STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BREVARD COUNTY, )
)
Petitioner, )
)
vs. )
) CITY OF COCOA, FLORIDA and ) DEPARTMENT OF COMMUNITY )
AFFAIRS, )
)
Respondents, )
)
and )
) FLORIDA SPACE NEEDLE, LLC, and ) HAGEN-NICHOLSON, LLC, )
)
Intervenors. )
Case No. 05-1220GM
)
PAUL R. HUNTER, KELLY M. ) HUNTER, GEORGE L. KELLGREN, and ) RUBI KELLGREN, )
)
Petitioners, )
)
vs. )
) CITY OF COCOA, FLORIDA and ) DEPARTMENT OF COMMUNITY )
AFFAIRS, )
)
Respondents, )
)
and )
) FLORIDA SPACE NEEDLE, LLC, and ) HAGEN-NICHOLSON, LLC, )
)
Intervenors. )
Case No. 05-1221GM
)
RECOMMENDED ORDER
Pursuant to notice, the final hearing in the above-styled case was held on August 16-18, 2005, and December 13, 2005, in the City of Cocoa, Florida, before Charles A. Stampelos, Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner Brevard County:
C. Morris Richardson, Esquire Eden Bentley, Esquire
2725 Judge Fran Jamieson Way Viera, Florida 32940
For Petitioners Paul Hunter, Kelly Hunter, George L. Kellgren, and Rubi Kellgren:
Michael Wm. Morrell, Esquire Post Office Box 18649
West Palm Beach, Florida 33416-8649 For Respondent City of Cocoa:
Debra S. Babb-Nutcher, Esquire Andrew M. Fisher, Esquire
Brown, Garganese, Weiss & D'Agresta, P.A. Post Office Box 2873
Orlando, Florida 32802
For Respondent Department of Community Affairs:
Leslie E. Bryson, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
For Intervenor Florida Space Needle, LLC:
Thomas A. Cloud, Esquire Heather M. Blom-Ramos, Esquire GrayRobinson, P.A.
301 East Pine Street, Suite 1400 Orlando, Florida 32801
For Intervenor Hagen-Nicholson Properties, LLC:
Michael D. Jones, Esquire
Michael D. Jones & Associates, P.A. Post Office Box 196130
Winter Springs, Florida 32719-6130
STATEMENT OF THE ISSUE
Whether the Large Scale Comprehensive Plan Map and Text Amendment No. 04-2 (Plan Amendment) to the City of Cocoa's (City) Comprehensive Plan (Plan), adopted by Ordinance No. 39- 2004, is "in compliance" as that term is defined in Section 163.3184(1)(b), Florida Statutes.1
PRELIMINARY STATEMENT
On August 24, 2004, the City of Cocoa Council (Council) conducted a transmittal hearing regarding the proposed plan amendment.2
On December 14, 2004, the City adopted Ordinance No. 39- 2004, which amended the Plan by establishing a new future land use category, "very low density residential" (VLDR), and amended the City's Future Land Use Map (FLUM) to apply this category to approximately 605.16 acres of land (the subject property).
On February 3, 2005, the Department of Community Affairs (DCA) published a Notice of Intent (NOI) to find the City's Plan Amendment adopted by Ordinance No. 39-2004 "in compliance."
On March 17, 2005, Brevard County (County) timely filed a First Amended Petition for Formal Administrative Hearing regarding the DCA's NOI. On March 22, 2005, Paul R. Hunter, Kelly M. Hunter, George L. Kellgren, and Rubi Kellgren (Hunters and Kellgrens) timely filed a First Amended Petition for Formal Administrative Hearing regarding the DCA's NOI. Both amended petitions were forwarded to the Division of Administrative Hearings (Division) and were consolidated.
Florida Space Needle, LLC (FSN) and Hagen-Nicholson Properties, LLC (Hagen-Nicholson) were granted leave to intervene on the side of the City and the DCA.
On August 12, 2005, the parties filed a Joint Pre-Hearing Stipulation.
The parties stipulated that the County, the Hunters, and the Kellgrens are "affected persons" under Section 163.3184(1)(a), Florida Statutes, and have standing to participate as parties in this proceeding.
At the outset of the final hearing, several preliminary matters were addressed. First, FSN's first request for official recognition filed on August 15, 2005, was granted. Second, the City and FSN's motion to strike the County's expert (Gary
Carlin) and motion in limine to exclude new data and analysis filed on August 12, 2005, was granted as to excluding new data that post-dated the December 14, 2004, date of adoption of the Plan Amendment, and denied as to excluding new analysis and striking the County's expert. Third, the City filed a motion in limine requesting that the County be prohibited (for lack of standing) from presenting argument and evidence regarding lack of public participation. The DCA filed a motion in limine requesting that the County, the Hunters, and the Kellgrens be prohibited from introducing evidence regarding public participation. Ruling was reserved on the standing of the County to raise the public participation issue. The DCA's motion was denied. The parties stipulated that a properly noticed and advertised transmittal hearing took place on August 24, 2004, regarding the proposed plan amendment. The public participation issue was limited to whether the transmittal hearing was the type of transmittal hearing contemplated in Chapter 163, Part II, Florida Statutes. Final Hearing Transcript (T) at T I 56-66; T II 314-327, 391-401.
During the final hearing, Joint Exhibits (JE) numbered 1-7 were admitted into evidence.
The County presented the testimony of Edward J. Williams, an expert in land use planning; Steven M. Swanke, A.I.C.P., County urban planner and an expert in land use planning in
Brevard County; and John P. Denninghoff, P.E., Director of the Brevard County Transportation and Engineering Department and an expert in transportation and engineering in Brevard County.
The Hunters and the Kellgrens presented the testimony of fact witnesses George L. Kellgren, Brian E. Seaman, and Kelly M. Hunter.
Petitioners jointly offered Exhibits (PE) numbered 8F, 14, 17, 20-22, 25, 36, 41-43, and 80-88, which were admitted into evidence. The Hunters and the Kellgrens adopted the testimony of the County's witnesses.
The City presented the testimony of Joan Clark, the City Clerk; John A. Titkanich, Director of the City of Cocoa Community Development Department and an expert in community and economic development, redevelopment, public administration, and land use planning; and William E. Tipton, Sr., an expert in traffic, transportation, and civil engineering. The City offered Exhibits (CE) numbered 2-5, 8, 8A, 10, 13, 16-17, 32-34, and 42-48, which were admitted into evidence.
Intervenor FSN presented the testimony of Gerald S. Langston, Jr., A.I.C.P., an expert in comprehensive planning, land use permitting regulation and development, urban redevelopment, municipal planning, and intergovernmental cooperation and coordination. FSN offered Exhibits (FSNE)
numbered 36-37, 47-55, and 56 (except tabs #18 and #26 in Exhibit 56), which were admitted into evidence.
Intervenor Hagen-Nicholson presented the testimony of James
R. Hall, A.I.C.P., and an expert in land use planning. Hagen- Nicholson offered Exhibits (HNE) numbered 15-17, which were admitted into evidence. During the last day of the final hearing, the parties were advised that Hagen-Nicholson's Exhibit
15 (Intervenor's 15) was missing and that, if discovered, it should be forwarded to the Division. (T V 244-245.) This exhibit has not been filed with the Division and, as a result, is not part of the record of this proceeding.
The DCA presented the testimony of Erin Dorn, Senior Planner with the DCA and an expert in comprehensive planning. The DCA offered Exhibits (DCAE) numbered 2, 5, and 6, which were admitted into evidence.
Respondents and Intervenors adopted the testimony and evidence of their co-parties.
Citizen Jennifer Therrin requested and was permitted to make a statement on the record regarding the Plan Amendment. See § 120.57(1)(b), Fla. Stat.
FSN's post-hearing request for official recognition of the opinion issued in Brevard County v. City of Cocoa and Florida Space Needle, LLC, Case No. 05-2004-AP-059831 (Fla. 18th Cir.
Ct. December 14, 2005) was granted.
Transcript Volumes I-III (T I-III) of the final hearing held on August 16-18, 2005, were filed on March 30, 2006.
Transcript Volumes I and II (designated herein as Volumes IV and V (T IV-V)) of the final hearing held on December 13, 2005, were filed on January 3, 2006.
