional-commercial scale development generally, or 1.28 million square feet of retail development specifically, on the Geraci Parcel would not injure wellfields, their cones of influence, nor the recharge of groundwaters. At most, Petitioners demonstrated that such development would have no greater impact than would retail development at the levels permitted by the CMU-12 designation. Such proof is insufficient to demonstrate that the CMU-12 designation results in non-compliance to the exclusion of fair debate.
The Petitioners' evidence does not support their allegation that Hillsborough County failed to develop and apply in a professionally acceptable manner data and analysis with regard to allegedly environmentally sensitive uplands and/or wetland areas on Petitioners' land that would justify the downplanning of that land from RC to CMU-12. The evidence established that there is significant wildlife habitat on the Geraci Parcel, and that the
CMU-12 classification is more protective than the alternatives suggested by Petitioners.
SUITABILITY
Based upon, among other relevant and appropriate data and analysis, (1) the lower population projections and the corresponding reduction in need, (2) the designation of the site as
significant wildlife habitat, and (3) the State Comprehensive Plan- mandated protection of unique natural habitats and ecological systems, the CMU-12 land use classification was more suitable for the Geraci Parcel than the UMU, under the definition set forth in Rule 9J-5.003(134), Florida Administrative Code.
The Buildout Assumptions for 2015 provide relevant and appropriate data and analysis regarding the character and magnitude of existing vacant or undeveloped land needed to accommodate the regional commercial needs for the projected population, and analysis of the amount of land needed to accommodate the projected population, as required by Rule 9J-5.006(2)(b)&(c), Florida Administrative Code.
INTERNAL CONSISTENCY
The CMU-12 land use classification on the Geraci Parcel is internally consistent with all elements of the CPU-2015. Rule 9J-5.005(5)(a), Florida Administrative Code, states, "the required elements and any optional elements shall be consistent with each other. All elements of a particular Comprehensive Plan shall follow the same general format. Where data are relevant to several elements, the same data shall be used, including population estimates and projections."
Petitioners contend that it was inconsistent for Hillsborough County to use the same data and analysis to effect a reduction in potential retail development on the Geraci Parcel that was much greater than the reduction in potential office
development. Hillsborough County demonstrated that this differential was not inconsistent. The overallocation of retail uses in Hillsborough County provided a reasonable rationale for the greater reduction in potential retail development on the Geraci Parcel. No evidence of overallocation of office uses was presented by Petitioners.
TAMPA BAY FUTURE OF THE REGION COMPREHENSIVE REGIONAL POLICY PLAN
The Petitioners' evidence does not support their allegations that the CMU-12 classification on the Geraci Parcel is inconsistent with certain goals and policies of the FRCRPP. The Council's reports on the transmitted and adopted CPU-2015 state that the CPU-2015 is consistent with the FRCRPP. Furthermore, the Department reviewed compliance of the CPU-2015 with the FRCRPP and stated in its Notice of Intent that CPU-2015 was in compliance with the FRCRPP. Petitioners offered no evidence establishing that these decisions were incorrect.
STATE COMPREHENSIVE PLAN
The Petitioners' evidence does not support their allegations that the CMU-12 classification on the Geraci Parcel is inconsistent with certain policies of the State Comprehensive Plan. The Department reviewed compliance of the CPU-2015 with the State Comprehensive Plan and stated in its Notice of Intent that CPU-2015 was in compliance with the State Comprehensive Plan. Petitioners
offered no evidence establishing that these decisions were incorrect.
CONSTITUTIONALITY
The Petitioners’ allegations regarding the constitutionality of Hillsborough County’s actions in adopting the plan amendment are not properly before this tribunal. At the final hearing, the undersigned ruled that, under Key Haven v. Board of Trustees of the Internal Improvement Trust Fund, 427 So. 2d 153 (Fla. 1982), Petitioners were entitled to establish a factual record to support their constitutional claim in any ensuing appeal, but the undersigned was without jurisdiction to rule on the constitutional claim in this proceeding.
CONCLUSION
Petitioners fundamentally misconstrued their burden in this proceeding. The bulk of their evidence was aimed at demonstrating that the UMU* classification is better supported by the data and analysis than the CMU-12 classification. As to certain issues, most notably transportation and infrastructure, Petitioners arguably made such a demonstration. Had Hillsborough County selected the UMU* classification for the Geraci Parcel, it could conceivably have defended it successfully in this proceeding.
