STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BG MINE, LLC,
vs.
Petitioner,
Case No. 17-3871GM
CITY OF BONITA SPRINGS,
Respondent.
/
RECOMMENDED ORDER
A duly-noticed final hearing was held in this matter on March 6 through 8, 2018, in Bonita Springs, Florida, and on May 22 through 24, 2018, in Tallahassee, Florida. The final hearing was conducted by Francine M. Ffolkes, an Administrative Law Judge assigned by the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Timothy P. Atkinson, Esquire
Sidney Conwell Bigham, Esquire Oertel, Fernandez, Bryant
& Atkinson, P.A. Post Office Box 1110
Tallahassee, Florida 32302
For Respondent: David A. Theriaque, Esquire
S. Brent Spain, Esquire
Law Firm of Theriaque and Spain
433 North Magnolia Drive Tallahassee, Florida 32308-5083
Terrell K. Arline, Esquire Terrell K. Arline, Attorney
at Law, Company 1819 Tamiami Drive
Tallahassee, Florida 32301
Audrey E. Vance, Esquire City of Bonita Springs 9101 Bonita Beach Road
Bonita Springs, Florida 34135 STATEMENT OF THE ISSUE
Whether amendments to the City of Bonita Springs Comprehensive Plan, adopted by Ordinance 17-08 (Ordinance) on June 7, 2017, are "in compliance," as that term is defined in section 163.3184(1)(b), Florida Statutes (2017).1/
PRELIMINARY STATEMENT
On July 7, 2017, the Petitioner BG Mine, LLC (Petitioner), filed a Petition for Formal Administrative Hearing (Petition) under section 163.3184, challenging comprehensive plan amendments that the Respondent City of Bonita Springs (City) adopted on June 7, 2017 (State-Mandated Plan Amendments).
On August 2, 2017, the City moved to strike the Petition. The previously-assigned Administrative Law Judge (ALJ) denied the motion in an Order entered August 24, 2017, noting that "Petitioner's real objections seem to be directed to unchanged provisions of the comprehensive plan based on an argument that the proposed amendments are related to these unchanged
provisions." The Order further stated that the "Petitioner will not be allowed to challenge unchanged provisions of the plan."
The Petitioner filed a Motion for Summary Recommended Order on February 7, 2018. The City filed a response and a supplemental response, and oral argument was held on March 1, 2018. An Order Denying Petitioner's Motion for Summary Recommended Order was entered on March 2, 2018. That Order is incorporated into this Recommended Order, except as modified herein.
On March 6, 2018, the first day of the final hearing, the undersigned ALJ heard oral argument on the Petitioner's Motion for Leave to Amend Petition to Include Supplemental Allegations (Motion to Amend), which was filed one business day before the final hearing. In the Motion to Amend, the Petitioner sought leave to amend the Petition to add forty-nine "new" or "supplemental" allegations. The Motion to Amend was denied for essentially the same reasons stated in the August 24, 2017, Order. See Tr. Vol. I, p. 48, and Order dated Mar. 6, 2018.
The parties were unable to agree upon a joint pre-hearing stipulation, and each party filed a Unilateral Pre-hearing Stipulation on March 2, 2018. The Petitioner's Amended Unilateral Pre-hearing Stipulation also included the same
49 "new" or "supplemental" allegations as its unsuccessful Motion to Amend.
At the final hearing, the Petitioner presented the testimony of Dr. David Depew, an expert in land use planning and comprehensive planning; Russ Weyer, an expert in fiscal financial and economic planning; Ted B. Treesh, an expert in transportation planning; and Ned Dewhirst, the Petitioner's corporate representative. The Petitioner's Exhibits 12, 15, 17,
19, 20, 22, 23, 38, 39, 49, 66, 74, 75, 81, 92 through 94, 105,
and 156 were admitted into evidence.
The City presented the testimony of Dr. Margaret Banyan, an expert in comprehensive planning; Alexis Crespo, an expert in comprehensive planning; and Charles Gauthier, an expert in land use planning, comprehensive planning, urban and regional planning, and growth management. The City also presented the testimony of Jacqueline Genson, the City's Planning and Zoning Manager. The City's Exhibits 3, 5 through 10, 27, 28, and 31 through 34 were admitted into evidence.
Post-hearing, on July 5, 2018, the Petitioner filed a Motion to Amend Petition to Conform to the Evidence. The City responded on July 19, 2018, and the motion was denied by Order dated August 21, 2018.
The first three volumes of the Transcript were filed on March 14, 2018. Revised volumes I and II were filed on June 15, 2018. Volumes IV through VIII of the Transcript were filed on June 27, 2018. By Order dated August 24, 2018, the parties were
afforded until September 4, 2018, to submit proposed recommended orders. Proposed recommended orders were timely filed and were considered in the preparation of this Recommended Order.
