STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HISTORIC GAINESVILLE, INC.; )

DUCKPOND NEIGHBORHOOD ) ASSOCIATION, INC.; MARK BARROW; ) JANE MYERS; WILSE BERNARD; ) MARY WEBB; and STEVEN & MARY REID, )

)

Petitioners, )

)

vs. ) CASE NO. 95-0749GM

)

DEPARTMENT OF COMMUNITY ) AFFAIRS and CITY OF GAINESVILLE, )

)

Respondents, )

and )

)

JOHN AND DENISE FEIBER )

and KATHERINE BODINE, )

)

Intervenors. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its assigned hearing officer, Donald R. Alexander, on May 18 and 19, 1995, in Gainesville, Florida.

APPEARANCES

For Petitioners: Patrice F. Boyes, Esquire

W. David Jester, Esquire Post Office Box 1424

Gainesville, Florida 32602-1424

For Respondent: Richard R. Whiddon, Jr., Esquire (City) Post Office Box 1110

Gainesville, Florida 32602

For Respondent: Suzanne H. Schmith, Esquire (DCA) 2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Intervenors: C. David Coffey, Esquire

105 S. E. First Avenue, Suite 1 Gainesville, Florida 32601-6215

STATEMENT OF THE ISSUE

The issue in this case is whether the City of Gainesville comprehensive plan amendment adopted by Ordinance No. 4036 on October 24, 1994, is in compliance.

PRELIMINARY STATEMENT

This case began on February 15, 1995, when petitioners, Historic Gainesville, Inc., Duckpond Neighborhood Association, Inc., Mark Barrow, Jane Myers, Wilse Bernard, Mary Webb, and Steven and Mary Reid, filed a petition for an administrative hearing alleging that a plan amendment of respondent, City of Gainesville, was internally inconsistent and did not comply in a number of respects with Chapters 163 and 187, Florida Statutes, and Chapter 9J-5, Florida Administrative Code. The petition was forwarded by respondent, Department of Community Affairs, to the Division of Administrative Hearings on February 21, 1995, with a request that a Hearing Officer be assigned to conduct a hearing.

By notice of hearing dated March 24, 1995, a final hearing was scheduled on May 8 and 9, 1995, in Gainesville, Florida. At petitioners' request, the matter was continued to May 18 and 19, 1995, at the same location. By order dated March 30, 1995, intervenors, John and Denise Feiber and Katherine Bodine, were authorized to intervene as parties.

At final hearing, petitioners presented the testimony of Linda Portal, the City's interim community development director and accepted as an expert in planning and growth management; Sam Casella, an urban planner and accepted as an expert in historic preservation planning; Jane D. Myers, a realtor and accepted as an expert in real estate marketing; Jay Reeves, an architect; Harry Schmertmann, a DCA planner; Jeffrey Beilling, a DCA planner; Dr. Steven Reid, a property owner; Sam Gowan, a property owner; Peter E. Prugh, a former member of the City Plan Board; and Henry Chaiklin, a property owner. Also, they offered petitioners' exhibits 1-10. All exhibits were received in evidence. The City presented the testimony of Gail Easley, a planning consultant and accepted as an expert in planning and growth management; and Thomas McKnew, a city commissioner. The DCA presented the testimony of Harry Schmertmann, a planner IV and accepted as an expert in comprehensive planning. Also, it offered DCA exhibits 1 and 2. Both exhibits were received in evidence. Intervenors presented the testimony of John K. McPherson, an attorney, and John F. Feiber, one of the owners of the subject property. Also, they offered intervenors' exhibits 1 and 2 which were received in evidence.

The transcript of hearing (four volumes) was filed on June 21, 1995.

Proposed findings of fact and conclusions of law were filed by the parties on August 4, 1995. A ruling on each proposed finding is set forth in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

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

1. The Parties

   
   

   1. Respondent, City of Gainesville (City), is a local government subject to the comprehensive land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered and enforced by respondent, Department

      of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive land use plans and amendments made thereto.

      
      

   2. Petitioners, Mark Barrow, Jane Myers, Wilse Barnard, Mary Webb, and Steven and Mary Reid, own property and reside within the City. Petitioners, Historic Gainesville, Inc. and Duckpond Neighborhood Association, Inc., are organizations made up of persons who reside, own property, or operate businesses within the City. By stipulation of the parties, petitioners are affected persons within the meaning of the law and have standing to bring this action.

