45-20-02 ty Pie Final Order No. DCX02-GM-189 4 STATE OF FLORIDA ig 8 DEPARTMENT OF COMMUNITY AFFAIRS we are THE SIERRA CLUB, At ; . A "AS- Petitioner, (toe DOAH CASE No. 01-1851GM V. DCA Case No. DCA02-GM-189 ST. JOHNS COUNTY and DEPARTMENT OF COMMUNITY AFFAIRS, Respondents, and SONOC COMPANY, LLC, and THE PARC GROUP, INC., Intervenors. ELLEN A. WHITMER, Petitioner, DOAH CASE No. 01-1852GM Vv. DCA Case No. DCA01-GM-048 ST. JOHNS COUNTY and DEPARTMENT OF COMMUNITY AFFAIRS, Respondents, and SONOC COMPANY, LLC, and THE PARC GROUP, INC., Intervenors. fla, te “&3 oC, 2, ¢ Final Order No. DCAG2sGM:189 aoe “ FINAL ORDER This matter was considered by the Secretary of the Department of Commutity Affairs (“the Department”) following receipt and consideration of a Recommended Order issued by an Administrative Law Judge (“ALJ”) of the Division of Administrative Hearings. A copy of the Recommended Order is attached hereto as Exhibit A. BACKGROUND This matter involves a challenge to comprehensive plan amendments adopted by St. Johns County Ordinance No. 2001-18, hereinafter referred to as “the Plan Amendments.” The Department published a notice of intent to find the Plan Amendments “in compliance,” as defined in §163.3184(1)(b), Fla. Stat. (2001); and the Petitioners challenged the Plan Amendments, as authorized by §163.3 184(9)(a), Fla. Stat. (2001). A formal hearing was conducted by Administrative Law Judge (“ALJ”) Charles A. Stampelos of the Division of Administrative Hearings. Following the hearing, the ALJ - submitted his Recommended Order to the Department. The ALJ recommended that the Department enter a final order determining that the Plan Amendments are in compliance. The Petitioners filed Exceptions to the Recommended Order, and Respondents and Intervenors filed Responses to Petitioners’ Exceptions. ROLE OF THE DEPARTMENT Throughout the pendency of the formal administrative proceedings, the Department’s litigation staff contended that the Plan Amendments are in compliance. After the ALJ issued his Recommended Order, the Department assumed two functions in this matter. Final Order No. DCA02-GM-189 The attorney and staff who advocated the Department’s position throughout the formal proceedings continued to perform that function by reviewing the Recommended Order and filing a Response to Petitioner’s Exceptions urging that the Department find the Plan Amendments in compliance. The other role is performed by the Secretary of the Department and agency staff who took no part in the formal proceedings, and who have reviewed the entire record and the Recommended Order in light of the Exceptions and Response. Based upon that review, the Secretary of the Department must either enter a final order consistent with the ALJ’s recommendations finding the Plan Amendments in compliance, or determine that the Plan Amendments are not in compliance and submit the Recommended Order to the Administration Commission for final agency action. § 163.3184(9)(b), Fla. Stat. (2001). Having reviewed the entire record, the Secretary accepts the recommendation of the Administrative Law Judge as to the disposition of this case. STANDARD OF REVIEW OF RECOMMENDED ORDER AND EXCEPTIONS The Administrative Procedure Act contemplates that the Department will adopt the Recommended Order except under certain limited circumstances. The Department has only limited authority to reject or modify the ALJ’s findings of fact. Rejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact. The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. Section 120.57(1)(/), Fla. Stat. (2001) Final Order No. DCA02-GM-189 The Department cannot reweigh the evidence considered by the ALJ, and cannot reject findings of fact made by the ALJ if those findings of fact are supported by competent substantial evidence in the record. Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. Ist DCA 1985); and Bay County School Board v. Bryan, 679 So.2d 1246 (Fla. Ist DCA 1996), construing a provision substantially similar to Section 120.57(1)(), Fla. Stat. (2000). See also, Pillsbury v. Department of Health and Rehabilitative Services, 744 So. 2d 1040 (Fla. 2d DCA 1999), The Department may reject or modify the ALJ’s conclusions of law or interpretation of administrative rules, but only those, ... conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction. When rejecting or modifying such conclusion of law or interpretation of administrative rule, the agency must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified. Section 120.57(1)(), Fla. Stat. (2001) The label