FINDINGS OF FACT
The Parties and Standing
The Petitioner is a Florida company that owns and operates a limerock mine in the City (mine property). The mine has been in operation since the mid-1980s. Dr. Depew submitted oral and written comments on behalf of the Petitioner to the City regarding the proposed amendments during the City's June 7, 2017, adoption hearing.
The City is a municipality located in Lee County, Florida. The City has adopted a comprehensive plan that it amends from time to time under sections 163.3167(1)(b) and (2). BG Mine, LLC's, Property
The mine property, consisting of approximately 1,268 acres, was located in unincorporated Lee County and was annexed into the City in 2003. Resolution 03-12 of the City authorized its officials to execute the annexation agreement with the Petitioner's predecessor in interest.
The mine property has two future land use (FLU) categories under the Lee County Comprehensive Plan, Wetlands and Density Reduction Groundwater Resource (DRGR). The evidence showed that although the City also has a DRGR FLU category in
its comprehensive plan, the annexed mine property has not yet been formally placed in a City FLU category.
The annexation agreement provided that "until such time as the [mine property] is designated," it will "retain its DRGR classification as described in the Lee [County Comprehensive] Plan with all uses as presently permitted therein, including limerock mining and processing."
Evaluation of the Comprehensive Plan
In 2015, the City contracted with Florida Gulf Coast University (FGCU) to perform an evaluation and appraisal review (EAR) of the City's Comprehensive Plan. In 2012, in accordance with the 2011 Community Planning Act,2/ the Florida Department of Economic Opportunity (DEO) promulgated Florida Administrative Code Chapter 73C-49, establishing the schedule for local governments to send their evaluation notification letter to DEO. The due date set for the City was April 1, 2016.3/ Once the letter is sent, the local governments has one year to transmit the comprehensive plan amendments under the state coordinated review process.
Dr. Margaret Banyan, who is an Associate Professor at FGCU, was the principal investigator and project manager for the City's EAR. Dr. Banyan also supervised two sub-consultants, Waldrop Engineering and EnSite (Dr. Banyan's Team).
The EAR's executive summary stated that the EAR provided an assessment of changes in the City since the 2009 EAR, including profiles of the City, population, education, economics, and housing. The EAR had three conclusions:
the comprehensive plan must be amended to reflect changes in state requirements since the last update, particularly the sweeping changes in the Community Planning Act passed in 2011; 2) there are several areas where annexations necessitate amendments; and
3) trends and conditions in the City of Bonita Springs suggest optional amendments that would strengthen the current vision, as well as the City's implementation efforts.
Dr. Banyan examined every goal, objective, and policy in the City's Comprehensive Plan for potential amendment. The potential amendments were classified in three separate "buckets": 1) State-Mandated Amendments, 2) Annexation Related Amendments, and 3) Optional Amendments. These potential amendments were set forth in a summary matrix in Appendix B in the EAR.
The State-Mandated Amendments consisted of amendments that were required to reflect changes in state requirements since the last update in 2009. Dr. Banyan's Team obtained a chart from the DEO of all changes in state law since 2009 and utilized it to determine whether any of the goals, objectives, or policies needed to be changed to comply with the current
Community Planning Act. Dr. Banyan's Team created Appendix A in the City's EAR to reflect whether any changes were required.
The Annexation Related Amendments involved potential amendments necessary to address properties that were annexed into the City since 2009 and which were not yet assigned a City FLU category. The Annexation Related Amendments also involved potential amendments to adjust the City's boundaries on figures and maps in the Comprehensive Plan to reflect certain annexed properties.
There are many factors at issue when determining which City FLU category to assign to the annexed properties. The City did not have adequate time to make such determinations while preparing the initial State-Mandated Amendments.
The Optional Amendments involved potential amendments to the Comprehensive Plan that would enable the City Council to fulfill its vision for the City. These amendments would require intensive public input and extensive discussions with the City Council and staff. The Optional Amendments involved bigger- picture strategies that the City Council might desire to use in the future.
The City intended to proceed with the Annexation Related Amendments and the Optional Amendments after it adopted the State-Mandated Amendments. The City decided to utilize a phased approach for these comprehensive plan amendments because
making such significant and extensive changes to the City's entire Comprehensive Plan was complicated, time-consuming, and expensive. Additionally, the phased approach was beneficial from a public support standpoint, which did not want wholesale changes to the City's entire Comprehensive Plan. The phased approach allowed the City to meet its one-year deadline to transmit its State-Mandated Amendments to DEO. The phased approach also provided the City with more time to continue working on additional State-Mandated Amendments, as well as the Annexation Related Amendments and the Optional Amendments. Some of these amendments would be time consuming and might take years to complete because of their complexity. These include amending the City's Transportation Element and developing approaches to transportation concurrency.
Dr. Banyan's Team created Table 4, entitled "Future Land Use Designation," in the City's EAR. Table 4 was a planning tool which identified how many acres in the City were designated in each FLU category on the City's FLU Map (FLUM). Dr. Banyan's Team analyzed the City's FLUM dated February 1, 2016, which is Figure 3 in the EAR. Prior to the creation of Table 4, the City did not have an analysis of the number of acres that were in each FLU category on the City's FLUM.