However, Hillsborough County did not select UMU* for the Geraci Parcel. It chose CMU-12, and provided ample data and
analysis to support that choice. The same data and analysis might have also supported other classifications, but that was not the issue in this proceeding. Hillsborough County was not required to demonstrate that its choice of CMU-12 was perfect, or that the data and analysis supported CMU-12 to the exclusion of any other classification. Petitioners' burden was not to show that UMU* was better, but that CMU-12 was non-compliant to the exclusion of fair debate. Petitioners did not carry that burden.
RECOMMENDATION
Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Administration Commission enter a final order finding the portion of CPU-2015 challenged by the Petition to be in compliance.
DONE AND ENTERED this 14th day of October, 1998, in Tallahassee, Leon County, Florida.
LAWRENCE P. STEVENSON
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847
Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1998.
ENDNOTE
1 There was dispute among the parties as to the precise boundaries of the Geraci property at issue in this proceeding. Respondents and Intervenors contended that only the 253 acre
parcel that was changed from RC to CMU-12 was properly before this tribunal. Petitioners argued that an additional 32 acres that had been changed from Suburban Density Residential (“SDR”) to CMU-12 was also at issue. Petitioners offered no evidence regarding the propriety of the original SDR designation or the Administration Commission’s mandated Low Suburban Density Residential (“LSDR”) designation for the 32 acre parcel, and are therefore deemed to have abandoned the issue. Thus, the “Geraci Parcel” discussed in this recommended order refers only to the
253 acres changed from RC to CMU-12.
COPIES FURNISHED:
Gordon J. Schiff, Esquire MacFarlane Ferguson & McMullen 2300 Park Tower
400 North Tampa Street Tampa, Florida 33602
Alfred O. Bragg, III, Esquire David Jordan, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100
H. Ray Allen, II Assistant County Attorney
601 East Kennedy Boulevard Tampa, Florida 33602
Lee Wm. Atkinson, Esquire Tew, Zinober, Barnes,
Zimmet & Unice 2655 McCormick Drive
Prestige Professional Park Clearwater, Florida 34619
Thomas W. Reese, Esquire 2951 61st Avenue South
St. Petersburg, Florida 33712
Stephanie Gehres Kruer, General Counsel Department of Community Affairs
2555 Shummard Oak Boulevard Suite 315-A
Tallahassee, Florida 32399-2100
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
1 There was dispute among the parties as to the precise
boundaries of the Geraci property at issue in this proceeding. Respondents and Intervenors contended that only the 253 acre parcel that was changed from RC to CMU-12 was properly before this tribunal. Petitioners argued that an additional 32 acres
that had been changed from Suburban Density Residential (“SDR”) to CMU-12 was also at issue. Petitioners offered no evidence regarding the propriety of the original SDR designation or the Administration Commission’s mandated Low Suburban Density Residential (“LSDR”) designation for the 32 acre parcel, and are therefore deemed to have abandoned the issue. Thus, the “Geraci Parcel” discussed in this recommended order refers only to the
253 acres changed from RC to CMU-12.
| Issue Date | Proceedings |
|---|---|
| Jan. 13, 1999 | Agency Final Order Finding Plan Amendment in Compliance with Chapter 163, Part II, Florida Statutes filed. |
| Oct. 28, 1998 | Petitioner`s Exceptions to Recommended Order filed. |
| Oct. 15, 1998 | Letter to S. Kruer & CC: Parties of Record from Stevenson (& Enclosed Page 61 of RO) sent out. |
| Oct. 14, 1998 | Recommended Order sent out. CASE CLOSED. Hearing held 03/23-25/98 & 03/30-04/02/98. |
| Sep. 24, 1998 | Intervenors` Request for Official Recognition/Judicial Notice filed. |
| Sep. 04, 1998 | Hillsborough County`s Notice of Filing Order Denying Petition for Writ of Certiorari filed. |
| Sep. 01, 1998 | Hillsborough County`s Notice of Filing Order Denying Petition for Writ of Certiorari (filed via facsimile). |
| Jun. 02, 1998 | Order Denying Petitioners` Motion to Strike sent out. |