      
      

   3. Intervenors, John and Denise Feiber and Katherine Bodine, are the owners of two parcels of property which are at issue in this case. Intervenors submitted oral and written comments during the plan amendment review and adoption proceeding and thus have standing as affected persons to participate in this proceeding.

      
      

2. Background

   
   

   1. During 1993 and 1994, John Feiber unsuccessfully attempted to sell his 1,800 square foot single-family home for an asking price that was disproportionately high for residential property, and was more in keeping with a commercial asking price. Recognizing that the property would be far more valuable with a commercial classification than its current residential designation, on June 11, 1994, Feiber, his wife, and the owner of the property next door, Katherine Bodine, submitted an application for an amendment to the City's Future Land Use Map (FLUM) to convert a .57 acre parcel from Residential- low Density to Planned Use District (PUD) to change a single family home into a law office, potentially convert an adjacent structure into mixed office and residential uses, and possibly build a third office building. Although the City's Plan Board unanimously recommended that the application be denied, by a 4-1 vote the City approved the application on October 3, 1994. This approval was formally ratified through the adoption of Ordinance No. 4036 on October 24, 1994.

      
      

   2. After essentially deferring to the City's findings, on January 25, 1995, the DCA completed its review of the amendment and issued a Notice of Intent to find the amendment in compliance. On February 15, 1995, petitioners filed their petition for administrative hearing with the DCA generally contending the amendment was internally inconsistent and violated certain parts of Chapter 163, Florida Statutes, the state comprehensive plan, and Chapter 9J- 5, Florida Administrative Code. In resolving these contentions, on which conflicting evidence was presented, the undersigned has accepted the more credible and persuasive evidence. Finally, by order dated March 30, 1995, intervenors were authorized to participate in this proceeding in support of the amendment.

      
      

3. The Affected Neighborhood

   
   

   1. The parcel in question consists of two lots, one owned by the Feibers, the other by Bodine. Both lots are located within, and on the edge of, the Northeast Gainesville Residential Historic District (Historic District), a 63- acre collection of properties, which by virtue of the historically significant structures and residential land use patterns, qualified for listing on the National Register of Historic Places in 1980.

      
      

   2. The dominant land use and character within the Historic District is residential, and has been since it was zoned residential in 1932. Land uses on

      Northeast First Street, which forms the western boundary of the District, were always institutional, but on the east side of Northeast Second Street eastward, the uses were always residential with the exception of the Thomas Center, a 1920's vintage building now serving as a City office building.

      
      

   3. The Historic District is located in downtown Gainesville, beginning just north of East University Avenue and continuing northward until Northeast Tenth Avenue. Within its boundaries on the FLUM are two distinct land use designations, Residential-Low Density and Office. Northeast Second Street serves as the land use boundary between the two, with residential uses permitted on the east side and nonresidential uses permitted on the west side of the street.

      
      

   4. There have been no encroachments across the residential land use line since 1976 when a nonconforming parking lot was approved by the City. When the City adopted its comprehensive plan in 1985, and revised it in 1991, it continued the same two land uses, thereby codifying existing residential land use patterns and the conversion of office uses that had already occurred along First Street Northeast in the early 1970s.

      
      

4. The Amendment

1. As noted above, the parcel in question consists of two legal lots, one owned by the Feibers, the other by Bodine. The amendment changes the FLUM portion of the City's 1991-2001 comprehensive plan to reflect a PUD overlay for the parcel. The land is presently designated as residential-low density, a category in which office uses are not permitted. According to policy 2.1.1 of the Future Land Use Element (FLUE), this land use category is appropriate "for single family development, particularly the conservation of existing traditional low-density neighborhoods, single-family attached and zero-lot line development, and small scale multi-family development." Conversely, the same policy provides that "office designations shall not encroach in viable residential areas nor expand strip development."