assigned to a statement is not dispositive as to whether it is a conclusion of law or a finding of fact. Kinney v. Department of State, 501 So.2d 1277 (Fla. 5th DCA 1987). Conclusions of law, even though stated in the findings of fact section of a recommended order, may be considered under the same standard as any other conclusion of law. THE PLAN AMENDMENTS The Plan Amendments created a new Future Land Use Element (“FLUE”) category known as “New Town Development,” and changed the Future Land Use Map Final Order No. DCA02-GM-189 (“FLUM”) designation of approximately 12,962 acres of land from Rural/Silviculture to New Town (11,332 acres) and Conservation (1,630 acres). The Plan Amendments also authorize the use of “pipelining” to satisfy transportation concurrency for the New Town. Finding of fact 21. The Plan Amendments are related to a proposed development-of- regional-impact (“DRI”) known as Nocatee. F inding of fact 23. RULINGS ON EXCEPTIONS Petitioner Sierra Club filed 58 exceptions, and Petitioner Whitmer filed 57, An agency is ordinarily expected to rule on each exception. Iturralde v. Department of Professional Regulation, 484 So. 2d 1315 (Fla. Ist DCA 1986). However, exceptions which merely reiterate positions which were repeatedly asserted before the ALJ, and which were clearly and specifically addressed in the recommended order, need not be addressed again in the agency’s final order. Britt v. Department of Professional Regulation, 492 So, 2d 697 (Fla. 1st DCA 1986); disapproved on other grounds, Dept. of Prof’! Regulation v. Bernal, 531 80,24 967 (Fla. 1988). To the extent that any exception is not explicitly addressed below, that exception is repetitive of other exceptions, or merely reargues positions which were asserted before the ALJ and addressed in the recommended order. RULINGS ON EXCEPTIONS TO FINDINGS OF FACT Preliminary Statement The Petitioners take issue with certain statements in the ALJ’s Preliminary Statement which describe the procedural history of the case, such as the reference to mediation and settlement of a related case. The brief statements concerning settlement Final Order No. DCA02-GM-189 and mediation are not prejudicial, and neither Petitioner claims that those statements are inaccurate. Sierra Club also contends that the Preliminary Statement incorrectly states that the Intervenor’s First and Second Requests for Judicial Notice were granted. The record reveals that the ALJ granted part of the First Request for Judicial Notice at the hearing, and withheld ruling on the remainder of the First Request and all of the Second Request, Tr. 19. The Recommended Order itself grants the whole of the Intervenor’s Requests for Judicial Notice. Recommended Order, Preliminary Statement, 7. Sierra Club Exceptions I and 2, and the unnumbered Whitmer Exceptions on pages 2 and 3, are DENIED. Weight of the Evidence Many of the exceptions contend that the weight of the evidence does not support the ALJ’s findings of fact, that the ALJ should have found additional facts suggested by the Petitioners, or simply express disagreement with the AL]’s findings of fact. The Department is not authorized to reweigh the evidence or to adopt supplemental findings of fact. Section 120.57(1)(/), Fla. Stat. (2000); Heifitz, Bay County, and Pillsbury, supra. Whitmer Exceptions 1, 2, 3, 7, 9, 15, 17, 21, 23, 24, 26, 30, 32, 38, 39, 40, 42, 43, 44, 46, 47, 50, 51, 52, 53, 54, 56 and 57, are DENIED. Unexplained Exceptions Some exceptions simply ask the Department to reject a finding of fact or conclusion of law without giving a reason, or fail to ask the Department to reject anything. Whitmer Exceptions 27, 35, 48, and Sierra Club Exceptions 32, 48 are DENIED. Final Order No. DCA02-GM-189 Supplemental Findings of Fact Some exceptions assert that the AL]’s findings are incomplete, but do not suggest that the findings are incorrect or unsupported by competent substantial evidence. The Department cannot adopt additional findings of fact, or supplement the ALJ’s findings. Whitmer Exceptions 9, 10, 12, 13, 14, 16, 18, 19, 36, and Sierra Club Exceptions 10, 47 are DENIED. Competent Substantial Evidence Most of the exceptions assert that a finding of fact is not supported by competent substantial evidence, which would be a valid basis for rejection of that finding of fact by the Department. § 120.57(1)(), Fla. Stat. (2001). However, as demonstrated in great detail by the Responses to Exceptions, each finding of fact is supported by competent substantial evidence in the record. Sierra Club Exceptions 3, 4, 5, 7, 