On May 15, 2006, Petitioners filed a joint request for official recognition. On May 22, 2006, the DCA filed a response opposing the joint request. Official recognition is taken of the documents attached to the joint request. See § 90.202(16), Fla. Stat.
The City and FSN filed a motion requesting the undersigned to retain jurisdiction to award fees and costs in the event they prevailed in this proceeding, but did not file any motions requesting an award of fees and costs. The joint motion was denied.
On May 1, 2006, Respondents and Intervenors filed a joint proposed recommended order and Petitioners filed a joint proposed recommended order. The post-hearing submissions have been considered in the preparation of this Recommended Order.
FINDINGS OF FACT
The Parties and Standing
The Hunters own and reside on property located on Friday Road in the unincorporated area of the County. Their property
abuts on two sides of the northeastern portion of the subject property. FSNE 47 at "H."
The Kellgrens own and reside on property located on the northwest corner of the intersection of Friday and James Road in the unincorporated area of the County, abutting the southeast corner of the south Plan Amendment parcel. FSNE 47 at "KR." The Kellgrens also own and operate two businesses on Cox Road located on property they own which is located within the boundaries of the City. FSNE 47 at "KB."
The County is a political subdivision of the State of Florida.
The City is a municipality located within the County.
The DCA is the state land planning agency charged with responsibility for reviewing comprehensive plans and plan amendments under Chapter 163, Part II, Florida Statutes.
FSN and Hagen-Nicholson are Florida limited liability companies and are the owners of the subject property voluntarily annexed by the City pursuant to Ordinance No. 31-2004 and is subject to the Plan Amendment adopted by Ordinance No. 39-2004.
All Petitioners submitted oral or written comments, recommendations, or objections to the City during the period of time beginning with the transmittal hearing for the Plan Amendment on August 24, 2004, and ending with the adoption of the Plan Amendment on December 14, 2004.
At the final hearing, the parties stipulated that the Petitioners are "affected persons" within the meaning of Section 163.3184(1)(a), Florida Statutes, with standing to participate as parties in this administrative proceeding.3 See Endnote 17. The Challenges
Petitioners allege that the Plan Amendment is not "in compliance" on several grounds: lack of need, urban sprawl, inadequate data and analysis relative to traffic and land use need, violation of the intergovernmental coordination element of the City's Plan, incompatibility, internal inconsistencies, inconsistencies with the Regional and State Plans, and failure to provide for adequate public participation during the transmittal hearing.
The Plan Amendment
Ordinance No. 39-2004 makes two changes to the Plan.
First, the text of the Future Land Use Element (FLUE) of the Plan was amended to establish a new future land use category called "very low density residential areas." 4 Second, the FLUM was amended to change the designated future land use from "Residential 1 and Neighborhood Commercial (County)" to "Very- Low Density Residential (City)." FSNE 52 at Section 5. The Plan Amendment covers approximately 605.16 acres, although the City annexed approximately 766.27 acres, which included "both
real property and rights-of-way." Id. at page 1 of 4; PE 8.f. at page 3 of 18. See also DCAE 2.
The Subject Property
The subject property consists of a rectangular parcel adjacent to and north of State Road (SR) 528, bounded by Interstate 95 (I-95) on the west; a triangular parcel adjacent to and southeast of the north rectangular parcel and similarly bounded on the south by SR 528; and a second rectangular parcel, due south of the north parcel and adjacent to and south of SR
528 and bounded by I-95 on the west and James Road on the south and a portion of Friday Road on the east. PE 17.
There is no direct access from the subject property to I-95 and SR 528.
The future land uses north of the subject property include Residential 1:2.5 (County); Residential 1 (County) to the south; Residential 1:2.5 (County) to the east of the north parcel; Residential 1 (County) to the east of south parcel; and Planned Industrial Park (County) and Industrial (City) further to the east; and Residential 1:2.5 (County) to the west of I-95.
PE 80. The existing land uses to the north and south are single-family residential and vacant land; to the east, vacant land, heavy and light industrial uses; and to the west, I-95, single-family residential, and vacant land.
Prior to being annexed by the City in August 2004, the subject property was located in the unincorporated portion of the County. The two rectangular portions (approximately 560.95 acres) were designated as "Residential 1" on the County FLUM, allowing one unit per acre. The approximate eastern half of the triangular portion (44.21 of acres) was designated as "Neighborhood Commercial." PE 80. There is an existing borrow pit (approximately 19-20 acres) located on the eastern one-third of the triangular portion. PE 17. Approximately 145.35 acres of wetlands, now designated Conservation, permeate the subject property. PE 8.F., page 4 of 18 and Exhibits 3 and 4; FSNE 52.
There are approximately 459.81 acres (605.16 total acres - 145.35 acres of wetlands) of developable upland on the subject property. See DCAE 2.
The Plan Amendment proposes a maximum development potential of approximately 1,839 dwelling units (459.81 acres X
4 dwelling units).5
There is a conflict in the evidence regarding the potential maximum development of the subject property under the County Plan. The City suggested approximately 2,358 dwelling units. See PE 8.f. at pages 4-6 of 18. The City's analysis yielded a maximum of 701 dwelling units for the portion of the subject property designated as Residential 1 and 1,657 dwelling units (including application of the density bonus) for that
portion of the subject property designated "Neighborhood Commercial." The City assumed there could be 37.5 units per acre (which included a density bonus) developed on the 44.21 acre tract designated "Neighborhood Commercial." Id.
Petitioners suggested a maximum of approximately 817 dwelling units could have been built on the subject property if the subject property were developed with the "density bonus" under the County's Plan. See Petitioners' Joint Proposed Recommended Order at 21, paragraph 25 and n.5.
There is also a conflict in the evidence regarding the potential development of commercial uses (under the County's Plan) on the portion of the triangular parcel designated as "Neighborhood Commercial." Id.
Based upon conflicting evidence, it is resolved that the maximum potential number of dwelling units which could have been developed on the subject property under the County's Plan is overstated. However, this finding does not alter the ultimate findings made herein regarding whether the Plan Amendment is "in compliance."
Need
The "need" question is founded in Section 163.3177(6)(a), Florida Statutes, which requires that "[t]he future land use plan shall be based upon surveys, studies, and data regarding the area, including the amount of land required
to accommodate anticipated growth [and] the projected population of the area . . ." This requirement is repeated in the statute's implementing rule which provides that "[t]he comprehensive plan shall be based on resident and seasonal population estimates and projections." Fla. Admin. Code R. 9J- 5.005(2)(e). Florida Administrative Code Rule 9J-5.006(2)(c) requires "[a]n analysis of the amount of land needed to accommodate the projected population, including: [t]he categories of land use and their densities or intensities of use; [t]he estimated gross acreage needed by category; and [a] description of the methodology used." Also, "need" is one of the factors to be considered in any urban sprawl analysis. See Fla. Admin. Code R. 9J-5.006(5)(g)1.
On December 14, 2004, the City adopted the Plan Amendment and responded to the objections raised in the DCA's Objections, Recommendations, and Comments (ORC) Report.6 During the plan amendment review process, the proposed residential land use density for the subject property was reduced from up to seven dwelling units per acre as originally proposed to "four units per acre with a Planned Unit Development (PUD) bonus of up to five units per acre," and, ultimately as adopted by the City Council, to "[a] maximum density of 4 units per acre." FSNE 52, Exhibit A; T II 631-632.
The City has two needs -- a need for vacant developable land, and a need for middle-income housing. The City differs from many other municipalities in the County because the City's population declined almost 7.4 percent from the period of 1990 to 2000.7 Every city in the County, with the exception of the City of Cocoa and one other city, has experienced population growth.
The City's Director of Community Development testified that the City had become hyper-inelastic -- it had stopped growing, and started shrinking. In response to this problem, the City adopted goals in 2002 which included annexation, housing, and residential development. Because of the goals that had been adopted and implemented, from 2002 to the time of the administrative hearing, the City's population rose approximately
7.25 percent. With the Plan Amendment, the City could capture increasing populations in the surrounding areas.
In the summer of 2003, the City held a housing task force with private developers. The private developers explained that they were not developing in the City because even though there was vacant land, there were environmental constraints on the land. The vacant land consisted of large amounts of wetlands, with some of the wetlands located in flood plains.