   
   

2. By their application, John and Denise Feiber seek to convert their single-family home at 206 N. E. Third Street into a law office. An adjacent two-story structure located at 206 N. E. Second Avenue would possibly be converted to office uses on the first floor and residential uses on the second floor. That building is owned by Katherine Bodine, an absentee landlord who resides in Jacksonville, Florida. The amendment also permits, but does not require, future consideration of a third, multi-story structure to accommodate offices. After the amendment was approved by the City, Bodine immediately listed her parcel for sale, and its future development is uncertain at this time.

   
   

3. FLUE policy 2.1.1 describes the PUD designation as follows:

   
   

   This category is an overlay land use district which may be applied on any specific property in the City. The land use regulations pertaining to this overlay district shall be adopted by ordinance in conjunction with an amendment to the Future Land Use Map of this comprehensive plan. The category is created to allow the consideration of unique, inno-

   vative or narrowly construed land use proposals that because of the specificity of the land use

   regulations can be found to be compatible with the character of the surrounding land uses and environmental conditions of the subject land. Each adopting PUD overlay land use designation shall address density and intensity, permitted uses, traffic access and trip generation, environmental features and buffering of adjacent uses. Planned Development zoning shall be required to implement any specific development plan. In the event that the overlay district has been applied to a site and no planned development zoning has found approval by action of the City Commission within one year of the land use designation, the overlay land use district shall be deemed null and void and

   the overlay land use category shall be removed from the Future Land Use Map, leaving the original and underlying land use in place.

   
   

   Therefore, any land use proposal under this category must be "compatible with the character of the surrounding land uses and environmental conditions" and address the "buffering of adjacent uses." It follows that a PUD may not be applied arbitrarily, but rather it must be appropriate for the area and specific site.

   
   

4. The amendment applies the following land use regulations to both the Feiber and Bodine parcels:

   
   

   Residential use of up to ten (10) units per acre and all uses permitted by right and by special use permit within the RMF-5 zoning district is authorized; the maximum floor area of all buildings and structures is 7,185 square feet; the Historic Preservation/ Conservation District requirements of Section 30-79, Land Development Code of the City of

   Gainesville regulate and control the development and design of all buildings, structures, objects and related areas; in addition to the Landscape and Tree management requirements of the Land Development Code, the property is required to

   be planted and maintained with residential scale landscaping to conform to the surrounding residential neighborhood, as well as act as a buffer for the surrounding uses; the average weekday afternoon peak trip generation rate per 1,000 square feet of gross floor area in office use is not permitted to exceed 1.73; any application for development is required to meet concurrency requirements of Article III of the City of Gainesville Land Development Code for each phase of development; and off-street parking is required to be provided unless on- street parking is created, pursuant to a plan attached to the ordinance as Exhibit "D".

5. The amendment also applies the following land use regulations specifically to the Feiber parcel:

   
   

   An additional land use, Legal Services, as defined in Major Group 81 of the Standard Industrial Classification Manual, 1987 ed.

   is authorized; the maximum floor area authorized for such Legal Services is one thousand seven hundred eighty five (1,785) square feet; and, if on-street parking is not provided in accordance with the plan provided in Exhibit "D" of the ordinance, then off-street parking must be provided within 300 feet of the Feiber parcel.

   
   

6. Finally, the amendment applies the following land use regulations to the Bodine parcel:

   
   

   Non-residential land uses are permitted as specified in Exhibit "E" of the ordinance; the maximum floor area authorized for non-residential uses is three thousand six hundred (3,600) square feet; the second story of the existing building is limited to residential use only; and on-site parking limitations are imposed.

   
   

7. In accordance with policy 2.1.1, Planned Development (PD) zoning is required to implement the development plan and the uses permitted in the amendment. The underlying FLUM designation of Residential Low Density, which allows up to 12 units per acre, is neither abandoned nor repealed, but rather remains inapplicable, so long as the property is developed in accordance with a development plan to be approved when the implementing PD zoning is adopted, and such implementing zoning must be adopted within one year of the amendment becoming effective.

   
   

   1. Data and Analysis

      
      

      1. Data and Analysis Before the City

         
         

8. Basically, the City concluded that the amendment could be justified on the theory that the conversion would provide commercial "infill" of an underutilized parcel with step-down transitions to the inner neighborhood. It further concluded that because of the small size of the parcel involved, the conversion would have a de minimis effect on the neighborhood.