Table 4 shows that there are 26,019.24 acres located within the City's boundaries. This total did not include
properties that the City annexed between 2009 and 2015. Table 6 of the EAR indicates that such annexed properties totaled 292.62 acres. Although there is a slight difference between the total acres indicated on Table 4 of the City's EAR and the total acres indicated in the State-Mandated Plan Amendments, such difference is the result of rounding the numbers to come up with the approximate gross acreages utilized in the State-Mandated Plan Amendments.
Dr. Banyan's Team created Table 5, entitled "Vacant Lands," in the EAR. Table 5 was a planning tool which estimated the remaining dwelling unit (RDU) potential of the vacant acres in each FLU category in the City. The estimate was determined by multiplying the maximum density for each FLU by the number of vacant acres in such category, and then adding the RDU potential for such acres in each FLU category for a cumulative total of 15,025 units.
Dr. Banyan utilized the maximum density for each FLU category because it was not professionally acceptable to assume that future city councils would approve development at some unknown lesser density.
Dr. Banyan's Team created Figure 2, entitled "Vacant Lands Maps," in the City's EAR. The Vacant Lands Map was based upon data obtained from the Lee County Property Appraiser's Office in 2014, which was overlaid onto the FLUM. Figure 2 was
a planning tool which Dr. Banyan's Team utilized to look at future development and redevelopment opportunities, including future development and redevelopment opportunities at higher densities than currently allowed under the City's Comprehensive Plan.
As planning tools, Table 4, Table 5, and Figure 2 were not intended to be used to analyze specific parcels on a parcel- by-parcel basis. Rather, these tools were used as estimates to obtain an overview of where the City stands and to identify sections in the City's corridors that may be appropriate for development. It was also more practical to use estimates due to budget limitations and the deadline for the City to transmit its State-Mandated Plan Amendments.
As part of the City's EAR, Dr. Banyan performed two different demographic analyses, an analysis of the existing permanent population and an analysis of the estimate of the seasonal population. Dr. Banyan's analyses included an examination of the estimates by age cohorts.
Dr. Banyan's Team created Table 1, entitled "Current and Projected Population," in the EAR. Table 1 depicted the permanent and seasonal population estimates for 2015 and 2040. Although not mandated by state law, Dr. Banyan utilized a
25-year timeframe for the population estimates in order to analyze potential Optional Amendments on a long-term rather than an incremental basis.
Dr. Banyan based her permanent population estimates on data provided by the Shimberg Center for Affordable Housing at the University of Florida (Shimberg Center). The University of Florida is a well-respected institution and is recognized by DEO as being a leader in population estimates and projections methodology. The Shimberg Center is a common and accepted source of data for small-area population projections, such as those for municipalities. The Shimberg Center also provides permanent population estimates for municipalities. Although the Bureau of Economic and Business Research (BEBR) also provides permanent population estimates, it only does so for counties, not municipalities. The Shimberg Center gets its data from BEBR, and BEBR gets its data from the United States Census.
Dr. Banyan also utilized data from the Shimberg Center, because such data breaks down the population projections by age, and that provides a more refined analysis. By analyzing how age groups are growing, different development patterns may be predicted.
Dr. Banyan based her 2015 seasonal population estimate on several components. First, Dr. Banyan calculated the number of vacant dwelling units by utilizing a subset of the number of
vacant dwelling units for seasonal, recreational, or occasional use. She then multiplied the number of such vacant units by a persons per household number (PPH). This calculation resulted in an estimate of the 2015 current seasonal population.
In order to determine the 2040 seasonal population estimate, Dr. Banyan applied the same growth rate that she utilized for her 2040 permanent population estimate, which was
6.8 percent. There are a wide variety of acceptable methodologies used to forecast seasonal population.
For her population estimates, Dr. Banyan used
2.63 PPH, which was the national average from the 2010 United States Census. This number was based on an analysis of the PPH in the census tracts from the 2010 United States Census and a trend analysis which indicated that the PPH was growing. The census tracts are localized data that reflect actual city blocks. Dr. Banyan reduced the high PPH number of 3.13 resulting from her trend analysis because, in her professional judgment, it was too high. However, a PPH number of 2.47 used by the Petitioner's experts was too low when the evidence from the American Community Survey (ACS) showed that the PPH in the City was growing. Thus, she determined that a 2.63 PPH number was appropriate and professionally acceptable.
Dr. Banyan's data came from professionally-accepted sources, and her methodology was professionally acceptable.
Dr. Banyan's methodology was supported by relevant and appropriate data and analysis.
Although the EAR did not expressly state that the City had the minimum amount of vacant land to accommodate medium projections as published by the Office of Economic and Demographic Research for the ten-year planning period of 2015 through 2025, such conclusion was inherent in the EAR because the City met the requirement in 2040.
