STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
EMERALD LAKES RESIDENTS' )
ASSOCIATION, INC., )
)
Petitioner, )
)
vs. )
) COLLIER COUNTY and DEPARTMENT ) OF COMMUNITY AFFAIRS, )
)
Respondents, )
)
and )
) BUCKLEY ENTERPRISES, INC., )
)
Intervenor. )
Case No. 02-3090GM
)
RECOMMENDED ORDER
Notice was given and on November 14, 2002, a final hearing was held in this case. Pursuant to the authority set forth in Sections 120.569, 120.57(1), and 163.3184(9)(a), Florida Statutes, the final hearing was conducted by Charles
A. Stampelos, Administrative Law Judge, in Collier County, Florida.
APPEARANCES
For Petitioner Emerald Lakes Residents' Association, Inc.:
David W. Rynders, Esquire
2375 9th Street, North, Suite 308
Naples, Florida 34103-4439
For Respondent Department of Community Affairs:
Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
For Respondent Collier County:
Jennifer Belpedio, Esquire Assistant County Attorney
3301 East Tamiami Trail, Eighth Floor Naples, Florida 34112
For Intervenor Buckley Enterprises, Inc.:
Richard D. Yovanovich, Esquire Goodlette, Coleman & Johnson, P.A. 4001 Tamiami Trail North, Suite 300
Naples, Florida 34103 STATEMENT OF THE ISSUE
Whether the amendments to the Future Land Use Map (FLUM) and text of the Future Land Use Element (FLUE) of the Collier County Comprehensive Plan adopted by Ordinance No. 02-24 on May 14, 2002, which, among other plan amendments, created the "Buckley Mixed Use Subdistrict" and applied it to one parcel within Collier County, are "in compliance" as that term is defined in Section 163.3184(1)(b), Florida Statutes. (All references to Florida Statutes are to the 2001 version unless otherwise indicated.)
PRELIMINARY STATEMENT
On May 14, 2002, Collier County adopted Ordinance No. 02-
This Ordinance contains several amendments, in addition to the "Buckley Mixed Use Subdistrict," to the Collier County
Comprehensive Plan (Plan). Several text amendments contained within the Ordinance created the "Buckley Mixed Use Subdistrict." An Amendment to the FLUM designated approximately 23 acres within Collier County as the site of the "Buckley Mixed Use Subdistrict," and changed the land use designation from "Urban Residential Subdistrict" to "Buckley Mixed Use Subdistrict." The Amendment also amends portions of the text of the Plan to establish densities, intensities, and development parameters for the "Buckley Mixed Use Subdistrict."
The Department of Community Affairs (Department) reviewed all of the Amendments adopted by Ordinance No. 02-24, including those which created the "Buckley Mixed Use Subdistrict," and caused to be published a Notice of Intent to find the Amendments "in compliance." This Notice was published on July 9, 2002, in the Naples Daily News.
On July 30, 2002, Emerald Lakes Residents Association, Inc. (Emerald Lakes) filed with the Department a Petition for Administrative Hearing regarding this Notice of Intent. In August 2002, Buckley Enterprises, Inc. (Buckley) requested and was granted leave to intervene in this case in support of the Department and Collier County. Prior to the final hearing, the parties filed a Prehearing Stipulation. A final hearing was conducted on November 14, 2002.
At the final hearing, Emerald Lakes called two witnesses in its case-in-chief: Claire Goff, President, Emerald Lake Residents' Association, Inc.; and David Depew, A.I.C.P. Emerald Lakes called Donald Wayne Arnold, A.I.C.P., as its sole rebuttal witness. Emerald Lakes offered Exhibits 1, 2a- 2e, 15-17, 19, 24-25, and 29-30, which were accepted into evidence. Emerald Lakes proffered Exhibit 12.
At the final hearing, Buckley called the following witnesses: Amy Taylor, Planner, Collier County School Board; Stan Litsinger, Collier County Comprehensive Planning Manager; Reed Jarvi, P.E.; and Donald Wayne Arnold, A.I.C.P. Buckley offered Exhibits 1-7, 9-13, and 15-16, which were accepted into evidence.
At the final hearing, the Department and Collier County called no witnesses and offered no exhibits for admission into the record.
The transcripts of the final hearing were filed January 2, 2003. The parties agreed that all proposed recommended orders would be filed not later than 20 days following the filing of the transcript, i.e., January 22, 2003. Emerald Lakes requested and was granted an unopposed
extension of time to file a proposed recommended order to and including January 30, 2003. The Department filed a Proposed Recommended Order, joined in by Collier County and Buckley.
Emerald Lakes filed a proposed recommended order on February 5, 2003.
FINDINGS OF FACT
The Parties
"Emerald Lakes of Naples" is a residential development in Collier County consisting of 147 single-family homes and 378 multi-family condominiums on 148.27 acres. Emerald Lakes is an organization that represents all persons who own property within the Emerald Lakes of Naples development.