   
   

9. When the amendment was adopted, the City had before it the previously adopted comprehensive plan, including the original data and analysis to support that plan, and testimony and exhibits offered both for and against the amendment during a local government hearing conducted on October 4, 1994. Significantly, the City had no studies of any kind regarding marketability, neighborhood stability, availability of land for office and residential uses, or traffic. Indeed, in preparation for final hearing, its expert simply made a walking tour of the neighborhood.

   
   

   1. Data and Analysis Before the Department

      
      

10. On October 28, 1994, the City transmitted the amendment to the DCA for review. The transmittal package contained the following items: The City's

    Final Order; Ordinance No. 4036, with Exhibits A-E; interoffice communication to the City Commission from the City Plan Board dated July 11, 1994; interoffice communication to the City Plan Board, Planning Division Staff dated June 16, 1994; attachment to Land Use Application (pages 1-5); and excerpts from the City Zoning and Future Land Use Maps showing the zoning and land uses assigned to adjacent properties. However, the transmittal package did not include transcripts of the City Plan Board hearing, the Commission Adoption hearing, or any part of the record of the quasi-judicial hearing of October 4, 1994.

    
    

11. The DCA planning staff consulted data contained in the Department of Transportation's ITE Manual in analyzing the traffic and parking impacts of the adopted land use map amendment. It also contacted the Department of State, Division of Historic Resources (Division), for analysis of the amendment's impact on historic resources, and it received comments on the amendment from the the North Central Florida Regional Planning Council (NCFRPC).

    
    

12. The DCA planning staff also analyzed the FLUM to determine compatibility of the amendment with surrounding uses. During this review, the DCA planning staff reviewed all pertinent portions of the City's Plan Goals, Objectives and Policies (GOPs) and data and analysis. This review was done in a cursory fashion, however, since the DCA viewed the application as being a very small project with no perceived impact.

    
    

13. Given the lack of any studies concerning marketability, neighborhood stability, availability of land for office and residential uses, and traffic, all of which are pertinent to this amendment, it is found that the City and DCA did not use the best available data and analysis. Therefore, the amendment is inconsistent with the requirement in Rule 9J-5.005(2), Florida Administrative Code, and Section 163.3177, Florida Statutes, that the best available (and appropriate) data and analysis be used.

    
    

    1. Compatibility with Adjacent Uses

       
       

14. To the south of the subject parcels is a four-lane loop road (Northeast Second Avenue) which now serves as a buffer from the adjacent uses. Across the street to the south is City Hall, which was constructed more than thirty years ago. To the west of the property is a commercial parking lot with an office building next door to that parking lot.

    
    

15. On the east side of the property are multi-family dwellings. To the south and east from the parcels is a commercial lot. An area from the corner of Northeast Second Avenue and Northeast First Street, one block from the subject parcels, and proceeding north along Northeast First Street, contains many non- residential uses, including offices. Areas to the north are predominately

    multi-family and single-family uses.

    
    

16. Transitional uses and buffering are professionally-acceptable planning tools. However, changing a single-family dwelling into an office does not enhance buffering for the residential properties further in the neighborhood because the Feiber house is currently a less intense use than office.

    Therefore, the amendment conflicts with the plan's requirement that a PUD provide buffering for adjacent uses.

    
    

17. The concept of transitional uses entail the practice of providing for a gradation of uses from high-intensity to low-intensity uses. Insertion of another non-residential use at the Feiber property to achieve a chimerical "step-down transitional use" merely moves the "edge" another step inward.

    Nonresidential uses already exist just outside the Historic District neighborhood that would meet this "step-down" criteria. Retrofitting an existing neighborhood is not appropriate unless it is no longer viable, which is not the case here.

    
    

18. Contrary to the proponents' assertion, the Feiber and Bodine parcels will not provide the transitional uses of office and multi-family uses between the high-intensity office (City Hall) uses and lower intensity, multi-family uses to the north of the subject parcels. The four-lane street between the City Hall and the subject property now serves as an adequate buffer.

    
    

19. A major goal of the City's plan is to protect viable, stable neighborhoods, and the FLUM, with its residential land use category, provides that protection. This goal cannot be achieved by converting these parcels to office use.

    
    

20. Another major goal of the plan is to protect and promote restoration and stablization of historic resources within the City. That goal cannot be achieved by converting these parcels to nonresidential uses.