In the comprehensive plan adoption package sent to the DCA, the City included a map indicating the vacant land and a
map indicating the extensive wetlands located on the vacant land. (The vacant land analysis identified the amount of land potentially available for development, without stating the specific number of available acres. Based upon the testimony at final hearing, excluding the subject property, there are approximately 223-230 acres of developable land within the City limits.)
Furthermore, the City provided the DCA with population figures based on BEBR. Rule 9J-5 does not provide a specific requirement as to how a local government must demonstrate how much vacant land is located within its boundaries. Rather, Rule 9J-5 permits a local government to demonstrate how much vacant land is located within it boundaries in several ways, i.e., textually, raw data, or graphically. The DCA used the maps submitted by the City as well as the information submitted that the City's population was declining to make a determination that the City had demonstrated a need for the property.
A needs analysis typically consists of an examination of the projected population over the planning time period, the land uses that exist within the local government, the amounts of the land uses, and then a determination of whether the local government has enough land to meet the projected population. However, a quantitative analysis is not the only way to perform
a needs analysis. A city's plan for its future and the way it wants to grow is also considered.
The City's use of population figures based on BEBR estimates and a map which demonstrated the vacant land was professionally acceptable. In other words, by using BEBR estimates and a map, the City did not use a "methodology" without approval by the DCA. If a plan amendment area had been surrounded by vacant land, then the issue of need is more prevalent.
Hagen-Nicholson's planning expert performed a needs analysis. The calculation of the need is done with supply and demand. Supply is land, and demand is population growth. At the time the City began the plan amendment process, the City had approximately 223-230 acres of low-density residential land available. For demand, he determined that over the past three years, there were 113 building permits issued for new homes. The mathematical computation provides for the vacant land to be fully utilized within 5.9 years at an allocation of 1:1.
Using the 1:1 ratio is not necessarily a practical ratio because there may be property that is not on the market for sale. When applying a vacant-land multiplier that is used in Orange County -- 2.4, the City would only have a three-year supply of vacant land. When dealing with a comprehensive plan, there should be a 10- to 20-year supply of land.
The City's housing element provides that the City is required to provide housing for all current residents as well as anticipated future residents. As of 2002, 94 percent of its housing stock was valued at $100,000 or less, and 47 percent was valued at $50,000 or less. Accordingly, the City does not have adequate available middle-income housing and the Plan Amendment may meet this need.
Urban Sprawl
The Petitioners contend that the Plan Amendment constitutes urban sprawl. This contention is primarily based upon the assertion that the Plan Amendment is located in a rural area, and the assertion that the Plan Amendment triggers several of the 13 indicators of urban sprawl in Florida Administrative Code Rule 9J-5.006.
Florida Administrative Code Rule 9J-5.003(111) defines "rural areas" as "low density areas characterized by social, economic and institutional activities which may be largely based on agricultural uses or the extraction of natural resources in unprocessed form, or areas containing large proportions of undeveloped, unimproved, or low density property."
As noted herein, the subject property is vacant and, prior to the adoption of the Plan Amendment, was designated as "Residential 1" (and a portion as "Neighborhood Commercial") under the County's Plan. It is surrounded by developed
residential lands and infrastructure such as water, sewer, and roads. The surrounding areas are not undeveloped or unimproved. The area is a low density, but it is an urban low density, not a rural low density.
FSN's expert planner, Gerald Langston, performed a study of the surrounding land uses in the vicinity of the Plan Amendment site (study area), including the unincorporated area of the County. Although the lands immediately to the north and south of the parcels are designated one unit per 2.5 acres and one unit per one acre, respectively, under the County's Plan, approximately 49 percent of the parcels in the study area are between one and 1.25 acres in size and approximately 30 percent are a little less than an acre. Three percent are over five acres. In other words, approximately 80 percent of the parcels are less than 1.25 acres in size. T III 819-820.
Mr. Langston also studied census data and determined that the demographics of the area are not rural. It is a very rapidly growing area, with an urban development pattern that is basically built-out. (Within the study area, after deducting the 605 acres of the subject property, approximately 21 percent of the acreage is vacant or undeveloped. Stated otherwise, approximately 80 percent is developed. T III 827.)
One of the County's experts, Edward Williams, did a general analysis of the lot sizes in the area. He testified
that the area is rural with lot sizes of one unit per 2.5 acres. He reviewed photographs of the area and pointed out the lack of sidewalks, curbs and gutters, and lack of quarter-acre lots.
However, he did not obtain any census data specific to the Plan Amendment property or to the surrounding area, and could not describe the percent distribution of lot sizes in the surrounding area. He believed that the area is agricultural and rural, but did not analyze the social and economic characteristics of the area surrounding the subject property.8
According to the County's Plan, the subject property is located in an area where the County is planning to provide future water and sewer. Additionally, a map in the County's Plan suggests that the area is actually not suitable for well and septic tanks.
The subject property is within the City's water and sewer area and the City has adequate water and sewer capacity to service the subject property.
The area surrounding the subject property is not rural under Florida Administrative Code Rule 9J-5.003(111), but rather consists of urban low-density residential development.
Rule 9J-5.006(5)(g)1.
Indicator 1 is not implicated. The subject property is surrounded by developed residential land and is not a substantial area of the City. The subject property will have a
single use, but the introduction of another land use or mixed- use development would be incompatible with the surrounding area and not appropriate.
Rule 9J-5.006(5)(g)2.
Indicator 2 is not implicated, as the area is urban, and the Plan Amendment is not leaping over undeveloped lands.
Rule 9J-5.006(5)(g)3.
Indicator 3 is not present. The subject property is an area of vacant land surrounded by developed lands. The subject property is infill development. The Plan Amendment does not promote, allow or designate urban development in radial, strip, isolated or ribbon patterns emanating from existing urban developments.
Rule 9J-5.006(5)(g)4.
Indicator 4 is not present. The subject property is not a rural area with agricultural uses, and the wetlands on site are designated as Conservation and thus are protected. The Plan Amendment is not premature or poorly planned, as the surrounding area is already developed and the property is infill. The subject property is surrounded by infrastructure including water and sewer, and roads. The City has the capacity to provide water and sewer to the site.
Rule 9J-5.006(5)(g)6.
Indicator 6 is not present, as water, sanitary sewer, and reclaimed water lines have already been extended to the area. The Plan Amendment will add customers to facilities that have the capacity to handle them. By increasing the number of users in the system, the operational efficiency is increased. Therefore, the Plan Amendment maximizes the use of existing public facilities and services.
Rule 9J-5.006(5)(g)7.
The Plan Amendment does not fail to maximize the use of future public facilities and services. The facilities that exist in the area were built for future growth, and not connecting to them would be a failure to maximize the public investment that has already been made.
Rule 9J-5.006(5)(g)8.
Extending existing facilities and services to the property covered by the Plan Amendment will increase costs, but not disproportionately so. Water and sewer are close to the subject area, and the roads have capacity. Extending water and sewer at one unit per acre would be more costly and less efficient than for four units per acre. With respect to law enforcement, fire and emergency response services, this indicator is present to some extent.
Rule 9J-5.006(5)(g)9.
Indicator 9 does not apply, as there are no rural or agricultural uses in the area.
Rule 9J-5.006(5)(g)10.
The City has adopted a community redevelopment plan in the downtown neighborhood. The City can promote middle income housing with the Plan Amendment while at the same time pursue redevelopment in the downtown area. The two are not mutually exclusive.
Rule 9J-5.006(5)(g)11.
The Plan Amendment provides for a single residential use and does not encourage an attractive and functional mix of uses. However, putting commercial or industrial uses on the subject property does not make good planning sense as the area is not appropriate for a mix of uses.
In summary, the Plan Amendment does not meet the definition of "urban sprawl." See Fla. Admin. Code R. 9J- 5.003(134). The Plan Amendment is not in a rural area; it is surrounded by residential development. Public facilities are very close, and the Plan Amendment is within the City's service area. The Plan Amendment does not "leapfrog" since there are no large tracts of undeveloped land between the City and the Plan Amendment property. It is not scattered development; it is infill. While it is true that it is a low density use and a
single use, the area is not appropriate for mixed-use, retail, commercial or an extremely high residential density.