Emerald Lakes owns property within Collier County and specifically owns and maintains the streets in Emerald Lakes, including one street bordering the west property line of the Buckley site. A representative of Emerald Lakes made oral comments to the Collier County Board of County Commissioners at the public meeting at which the disputed comprehensive plan amendments were adopted.
Collier County is a political subdivision of the State of Florida. Section 7.11, Florida Statutes. The County is the local government that adopted the comprehensive plan amendment that is the subject of this proceeding.
The Department is the state land planning agency and has the authority to administer and enforce the Local
Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes.
Buckley is the owner of the approximately 23-acre parcel (Buckley site or parcel) that is the subject of the challenged comprehensive plan amendments. (This parcel consists of two contiguous tracts.) The location of this site and surrounding development are discussed herein. See Findings of Fact 34-45. Buckley submitted comments to Collier County regarding the disputed comprehensive plan amendments between the time they were transmitted to the Department for the issuance of an Objections, Recommendations, and Comments Report, and the time the County adopted the Amendments.
The Amendments
In April 2001, Buckley submitted to Collier County an "Application for a Request to Amend the Collier County Growth Management Plan." This Application requested two types of amendments to the Collier County Growth Management Plan (collectively "Buckley Amendments"). The first of the requested amendments would add to the text of the FLUE a section for the "Buckley Mixed Use Subdistrict" (Buckley Text Amendment), within the "Urban Mixed-Use District." This Subdistrict is a new land use category that would allow for "limited small-scale retail, office and residential uses while requiring that the project result in a true mixed-use
development." This Subdistrict is added as a separate Subdistrict within the "Urban-Mixed Use District" in the FLUE.
The second requested amendment would redesignate approximately 23 acres from "Urban-Mixed Use District/Urban Residential Subdistrict" to "Buckley Mixed Use Subdistrict" on the Collier County FLUM (Buckley Map Amendment). (The "Urban Residential Subdistrict" is also within the "Urban Mixed Use District.")
Under the current land use designation and without the Buckley Amendments, three dwelling units per acre may be permitted on the Buckley site. (The site has a base density of four dwelling units per acre, reduced by one because the site is located within the Traffic Congestion Area.) In addition, the site could be eligible for an additional eight dwelling units per acre under the Affordable Housing provision of the Density Rating System, more fully discussed herein at Findings of Fact 21-27. The Buckley site is currently zoned Agricultural and being utilized as a commercial plant nursery.
The purpose and description of the Buckley Amendments is as follows:
The intent of this amendment is to develop a small-scale mixed use development that encourages the principals [sic] of Traditional Neighborhood Districts at a small scale developing residential, retail and office on one site. The amendment establishes a mixed use, site specific subdistrict that creates a pedestrian
friendly environment for small size retail and office uses with a residential component developed on one site. The amendment proposes to cap retail uses at 3250 square feet per acre and office uses at 4250 square feet per acre while ensuring mixed use development by requiring that a minimum of [40%] of the commercial [square footage] have a residential component within the same building. A minimum of 25% of the maximum residential density would have to be constructed prior to the development of 40,000 square feet of commercial space (86 dwelling units at 15 units per acre density). The entire site is
22.84 acres. If built out to maximum
capacity the project site could be developed with 74,230 square feet of retail; 97,070 square feet of office; and
343 residential units.
The proposed amendment permits C-1, C-2 and C-3 [commercial] uses, limits drive-thru establishments to banks with no more than 3 lanes and does not allow gasoline service stations. The proposed project also provides for architectural design standards beyond the County's current standards. All four sides of the building must be finished in a common architectural theme. Primary access to the buildings will be from the interior of the site and buildings fronting Airport Road will provide a secondary access facing the street.
Additionally, pedestrian connections are encouraged to all perimeter properties; no building footprint will exceed 15,000 square feet; a 20-foot wide Type D landscape buffer is required along Airport-Pulling Road and a 20-foot wide Type C landscape buffer is required along all other perimeter property lines. Parking areas must be screened from Airport-
Pulling Road and from any properties adjacent to the Buckley Subdistrict.
Currently, the County's FLUE provides that "[t]he URBAN Future Land Use Designation shall include Future Land Use Districts and Subdistricts" for ten subdistricts within the "Urban-Mixed District. The Buckley Mixed Use Subdistrict is added to this list. Another text change recognizes that commercial uses would now be authorized, subject to the criteria identified in the Urban-Mixed Use District, in the Buckley Mixed Use Subdistrict.
The FLUE text also provides that "[t]he Mixed-Use Activity Center concept is designed to concentrate almost all new commercial zoning in locations where traffic impacts can readily be accommodated, to avoid strip and disorganized patterns of commercial development, and to create focal points within the community." The text change allows "some commercial development" outside the Mixed Use Activity Centers in the Buckley Mixed Use Subdistrict.
The Density Rating System (System) under the FLUE is amended to provide that "[t]he Buckley Mixed-Use Subdistrict is subject to the Density Rating System, except for the densities established by this subdistrict for multi-family dwelling units." See Findings of Fact 21-27, for a more detailed analysis of the System.