    
    

21. Yet another major goal of the plan is the prohibition of office uses intruding into residential neighborhoods. The amendment contravenes that requirement.

    
    

    1. Impact on Historic Resources

       
       

22. As noted earlier, the Feiber and Bodine properties are located on the southern edge of the Historic District of the City, separated from the City Hall by a one-block long segment of a four-lane street plus the full half-block length of the City Hall parking lot. A major goal of the City's plan is the protection of historic architectural resources and historically significant housing within the City. This goal is found in FLUE objective 1.2, Historic Preservation Element goals 1 and 2, and Housing Element policy 3.1.3. This overall major goal, as embodied in the foregoing objective, policies and goal, cannot be furthered by the amendment.

    
    

23. Conversions which intrude across stable boundaries, such as exist in this neighborhood, begin a pattern of disinvestment. As investment subsides, the physical, historic structures will be adversely affected. The conversion contemplated by the amendment would represent a small encroachment of office use into the neighborhood with a cumulative effect. There is nothing to preclude its precedential effect or encouragement of similar applications.

    
    

24. Although the Division of Historic Resources stated that it had no objection to the amendment, its acquiesence to the amendment is not controlling. Rather, the more persuasive evidence supports a finding that the amendment will have an adverse impact on the Historic District and will not further applicable goals, policies and objectives.

    
    

    1. Local Comprehensive Plan Issues

       
       

25. One criteria for evaluating a plan amendment is whether it would result in compatibility with adjacent land uses. The overriding goal in the area of compatibility analysis is the protection of viable, stable neighborhoods. There is nothing in the plan amendment itself which provides compatibility or buffering for the residential properties located to the north

    and east of the subject parcel. Indeed, office development of the land will increase the pressure to convert more structures.

    
    

26. Objective 2.1 of the FLUE establishes an objective of providing sufficient acreage for residential, commercial, mixed use, office and professional uses and industrial uses at appropriate locations to meet the needs of the projected population. Those acreages are depicted on the FLUM. When reviewing a FLUM amendment, such as the subject of this proceeding, the City is required to make a need analysis.

    
    

27. The amendment is not supported by any analysis of need. Prior to the amendment, the plan contained an overallocation of office space and a shortage of housing for Market Area 4, in which the subject parcel is located. The amendment does not increase available housing or alleviate the overallocation of office space in Market Area 4. Indeed, it has a contrary result.

    
    

28. Adaptive reuse is not promoted by the City's plan. Rather, the Housing Element promotes restoration and conservation of historically or architecturally significant housing, which means returning to housing use, not adapting structures to some other use. In this respect, the amendment is contrary to the City's plan.

    
    

    1. Summary

    
    

29. Because the plan amendment is internally inconsistent and not based on the best available data and analysis, it is found that the amendment is not in compliance.

    
    

    CONCLUSIONS OF LAW

    
    

30. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.57(1) and 163.3184(9), Florida Statutes.

    
    

31. The broad issue in this case is whether the plan amendment is "in compliance" with Part II of Chapter 163, Florida Statutes, and Chapter 9J-5, Florida Administrative Code. "In compliance," as defined in Section 163.3184(1)(b), Florida Statutes, means the plan is consistent with the applicable provisions of Part II of Chapter 163, Florida Statutes, the state comprehensive plan, the regional policy plan, and Chapter 9J-5, Florida Administrative Code.

    
    

32. This case arose under Section 163.3184(9)(a), Florida Statutes, following DCA's notice of intent to find the County's plan amendment in compliance. Under that statute, the plan amendment must be determined to be "in compliance" if the local government's determination of compliance is fairly debatable. Therefore, the action of the County must be approved "if reasonable person could differ as to its propriety." B & H Travel Corporation v. Department of Community Affairs, 602 So.2d 1362, 1365 (Fla. 1st DCA 1992).

    
    

33. Based on the more credible and persuasive evidence, it is concluded that the preliminary determination that the amendment is in compliance is incorrect. Rather, the evidence shows that the amendment is not supported by relevant data and analysis and is internally inconsistent. Thus, the amendment is not in compliance. Given these infirmities, it is unnecessary to reach the remaining criticisms raised by petitioners.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Community Affairs enter a final order

finding the amendment to be not in compliance.