Florida Administrative Code Rule 9J-5 requires a consideration of the context in which the plan amendment is being proposed. Land use types within the jurisdiction and in proximate areas outside the jurisdiction will be evaluated. Local conditions, including the existing pattern of development and extra-jurisdictional and regional growth characteristics, should be considered as well.
The consideration of the parcels surrounding the Plan Amendment was important. The City considered the fact that other cities and the County as a whole are experiencing population growth. In considering how the City has grown in the past and its development pattern, how the area around the City has grown and its development pattern and population projections, the Plan Amendment is not urban sprawl.
Transportation Facilities
The City submitted data and analysis relative to traffic impacts in a study prepared by Traffic Planning and Design, Inc. (TPD). PE 83. The TPD traffic study was accomplished in accordance with the County's concurrency management procedures and based on adopted Levels of Service (LOS). After the City's re-submittal to the DCA, the Florida
Department of Transportation (FDOT) had no comments or concerns about transportation impacts. DCAE 2, FDOT analysis.
Although the Plan Amendment would allow for more traffic to be generated, increased traffic does not necessarily render a plan amendment not in compliance. A broad brush approach is taken at the comprehensive planning stage. A compliance determination does not consider details such as the design of the roads, or whether roads have guardrails. The issue is whether there is enough capacity to maintain the adopted LOS.
Adequate Capacity
There is adequate capacity on the surrounding roads to accommodate the trips generated by the Plan Amendment. The TPD traffic study forecasted traffic demands and the impact on available capacity along roadways affected by the subject property and concluded that "all road segments will operate within their adopted LOS with excess traffic capacity available for future development" and "there will be adequate capacity to accommodate the trip generation" contemplated by the Plan Amendment. PE 83.
The projected traffic generated by the subject property between now and the year 2010 will not cause any of the roadways to exceed capacity.
Based on the TPD traffic study, the County agreed that the anticipated trips generated would not exceed the adopted LOS and that there is available capacity on the road segments affected by the project.
Although Petitioners raised multiple traffic issues in their respective amended petitions, Petitioners mainly presented testimony that anticipated development of the subject property will cause increased traffic on County roads which will lead to increased safety concerns.
Safety Concerns on James Road
The County presented evidence regarding existing and potential safety concerns on several road segments including James Road, which may result from anticipated development of the subject property. The County's main safety concern (with development of the south parcel) is the segment of James Road between Friday Road and Cox Road because of a steep canal that runs along mainly the north side of James Road for approximately one mile. The County's safety concerns relating to James Road only apply to the southern property; thus any increase in traffic on the northern property, including the triangular portion, does not impact safety on James Road.
The safety problems relating to James Road exist currently and existed in 2004.
Mr. Denninghoff testified that the anticipated increased traffic as a result of the Plan Amendment will expose additional traffic to the existing hazardous conditions on James Road beyond what was planned.
The safety concerns with James Road could be resolved by installation of a guardrail, improved and additional street lights, and rumble strips on the road before the stop signs. The County has not added guardrails to James Road. These safety improvements are needed now.
Maintenance Costs for County Roads
Besides safety, another issue raised by the County during the hearing regarding transportation issues was the anticipated increase in wear and tear on the County roads resulting in increased costs to the County.
Residents of the subject property will pay impact fees, which may be utilized for improvements to capacity, operational improvements at intersections, including the safety improvements mentioned above, for new facilities, or expansion of existing facilities, but not maintenance. The impact fee is paid directly to the County. By ordinance, the Brevard County Board of County Commissioners approves the expenditures of the impact fees collected.
The County will receive approximately $2.6 million in impact fees from the development of the subject property. The
impact fees collected by the County could be utilized to fund safety measures because they are related to capacity improvements.
No development was approved by the Plan Amendment.
Pursuant to the City's Code and Plan, traffic impacts of a development are reviewed in more detail after the plan amendment process, specifically, during the development process.
Petitioners' concerns are premature.
Development orders are the result of the subdivision and site plan approval process. Prior to the approval of the final PUD, or the issuance of building permits, the City will examine whether the necessary public facilities are operating within the adopted levels of service.
When the developer applies for permits to develop the subject property, the City will review issues concerning traffic. The developer will submit an updated traffic study, which will be reviewed by the City and the County. The County is responsible for issuing driveway permits.
Transportation Element Objective 2.3 of the City's Plan provides that "[d]evelopment shall bear the full burden of the cost of roadway improvements necessitated by impacts to the roadway network caused by traffic generated by said development through the adopted site approval process."
The City's Plan also provides that new development will not be permitted unless mitigative measures are undertaken to address level of service impacts caused by development.
Intergovernmental Coordination
The City's Plan contains an Intergovernmental Coordination Element (ICE). The Plan Amendment does not make any changes to that element.
Petitioners presented documentary evidence through Mr.
Williams' report alleging that the City violated the ICE in its Plan. However, the evidence shows that the Plan Amendment is not inconsistent with any intergovernmental coordination requirements in the City's Plan.
Intergovernmental coordination does not mean that one local government must acquiesce to a request from an adjacent local government.
Intergovernmental coordination requires information sharing, and there are numerous objectives and policies in the City's Plan addressing the City's responsibility to coordinate with the County regarding development impacts at the appropriate time.
Most of the policies and requirements for intergovernmental coordination in the City's Plan are driven by the subdivision site plan approval process.
The City coordinated with the County, as the City provided a copy of its annexation report to the County in July of 2004. The City manager invited the County manager to discuss the report with City staff, but the County did not respond. The City also used the County's concurrency management procedures in analyzing traffic, and reduced the density from seven to four units per acre based in part upon the County's comments during the review process.
Compatibility With Surrounding Areas
Florida Administrative Code Rule 9J-5.003(23) provides: "[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."
The residential development contemplated by the Plan Amendment is compatible with the surrounding land uses. The subject property is surrounded by urban residential development and existing public infrastructure.
The City studied the area surrounding the Plan Amendment, and determined that it was developed in an urban and suburban manner. To be compatible with the surrounding areas, the City developed the VLDR category allowing four units to the acre on the subject property.
The County's future land use for the property to the north of the Plan Amendment is designated residential to be developed at one dwelling per 2.5 acres. However, Hagen- Nicholson's expert testified that it has been developed more intensely, with some lots developed at less than an acre. The County's future land use to the south of the Plan Amendment is one unit an acre. The area to the south, however, is less intensely developed -- it is developed at 1.5 units to the acre. The County allowed areas of three units to the acre and five units to the acre to be developed in the middle of the area to the south of the Plan Amendment.
Hagen-Nicholson's planning expert testified that the County's planning of the area to the south of the Plan Amendment is the cause of urban sprawl. The Plan Amendment allows a hole in the donut to be filled in so that in the future, there is not pressure to develop homes in a leapfrog fashion two to three miles away.
In this case, residential next to residential is compatible. The Plan Amendment is compatible with adjacent development.
Internal Consistency
Petitioners allege that the Plan Amendment is not internally consistent with several provisions of the adopted City Plan.
Specifically, the report of Petitioners' planning expert alleges that the Plan Amendment is not consistent with the City's Policies and/or Objectives 1.1.1.2, 1.1.1.8, 1.1.2.3, 1.1.2.5, 1.1.3, 2.1.1, 2.3, 2.3.1.4, 2.4.1, 2.4.5, 2.6.2, 2.6.4, 4.2.4.4, 4.2.5.2, 4.2.6.3, 4.3.4.1, 9.4.4, 9.8, 9.8.1, and 9.8.2.
The City's Director of Community Development testified that the Plan Amendment is internally consistent with the City's Plan and that Petitioners' expert was applying the site plan approval process to the Plan Amendment. The majority of the policies or objectives cited in the report of Petitioners' expert pertain to later stages of the development process, not the plan amendment process.
For instance, Petitioners allege that the Plan Amendment is not consistent with Policy 4.2.6.3 because there is no mention in the development agreement concerning who is responsible for the costs of providing the extension of lines, alteration of lift station and the cost of plant capacity for providing wastewater service. The Plan Amendment is not inconsistent with Policy 4.2.6.3 because the developer's agreement for the subject property provides that the developer is required to comply with all city, local, county, state, and federal requirements.