On April 18, 2002, the Collier County Planning Commission, by a five to two vote, recommended approval of the Buckley Amendments with two changes, i.e., that the Amendments be subject to the Density Rating System, except for density, see Findings of Fact 12 and 22, and that the development on the site be in the form of a Planned Unit Development.
On May 14, 2002, the Collier County Board of County Commissioners adopted the Buckley Amendments by Ordinance No. 02-24. It appears the vote was four to one. Buckley Exhibit 10 at 181.
The Department timely caused to be published on July 9, 2002, in the Naples Daily News, a Notice of Intent to find the Buckley Amendments "in compliance."
On or about July 30, 2002, Emerald Lakes filed a Petition for Administrative Hearing regarding the Department's Notice of Intent. While Emerald Lakes raised numerous grounds on which the Buckley Amendments are alleged to be not "in compliance," Emerald Lakes' counsel represented in his opening statement that the issues had been narrowed to four. These issues, as well as the issues of "internal consistency" raised by Emerald Lakes' expert witness at the final hearing, are addressed below.
Public Notice1
Emerald Lakes offered into evidence a number of notices Collier County published to advertise public meetings regarding the Buckley Amendments. There was no testimony during the final hearing regarding these notices.2 Three of the notices (Emerald Lakes' Exhibits 2a-2c) offer a map of what purports to be Collier County. With the aid of a magnifying glass, Airport (Pulling) Road, Pine Ridge Road, and
U.S. Highway 41 (Tamiami Trail) are identified. It does not appear that the Buckley site is identified on the maps nor specifically mentioned in the notices, although the Buckley Amendments were approved in Ordinance No. 02-24 with other plan amendments.
Emerald Lakes became aware of the Buckley Amendments in April 2002, and thereafter took an active role regarding this matter.
Forest Wainscott, Emerald Lakes' vice-president, attended the hearing at which the Collier County Board of County Commissioners adopted the Buckley Amendments (Ordinance No. 02-24), and voiced to the Commissioners Emerald Lakes' concerns about the Buckley Amendments. After hearing these concerns, the Commission voted to adopt the Buckley Amendments.
Emerald Lakes did not prove any prejudice arising from the lack of the placement of the Buckley site on the notice maps.
Density Rating System
The Collier County Comprehensive Plan's FLUE contains a Density Rating System. The System "is only applicable to areas designated Urban [or] Urban–Mixed Use District" and "only applies to residential units." For these lands, the System establishes a general base density of four dwelling units per acre. The System specifies how the base level of density may be adjusted. There are six criteria which allow consideration of an increase in density and one criterion which may be considered to adjust the density downward. For example, if a project is within the Traffic Congestion Area, as Buckley is, 1 dwelling unit per acre would be subtracted. Here, the Buckley has a base density of four dwelling units per acre and would have a net density of three units per acre. See Finding of Fact 7.
The text amendments to the FLUE provide that the Buckley Subdistrict is subject to the System, "except for the densities established by this subdistrict for multi-family dwelling units."
As noted, the System allows the base density to be decreased to an unspecified low, and increased to 16 units per
acre, with an even greater potential if a "transfer of development rights" is employed.
The Buckley Map Amendment would change the designation of the subject parcel from "Urban Residential Subdistrict" to "Buckley Mixed Use Subdistrict," and assign a maximum density of 15 dwelling units per acre to the parcel. By the text change noted in Finding of Fact 22, the "densities" for the parcel would no longer qualify for the System. The increased density is not achieved by an application of the System, but is a result of the Buckley Amendments.
Emerald Lakes argued that the parcel does not qualify for a density increase under the System, and, therefore, should not have been eligible for an increase under a separate comprehensive plan amendment. Stated otherwise, to the extent the Amendments authorize a maximum residential density of 15 units per acre, the Amendments are inconsistent with the System, and hence the Plan. This argument assumes that the System establishes the sole manner in which a parcel designated "Urban–Mixed Use" in Collier County may enjoy increased density, and also that these parcels are not eligible for FLUM amendments.
Neither the Collier County Comprehensive Plan nor pertinent State law contains these blanket restrictions. A
parcel designated "Urban–Mixed Use" is not prohibited from seeking a comprehensive plan amendment that would increase allowable density. Such an amendment, just as all comprehensive plan amendments, would have to be internally consistent with the Collier County Comprehensive Plan, would have to be supported by data and analysis, and would have to comply with the other applicable requirements in order to be "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes.
In sum, there is no requirement for the Buckley Amendments to demonstrate compliance with the Density Rating System or prove a special justification for seeking a density increase in light of the System.
Need
The term "need" as used in growth management refers to the amount of land required to accommodate anticipated growth. Section 163.3177(6)(a), Florida Statutes. Local governments are required to analyze by acreage how much land within each land use category3 they need to accommodate projected growth through the planning timeframe, and then base their comprehensive plan on this estimate. Rule 9J- 5.006(2)(c), Florida Administrative Code.