8, 9, 10, 11, 12, un-numbered exception on page 7, 14, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27, 28, 29, 30, 31, 32, 33, 34, 35, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 53, 58 and Whitmer Exceptions 1, 3, 9, 21, 22, 31 are DENIED. RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW As stated above, all of the exceptions to findings of fact have been denied. Some exceptions were partially or wholly directed to the ALJ’s conclusions of law, even if those conclusions were stated in the findings of fact portion of the Recommended Order. All of the rulings below are based on the findings of fact in the Recommended Order, and not on the facts proposed by the Petitioners. Final Order No. DCA02-GM-189 The Nocatee DRI Petitioner Whitmer contends that the ALJ erred by not considering the whole Nocatee DRI development order in this comprehensive plan compliance proceeding. The ALJ determined that the data and analysis in the Nocatee Application for Development Approval and related documents may be considered as data and analysis for the Plan Amendments, and that Policy A.1.19.15 expressly incorporates the “allowable uses and mix of uses within the Nocatee DRI. Finding of fact 33. The ALJ further determined that the remainder of the Nocatee DRI development order “is not subject to ‘in compliance’ review in this administrative proceeding.” Finding of fact 33. The Plan Amendments adopted by the County are the sole scope of this administrative proceeding. § 163.3184(9), Fla. Stat. (2001). In reviewing a plan amendment, the whole range of development possibilities must be evaluated regardless of any development order issued for the affected land. What a DRI development order, or any other development order, allows to be constructed on a parcel of land which is the subject of a plan amendment is therefore irrelevant for amendment review purposes. 1000 Friends of Florida, Inc. y. City of Daytona Beach, 16 FALR 2428, 2456 (DCA 1994). The Petitioners have no standing to challenge a DRI development order in an administrative proceeding. § 380.07(2), Fla. Stat. (2001). The Petitioner’s remedy against the Nocatee DRI development order, if any, is in circuit court. Caloosa Property Final Order No. DCA02-GM-189 Owners Association, Inc. v. Palm Beach County, 429 So.2d 1260 (Fla. 1st DCA 1983); and Friends of the Everglades v. Monroe County, 456 So.2d 904 (Fla. 1st DCA 1984). See also, Pinecrest Lakes, Inc. v. Shidel, 795 So. 2d 191 (Fla. 4th DCA 2001). Therefore, the Department concludes that the legal theory advocated by Whitmer does not rise to the statutory standard for rejection or modification of the ALJ’s conclusion of law. Whitmer Exceptions 5, 6, 7, 8, 11 are DENIED. Maximum Allocated Density and Allocation Ratios The Petitioners contend that the ALJ failed to use the maximum allocated density for determining the allocation ratio of the County’s comprehensive plan, and particularly of the Northeast Planning District which includes the Nocatee DRI. As a general matter, maximum densities authorized by a comprehensive plan should be used as the basis for a calculation of the allocation ratio, Sheridan v. Lee County, 16 FALR 654, 689 (Admin. Comm. 1994). A comprehensive plan should maintain a reasonable relationship between the land allocated for development within the planning timeframe and the expected population within that timeframe. DCA v. Lee County, 18 FALR 4040 (Admin. Comm. 1996). In this case, the ALJ recognized that the Petitioners, who have the burden of persuasion, offered no independent calculation of allocation ratios, but only had County staff calculate need based on a number of questionable assumptions. Tr. 410-413. The AL] determined that the strict maximum theoretical density methodology offered by Sierra Club was not professionally acceptable. Finding of fact 86. In the absence of any testimony offered by the Petitioners in support of their contentions and the validity of Final Order No. DCA02-GM-189 their assumptions, the Administrative Law Judge based his findings upon other competent, substantial evidence in the record. Findings of fact 8land 82. The ALJ determined that the allocation ratios for the County’s comprehensive plan, and for the Northeast Planning District, are rather high, findings of fact 81, 82, 88 and 89; although not as high as alleged by the Petitioners. Findings of fact 84, 85 and 86, The ALJ determined that “the presence of an over-allocation will trigger a heightened, more thorough review of the indicators of urban sprawl when considering further