The State-Mandated Plan Amendments were not based on Table 1, Table 5, or Figure 2 of the EAR. The State-Mandated Plan Amendments were not based upon or related to Dr. Banyan's permanent and seasonal population projections. After this proceeding commenced, Dr. Banyan analyzed whether the City would have sufficient vacant lands to accommodate the permanent and seasonal population projections during the ten-year period of 2017 to 2027. She determined that the City would have sufficient vacant lands for that time-frame.
At the time of the City's adoption of the State- Mandated Plan Amendments, the City had not completed all of its State-Mandated Amendments regarding the City's concurrency provisions, the City's Coastal High Hazard provisions, the designation of the annexed areas with City FLU categories, and updating certain maps in the City's Comprehensive Plan.
The City is utilizing a phased approach to update its transportation concurrency provisions to comply with requirements of the Community Planning Act. There are several options that the City must evaluate regarding transportation concurrency, such as mobility fees, transportation impact fees, multi-modal impact fees, and transportation concurrency exception areas.
Dr. Banyan informed DEO and the Florida Department of Transportation (DOT) that the City was utilizing a phased approach to update the transportation concurrency provisions in the City's Comprehensive Plan. Neither state agency objected to this phased approach. DOT sent a letter dated April 24, 2017, to the City, which stated that "FDOT looks forward to reviewing the revised transportation element when it becomes available to assist the City with the update of the analysis." See Pet.'s Ex. 66, p. 2.
On March 31, 2016, Dr. Banyan's Team presented the EAR to the City Council. The State-Mandated Plan Amendments that are the subject of these proceedings were based on recommendations in the EAR of amendments that were necessary to reflect changes in state law requirements since 2009.
State Coordinated Review Process
On March 22, 2016, the City sent the notification letter to DEO stating the City had "completed an evaluation of
its Comprehensive Plan to determine if plan amendments are necessary to reflect changes in state requirements since the last plan update." The letter met the City's April 1, 2016, rule deadline.
On March 28, 2016, DEO sent a letter to the City, confirming receipt and establishing the deadline of April 1, 2017, for the City to transmit its proposed plan amendments. The letter further stated that the amendments "are subject to the State Coordinated Review Process as outlined in Section 163.3184(4), Florida Statu[t]es."
On March 1, 2017, the City Council held a transmittal hearing on the proposed State-Mandated Plan Amendments.
Prior to April 1, 2017, the City timely transmitted the proposed State-Mandated Plan Amendments to DEO.
On June 7, 2017, the City Council held a public hearing and voted to adopt the State-Mandated Plan Amendments. Optional Amendments and Annexation Related Amendments are not included in the State-Mandated Plan Amendments.
On August 2, 2017, after reviewing the adopted State- Mandated Plan Amendments, DEO issued a letter to the City stating that it had "reviewed the amendment in accordance with the state coordinated review process," and determined that "the adopted amendment meets the requirements . . . for compliance, as defined in Section 163.3184(1)(b), F.S."
The State-Mandated Plan Amendments
The State-Mandated Plan Amendments consisted of the following changes to the City's Comprehensive Plan:
Changed the text from "Florida Department of Community Affairs" to "Florida Department of Economic Opportunity" or "State Land Planning Agency" (five changes). Under the
2011 Community Planning Act, the Florida Department of Community Affairs was dissolved and the Florida Department of Economic Opportunity was created, which is now the State Land Planning Agency. See City's Ex. 3, pp. 1, 33, 42, 46.
Inserted approximate gross land area in each FLU category (19 changes). The 2011 Community Planning Act required the City to state the approximate gross acreage contained in each of the FLU categories in the City's Comprehensive Plan.
See City's Ex. 3, pp. 2-5, 7-10.
Deleted a reference to the number of dwelling units allowed in the Urban Fringe Community District category (one change). See City's Ex. 3, p. 5.
Inserted a new subparagraph in the Urban Fringe Community District to impose new requirements for amendments to such District (one change). The 2011 Community Planning Act required that any amendment to this category must not result in urban sprawl. See City's Ex. 3, p. 6.
Inserted a new FLU Element Policy 1.1.10.3 that addressed annexed areas not yet assigned a City FLU category (one change). See City's Ex. 3, p. 7. This change reflected
the statutory requirements set forth in section 171.062(2), Florida Statutes.
Revised FLU Element Policy 1.5.1 to include high-tide events, storm surge, flash floods, and storm water runoff as natural disasters for "build-back" purposes (one change). The 2011 Community Planning Act defined "high-tide event" and "build-back" policies. See City's Ex. 3, p. 11.
Changed references to the evaluation and appraisal report to evaluation and appraisal review (12 changes). The 2011 Community Planning Act did away with the evaluation and appraisal report process and provided for the local government to conduct an evaluation review. See City's Ex. 3, pp. 12, 43-46, 52.