Collier County addressed the "need" issue for the Buckley Amendments in an October 8, 2001, staff memorandum to
the Collier County Planning Commission. This memorandum notes that there is an excess allocation of approximately 298 acres of commercially zoned land in the "North Naples Planning Community."4 There is no competent record evidence to contradict this conclusion about the numerical allocation of commercial.
There is, however, competent evidence that tempers the importance to be assigned to this numerical allocation. With its plan amendment application as revised and updated, Buckley provided Collier County with a discussion of a study prepared by Appraisal Research Corporation of Naples which, as characterized by the applicant, stated in part:
While the areas east [sic] and South Naples have and [sic] excess of retail space available, the balance of the unincorporated portion of the county shows a vacancy rate of less than 3%, well below the state and national averages. The area of North Naples, which is the subject of this amendment, has an incredibly low vacancy rate in local centers of 1.18%.
While additional commercial space is being constructed countywide, it is of the same power type centers that continues to keep small retailers and service related businesses paying power center prices that cost as much as $26.50 per square feet.
Barbershops, salons, dry cleaners and the like are forced to absorb these high-priced rents with little of [sic] options.
According to the report, the demand for retail space is strong even considering existing and future construction of new centers.
Further, the staff memorandum provides a "commercial demand analysis" which concluded:
While, based on the 1998 Commercial Inventory, there is sufficient commercial acreage in the North Naples Planning Community to exceed the County's projected demand up to the year 2005, this project would be one of the first of its kind to be developed in the County. A mix of uses to include a substantial residential component could set an example for development and redevelopment of this type, at a smaller scale, that provides opportunities for residents to live, work and shop within the same development and limit, to some degree, the impact on the existing roadway system.
In light of the conditions of development contained in the Buckley Text Amendment, the subject parcel will serve this need. (Some of the conditions have been discussed. See Findings of Fact 8-9.)
In or around May 2001, the Board of County Commissioners of Collier County adopted, by resolution, "The Community Character Plan for Collier County, Florida." This Plan made recommendations and, in part, "encouraged a mixed- use development." According to Amy Taylor, A.I.C.P, currently a long-range planner with the Collier County public school system, and formerly employed by the Collier County Planning Services Department for over six years and who reviewed the Buckley Amendments in this capacity, the County's mixed-use activity centers were not working because "they were not truly mixed-use. They were high-intensity, large-scale retail
limited-office, in--in large centers, and because they were not mixed-use in--in terms of having a residential development, they were not functioning as--they had been intended." The Buckley Amendments propose a different use than the existing mixed-use activity centers and the type of development which has occurred. In fact, the Buckley Subdistrict is not a mixed-use activity center because it does not rise to the level of intensity and size of these centers.
Also, unlike the mixed-use activity centers in Collier County, the Buckley Subdistrict involves a residential component.
The County Commissioners directed staff to develop comprehensive plan amendments to implement the Community Character Plan. As a private plan amendment request, Ms. Taylor reviewed the Buckley Amendments and determined that they were consistent with the objectives and recommendations in the Community Character Plan, in part, because the Amendments "provide an opportunity also for internal capture and pedestrian interconnectivity."
There is no persuasive evidence that would support a finding that any numerical over-allocation of commercial will exacerbate urban sprawl in the North Naples Planning Community or Collier County in general.
Compatibility
Emerald Lakes also contended that the Buckley Amendments will allow development that is incompatible with the adjacent Emerald Lakes of Naples development in violation of State law and Objective 5 and Policy 5.4 of the Collier County Comprehensive Plan's Future Land Use Element.5 Contrary to this contention, the limited type of mixed-use development mandated by the Buckley Amendments is consistent with surrounding uses, is compatible with Emerald Lakes, and is at least the subject of fair debate.6
The Buckley site proposed for re-designation is approximately 23 acres and located west and adjacent to Airport-Pulling Road, and specifically at approximately the northwest corner of Orange Blossom Drive and Airport Pulling Road, and south of the intersection of Airport Pulling Road and Vanderbilt Beach Road, which approximates the northern boundary. The Buckley site is currently operated as a commercial plant nursery.
The Airport-Pulling Road corridor between Pine Ridge Road and Vanderbilt Road is anchored by two Activity Centers, one with approximately 143 acres permitted for 910,000 square feet of commercial and 450 hotel rooms, and the other with
347.50 acres permitted for 1,556,000 square feet of
commercial. (Activity Centers allow up to 11 dwelling units per acre, but only on separate tracts for commercial.)
The Naples Walk Shopping Center, which is part of the Vineyards development of regional impact, is located on the northeast corner of Airport-Pulling Road and Vanderbilt Beach Road. Lakeside of Naples, a residential community, is across Airport-Pulling Road from the Buckley site.