plan amendments.” Finding of fact 88. The AL] proceeded to apply “this heightened level of sprawl analysis” to the Plan Amendments. F inding of fact 90. Therefore, the Department concludes that the legal theory advanced by the Petitioners does not rise to the statutory standard for rejection or modification of the ALJ’s conclusion of law. Whitmer Exceptions 25, 26, 28, 48, 49 and Sierra Club Exceptions 24, 25, 26, 27, 28, 50, 51 are DENIED. The New Town FLUM Category and Urban Sprawl The Petitioners contend that the New Town future land use map category does not discourage urban sprawl. The ALJ found that the Plan Amendments can be reasonably expected to improve the emerging development pattern in northeast St. Johns County. Finding of fact 91. This emerging development pattern exhibits indicators of urban sprawl, and the New Town future land use map category will be a useful tool to fight this undesirable land use pattern of current development. Finding of fact 74. The ALJ 5 analysis is reasonable, because the Department’s urban sprawl rule states, Ifa local government has in place a comprehensive plan found in compliance, the Department shall not find a plan amendment to be not in compliance on the issue of discouraging urban sprawl solely because of 10 Final Order No. DCA02-GM-189 preexisting indicators if the amendment does not exacerbate existing indicators of urban sprawl within the jurisdiction. Rule 9J-5.006(5)(k), F.A.C. The ALJ concluded that, the evidence shows, for example, that the three to eight dwelling units per net developable residential acre contained in the Text Amendment, coupled with the text provisions directing the location of higher density residential uses, affordable housing, and the myriad of non-residential uses, provide meaningful and predictable standards for the development of an anti-sprawl New Town. Finding of fact 92. Therefore, the Department concludes that the legal theory advanced by the Petitioners does not rise to the statutory standard for rejection or modification of the ALJ’s conclusion of law. Whitmer Exceptions 9, 10, 11, 12, 13, 14, 16, 18, 19, 20, 21, 22, 23, 24, 29, 50, and Sierra Club Exceptions 13, 16, 21, 22, 30, 48, 49, 55 are DENIED. Natural Resource Protection The ALJ concluded that it is at least fairly debatable that the environmental components of the Plan Amendments are “in compliance.” Findings of fact 123, The Petitioners correctly assert that this is a legal conclusion. However, their dispute with this legal conclusion is based entirely on their belief that the ALJ’s several pages of detailed findings of fact (93 through 122) are incorrect. As noted above, all of the Petitioners exceptions to finding of fact have been denied, and those findings of fact are supported by competent substantial evidence. Therefore, the Department concludes that the legal theory advanced by the Petitioners does not rise to the statutory standard for rejection or modification of the Final Order No. DCA02-GM-189 ALJ’s conclusion of law. Whitmer Exceptions 33, 34, 37, 38, and 53, and Sierra Club Exceptions 30, 31, 34, 35, 36, 38, 41, 42, 44, 53, 56, 57 are DENIED. Schools The Petitioners contend that the Plan Amendments do not adequately deal with school capacity, because adequate school facilities were not included in the County’s financially feasible comprehensive plan. As the ALJ concluded, the County’s comprehensive plan was not required to consider school capacity at the time the Plan Amendments were adopted. The Petitioners are correct that a local comprehensive plan must be “economically feasible.” § 163.3177(2), Fla. Stat. (2001). For a plan to be economically feasible, it must establish, achieve and maintain level of service standards, Rule 9J-5.016(3)(b)4., F.A.C. The finances for the achievement and maintenance of these level of service standards are contained in the capital improvements element, which lists projects for which the local government has responsibility and for which the local government has an adopted level of service. §163.3177(3), Fla. Stat. (2001) and Rule 9J-5.016, F.A.C. Local governments are not required to adopt level of service standards for public school facilities, § 163.3180(1)(a), Fla. Stat. (2001), and are forbidden from unilaterally establishing level of service standards which would bind the school board. § 163.3180(3), Fla. Stat. (2001). There is an optional method for local governments and school boards to cooperatively address the funding of public school facilities as part of the growth management process, known as “public school concurrency.” § 163.3 180(13), Fla. Stat. (2001). However, St. Johns County and the St. Johns County School Board have not adopted public school concurrency. 