Deleted references to Florida Administrative Code Chapter 9J-5 (79 changes). The 2011 Community Planning Act repealed chapter 9J-5. See City's Ex. 3, pp. 29, 42, 45-47,
49-62.
Revised FLU Element Objective 1.11 regarding concurrency standards for potable water, sanitary sewer, solid waste, storm water management, transportation, parks, and school facilities and services (one change). Under the 2011 Community
Planning Act, local governments were required to maintain concurrency standards for potable water, sanitary sewer, solid waste, and storm water management. Local governments were no longer required to maintain concurrency standards for transportation, parks, and schools. The 2011 Community Planning Act imposed additional requirements that a local government must meet if it desired to maintain concurrency standards for transportation, parks, and schools. See City's Ex. 3, p. 13.
Inserted new statutory references (eight changes). See City's Ex. 3, pp. 14-15, 27, 31, 43-45.
Revised definition of development order to be consistent with section 163.3164 (one change). See City's
Exhibit No. 3, page 15.
Inserted new provision regarding administrative challenges to amendments to the Comprehensive Plan (one change). This change was made to be consistent with the 2011 Community Planning Act regarding administrative challenges. See City's
Ex. 3, p. 16.
Inserted new provision that allows an application for a zoning change to be processed concurrently with an application for an amendment to the Comprehensive Plan (one change). This change was made to be consistent with the 2011 Community Planning Act regarding such proposed zoning changes. See City's
Ex. 3, p. 16.
Deleted policy that precluded approval of proposed development that degraded roadway to operate below the approved level of service (one change). The 2011 Community Planning Act mandated that local governments were no longer required to utilize transportation concurrency. See City's Ex. 3, p. 17.
Inserted new Transportation Element Policy 1.1.8, which exempts public transit facilities from transportation requirements (one change). The 2011 Community Planning Act mandated that public transit facilities are exempt from transportation requirements. See City's Ex. 3, p. 17.
Inserted new Transportation Element Policy 1.6.5, which requires the City to consult with the Florida DOT when a proposed plan amendment affects facilities on the strategic intermodal system (one change). This change was based on language in the 2011 Community Planning Act. See City's Ex. 3, p. 18.
Revised Housing Element 1.1 to include affordable workforce housing and deleted reference to 2012 projected resident households (one change). This change essentially mirrored language in the 2011 Community Planning Act. See City's Ex. 3, p. 19.
Inserted new Housing Element Policy 1.1.3, which requires the City to utilize a minimum ten-year planning horizon to forecast housing needs (one change). This change was made to
be consistent with the 2011 Community Planning Act. See City's
Ex. 3, p. 19.
Renumbered or updated references to Policies and Objectives (12 changes). See City's Ex. 3, pp. 19, 26, 28, 38-41.
Inserted "workforce" and definition of "affordable workforce housing" into Housing Element Policy 1.3.3 (two changes). These changes were made to be consistent with the 2011 Community Planning Act. See City's Ex. 3, pp. 20-21.
Inserted new Housing Element Policy 1.3.6.c., which precludes the concentration of affordable housing units in specific areas of the City (one change). This change was based on language in the 2011 Community Planning Act. See City's Ex. 3, p. 21.
Inserted new policies in the Infrastructure Element requiring the City to cooperate with and provide relevant data to certain utility providers (four changes). These changes were made to be consistent with the 2011 Community Planning Act regarding data sharing. See City's Ex. 3, pp. 22-25.
Revised Conservation/Coastal Management Element Objective 5.1 to require the City to minimize flood risks from high-tide events, storm surge, flash floods, storm water runoff, and the related impacts of sea-level rise (one change). This change was made to be consistent with the 2011 Community
Planning Act regarding high-tide events and storm surge. See
City's Ex. 3, p. 26.
Revised Conservation/Coastal Management Element Policy 5.1.2 to include flood risk (one change). This change was made to be consistent with the 2011 Community Planning Act
regarding high-tide events. See City's Exhibit No. 3, page 26.
Inserted new Conservation/Coastal Management Element Policy 5.1.3(b) to establish certain criteria for comprehensive plan amendments within the Coastal High Hazard Area (one change). This change was made to be consistent with the
2011 Community Planning Act regarding coastal high-hazard areas. See City's Ex. 3, pp. 26-27.
Revised Conservation/Coastal Management Element Policy 5.1.6 to address certain flood-resistant construction requirements and flood plain management regulations (one change). This change was made to be consistent with the 2011 Community Planning Act regarding construction in the coastal high-hazard area. See City's Ex. 3, p. 27.
AA. Inserted new Conservation/Coastal Management Element Policy 5.1.10, which addresses certain site development techniques for development within the coastal areas (one change). This change essentially mirrors language in the 2011 Community Planning Act. See City's Ex. 3, p. 27.
BB. Inserted new Intergovernmental Coordination Element Policy 1.1.5 regarding permanent and seasonal population estimates and projections (one change). This change was made to reflect the terminology in the 2011 Community Planning Act regarding permanent and seasonal population projections. See
City's Ex. 3, p. 30.