Orange Blossom Mixed Use Subdistrict (Orange Blossom) is located south of Lakeside of Naples, also on the east side of Airport-Pulling Road. County staff analyzed Orange Blossom. The Buckley Subdistrict "is similar to and patterned after" Orange Blossom. Orange Blossom is 14.43 acres and 8.41 acres less than the Buckley site, "but allows 1860 more square feet of commercial than does that proposed for the Buckley Mixed Use Subdistrict at 22.84 acres," i.e., 173,160 versus 171,300 total maximum commercial square feet. Orange Blossom allows four dwelling units per acre versus 15 dwelling units per acre for the Buckley site. However, as noted by County staff, "[r]esidential density is higher for [Buckley] and, as proposed and designed, the commercial located on the [Buckley] site would more likely capture a significantly higher proportion of its business from residents on site than if the density was lower."
In relative proximity to the Buckley site are commercial developments such as the Ritz-Carlton Golf Lodge, the Tiberon Golf Club, an Eckerd Drug Store, a Walgreens Drug Store, a "Picture Warehouse" under construction, and offices known as "The Galleria Shops." Claire Goff testified that Emerald Lakes is "[a]lmost totally surrounded by" commercial development and that existing adjacent commercial development is compatible with the Emerald Lakes development.
To the immediate east of the Buckley site is Airport-Pulling Road, which is currently being widened to six
lanes and runs north/south. To the south of the parcel is the recently-completed North Regional Collier County Public Library. To the immediate north of the parcel is the Brighton Gardens Assisted Living Facility, located on five acres, with a density of approximately 22 dwelling units per acre.
The Emerald Lakes of Naples development, including single-family homes, lies to the immediate west of the Buckley parcel and are located around an approximately 47-acre lake. The multi-family component of this development lies to the north and surrounds a smaller lake, approximately 15 acres. Marker Lake Villas, a residential project, is located to the north. Venetian Plaza, a 90,000 square foot office community, is under construction and located immediately east of Marker Lake Villas and abuts the northern boundary of Emerald Lakes.
Overall, that portion of Emerald Lakes that immediately adjoins the subject parcel on the west, consists of a gross density of approximately three and one-half dwelling units per acre.
Emerald Lakes alleged that the 15 dwelling units per acre and the commercial and office development allowed under the Buckley Amendments are not compatible with these adjacent homes. This allegation is not supported in the record.
As noted, Emerald Lakes is not exclusively single- family. To the north of the above-mentioned single-family homes within Emerald Lakes are multi-family condominiums. See Finding of Fact 41. These multi-family units surround a smaller lake. When this lake area is included with land actually developed with the condominiums, the gross residential density is approximately five units per acre. However, if the lake area is excluded and net residential density is calculated only on the land on which the condominiums are developed, this multi-family component of Emerald Lakes is approximately 15 dwelling units per acre. This multi-family portion of Emerald Lakes is within 100 feet of the single-family homes.
The single-family homes surrounding the larger lake within Emerald Lakes are separated from the Buckley parcel by setbacks, a road, and a 20-foot required buffer, such that the
distance from these homes to development on the Buckley parcel will range from approximately 85 feet to 125 feet from the property line.
Based on these factors, the development allowed by the Buckley Amendments would be compatible with surrounding land uses and development, including Emerald Lakes. It is at least the subject of fair debate.
Internal Consistency
Emerald Lakes further alleged that the Buckley Amendments are internally inconsistent with various provisions of the Collier County Comprehensive Plan. Each provision is addressed below. Additionally, several consistency issues are discussed in previous findings relating to the System and compatibility.
Policy 5.5 of the Collier County Comprehensive Plan's FLUE directs that the County shall "[e]ncourage the use of existing land zoned for urban intensity uses before permitting development of other areas." Emerald Lakes contended that the Buckley Amendments are inconsistent with this Policy because they are allegedly increasing the "inventory . . . of commercial square footage" before other areas are fully developed.
However, the second sentence of Policy 5.5 provides: "This [encouraging the use of existing urban zoned land]
shall occur by planning for the expansion of County owned and operated public facilities and services to existing zoned land before servicing other areas." Emerald Lakes offered no evidence that the Buckley Amendments required the County to provide unplanned services to inappropriately zoned or rezoned land.
The record evidence persuasively demonstrates that the impacts of potential development under the Buckley Amendments (and without regard to actual site plans which are not the subject of this proceeding) are within the planned and adopted levels of service for all publicly owned and operated facilities and services, including but not limited to, traffic. (With the six-laning of Airport-Pulling Road, a level of service of C is reasonably expected.)
Policy 5.7 provides that the County shall "[e]ncourage the recognition of identifiable communities within the urbanized area of western Collier County." This Policy further provides that the "[p]resentation of economic and demographic data shall be based on Planning Communities and commonly recognized neighborhoods."
Emerald Lakes contended that the Buckley Amendments are inconsistent with this Policy because there was an insufficient submission of economic and demographic data.
To the contrary, the Buckley Amendments are supported with extensive data regarding the North Naples Planning Community. Emerald Lakes did not present any persuasive data to prove otherwise.