Additionally, allegations concerning Policies 1.1.2.5, 1.1.2.6, 2.4.1, and 2.4.5 are premature because they pertain to setback requirements and issues which pertain to later stages of the development process. Policies 4.2.4.4 and 4.2.5.2 pertain to septic tanks and locating waste water package plants. These Policies do not pertain to the Plan Amendment.
FSN's planning expert testified that the Plan Amendment is consistent with the City's Plan and that the Plan Amendment will benefit the City as a whole. The DCA's senior planner also testified that several of the Policies which Petitioners alleged that were inconsistent with the Plan Amendment were premature because they pertain to the development stage, not to the plan amendment stage. The Plan Amendment is consistent with Policies and Objectives 1.1.1.2, 2.1.1, 2.6.2, 2.6.4, 2.9.1, 2.9.3, 4.1, 4.1.1.5, 4.1.3.1, 4.1.5, 9.4.4, 8.1.2, 8.2.1, 9.8.1, 9.8.2, and 9.8.
Petitioners did not prove that the Plan Amendment is inconsistent with the provisions they cited.
Regional and State Plans
Section 163.3177(10)(a), Florida Statutes, provides in pertinent part:
for the purpose of determining whether local comprehensive plans are consistent with the state comprehensive plan and the appropriate regional policy plan, a local plan shall be consistent with such plans if the local plan
is "compatible with" and "furthers" such plans. The term "compatible with" means that the local plan is not in conflict with the state comprehensive plan or appropriate regional policy plan. The term "furthers" means to take action in the direction of realizing goals or policies of the state or regional plan. For the purposes of determining consistency of the local plan with the state comprehensive plan or the appropriate regional policy plan, the state or regional plan shall be construed as a whole and no specific goal and policy shall be construed or applied in isolation from the other goals and policies in the plans.
Strategic Regional Policy Plan
A determination of whether the Plan Amendment is consistent with the East Central Florida Regional Planning Council's Strategic Regional Policy Plan (SRPP) is based on an assessment of the SRPP as a whole. § 163.3177(10)(a), Fla. Stat.
Petitioners did not present evidence that the Plan Amendment is inconsistent with the SRPP as a whole. Petitioners' expert opined that the Plan Amendment is inconsistent with certain provisions of the SRPP. The report only discussed several policies in an isolated fashion and did not consider the SRPP as a whole.
Nevertheless, the Plan Amendment is consistent with the SRPP as a whole, and is consistent with the specific provisions with which Petitioners' report alleged inconsistencies. Specifically, the Plan Amendment is not
inconsistent with the SRPP Policy 6.1 because the area is already urban. Additionally, the Plan Amendment is in an area that has existing commercial uses nearby.
The Plan Amendment is consistent with SRPP Policies
6.4 and 6.5 because both of these policies pertain to rural areas. The subject property and the surrounding areas are not rural.
The Plan Amendment is consistent with SRPP Policy 6.16 because it is based upon area-wide projections and forecasts.
The Plan Amendment is consistent with SRPP Policy 6.17 because it does not adopt a policy providing that there shall be no informal mediation processes, or that informal mediation shall not be used.
The Plan Amendment is consistent with SRPP Policy 6.19 regarding the encouragement of public participation. Overall, the City encouraged public participation.
The City has the capacity and ability to develop its downtown area and to promote infill at the same time. Accordingly, the Plan Amendment is consistent with SRPP Policy 6.21.
The Plan Amendment concerns the issue of deciding a future land use. SRPP Policy 5.17 1.a., which pertains to addressing transportation impacts of a development project in
one jurisdiction on an adjacent jurisdiction, will be addressed at the appropriate stage of the development process.
SRPP Policy 5.23 pertains to equitable cost participation guiding development approval decisions. It does not pertain to the Plan Amendment because there is no transportation capacity improvements required by the Plan Amendment.
The Plan Amendment is consistent with SRPP Policy 7.3 because the area encompassing the Plan Amendment is already included in the City's approved future service area.
Petitioners' report set forth an allegation that SRPP Policies 7.5, 7.9., 7.10, and 7.19 "would all be in conflict with the city of Cocoa proposed amendment." The Plan Amendment is consistent with these SRPP Policies.
FSN's planning expert testified that the SRPP uses directive verbs that are intended to be suggestions and recommendations to a local government, not requirements. He provided testimony that since the subject area is urban, and not rural, the SRPP does not impact this Plan Amendment because it provides for protection of regional natural resources, and promotes intergovernmental coordination. Hagen Nicholson's expert also testified that the Plan Amendment is consistent with the SRPP.
The East Central Florida Regional Planning Council did not raise any concerns to the Plan Amendment violating the SRPP.
Finally, the Plan Amendment actually furthers SRPP Policies 4.23, 4.2.4, 6.1.4, 7.1, 7.4, and 7.5.
State Comprehensive Plan
A determination of whether the Plan Amendment is consistent with the State Comprehensive Plan (State Plan) is based on an assessment of the State Plan as a whole.
Petitioners alleged in paragraphs 39, 46, 59, and 65 of the Amended Petition that the Plan Amendment is inconsistent with Sections 187.201(18)(b) and 187.201(21) of the State Plan. However, they did not present persuasive evidence that the Plan Amendment is inconsistent with the State Plan as a whole.
The Plan Amendment is consistent with the State Plan as a whole, and, in particular, Sections 187.201(18)(b) and 187.201(21), Florida Statutes.
Furthermore, the Plan Amendment furthers the State Plan goal to "increase the affordability and availability of housing for low-income and moderate-income persons. . . ." See
§ 187.201(4), Fla. Stat. It furthers the State Plan goal set forth in Section 187.201(9), Florida Statutes, because the Plan Amendment protects the wetlands by designating them as Conservation areas. Finally, it furthers the State Plan goal
set forth in Section 187.201(15), Florida Statutes, because the Plan Amendment preserves environmentally sensitive areas.
Public Participation9
Petitioners alleged that public participation was not provided with respect to the August 24, 2004, transmittal hearing, primarily because the City allegedly refused to allow citizens access to the hearing and the opportunity to speak during the hearing.
At the administrative hearing in this matter, following denial of the DCA's motion in limine, the issue was narrowed to the question of whether the August 24, 2004, hearing was the type contemplated by Chapter 163, Part II, Florida Statutes, with the ultimate issue being whether or not that will impact whether the Plan Amendment is "in compliance." The issues identified in footnote 1 of Petitioners' Hunters and Kellgrens' Amended Petition are not at issue.
Council meetings have an order of discussion. During "delegations," only City residents, employees, and water customers may speak. The City Council is authorized to set aside up to 30 minutes of each regular Council meeting limited to hearing from only residents and taxpayers of the City. After the delegations portion, the consent agenda is considered, and then the public hearings portion follows. Under the public hearings portion, any person may speak. Speaker cards are
filled out, passed on to the Mayor, and the Mayor calls the names from the cards.
On August 17, 2004, the City published a Notice of Future Land Use and Zoning Change in the Florida Today Newspaper. The notice stated that a public hearing would be held by the City Council in their chambers at 7:00 p.m. on August 24, 2004, on subjects including the proposed plan amendment and re-zoning of the subject property. The notice also stated that the hearing was a public hearing, that all interested persons may attend and that members of the public are encouraged to comment on the proposed ordinance at the meeting. The parties stipulated that the August 24, 2004, hearing was properly advertised and noticed.10
According to the transcript of the City Council meeting on August 24, 2004, the meeting, including the transmittal hearing portion, began at 7:15 p.m. Several hundred people showed up and were outside of the building at 6:00 p.m. The City's planner testified that he did not have any expectation that there would be that many people there. The turn-out was so large that not everyone could fit in the Council chambers. The capacity of the room is either 91 or 93 based upon fire department regulations.
The first issues discussed related to the annexation of the property subject to the proposed plan amendment. There
was also discussion regarding the re-zoning and the proposed plan amendment. PE 14 at 3-48. Thereafter, Mayor Parrish stated that "it would be appropriate to have a public hearing regarding these three ordinances." Id. at 48. The Mayor asked everyone to fill out speaker cards.11 The City Attorney stated that there were speaker cards about three to four inches thick; "about two hundred plus cards of people who want to speak." Id. at 49, 51. Mayor Parrish stated:
I know. There is no way we can hear them in one night.
Also, we have to go by the concerns and the citizens that we hear and I doubt there are this many ideas that is going to be expressed tonight.