| May 12, 1998 | Petitioner`s Proposed Recommended Final Order; Memorandum of Law in Support of Petitioners` Proposed Recommended Final Order; Disk filed. |
| May 11, 1998 | Respondents` and Intervenors` Joint Motion for Extension of Proposed Recommended Order Page Limit filed. |
| May 11, 1998 | Joint Proposed Recommended Order of Hillsborough County, Department of Community Affairs, Sierra Club, Dr. Richard Hoffman and Bonnie Hoffman; Disk filed. |
| May 11, 1998 | Department of Community Affairs` Memorandum on Effect of Final Order; Respondents` and Intervenors` Joint Response to Petitioners` Objection to Filing and Motion to Strike filed. |
| May 11, 1998 | Hillsborough County`s Motion for Hearing on Notice of Filing and Petitioners` Objection to Filing and Motion to Strike (filed via facsimile). |
| May 01, 1998 | (Petitioner) Objection to Filing and Motion to Strike filed. |
| Apr. 27, 1998 | (C. Cianciolo) Notice of Filing; Transcripts (volumes 1 through 7/tagged) filed. |
| Apr. 24, 1998 | (Joint) Notice of Filing filed. |
| Apr. 24, 1998 | Hillsborough County, Department of Community Affairs and Sierrra Club Exhibits (volumes 1 through 10, 3 boxes); DRI Evidence (1 box/tagged) filed. |
| Mar. 19, 1998 | Order Granting Intervention sent out. (for Richard Hoffman & Bonnie Hoffman) |
| Mar. 19, 1998 | Order sent out. (motion for summary judgment & a recommended order is denied) |
| Mar. 19, 1998 | Joinder of Sierra Club, Inc., and the Hoffmans in Hillsborough County`s Motion to Dismiss Advance Leasing and Development, Inc. as a Party filed. |
| Mar. 17, 1998 | Petitioner`s Response to Joint Motion in Limine and for Prehearing Order Determining Scope of Petition Challenge filed. |
| Mar. 17, 1998 | Sierra Club, Inc. and Hoffman`s Motion to Correct Prehearing Order Witness and Exhibit Lists filed. |
| Mar. 17, 1998 | Sierra club, Inc. and the Hoffman`s Response in Opposition to Petitioners Motion for Summary Recommended Order Based Upon the Administration Commission`s Final Order filed. |
| Mar. 17, 1998 | Respond net, Hillsborough County`s Memorandum of Law in Response to Petitioners` Motion for Summary Judgment and a Recommended Order filed. |
| Mar. 17, 1998 | Response of Respondent, Hillsborough County, to Petitioner`s Motion for Summary Judgment and Recommended Order and Motion to Strike filed. |
| Mar. 16, 1998 | (Respondent) Notice of Filing; Deposition of Gregory Smith filed. |
| Mar. 16, 1998 | Department of Community Affairs Memorandum in Opposition to Petitioners` Motion for Summary Judgment and Recommended Order filed. |
| Mar. 13, 1998 | Petitioner`s Proposed Pre-Hearing Stipulation filed. |
| Mar. 12, 1998 | Joint Motion of Respondents and Intervenor in Limine and for Prehearing Order Determining That Petition Only Challenges the CMU-12 Land Use Classification on 253 Acres (M.O.L.) filed. |
| Mar. 12, 1998 | Motion of Hillsborough County to Dismiss Advance Leasing and Development, Inc., as a Party for Lack of Standing filed. |
| Mar. 11, 1998 | Joinder of Sierra Club, Inc. and the Hoffmans in Motion for Extension to Respond to Petitioners` Motion for Summary Recommended Order filed. |
| Mar. 11, 1998 | Joint Motion of Respondents, Hillsborough County and Department of Community Affairs, and Intervenor Sierra Club for Prehearing Order Determining That Certain Paragraphs of Petitioners` Petition for Formal Hearing Are Irrelevant or Outside The Scope |
| Mar. 06, 1998 | Notice of Service of Respondent`s Answers to Interrogatories (filed via facsimile). |
| Mar. 06, 1998 | Notice of Service of Respondent`s Response to Petitioners` First Request for Production of Documents (filed via facsimile). |
| Mar. 06, 1998 | Joint Motion of Hillsborough County and Department of Community Affairs for Extension of Time to Respond to Petitioners` Motion for Summary Judgment and Recommended Order (filed via facsimile). |
| Mar. 03, 1998 | Petitioner`s Objection and Memorandum in Opposition to Hoffman`s Motion for Leave to Intervene as Respondents-in-Intervention filed. |
| Mar. 02, 1998 | (Petitioners) Notice of Taking Deposition filed. |