Emerald Lakes further asserted that the Buckley Amendments are inconsistent with the County Plan's criteria which govern the location of "Mixed Use Activity Centers."
The plain language of the Buckley Amendments, as buttressed by the testimony of Collier County's comprehensive plan manager, William Litsinger, A.I.C.P., demonstrated that the Amendments do not seek a "Mixed Use Activity Center" designation and the criteria for that designation are, accordingly, inapplicable.
See Finding of Fact 31.
Emerald Lakes also strongly suggests that if Orange Blossom can operate as a mixed use subdistrict with a maximum of four dwelling units per acre and with a mix of commercial, so can Buckley and, therefore, there is no justification from departing from the Density Rating System and authorizing plan amendments which propose development similar to the Buckley Amendments.
The County was presented with data and analysis which discussed various scenarios and configurations of mixed use development.
As noted above, some of the similarities and distinguishing features of Orange Blossom were considered. See Finding of Fact 38.
As part of their "findings and conclusions," County planning staff noted in a memorandum (see Finding of Fact 29) to the Collier County Planning Commission: "Opportunities with adjacent residential will be one of the major difficulties of new small-scale mixed use development in Collier County. The potential for increased internal capture by allowing higher densities on site will partially mitigate this issue. Market conditions and/or increased traffic congestion on major roadways may provide incentives for existing neighborhoods to seek interconnections in the future." As further noted by County staff: "This project would be one of the first of its kind to be developed in the County. A mix of uses to include a substantial residential component could set an example for development and redevelopment of this type, at a smaller scale, that provides opportunities for residents to live, work and shop within the same development and limit, to some degree, the impact on the existing roadway."
Whether the Buckley Amendments are consistent with
the County’s Comprehensive Plan is at least fairly debatable.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding. Sections 120.569, 120.57(1), and 163.3184(9)(a), Florida Statutes.
The Parties
The Department is the state land planning agency and has authority to administer and enforce the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes.
Among the responsibilities of the Department under the Act is the duty to review plan amendments submitted by local governments and to determine if the plan amendments are in compliance with the Act.
Emerald Lakes and Buckley are "affected person[s]" within the definition set forth in Section 163.3184(1)(a), Florida Statutes, and have standing in this proceeding. Burden of Proof
Section 163.3184(9)(a), Florida Statutes, imposes the burden of proof on the person challenging a large scale plan amendment that has been determined by the Department to be "in compliance."
"In compliance" means consistent with the requirements of Sections 163.3177, 163.3178, 163.3180, and 163.3191, Florida Statutes, the State Comprehensive Plan, the Regional Policy Plan, and Rule 9J-5, Florida Administrative Code. Section 163.3184(1)(a), Florida Statutes.
Because the Department issued a Notice of Intent to find the Buckley Amendments "in compliance," the Amendments shall be determined to be "in compliance" if the local government's determination of compliance is "fairly debatable" as set forth in Section 163.3184(9)(a), Florida Statutes. Emerald Lakes bears the burden of demonstrating beyond fair debate that the Buckley Amendments are not "in compliance."
The phrase "fairly debatable" is not defined in Chapter 163, Florida Statutes, or Rule 9J-5, Florida Administrative Code. The Supreme Court of Florida has opined, however, that the fairly debatable standard under Chapter 163 is the same as the common law "fairly debatable" standard applicable to decisions of local governments acting in a legislative capacity. In Martin County v. Yusem, 690 So. 2d 1288, 1295 (Fla. 1997), the Court opined: "The fairly debatable standard of review is a highly deferential standard requiring approval of a planning action if reasonable persons could differ as to its propriety." Quoting from City of Miami Beach v. Lachman, 71 So. 2d 148, 152 (Fla. 1953), the Court
stated further: "An 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." 690 So. 2d at 1295.
Public Notice
Emerald Lakes alleged that the County failed to give proper public notice of the Buckley Amendments in violation of Section 163.3184(15)(c), Florida Statutes (2001), and that the Amendments should be deemed to be not "in compliance" on this basis. See Endnote 1.
The definition of "in compliance" has been exclusively defined by the Legislature. See Section 163.3184(1)(b), Florida Statutes. The provision upon which Emerald Lakes' argument rests -– Section 163.3184(15)(c) –- is not in this definition. Thus, the Department would seem to lack any authority to enter a final order determining the Buckley Amendments are not "in compliance" on this basis.