DONE AND ENTERED this 19th day of September, 1995, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0749GM

Petitioners:

Petitioners' proposed findings, while substantially modified and shortened, have been generally adopted in substance.

Respondents/Intervenors:

1-8. Partially covered in findings of fact 10-16. 9-37. Partially covered in findings of fact 17-22. 38-53. Partially covered in findings of fact 23-30. 54-71. Partially covered in findings of fact 31-33. 72-106. Partially covered in findings of fact 31-38.

Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary for a resolution of the issues, cumulative, irrelevant, not supported by the more credible, persuasive evidence, subordinate, or a conclusion of law.

COPIES FURNISHED:

Patrice F. Boyes, Esquire

W. David Jester, Esquire Post Office Box 1424

Gainesville, Florida 32602-1424

Richard R. Whiddon, Jr., Esquire Post Office Box 1110 Gainesville, Florida 32602

Suzanne H. Schmith, Esquire 2740 Centerview Drive

Tallahassee, Florida 32399-2100

C. David Coffey, Esquire

105 S. E. First Avenue, Suite 1 Gainesville, Florida 32601-6215

James F. Murley, Secretary Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Dan R. Stengle, Esquire General Counsel

Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HISTORIC GAINESVILLE, INC., ) DUCKPOND NEIGHBORHOOD )

ASSOCIATION, INC., MARK )

BARROW, JANE MYERS, WILSE )

BERNARD, MARY WEBB, and )

STEVEN AND MARY REID, )

)

Petitioners, )

)

vs. ) CASE NO. 95-0749GM

)

DEPARTMENT OF COMMUNITY ) AFFAIRS and CITY OF GAINESVILLE, )

)

Respondents, )

and )

)

JOHN AND DENISE FEIBER and )

KATHERINE BODINE, )

)

Intervenors. )

)

SUPPLEMENTAL RECOMMENDED ORDER

On September 19, 1995, a Recommended Order was issued in this case recommending that the Department of Community Affairs (DCA) find a plan amendment adopted by the City of Gainesville (City) on October 24, 1994, not in compliance. On October 30, 1995, the DCA issued its Order of Remand requesting "that the Hearing Officer re-examine the evidence; and either clarify that the correct standard of proof was utilized, or reweigh the evidence using the fairly debatable standard of proof." The Order of Remand and record of the section

120.57 proceeding were received by the Division of Administrative Hearings on November 21 and December 1, 1995, respectively.

The Order of Remand is based on the following underscored language found in findings of fact 5 and 33 and conclusion of law 42:

5. After essentially deferring to the City's findings, on January 25, 1995, the DCA completed its review of the amendment and issued a Notice of Intent to find the amendment

in compliance. On February 15, 1995, petitioners filed their petition for administrative hearing with the DCA generally contending the amendment was internally inconsistent and violated certain parts of Chapter 163, Florida Statutes, the state comprehensive plan, and Chapter 9J-5, Florida Administrative Code. In resolving these conten- tions on which conflicting evidence was presented, the undersigned has accepted the more credible and persuasive evidence. Finally, by order dated March 30, 1995, intervenors were authorized to participate in this proceeding in support of

the amendment.

33. Although the Division of Historic Resources stated it had no objection to the amendment, its acquiesence to the amendment is not controlling. Rather, the more persuasive evidence supports a finding that the amendment will have an adverse impact on the Historic District and will not further applicable

goals, policies and objectives.

42. Based on the more credible and persuasive evidence, it is concluded that the preliminary

determination that the amendment is in compliance is incorrect. Rather, the evidence shows that the amendment is not supported by relevant data and analysis and is internally inconsistent.

Thus, the amendment is not in compliance. Given these infirmities, it is unnecessary to reach the remaining criticisms raised by petitioners.

Based on assertions by the City and intervenors "that fact finding based upon the most credible and persuasive evidence is not consistent with the requirement [in s. 163.3184(9(a)] that 'the plan amendment shall be determined to be in compliance if the local government's determination of compliance is fairly debatable,'" and the DCA's uncertainty whether the underscored language "refers to the Hearing Officer's determination of the competency of the evidence presented by the parties, or whether (it) indicates that the Hearing Officer used an incorrect standard of proof," the matter has been remanded by the DCA for clarification or re-evaluation of the evidence.