| Mar. 02, 1998 | Petitioners` Motion for Summary Judgment and a Recommended Order filed. |
| Feb. 27, 1998 | Hoffman`s Motion for Leave to Intervene as Respondents-In-Intervention filed. |
| Feb. 26, 1998 | (Petitioners) Notice of Taking Deposition filed. |
| Feb. 23, 1998 | Notice of Service of Petitioners` Answers to Hillsborough County`s First Set of Interrogatories; Answers to Interrogatories filed. |
| Feb. 09, 1998 | Notice of Service of Petitioners` First Set of Expert Interrogatories Upon Respondent, Hillsborough County; Petitioners` First Request for Production of Documents to Respondent, Hillsborough County filed. |
| Feb. 09, 1998 | Notice of Substitution of Counsel and notice of appearance with cover letter (filed via facsimile). |
| Jan. 22, 1998 | Hillsborough County`s Notice of Service of Its First Set of Interrogatories to Petitioners, Roy Nicholas Geraci, Peter Adkins Geraci and Advance Leasing and Development, Inc. filed. |
| Jan. 12, 1998 | Notice of Hearing sent out. (hearing set for March 23 - April 3, 1998; 9:00am; Tampa) |
| Jan. 12, 1998 | Prehearing Order sent out. |
| Jan. 07, 1998 | Letter to LPS from G. Schiff Re: Confirming space has been reserved for hearing filed. |
| Dec. 03, 1997 | Letter to RAH from Gordon Schiff (RE: available date for hearing) filed. |
| Oct. 03, 1997 | (From L. Atkinson) Notice of Substitution of Counsel and Notice of Appearance filed. |
| Mar. 14, 1997 | (From G. Schiff) Notice of Substitution of Attorney at Firm of Co-Counsel for Hillsborough Counsel to Receive Pleadings, Notices and Communications filed. |
| Nov. 06, 1996 | Sierra Club's Moiton to Set Final Hearing (filed via facsimile). |
| Oct. 04, 1996 | Order on Motion for Clarification sent out. (re: discovery) |
| Oct. 03, 1996 | Sierra Club, Inc.'s Response In Opposition to Motion for Protective Order And Motion for Clarification of Order Continuing Final Hearing (filed via facsimile). |
| Sep. 30, 1996 | (Petitioner) Notice of Telephonic Hearing (filed via facsimile). |
| Sep. 26, 1996 | Joint Motion for Clarification of The Order Continuing Final Hearing filed. |
| Sep. 11, 1996 | (From V. Nuccio) Status Report filed. |
| Sep. 11, 1996 | Sierra Club, Inc.'s Notice of Service of Requests for Production to Petitioners filed. |
| Sep. 11, 1996 | (From V. Nuccio) Status Report filed. |
| Sep. 09, 1996 | (Petitioners) Status Report filed. |
| Jul. 08, 1996 | (Petitioner) Status Report filed. |
| Jul. 05, 1996 | (Respondent) Status Report filed. |
| Jun. 10, 1996 | (Petitioners) Status Report filed. |
| May 13, 1996 | (Petitioners) Status Report filed. |
| May 09, 1996 | (From V. Nuccio) Status Report filed. |
| Apr. 15, 1996 | (Petitioners) Status Report filed. |
| Apr. 10, 1996 | Status Report (Nuccio) filed. |
| Mar. 25, 1996 | (Petitioners) Status Report filed. |
| Mar. 15, 1996 | (From V. Nuccio) Status Report w/cover letter filed. |
| Jan. 08, 1996 | Order Continuing Final Hearing sent out. (hearing continued until further notice; parties to file status report in 60 days) |
| Jan. 04, 1996 | Sierra Club, Inc.`s Opposition to Continuance of May 28 Final Hearing Date and Request for Expeditious Resolution of Instant Proceeding filed. |
| Jan. 03, 1996 | (C. Gary Williams) Notice of Hearing filed. |
| Jan. 02, 1996 | Joint Motion And Stipulation to Continue Final Hearing filed. |
| Nov. 06, 1995 | Hillsborough County's Notice of Appearance (from H. Ray Allen, II) filed. |
| Oct. 23, 1995 | Letter to HO from David M. Mechanik Re: Hearing Rooms filed. |
| Aug. 28, 1995 | Prehearing Order sent out. |
| Aug. 28, 1995 | Notice of Final Hearing sent out. (hearing set for May 28, 1996 - June 14, 1996; 1:00pm; Tampa) |
| Jul. 24, 1995 | Letter to JLJ from R. Kosan (RE: confirmation of meeting room) filed. |
| Jul. 24, 1995 | Order Continuing Final Hearing sent out. (parties are advised to block the three weeks beginning January 8 and ending January 26, 1996, excluding weekends and the Martin Luther King holiday) |
| Jun. 06, 1995 | Order Allowing Substitution of Counsel sent out. (motion granted) |
| Jun. 02, 1995 | Joint Motion for Withdrawal And Substitution of Counsel; Cover Letter filed. |