CC. Revised Intergovernmental Coordination Element Policy 2.1.2 regarding resolution of intergovernmental disputes to closure in a timely manner (one change). This change was made to be consistent with the 2011 Community Planning Act regarding the resolution of such disputes. See City's Ex. 3, p. 32.
DD. Revised Capital Improvements Element Policy 1.1.1.a. by changing "resolution" to "ordinance" (three changes). These changes were made because the 2011 Community Planning Act allowed local governments to adopt a capital improvements program by ordinance rather than by resolution. See City's
Ex. 3, p. 34.
EE. Revised Capital Improvements Element Policy 1.2.1 to limit its application to potable water, sanitary sewer, solid waste, and drainage facilities, deleted references to transportation facilities, addressed conditions of approval such as developer's fair share payments and statutory development agreement, established deadline for facilities to be in place to
serve new development, and deleted the table entitled "Public facilities and Services" (eight changes). These changes were made to be consistent with the 2011 Community Planning Act regarding concurrency requirements. Local governments were required to maintain concurrency standards for potable water, sanitary sewer, solid waste, and storm water management. Local governments were no longer required to maintain concurrency standards for transportation, parks, and schools. The
2011 Community Planning Act imposed additional requirements that a local government must meet if it desired to maintain concurrency standards for transportation, parks, and schools.
FF. Inserted new Capital Improvements Element Policy 1.2.2 to enforce level of service standards for transportation, parks, and schools (one change). This change was made to be consistent with the 2011 Community Planning Act regarding concurrency requirements. The City desired to maintain concurrency standards for transportation, parks, and schools until it could work through the various options to do so set forth in the
2011 Community Planning Act.
GG. Revised Capital Improvements Element Policy 1.2.5 to require that development orders or permits may only be withheld when there is insufficient capacity for potable water, sanitary sewer, solid waste, and storm water management (one change).
This change was made to be consistent with the 2011 Community Planning Act regarding concurrency requirements.
HH. Changed references to the "1985 Local Government Comprehensive Planning and Land Regulation Act" to the "Community Planning Act" (four changes).
II. Changed a reference to the "University of Florida, Bureau of Economic and Business Research" to "Office of Economic and Demographic Research" (one change). This change was made to be consistent with the 2011 Community Planning Act.
JJ. Revised Public School Facilities Element
Policy 1.2.4.c. by deleting denial of application based on inadequate school capacity if mitigation cannot be agreed upon (one change). This change was made to be consistent with the 2011 Community Planning Act regarding concurrency requirements.
KK. Inserted new Public School Facilities Element Policy 1.2.4.d. regarding the acceptance of relocatable
classrooms as a mitigation option (one change). This change was made to be consistent with the 2011 Community Planning Act.
LL. Revised definition of "Availability or Available" to apply only to concurrency standards (one change). This change was made to be consistent with the 2011 Community Planning Act regarding concurrency requirements.
MM. Inserted a new definition of "Coastal High Hazard Area" (one change). This change was made to be consistent with the definition in the 2011 Community Planning Act.
NN. Revised the definition of "Urban sprawl" (one change).
This change was made to be consistent with the 2011 Community Planning Act.
There were a total of 185 changes to the City's Comprehensive Plan in the State-Mandated Plan Amendments. The vast majority of these changes were irrelevant to an "in compliance" challenge. The City's FLUM was not changed, and none of the figures and maps in the Comprehensive Plan was changed. These items will be updated at a later date as part of the City's phased approach.
The Petitioner's Challenge
The theme of the Petitioner's challenge was the City's alleged failure to propose changes to the Comprehensive Plan that the Petitioner argued were required either by state mandate or as an appropriate reaction to the data and analysis. The Petitioner's case largely focused on challenging data and analysis that were not the basis for the State-Mandated Plan Amendments at issue in this proceeding. For example, the State- Mandated Plan Amendments at issue in this proceeding were not based on or related to Dr. Banyan's permanent and seasonal population projections. The Petitioner's "general grounds in
support of its claim" as presented in its Proposed Recommended Order, are generally addressed below.
The City Failed to Include All Plan Amendments Necessary to Reflect Changes in State Requirements Since 2009
The Petitioner contended that the City improperly took a phased approach to adopting its State-Mandated Plan Amendments. The Petitioner argued that by failing to complete all of its State-Mandated Plan Amendments in one review, the City violated section 163.3191(4), rendering the State-Mandated Plan Amendments at issue in this proceeding not "in compliance."
Prior to 2011, section 163.3191(10), provided, in part, that "[t]he governing body shall amend its comprehensive plan based on the recommendations in the [EAR] report and shall update the comprehensive plan based on the components of subsection (2), pursuant to the provisions of ss. 163.3184, 163.3187, and 163.3189." § 163.3191(10), Fla. Stat. (2010). Prior to 2011, the EAR process was a very structured and state- regulated process. Although there was an 18-month time frame for the local government to complete its EAR-based comprehensive plan amendments, extensions of time to do so were frequently granted to provide extra time for a local government to complete transportation-related amendments.