If we don't duplicate something that we have already heard, we might be able to bring them down a little bit.
If we can elect representative to speak on behalf of other names that can be given possibly as a way to cut down on that.
We also have heard from planning and zoning and have spoken with the members of planning and zoning.
We have minutes from the meetings.
We have copies of presentation that were given at that meeting and letters and phone calls and e-mails, and so, we have got a good sense of the concerns that were expressed that night and since that night.
We do want to hear from everyone we possibly can.
The criteria for a public hearing are basically three minutes for a speaker and representatives of recognized groups shall be limited to ten minutes.
So if you have somebody that can speak on behalf of a group of people they can have ten minutes and possibly get everything
expressed that maybe a larger group would take longer than the ten minutes.
A total debate on a single issue is limited to 30 minutes.
Since we have three issues -- Id. at 49-51. See also PE 14 at 53-54.
The public hearing portion of the transmittal hearing did not get underway until approximately 8:30 p.m. Id. at 51. The City Council typically allows 30 minutes for the public hearings portion, but decided to extend the time to 90 minutes, id. at 53, and later went beyond that limit to accommodate more speakers.12
After several persons began expressing their opposition to the items, including the proposed plan amendment, id. at 58-82, the Mayor stated that the comments were "starting to get a little bit repetitive" on several issues and requested the attendees to try "to narrow it down to some other issues that maybe haven't been brought up so far." Id. at 82. Other speakers followed, id. at 82-128, when the Mayor stated that they were "going to run over with just the cards" that she had and inquired whether they wanted to extend the time. It was decided to "hear the three or ten depending upon how long." Id. at 129. Again, others spoke when a police officer said "[w]e have a few more[,] [a]re you done?" The Mayor responded: "We are past time. I'm trying to finish the ones that I have up here that are saying that they are in line." Id. at 140.
Councilman Anderson wished to cut off public comment and Councilwoman Collins provided a second "because of how late it is -- 11 o'clock Mayor." Id. at 141. Without ruling on the request, Stacy Ranger, a representative of the County, spoke and focused on the annexation issue, including neighborhood compatibility. Id. at 141-146. Thereafter, Mr. Titkanich was granted permission to respond to comments. Id. at 147-157. The public portion of the hearing was then closed. Id. at 158.
After some discussion, a motion to extend the meeting not more than one hour was approved. This motion was made sometime after Councilwoman Collins announced how late it was - 11 p.m. Id. at 176-177.13 Ultimately, the Council voted four to one in favor of Ordinance No. 39-2004. Id. at 181-182.
Mr. Kellgren testified that he arrived at the hearing location around 6:00 p.m. There was a large crowd of several hundred people outside. He filled out a speaker's card, but could not get into the building. He waited outside and tried to observe what was going on. He left the hearing around 9:30 p.m. because he did not see the point in staying any longer; he could not get in and could not hear anything. His speaker's card was not marked "NR" or "No Response." PE 36.
Although Mr. Kellgren was not able to get into the building to speak, he had retained lawyer Kimberly Rezanka to represent him and his wife at the August 24, 2004, hearing.
During the hearing, Ms. Rezanka spoke to the City Council on behalf of the Kellgrens and several other individuals.14 (Mr. Kellgren attended the P&ZB hearing and opposed the proposed plan amendment and rezoning.)
After the transmittal hearing, Mr. Kellgren sent two letters to the DCA's Plan Review Administrator expressing concerns regarding the proposed plan amendment. One letter was signed by Mr. Kellgren and others. No complaint was made regarding the conduct of the transmittal hearing. PE 81-82;
T II 358.
Ms. Hunter arrived at the City Council's August 24, 2004, meeting around 5:30 p.m. (She attended the P&ZB hearing and spoke.) She testified that she was not allowed to go inside the building because she was not a City resident. She wrote comments opposing the proposed plan amendment on her speaker's card -- "7 houses per acre would be ridiculous Against [two underscored lines] rezoning of property at Friday [&] James in Cocoa - 1 house per acre only!!". She wrote this information on the card so her intentions would be known. The upper-right hand corner of her card is marked "NR," although she did not write these letters on the card. She left the public hearing around 9:30 p.m., because she had to work the next day and take care of her children. She knew that the hearing was still going on and acknowledged that her name could have been called after she
left. She did not go to the December 14, 2004, adoption hearing.
Brian Seaman lives in Canaveral Groves, which is in the unincorporated area of the County and east of the north parcel. FSNE at "BS." He arrived at 6:00 p.m. He testified that he was not allowed in because he was not a City resident. He filled out a speaker's card, but believes that his name was not called. His card was not marked "No Response" or "NR." He testified he remained at the public hearing until approximately 11:45 p.m., when he was told of the Council's vote. See Endnote
(He attended the P&ZB hearing and later attended the December adoption hearing held at the Civic Center. He did not speak at those hearings because the issues that were of concern to him had already been raised by others.)
The public hearing portion of the transmittal hearing lasted over three hours. There is evidence that names on the speaker cards (CE 10), such as Mr. Seaman, were not called. There is also evidence that there was no response for many of the names as reflected on the cards.15 Nevertheless, citizens spoke during the public hearing portion of the transmittal hearing. Notwithstanding the large turn out, the Mayor and Council took measures to accommodate the larger-than-expected crowd and public comment was received. The City Council learned from the experience and conducted the adoption hearing at the
Civic Center. No issues are raised regarding the adequacy of the adoption hearing.
There is no persuasive evidence that any person was deprived of the opportunity to submit written objections, comments, or recommendations to the Council prior to, during, or after the Council's consideration of the proposed plan amendment (during the transmittal hearing).
The DCA's expert planner, Erin Dorn, testified that Florida Administrative Code Rule 9J-5.004 requires local governments to adopt procedures for public participation. Once the DCA receives an amendment package from a local government, it goes to the plan processing team (PPT). The PPT checks the package for "completeness" to make sure that it includes all information required by law. The PPT does not review the plan amendment. Once the package is complete, it is sent to the planning review team for a substantive review. Review of a plan amendment includes public facilities, natural resources, and transportation. Review of a plan amendment does not include a review of whether every person who wanted to attend the hearing was permitted to do so, or a review of the number of people who attended. Such aspects of public participation are not considered by the PPT, and necessarily the DCA when reviewing a plan amendment for a compliance determination.
The DCA received letters from citizens, voicing concerns regarding the Plan Amendment.16
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. §§ 120.569, 120.57(1), and 163.3184(9), Fla. Stat. Standing
The parties agree that the Kellgrens, the Hunters, and the County are affected persons as that term is defined in Section 163.3184(1)(a), Florida Statutes, and, therefore, have standing to participate as parties in this proceeding.17 It is unnecessary to determine whether the County has standing to litigate the public participation issue addressed herein, as the other Petitioners have standing to do so. See Eloise Community Development Agency vs. Polk County, Florida, Case Nos. 05-0717GM and 05-0787GM (DOAH July 8, 2005; Admin. Comm. August 9, 2005)(citing Coalition for Adequacy and Fairness in School
Funding, Inc. v. Chiles, 680 So. 2d 400, 403 n.4 (Fla. 1996)). Burden of Proof
In this proceeding which follows the Department's issuance of a NOI to find the Plan Amendment to be in compliance, the Plan Amendment "shall be determined to be in compliance if the local government's determination is fairly
debatable." § 163.3184(9)(a), Fla. Stat. Petitioners bear the burden of proving beyond fair debate that the challenged Plan Amendment is not "in compliance." See Young v. Department of Community Affairs, 625 So. 2d 831 (Fla. 1993). "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." See Martin County v. Yusem, 690 So. 2d 1288, 1295 (Fla. 1997)(citation omitted).
Under Section 163.3184(1)(b), Florida Statutes, "in compliance" means:
consistent with the requirements of ss. 163.3177, 163.31776, when a local government adopts an educational facilities element, 163.3178, 163.3180, 163.3191, and 163.3245,
with the state comprehensive plan, with the appropriate strategic regional policy plan, and with chapter 9J-5, Florida Administrative Code, where such rule is not inconsistent with this part and with the principles for guiding development in designated areas of critical state concern and with part III of chapter 369, where applicable.
The Challenges
Need
Section 163.3177(6)(a), Florida Statutes, requires a local government to allocate land uses within its comprehensive plan based on anticipated growth.