In paragraph 41 of the Recommended Order, the undersigned stated that the proceeding is governed by Section 163.3184(9)(a), Florida Statutes, and the plan amendment must be determined to be "in compliance" if the local government's determination of compliance is fairly debatable. This standard of proof, and no other, was used in making a recommendation that the DCA find the plan amendment not in compliance.

Because conflicting evidence was presented on many of the factual issues, the undersigned was required, as in any other case, to make a credibility assessment of that testimony. In doing so, the undersigned accepted the "more credible and persuasive" testimony of petitioners on the critical factual issues of whether the amendment was internally inconsistent and was based on the best available data and analysis. After accepting petitioners' evidence on these issues, and discrediting the conflicting evidence of the other parties, the undersigned then found, to the exclusion of fair debate, that the amendment was "internally inconsistent and not based on the best available data and analysis."

Therefore, the use of the term "credible and persuasive evidence" in paragraphs 5, 33, and 42 refers to the undersigned's "determination of the competency of the evidence presented by the parties," and not the standard or burden of proof. Because the fairly debatable standard of proof was used in the initial Recommended Order, it is unnecessary "to reweigh the evidence" under that standard.

DONE AND ENTERED this 6th day of December, 1995, at Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1995.

COPIES FURNISHED:

James F. Murley, Secretary Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Dan R. Stengle, Esquire Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

David L. Jordon, Esquire Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Patrice F. Boyes, Esquire

P. O. Box 1424

Gainesville, Florida 32602-1424

Richard R. Whiddon, Jr., Esquire

P. O. Box 1110

Gainesville, Florida 32602

C. David Coffey, Esquire

105 S. E. First Avenue Suite 1

Gainesville, Florida 32601-6215

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS

HISTORIC GAINESVILLE, INC.,

DUCKPOND NEIGHBORHOOD ASSOCIATION, INC., MARK BARROW, JANE MYERS, WILSE BERNARD, MARY WEBB, and STEVEN & MARY REID,

Petitioners,

DEPARTMENT OF COMMUNITY AFFAIRS and DOAH Case No. 95-0749GM CITY OF GAINESVILLE, DCA FINAL ORDER NO.

DCA95-276-FOF-GM

Respondents,

and

JOHN & DENISE FEIBER and KATHERINE BODINE,

Intervenors.

/

ORDER OF REMAND

Administrative Hearings ("DOAH") has entered his Recommended Order in this proceeding. A copy of the Recommended Order is attached to this Order as Exhibit A.

BACKGROUND

This is a proceeding to determine whether a comprehensive plan amendment adopted by the City of Gainesville is in compliance with the Local Government Comprehensive Planning and Land Development Regulation Act, Ch. 163, Part II, Fla. Stat. (Supp. 1994)(the "Act"). The Department issued a Notice of Intent to find the amendment in compliance with the Act. The Petitioner filed a petition pursuant to s 163.3184(9), Fla. Stat. (Supp. 1994), which alleged that the amendment is not in compliance. The Department forwarded the petition to the Division of Administrative Hearings, which conducted a final hearing on May 18 and 19, 1995.

The Hearing Officer made detailed findings of fact and conclusions of law in his Recommended Order. He determined that the plan amendment is not in compliance with the Act, and recommended the entry of a final order finding the amendment to be not in compliance. The City and the Intervenors filed Exceptions to the Recommended Order, and the Department filed a Response to the Exceptions.

RULINGS ON EXCEPTIONS

Exceptions 1 - 5

Exceptions 1 through 5 allege that the Hearing Officer applied an incorrect standard of proof in determining the findings of fact. In conclusion of law 41, the Hearing Officer stated that under s. 163.3184(9)(a), Florida Statutes, "...the plan amendment must be determined to be in compliance' if the local government's determination of compliance is fairly debatable." The City and the Intervenor agree with this conclusion of law.

However, the City and the Intervenors point out that other portions of the Recommended Order indicate that the Hearing Officer used a different standard of proof. The City and the Intervenors cite the following findings of fact and conclusion of law:

5 After essentially deferring to the City's findings, on January 25, 1995, the DCA completed its review of the amendment and issued a Notice of Intent to find the amendment in compliance. On February 15, 1995, petition- ers filed their petition for administrative hearing with the DCA generally contending the

amendment was internally inconsistent and violated certain parts of Chapter 163, Florida statutes, the state comprehensive plan, and Chapter 9J-5, Florida Administrative Code.