Under the 2011 Community Planning Act, a local government is no longer required to "amend its comprehensive
plan based on the recommendations in the [EAR] report." The new EAR process is much simpler and more localized.
The evidence showed that the City could simply send a notification letter to DEO stating its determination that no plan amendments were necessary to reflect changes in state requirements since the last update of the City's Comprehensive Plan. The Legislature did not authorize DEO or a third party to challenge the local government's determination in this type of administrative proceeding.
Nevertheless, the City initiated a time-intensive and costly evaluation, and there is no evidence that the City used the phased process to circumvent updating its Comprehensive Plan to reflect changes in state requirements. Dr. Banyan and
Ms. Crespo testified that the City intended to proceed with completing the remainder of the State-Mandated Amendments, as well as the Annexation Related Amendments and the Optional Amendments, and those efforts were on hold as a result of this administrative proceeding.
As found above, the City's decision to utilize a phased approach was reasonable, because making extensive changes to the City's entire Comprehensive Plan was complicated, time- consuming, and expensive. The phased approach was beneficial from a public support standpoint and allowed the City to meet its one-year deadline to transmit its State-Mandated Plan
Amendments to DEO. Also, it provided the City with additional time to continue working on additional State-Mandated Plan Amendments, as well as the Optional Amendments and the Annexation Related Amendments. The potential comprehensive plan amendments that may take years to complete because of their complexity include the City's Transportation Element and developing approaches to transportation concurrency.
The Petitioner did not prove beyond fair debate that the City's approach violated section 163.3191.
The City failed to Comply with the Requirements Applicable to Local Governments Which Elect to Maintain Transportation Concurrency
It is undisputed that the City has not completed its State-Mandated Amendments in regard to the Transportation Element and transportation concurrency requirements. The City intends to update the City's Transportation Element and the City's transportation concurrency requirements in a subsequent phase of the State-Mandated Amendments.
Under the 2011 Community Planning Act, imposing concurrency for roadways (transportation), parks, and schools is optional. The City elected to maintain transportation concurrency and, in this first phase, made the changes described in Finding of Fact 41, paragraphs I, N, O, P, DD, EE, FF,
and GG, above. For now, the City would maintain the pre-
existing transportation concurrency scheme and level of service standards.
The changes also included updating the language that allowed the City to deny development permits if there was a failing level of service for transportation, parks, or schools. The changes made it clear that development permits would not be denied for failing levels of service for transportation, parks, or schools. Instead, those landowners would be afforded the proportionate fair share or other options under the capital improvements element.
The Petitioner argued that the City failed to identify infrastructure needs and update the components of the City's Comprehensive Plan's Capital Improvements Element and impose a new five-year planning period for those components. The Petitioner argued that the City's Comprehensive Plan failed to identify deficient facilities, designate funding availability, and identify facilities needed to maintain existing level of service standards in violation sections 163.3180(1)(b) and 163.3177(3).
The City is authorized to adopt a capital improvement schedule by local ordinance outside of the comprehensive planning process under section 163.3177(3)(b). The identification of deficiencies, needs, costs, and schedules were
accomplished when the City adopted its 2017 Five-Year Capital Improvement Program Annual Update by way of Ordinance
No. 17-19.4/
The Petitioner did not prove beyond fair debate that the City's approach violated sections 163.3177(3), 163.3180, and 163.3191.
The City failed to base the Plan Amendments on an Assessment of the Entire Area of the City's Jurisdiction
The Petitioner argued that the EAR process should review the entirety of the City's jurisdiction and ensure that the entire area is coordinated with the future land use map series and land use policies. The Petitioner also argued that the City was required to update the future land use map series and figures in the City's Comprehensive Plan. More specifically, the Petitioner's argument focused on the proposed amendments to FLU Element Policies 1.1.10.3 and 1.1.21, which affect the mine property.
As described above, the new FLU Element
Policy 1.1.10.3 addressed annexed areas which have not yet
been assigned a City FLU category. Although an existing statute already provided guidance, the City realized that because there are many factors at issue when determining which City FLU category to assign to the annexed properties and that the
process will take time, a place holder in the form of FLU Policy 1.1.10.3 would be beneficial.
As described above, the State-Mandated Plan Amendments included adding approximate gross land area in each FLU category consisting of 19 changes. Table 4 in the EAR shows that there were 26,019.24 acres located within the City's boundaries by FLU category. In addition, properties annexed between 2009 and 2015 totaled 292.62 acres. The slight difference between the total acres indicated on Table 4 of the City's EAR and the total acres indicated in the State-Mandated Plan Amendments was the result of rounding the numbers to come up with the approximate gross acreages.