The underpinning for consideration of several public participation/notice issues in prior compliance proceedings seems to have hinged on repealed rules, Rule 9J-5.005(8)(a)- (i). For example, Rule 9J-5.005(8)(c) formerly stated in relevant part: "The comprehensive plan, element or amendment shall be considered and adopted in accordance with the
procedures relating to public participation adopted by the governing body and the local planning agency pursuant to Section 163.3181, Florida Statutes, and Rule 9J-5.004 of this chapter." Also, former Rule 9J-5.005(8)(e) provided in relevant part: "The comprehensive plan, elements and amendments shall be adopted by ordinance and only after the public hearings required by Paragraph 163.3184(15)(b), Florida Statutes, have been conducted after the notices required by Paragraphs 163.3184(15)(b) and (c), Florida Statutes. Upon adoption the local government shall transmit to the Department a copy of the ordinance and the required notices." However, these subsections were repealed in 2001. See Volume 26, Number 42, Oct. 20, 2000, at 4838, Florida Administrative
Weekly; Volume 27, Number 8, Feb. 23, 2001, at 975, Florida Administrative Weekly. These subsections were relied on in pre-2001 orders as the legal predicates for consideration of several public participation/notice issues in compliance cases because consistency with Rule 9J-5 is required. See, e.g., Robert J. Starr et al., v. Department of Community Affairs, et al., Case Nos. 98-0449GM, 98-0701GM, 98-0702GM, and 98-1634GM, 2000 WL 248379, * 49 (DOAH Feb. 11, 2000; DCA May 16, 2000);
Minette Benson, et al. v. City of Miami Beach, et al., Case No. 89-6804GM, 1990 WL 749702, * 2 (DOAH Sept. 24, 1990; DCA
Nov. 12, 1990), rev'd, 591 So. 2d 942 (Fla. 3d DCA 1991).
Arguments regarding public participation/notice matters have been considered in comprehensive plan administrative proceedings seemingly for the reason stated above. These cases have held that a procedural shortcoming may be the basis for finding a comprehensive plan amendment not "in compliance" only if the protesting party shows both a procedural flaw and resulting prejudice. See Sutterfield, et al., v. Department of Community Affairs, et al., Case No. 02- 1630GM, 2002 WL 31125197, * 19-20 (DOAH Sept. 16, 2002, at 44- 47; DCA Nov. 14, 2002), and cases cited therein. But see Benson v. City of Miami Beach, Department of Community Affairs, 591 So. 2d 942 (Fla. 3d DCA 1991)(no consideration of prejudice in opinion where published notice of public hearing did not meet statutory requirement for county-wide notice).
Assuming for the sake of argument that the notice issue can be decided at this time, which is doubtful, the location maps in the public notices do not clearly indicate the Buckley site. Notwithstanding, Emerald Lakes did not prove any resulting prejudice. Accordingly, Emerald Lakes did not prove beyond fair debate that the County's adoption of the Buckley Amendments was not "in compliance."
Density Rating System
Section 163.3177(2), Florida Statutes, requires that the several elements of a local government comprehensive plan be consistent.
For the reasons set forth above in Findings of Fact 21-27, Emerald Lakes did not prove beyond fair debate that the Amendments are internally inconsistent with the Density Rating System.
Need
Section 163.3177(6)(a), Florida Statutes, requires that a local government allocate land uses within its comprehensive plan based upon anticipated growth.
Based on the land uses currently allocated in the Collier County Comprehensive Plan and data regarding anticipated growth, County staff concluded that the North Naples Planning Community -– which includes the subject parcel
-– is numerically over-allocated for commercial by approximately 298 acres. See Finding of Fact 29. There being no competent evidence to refute this conclusion, it is accepted.
A numerical land use over-allocation does not mandate that every future plan amendment be found not "in compliance" on that basis. See The Sierra Club, et al. v. St. Johns County, et al., Case Nos. 01-1851GM and 01-1852GM, 2002
WL 1592234 (DOAH May 20, 2002; DCA July 30, 2002). If a
jurisdiction is over-allocated for a particular land use, the local government in its adoption and the Department in its review must exercise heightened caution and employ a more rigorous standard to ensure that further plan amendments that would expand the inventory of that use do not exacerbate urban sprawl or other inefficient land use patterns. Id.
Accepting that the subject parcel is in an area with a numerical over-allocation of commercial land use7 and applying this more exacting review, the record does not support the conclusion that the Buckley Amendments exacerbate urban sprawl or otherwise promote an inefficient use of land.
The location of the subject parcel and the development restrictions within the Buckley Text Amendment should ensure the opposite; that is, the efficient use of land in a manner that combats urban sprawl.
For these reasons, Emerald Lakes did not prove beyond fair debate that the Buckley Amendments are not "in compliance."
Compatibility
Emerald Lakes alleged that the Buckley Amendments will allow development that is incompatible with Emerald Lakes. In this proceeding, "'[c]ompatibility' means a condition in which land uses or conditions can coexist in
relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition." Rule 9J- 5.003(23), Florida Administrative Code.
For the reasons set forth above in Findings of Fact 34-45, Emerald Lakes did not prove beyond fair debate that the Buckley Amendments are incompatible with adjacent and surrounding land uses. Compare with Sutterfield, supra.8 Internal Consistency
Section 163.3177(2), Florida Statutes, requires that the several elements of a local government comprehensive plan be consistent. See also Rule 9J-5.005(5), Florida Administrative Code.