| May 31, 1995 | (C. Gary Williams) Notice of Appearance filed. |
| May 26, 1995 | Order Continuing Final Hearing sent out. (intervenors will arrange another telephone hearing at 9:00am 6/26/95 on pending motions and for purposes of rescheduling final hearing) |
| May 18, 1995 | (Intervenor) Notice of Hearing filed. |
| May 16, 1995 | Order Granting Leave to Intervene sent out. (motion granted) |
| May 10, 1995 | Sierra Club, Inc.'s Motion for Leave to Intervene as a Respondent-In-Intervention filed. |
| May 08, 1995 | Intervenors Joinder In Hillsborough County's Motion for Continuance And Motion to Consolidate (with DOAH Case No/s. 94-4299DRI, 95-259GM) filed. |
| May 05, 1995 | Order Denying Motion for Continuance sent out. |
| May 01, 1995 | (Respondent) Motion for Continuance filed. |
| Apr. 27, 1995 | (Respondent) Motion for Continuance filed. |
| Apr. 24, 1995 | (Respondent) Motion for Continuance filed. |
| Mar. 21, 1995 | Hillsborough County`s Response to Petitioners` Response to Hillsborough County`s Motion in Opposition/ Motion to Dismiss Petitioner Advance Leasing filed. |
| Mar. 20, 1995 | Hillsborough County`s Response to Petitioners` Response to Hillsborough County`s Motion in Opposition/ Motion to Dismiss Petitioner Advance Leasing filed. |
| Mar. 16, 1995 | Order Denying Motions to Dismiss And to Strike sent out. (ruling on motions) |
| Mar. 13, 1995 | Prehearing Order sent out. |
| Mar. 13, 1995 | Notice of Hearing sent out. (hearing set for 10/9/95; 9:00am; Tampa) |
| Mar. 06, 1995 | Letter to HO from Richard R. Kosan Re: Confirming the meeting room for October 9-13 and October 16-18 filed. |
| Feb. 28, 1995 | Petitioners, Advance Leasing and Development, Inc., and Peter A. Geraci and Roy N. (Nick) Geraci's Response to Respondent Hillsborough County's Motion to Dismiss Petition filed. |
| Feb. 28, 1995 | Petitioners, Advance Leasing and Development, Inc., and Peter A. Geraci and Roy N. (Nick) Geraci's response in Opposition to Respondent Hillsborough County's Motion for An Extension of Time to Respond to Petitioners' Petition filed. |
| Feb. 28, 1995 | Petitioners, Advance Leasing and Development, Inc., and Peter A. Geraci and Roy N. (Nick) Geraci's Response to Respondent Hillsborough County's Motion in Opposition to Petition/Motion to Dismiss Petitioner Advance Leasing filed. |
| Feb. 28, 1995 | Petitioners, Advance Leasing and Development, Inc., and Peter A. Geraci and Roy N. (Nick) Geraci's Response to Respondent Hillsborough County's Motion to Strike Petitioners' Petition filed. |
| Feb. 17, 1995 | Respondent Hillsborough County's Memorandum in Support of Motion in Opposition to Petition/Motion to Dismiss Petitioner Advance Leasing andDevelopment, Inc.; Respondent Hillsborough County's Motion in Opposition to Petition/Motion to Dismiss Petitioner A |
| Feb. 17, 1995 | Respondent Hillsborough County`s Motion for Enlargement of Time to Respond to Petitioners` Petition for Formal Administrative Hearing; Respondent Hillsboroguh County`s Motion to Dismiss Petitioners` Petition for Formal Administrative Hearing; Respondent |
| Feb. 16, 1995 | Respondent Hillsborough County's Motion to Dismiss Petitioners' Petition for Formal Administrative Hearing filed. |
| Feb. 16, 1995 | Respondent Hillsborough County`s Motion to Strike Petitioners` Petition for Formal Administrative Hearing; Respondent Hillsborough County`s Motion for Enlargement of Time to Respond to Petitioners` Petition for Formal Administrative Hearing filed. |
| Feb. 16, 1995 | Respondent Hillsborough County's Motion in Opposition to Petition/Motion to Dismiss Petitioner Advance Leasing and Development, Inc.; Respondent Hillsborough County's Memorandum in Support of Motion in Opposition to Petition/Motion to Dismiss Petitioner A |
| Feb. 06, 1995 | Notice of Assignment And Initial Order sent out. |
| Jan. 26, 1995 | Notification card sent out. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 12, 1999 | Agency Final Order | |
| Oct. 14, 1998 | Recommended Order | Challenge to portion of 1994 Hillsborough County Comprehensive Plan update; Petitioners failed to establish that proposed CMU-12 designation was non-compliant to the exclusion of fair debate. |