12 Final Order No. DCA02-GM-189 The recent amendments to the Growth Management Act and the State School Code enacted by Ch. 2002-296, Laws of Florida, require greater coordination between local governments and school boards regarding adequate school capacity. However, the version of the Act which was in effect on the date of plan amendment adoption, rather than the version in effect on a later date, should be used to determine compliance, /000 Friends of Florida, Inc. v. City of Daytona Beach, 16 FALR 2428 (DCA 1994); Heartland Environmental Council v, DCA, 19 FALR 1642 (DCA 1996). The 2002 amendments to the Act are not applicable to the Plan Amendments. Therefore, the Department concludes that the legal theory advanced by the Petitioners does not rise to the statutory standard for rejection or modification of the ALI’s conclusion of law. Whitmer Exception 41, 42, 55 and Sierra Club Exceptions 45, 46, 47, 52 are DENIED. Data and Analysis Petitioner Whitmer contends that the ALJ erred in stating that, [T]he data and analysis which may support a plan amendment are not limited to those identified or actually relied upon by a local government. All data available to a local government in existence at the time of the adoption of the plan amendment may be relied upon to support an amendment in a de novo proceeding. Finding of fact 158. The Petitioner contends that the ALJ should not have considered data that was not considered by the local government at the time of plan amendment adoption. A plan amendment compliance proceeding before DOAH, such as this case, is a de novo proceeding. The questions to be resolved by the ALJ are whether adequate data existed at the time of plan amendment adoption, and whether an adequate analysis of that 13 Final Order No. DCA02-GM-189 data supports the plan amendment. The ALJ need not determine whether the Town or the Department were aware of the data, or performed the analysis, at any prior point in time. Department of Community Affairs v. C. ity of Fort Myers, ER FALR 92:063 (Adm. Comm. 1992). The Petitioners had the opportunity at the final hearing to submit data to demonstrate the various inconsistencies that they alleged, regardless of whether the local government had considered that data when adopting the Plan Amendment. Therefore, the Department concludes that the legal theory advanced by Petitioner Whitmer does not rise to the statutory standard for rejection or modification of the ALJ’s conclusion of law. Whitmer Exception 45 is DENIED. ORDER Upon review and consideration of the entire record of the proceeding, including the Recommended Order, it is hereby ordered that: 1. The findings of fact and conclusions of law in the Recommended Order are adopted; 2. The Administrative Law Judge’s recommendation is accepted; and 3. The comprehensive plan amendments adopted by St. Johns County Ordinance No. 2001-18, are determined to be in compliance as defined in §163.3 184(1)(b), Fla. Stat. DONE AND ORDERED in Tallahassee, Florid retary . MMUNITY AFFAIRS umard Oak Boulevard Tallahassee, FL 32399-2100 Final Order No. DCA02-GM-189 NOTICE OF RIGHTS ANY PARTY TO THIS FINAL ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW OF THE ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and corpect copies have been furnished to the persons listed below this OA day of 2002. $e, Lf Fi Paula Ford Agency Clerk By U'S. Mail: Peter B. Belmont, Esquire Deborah J. Andrews, Esquire 102 Fareham Place 11 North Roscoe Boulevard St. Petersburg, FL 33701 Ponte Vedra Beach, FL 32082 Ellen A. Whitmer, pro se 1178 Natures Hammock Road, South Fruit Cove, FL 32259-2879 John A. DeVault, III, Esquire Robert A. Farnell, Esquire Jane A. Lester, Esquire Bedell, Dittmar, DeVault, Pillans & Coxe The Bedell Building 101 East Adams Street Jacksonville, FL 32202 By Hand Delivery: Shaw P. Stiller, Assist. General Counsel Department of Community Affairs 2555 Shumard Oaks Boulevard Tallahassee, FL 32399-2100 Final Order No. DCA02-GM-189 Daniel J. Bosanko, Esquire St. Johns County Attorney’s Office 4020 Lewis Speedway St. Augustine, FL 32085 Marcia P. Tjoflat, Esquire M. Lynn Pappas, Esquire Thomas O. Ingram, Esquire 200 West Forsyth Street Suite 1400 Jacksonville, FL 32202-4327 By Interagency Mail: Hon. Charles A. Stampelos Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-3060

Docket for Case No: 01-001851GM

Orders for Case No: 01-001851GM