For the reasons set forth above in Findings of Fact 46-58, Emerald Lakes did not prove beyond fair debate that the Buckley Amendments are inconsistent with the cited provisions of the Collier County Comprehensive Plan.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that a final order be issued concluding that the Buckley Amendments adopted by Collier County in Ordinance No. 02-24 are "in compliance" as defined in Chapter 163, Part II, Florida Statutes, and the rules promulgated thereunder.
DONE AND ENTERED this 10th day of February, 2003, in Tallahassee, Leon County, Florida.
___________________________________ CHARLES A. STAMPELOS
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 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 2003.
ENDNOTES
1/ Emerald Lakes' Petition did not allege specific facts to indicate that notice was deficient. However, Emerald Lakes cited to Section 163.3184(15)(c), Florida Statutes (2001), "which requires special public hearing requirements for the adoption of the plan amendment" at issue in this proceeding. (This subsection now appears as Section 163.3184(15)(e), Florida Statutes (2002).) Emerald Lakes also cited generically to Chapter 9J-5.
In the Prehearing Stipulation, Emerald Lakes suggested that an issue of law which remained for determination was "[w]hether the Amendment is consistent with Section 163.3184(1)(b) & (15)(c), Florida Statutes." In response, the other parties suggested this issue was irrelevant. During the final hearing, counsel for Emerald Lakes suggested that the issue of notice was sufficiently raised in the Petition as noted above. Emerald Lakes also claimed during the final hearing that the County did not comply with the special procedures set forth in Section 125.66, Florida Statutes, because the notices did not reference the specific area covered by the Plan Amendments in a map contained in the notices. See Section 163.3184(15)(c), Florida Statutes (2001); Section 125.66(4)(b)2., Florida Statutes. Later during argument, counsel said he would not be addressing "much of 125.66" during the hearing. Counsel also relied on Rule
9J-5.004, Florida Administrative Code, which requires the adoption of procedures "to provide for and encourage public
participation." The Department made an ore tenus motion to exclude any evidence regarding notice, and ruling was deferred. The motion to exclude is denied. The issue has been considered herein.
2/ However, during the May 14, 2002, adoption hearing before the Collier County Commission, Mr. Weeks stated in part: "The notice requirements for amendments is a quarter-page legal ad in the paper, so certainly the individual residents in the surrounding area have not been notified by the county. It's not a requirement. Thank you." Buckley Exhibit 10 at 175.
3/ Land use categories include "residential uses, commercial uses, industry, agriculture, recreation, conservation, education, public buildings and grounds, other public facilities, and other categories of the public and private use of land." Section 163.3177(6)(a), Florida Statutes.
4/ State law allows local governments to employ "area-based allocations" in lieu of strict jurisdiction-wide allocations for purposes of calculating land use needs. Section 163.3177(11)(b), Florida Statutes.
5/ Objective 5 mandates that "[i]n order to promote sound planning, ensure compatibility of land uses and further the implementation of the Future Land Use Element, the following general land use policies shall be implemented upon the adoption of the Growth Management Plan." Policy 5.4 provides that "[n]ew developments shall be compatible with, and complementary to, the surrounding land uses, subject to meeting the compatibility criteria of the Land Development Code (Ordinance 91-102, adopted October 30, 1991, as amended[)]."
6/ Donald Wayne Arnold, A.I.C.P., performed a compatibility analysis for the Buckley Subdistrict.
7/ There is reason to doubt whether the Buckley Amendments will appreciably exacerbate the projected excess inventory of land designated for commercial use. Lot coverage for the buildings on the site is capped at thirty-five percent (35%) for the total project, which substantially limits the amount of commercial use that can be realized on the subject acreage.
Additionally, the Buckley Subdistrict allows fifteen residential dwelling units per acre, which will consume some undetermined portion of the project site with a non-commercial use.
8/ Emerald Lakes also contended that the County's action approval of the Buckley Amendments is spot zoning. However, this is not a zoning case, and the issue is not decided. See Town of Juno Beach v. McLeod, 832 So. 2d 864 (Fla. 4th DCA 2002), for a discussion of spot zoning in relation to a zoning case.
COPIES FURNISHED:
David W. Rynders, Esquire
2375 9th Street, North, Suite 308
Naples, Florida 34103-4439
Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
Jennifer Belpedio, Esquire Assistant County Attorney
3301 East Tamiami Trail, Eighth Floor Naples, Florida 34112
Richard D. Yovanovich, Esquire Goodlette, Coleman & Johnson, P.A. 4001 Tamiami Trail North, Suite 300
Naples, Florida 34103
Colleen M. Castille, Secretary Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 100
Tallahassee, Florida 32399-2100
Cari L. Roth, General Counsel Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 325
Tallahassee, Florida 32399-2100
NOTICE OF RIGHT TO FILE EXCEPTIONS
All parties have the right to submit written exception 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.
| Issue Date | Document | Summary |
|---|---|---|
| May 08, 2003 | Agency Final Order | |
| Feb. 10, 2003 | Recommended Order | Petitioner did not prove that Collier County approval of plan amendment which created new subdistrict for a 23-acre parcel was not subject to fair debate. |