Florida Administrative Code Rule 9J-5.006(2) contains similar language and provides in pertinent part:
Land Use Analysis Requirements. The element shall be based upon the following analyses which support the comprehensive plan pursuant to subsection 9J-5.005(2), F.A.C.
* * *
(c) An analysis of the amount of land needed to accommodate the projected population, including;
The categories of land uses and their densities or intensities of use,
The estimated gross acreage needed by category, and
A description of the methodology used.
In this case, it is beyond fair debate that the City conducted the needs analysis required by the above-cited statute and rule. Evidence was provided by experts to support the need for designating the future land use of the subject property as VLDR. There was persuasive evidence that the City's need for middle income housing is important for the growth and survival of the City.
Furthermore, there was persuasive evidence that the use of BEBR estimates and a map demonstrating the vacant lands available in the City was professionally acceptable. See Fla. Admin. Code R. 9J-5.005(2)(a)-(c).
Petitioners did not prove beyond fair debate that the City did not conduct the proper needs analysis and that the City does not have a need for the land designated as VLDR.
Urban Sprawl
The evidence indicated that at least one indicator might be present to some extent. That is not dispositive. See Fla. Admin. Code R. 9J-5.006(5)(d),(e), and (g) (the presence of multiple indicators shall be considered in determining whether they collectively reflect a failure to discourage sprawl). The persuasive evidence shows that the Plan Amendment is infill and discourages sprawl. Petitioners did not prove beyond fair debate that the Plan Amendment fails to discourage the proliferation of urban sprawl.
Transportation Facilities
Petitioners allege that the Plan Amendment was adopted without consideration for consistency with applicable levels of service. Chapter 163, Part II, Florida Statutes, requires that local governments require concurrency for transportation services and facilities. § 163.3177(10)(h), Fla. Stat. Concurrency refers to the requirement that services necessary to support development be available concurrently with the development. For transportation concurrency, the projected traffic impacts must not exceed the LOS established by the local government. The LOS established for the roadway represents a policy decision of the local government as to the amount of traffic that will be allowed on the roadways.
Petitioners did not prove beyond fair debate that the Plan Amendment violates the applicable LOS.
Petitioners did not take issue with the City's data and analysis regarding traffic capacity. The safety concerns raised by the County existed even before the Plan Amendment and, additionally, such concerns could be resolved with safety and capacity improvements. Regarding transportation, Petitioners did not prove beyond fair debate that the Plan Amendment was based on inadequate data and analysis and therefore not "in compliance."
Petitioners did not prove beyond fair debate that the Plan Amendment violates the Transportation Element of the City's Plan.
Intergovernmental Coordination
Section 163.3177(6)(h), Florida Statutes, requires that a comprehensive plan include an intergovernmental coordination element. The Plan Amendment does not make changes to the City's ICE.
Although the County may disagree with the Plan Amendment, there was no persuasive proof that the Plan Amendment affects intergovernmental coordination obligations.
The intergovernmental coordination concerns raised by Petitioners are more appropriately addressed in the later
development process as set forth in the City's Code and Plan. Petitioners did not prove beyond fair debate that the Plan Amendment violates the intergovernmental coordination requirements in Chapter 163, Florida Statutes, or in the City's Plan.
Compatibility With Surrounding Areas
The areas surrounding the Plan Amendment are developed, urban residential areas. The residential areas surrounding the VLDR land use are compatible. See Sutterfield vs. City of Rockledge, Case No. 02-1630GM (DOAH September 16, 2002; DCA November 14, 2002).
Petitioners did not prove beyond fair debate that the VLDR land use cannot co-exist "in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly. . . ." Fla. Admin. Code R. 9J- 5.003(23).
Internal Consistency
Petitioners did not prove beyond fair debate that the Plan Amendment is inconsistent with the Policies and Objectives of the City's Plan, or that the City's FLUM, as amended, is internally inconsistent with the Goals, Objectives, and Policies of the City's Plan, as amended.
Regional And State Plans Strategic Regional Policy Plan
A determination of whether the Plan Amendment is consistent with the SRPP must be based on an assessment of the SRPP as a whole. § 163.3177(10)(a), Fla. Stat.
The SRPP is a component of the state compliance review. See § 163.3184(1)(b), Fla. Stat. However, a plan amendment is not, not in compliance solely on the basis of one or more inconsistencies with the SRPP. See § 163.3184(5), Fla. Stat.
Petitioners did not prove beyond fair debate that the Plan Amendment is inconsistent with the SRPP construed as a whole.
State Comprehensive Plan
A determination of whether the amendment is consistent with the State Plan must be based on an assessment of the State Plan as a whole. § 163.3177(10)(a), Fla. Stat.
The Plan Amendment is consistent with the State Plan as a whole. The Plan Amendment furthers the State Plan goals to increase the affordability and availability of housing for low- income and moderate-income persons and protects the wetlands.
Petitioners did not prove beyond fair debate that the Plan Amendment is inconsistent with the State Plan construed as a whole.
Public Participation
Petitioners alleged that the Plan Amendment is not consistent with Florida Administrative Code Rule 9J-5.004 and Sections 163.3181 and 163.3184(15), Florida Statutes.
Sections 163.3181 and 163.3184(15), Florida Statutes, do not fall within the statutory definition of "in compliance" under Section 163.3184(1)(b), Florida Statutes.
Florida Administrative Code Rule 9J-5.004 requires that local governments adopt procedures for public participation and the City has adopted such procedures. Section 163.3181(1), Florida Statutes, also directs local governments to adopt procedures designed to provide effective public participation in the planning process. See generally St. Joe Paper Company v. Department of Community Affairs, 657 So. 2d 27, 28 (Fla. 1st DCA 1995). Petitioners do not contend that the City failed to adopt appropriate procedures. Whether a local government followed its procedures is not within the scope of compliance review. See Current vs. Town of Jupiter and Department of Community Affairs, Case No. 03-0718GM, 2003 Fla. ENV LEXIS 250 (DOAH October 24, 2003), adopted, 2004 Fla. ENV LEXIS 209 (DCA April 8, 2004). The Recommended Order in Current states, at paragraph 58:
Notwithstanding the repeal of former Rule 9J-5.005(8), and apparent absence of any other statutory and rule authority, DCA nonetheless suggests that some limited compliance review of a local government's
adoption process is still appropriate. According to the evidence in this case, DCA's review is limited to whether the transmittal and adoption hearings took place as required by Section 163.3184(15).
Assuming such a review is appropriate, Petitioner did not prove beyond fair debate that the requirements of Section 163.3184(15) were not met.
Current, 2003 Fla. ENV LEXIS 250, at *45.
Section 163.3184(15)(b), Florida Statutes, requires that a local government hold at least two advertised public hearings –- one at the transmittal stage and one at the adoption stage. This section also requires that these hearings occur on a weekday at least seven days after the hearing is advertised for the transmittal stage, and at least five days after the advertisement for the adoption stage. Adoption of a plan amendment must be by ordinance and majority vote. Section 163.3184(15)(e), Florida Statutes, further prescribes the format and size of the required advertisements for certain amendments. Local governments must also provide a sign-in form at the transmittal and adoption hearings. The section sets forth specific requirements for the sign-in form.
Other than these procedural requirements for the ordinance, notice and timing of the hearings, Section 163.3184(15), Florida Statutes, does not provide any further specifications or requirements for the conduct or substance of the actual hearing. In contrast, the other portions of Part II
of Chapter 163 that are referenced in the definition of "in compliance" set forth the required contents of a comprehensive plan in detail. See, e.g., §§ 163.3177, 163.3180 and 163.3191, Fla. Stat. Additionally, Rule 9J-5 sets forth in detail the requirements for comprehensive plans and plan amendments, their elements, their goals, objectives, and policies, the requisite supporting data and analysis, and even specifies certain data and methodologies that are professionally acceptable.