In resolving these contentions on which conflicting evidence was presented the under- signed has accepted the most credible and persuasive evidence. Finally, by order dated March 30, 1995, intervenors were authorized to participate in this proceeding in support of the amendment. (Emphasis from Exceptions)

33. Although the Division of Historic Resources stated that it had no-objection to the amendment, its acquiescence to the amend- ment is not controlling. Rather, the more persuasive evidence supports a finding that the amendment will have an adverse impact on the Historic District and will not further applicable goals, policies and objectives. (Emphasis from Exceptions)

42. Based on the more credible and persuasive evidence, it is concluded that the preliminary determination that the amendment is in compliance Is incorrect. Rather, the evidence shows that the amendment is not supported by relevant data and analysis and is internally inconsistent. Thus, the amendment is not in compliance.

Given these infirmities, it is unnecessary to reach the remaining criticisms raised by the petitioners. (Emphasis from Exceptions)

The City and the Intervenors contend that fact finding based upon the most credible and persuasive evidence is not consistent with the requirement that "... the plan amendment shall be determined to be in compliance if the local government's determination of compliance is fairly debatable." s.163.3184(9)(a), Florida Statutes. The City and the Intervenors suggest that the Department reject all of the findings of fact in the Recommended Order, and conclude that the proposed comprehensive plan amendment is in compliance.

If the Hearing Officer used an incorrect standard of proof, the Department is not at liberty to reweigh the evidence under the fairly debatable standard. Young v. Santa Rosa County and Department of Community Affairs , 16 FALR 3333 (Fla. Dept. Comm. Aff. 1994); Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985). The Department cannot ".... substitute its judgment for that of the hearing officer by taking a different view of, or placing greater weight on the same evidence." Wash & Dry Vending Company v.

Dept. Of Business Regulation, 429 So.2d 790, 792 (Fla. 3d DCA 1983). The Department cannot engage in "... fact finding independent of and supplementary to D.O.A.H. proceedings...." Manasota 88, Inc. v. Tremor, 545 So. 2d 439, 441 (Fla. 2d DCA 1989).

It is not clear whether the language emphasized above refers to the Hearing Officer's determination of the competency of the evidence presented by the parties, or whether the emphasized language indicates that the Hearing Officer used an incorrect standard of proof. Clarification or correction of such a fundamental issue at this relatively early stage in the proceeding would be beneficial to all parties to this proceeding.

Exceptions 1 through 5 are granted to the extent that this case will be remanded to the Division of Administrative Hearings. The Department requests that the Hearing Officer reexamine the evidence; and either clarify that the correct standard of proof was utilized, or reweigh the evidence using the fairly debatable standard of proof. Since the remaining Exceptions may be rendered moot by the Hearing Officer's response to this Order of Remand, those Exceptions will not be ruled upon at this time. The remaining Exceptions may be renewed as deemed appropriate by the City and the Intervenors in light of any action taken by the Hearing Officer upon remand. WHEREFORE, the Department of Community Affairs remands this proceeding to the Hearing officer, and requests that the Hearing Officer clarify or revise the Recommended Order.

DONE AND ORDERED in Tallahassee, Florida, this 30th day of October, 1995.

JAMES F. MURLEY, Secretary Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

ANY PARTY TO THIS PROCEEDING MAY HAVE THE RIGHT TO SEEK JUDICIAL REVIEW OF THIS ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, BY THE FILING OF A PETITION WITH THE APPROPRIATE DISTRICT COURT OF APPEAL PURSUANT TO RULE 9.100, FLORIDA RULES OF APPELLATE PROCEDURE, ACCOMPANIED BY THE APPLICABLE FILING FEE.

COPIES FURNISHED:

Division of Administrative Hearings Patrice F. Boyes, Esquire

W. David Jester, Esquire

C. David Coffey, Esquire

Richard R. Whiddon, Jr., Esquire Suzanne H. Schmith, Esquire

Docket for Case No: 95-000749GM

Orders for Case No: 95-000749GM