Thus, although Section 163.3184(15), Florida Statutes, contains specific requirements for procedural matters such as notices and the timing of hearings, see also Section 163.3181(1) and (2), Florida Statutes, there are no standards in Chapter 163 or Rule 9J-5 to guide the DCA's review of the quality or adequacy of a public hearing. The extent or quality of public participation that occurs or fails to occur at one of the two required public hearings is not a matter that is reviewed for compliance. See generally Manasota-88, Inc. vs. Sarasota County and Department of Community Affairs, Case Nos. 02-3897GM and 02-3898GM, 2004 Fla. ENV LEXIS 238, at *61 (DOAH May 14, 2004), adopted, 2004 Fla. ENV LEXIS 237 (DCA August 13, 2004) ("public participation is not a proper consideration in an in-compliance determination"). See also Current, 2004 Fla. ENV LEXIS 209, at *16 ("The [ALJ's] conclusion that these procedures are not part of the Department's statutory review to determine
whether an amendment is "in compliance" is also well[-]founded in the statute, as recognized in a recent Final Order." (citation omitted)). But see Austin vs. Department of Community Affairs, Case Nos. 88-6338GM, 89-0291GM, and 89-31GM, 1989 Fla.
Div. Admin. Hear. LEXIS 6572 (DOAH June 2, 1989; Admin. Comm. September 29, 1989; Admin. Comm. August 20, 1990).
Assuming arguendo that Petitioners' contentions regarding the narrow public participation issue raised herein are within the scope of "in compliance" review, Petitioners did not prove that they were prejudiced as a result of the conduct of the transmittal hearing.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Department of Community Affairs enter a final order determining that the Plan Amendment adopted by the City through Ordinance No. 39-2004 is "in compliance."
DONE AND ENTERED this 3rd day of July, 2006, in Tallahassee, Leon County, Florida.
S
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 3rd day of July, 2006.
ENDNOTES
1/ All citations are to the 2004 version of the Florida Statutes.
2/ Throughout this Recommended Order, Plan Amendment refers to the amendment adopted by the City Council on December 14, 2004. Prior versions are referred to herein as proposed plan amendment.
3/ The parties also stipulated that the Hunters and the Kellgrens have standing as "adversely affected" parties for the purpose of appellate review pursuant to Section 120.68(1), Florida Statutes.
4/ The new text provides:
VERY LOW DENSITY RESIDENTIAL AREAS
Very low-density residential areas are neighborhoods of single family detached housing.
Very low-density residential areas shall be buffered from the nuisance effects of agricultural uses, higher intensity uses and major traffic corridors.
A maximum density of 4 units per acre shall be permitted.
Very low [sic] density residential developments should be located in areas where more intensive development would be unwarranted due to environmental constraints.
FSNE 52, Exhibit A.
5/ In the City Council's December 14, 2004, agenda back-up material, the City's then-existing revised plan amendment, which authorized a maximum density of up to five dwelling units per acre, would have permitted a maximum development of 2,299 dwelling units per acre (5 dwelling units X 459.81 acres). PE
8.f. at pages 4 and 6 of 18.
6/ In its ORC Report dated October 29, 2004, regarding the City's then proposed FLUM amendment, the DCA stated in part that "[t]he proposed amendment is not supported by a land use needs analysis which includes the estimated acreage for Residential lands needed to accommodate the projected population growth within the planning timeframe of the comprehensive plan, and a description of methodology used." Aside from abandoning the proposed FLUM change, the DCA recommended that the City "revise the amendments to include a land use needs analysis demonstrating there is a need for the amount of development allowed by the proposed residential land use densities in order to accommodate the projected population growth within the planning timeframe of the comprehensive plan."
7/ The population of the City was 17,956 in 1986 and was projected to increase to 20,651 by 1990 and to 23,648 by 2000. However, the City's population declined to 16,356 according to 2003 Bureau of Economic Business Research (BEBR) estimates and was 16,412 according to the 2000 Census.
8/ Mr. Williams testified that the City planner admitted that the area was agricultural in the City's response to the ORC
Report. The City's planner later explained that the reference to agricultural in the document was an error.
9/ The Department maintains that the facts relating to the public participation issue, other than the testimony of Erin Dorn, are not relevant in a compliance determination. The City maintains the public participation issues raised by Petitioners are matters to be determined in this proceeding.
10/ On August 17, 2004, the City's Planning and Zoning Board (P&ZB) held a public hearing when the proposed plan amendment and a rezoning request were considered. Mr. Kellgren and Ms. Hunter attended the hearing and spoke in opposition to the proposed plan amendment. The P&ZB recommended to the City that it deny the proposed plan amendment.
11/ All persons desiring to address the Council were required to fill out sign-in cards, which were ultimately handed to the Mayor.
As the Mayor called names, many people were not responding.
Because so much was going on, a lot of people could not hear. There were speakers in the anteroom, but no speakers on the outside of the building.
To accommodate the large crowd, the City Clerk ferried the completed comment cards to two police officers located outside the chambers. The officers would call the names out so that those people could go inside to speak. As those citizens finished speaking, the Mayor would call other names, the City Clerk would notify the officer, the officer would tell the other officer, who called in people five to ten at a time to line up to speak. If there was no response when the name was called, the speaker's card was marked "NR" or "No Response," by the City Clerk. As people came out of the chambers after speaking, they would stand on top of the steps to report their observations about the hearing.
12/ The Mayor stated that there was a request that the Council table the item "and move to a place that has got more room," but noted that the item had "been advertised and everybody is here"; [w]e are going to hear it tonight."
13 / It appears that the public hearing ended at or around 11:45 p.m., although the Council meeting extended until approximately 1:30 p.m. T II 374, 378, 380, 382.
14/ Ms. Rezanka offered several objections regarding the conduct of the hearing and requested, in part, that consideration of the proposed plan amendment be tabled so that persons could hear what was being said.
15/ City Exhibit 10 consists of the speaker cards that were filled out for the August 24, 2004, transmittal hearing. T II 380-381. There are approximately 192 speaker cards. CE 10.
They are arranged in three separate sections: "heard," with approximately 55 cards, excluding duplicate or similar cards cards; "did not respond," with approximately 79 cards; and "not heard," with 39 cards, excluding duplicate or similar cards.
Also, three cards (Nick and Dorothy Kolocuris and Elaine Hixson) appear in both the "not heard" category and the "did not respond" category. See PE 14 at 70. Other than City Council members, City staff and representatives of the applicants for the plan amendment change, approximately 26 people spoke during the public hearing portion of the transmittal hearing, although Ms. Rezanka spoke on behalf of several persons, including two persons who also spoke, and Ms. Ranger spoke on behalf of the County. PE 14 at 106 and 141. There were persons who signed-up to speak but did not. However, on this record, it is difficult to determine the precise number of persons who wanted to access the Council Chambers to observe the transmittal hearing and/or to address the Council, but were not able to do so.
16/ As noted by the DCA, "[c]itizens also provided comments at the adopted stage: In a series of letters dated January 5, 2005, a total of 97 residents from the nearby neighborhood express concerns with the development potential . . . ." DCAE 2.
17/ The stipulation included the standing of the Kellgrens and the Hunters to litigate the public participation issue. The parties did not stipulate that the County has standing to litigate the public participation issue. T I 66-67; T II 314, 401, 420.
COPIES FURNISHED:
Thaddeus Cohen, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard Suite 100
Tallahassee, Florida 32399-2100
David Jordan, Acting General Counsel Department of Community Affairs
2555 Shumard Oak Boulevard Suite 325
Tallahassee, Florida 32399-2160
Leslie E. Bryson, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
C. Morris Richardson, Esquire Eden Bentley, Esquire
2725 Judge Fran Jamieson Way Viera, Florida 32940
Debra S. Babb-Nutcher, Esquire Andrew M. Fisher, Esquire
Brown, Garganese, Weiss, & D'Agresta, P.A. Post Office Box 2873
Orlando, Florida 32802
Michael Wm. Morrell, Esquire Post Office Box 18649
West Palm Beach, Florida 33416-8649
Michael D. Jones, Esquire
Michael D. Jones & Associates, P.A. Post Office Box 196130
Winter Springs, Florida 32719-6130
Thomas A. Cloud, Esquire Heather M. Blom-Ramos, Esquire GrayRobinson, P.A.
301 East Pine Street, Suite 1400 Orlando, Florida 32801
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 29, 2006 | Agency Final Order | |
| Jul. 03, 2006 | Recommended Order | Petitioners did not prove beyond fair debate that amendments to the City of Cocoa`s Text and Future Land Use Map portion of its Comprehensive Plan were not "in compliance." |