The Petitioner also criticized the fact that the City's FLU in the Comprehensive Plan was not updated, as was none of the Figures and Maps. The City testified that these items would be updated at a later date as part of the City's phased approach.
The evidence showed that the City considers the mine property to be within the DRGR FLU category of the Lee County Comprehensive Plan. Although the City also has a DRGR FLU category, FLU Policy 1.1.21 clearly stated that the approximate gross acreage number included "annexed Lee County DRGR lands." The City explained that Lee County's DRGR land use category and
implementing land use regulations would still apply to the mine property that was annexed in 2003.
Contrary to the Petitioner's argument, the amendment to FLU Policy 1.1.21 did not formally place the mine property into the City's DRGR FLU category. As found above, the annexation agreement provided that "until such time as the [mine property] is designated," it will "retain its DRGR classification as described in the Lee [County Comprehensive] Plan with all uses as presently permitted therein, including limerock mining and processing."
The Petitioner did not prove beyond fair debate that the City's approach violated section 163.3177.
The City failed to Provide Meaningful and Predictable Standards For the Use and Development of Land within the City's Jurisdiction
Contrary to the Petitioner's arguments, postponing the assignment of a City FLU category to the annexed properties would not result in a lack of meaningful and predictable standards for those properties. Under section 171.062(2), FLU Policy 1.1.10.3, and applicable annexation agreements, the requirements of Lee County's Comprehensive Plan and Lee County's Land Development Code would continue to apply to annexed properties until the City assigns or creates a new City FLU category.
The City elected to maintain transportation concurrency and, in this first phase, only made the changes previously described. The City would maintain the pre-existing transportation concurrency scheme and level of service standards in the City's Comprehensive Plan. Individual projects would continue to be evaluated under those provisions of the City's Comprehensive Plan and the implementing land development regulations in the City's land development code.
The Petitioner did not prove beyond fair debate that the City violated section 163.3177(1) and 163.3180.
The City Failed to Base the Proposed Amendments on Relevant, Appropriate and Professionally Accepted Data and Analysis
Many of the issues raised by the Petitioner were more focused on attacking the sufficiency of the EAR document than on the amendments that were actually the subject of this proceeding. The Petitioner mistakenly believed that in this proceeding, it should be able to "enforce" the City's alleged failure to react appropriately to the data and analysis. An appropriate reaction, in the Petitioner's opinion, would be that the City propose amendments which adjust the City's FLU categories and/or development densities.
However, this proceeding was about the amendments actually proposed and not about amendments that allegedly should have been proposed. The Petitioner's evidence focused on trying
to prove that the City's vacant lands acreage, existing and future RDU capacity calculations, including the use of maximum density for each FLU category were erroneous. The State- Mandated Plan Amendments adopted by the Ordinance were not based on Table 5–Vacant Lands, or Figure 2–Vacant Lands Map of the EAR. Also, the State-Mandated Plan Amendments were not based on or related to Dr. Banyan's permanent and seasonal population projections reflected in Table 1 of the EAR.
Despite the foregoing, the Petitioner's arguments were addressed during the final hearing. Using the data available to the City at the time of adoption of the Ordinance, the Petitioner calculated that there were 2,903.99 (not the 2,965.86 in Table 5) vacant acres available for residential development. As the City pointed out, a mere difference of 61.87 acres or approximately two percent.
Then the Petitioner concluded that by using this "erroneous" vacant acreage number and the maximum residential density for each FLU category, the City's existing and future RDU capacity calculations resulted in a shortfall for a ten-year planning period and for the 25-year planning period used by the City in its EAR. The Petitioner's experts used data from the City to determine that historically the City had approved development at less than the maximum residential density for applicable FLU categories. The Petitioner argued, therefore,
that the City's methodology for calculating its remaining RDU capacity was not professionally acceptable.
However, the City utilized the maximum density for each FLU category because it is not professionally acceptable to assume that future city councils would approve development at some unknown lesser density.
The Petitioner contended that the City's permanent and seasonal population projections were flawed because it used the Shimberg Center's 2014 population projection data even though 2015 data was available. The Petitioner argued that 2015 data was the best because it was the most recent data available at the time of adoption of the State-Mandated Plan Amendments. However, the evidence showed that the 2015 data was not published until mid-2016, after the City finalized and approved its EAR in March of 2016. Thus, the City's use of 2014 Shimberg Center data was reasonable and professionally acceptable.
In addition, the Petitioner argued that total projected population including seasonal population, should include migrant workers, to account for the highest projection so that the City can conservatively plan to have the resources available to accommodate population growth. Dr. Banyan explained that it was more reliable to use the United States Census subsets for projecting seasonal population. See Findings
of Fact 25 - 27. She explained that migrant workers were a
small amount of the seasonal population statistic. Dr. Banyan's reliance on the United States Census data and methodology was professionally acceptable. See Finding of Fact 28.
The State-Mandated Plan Amendments were not based on or related to Dr. Banyan's permanent and seasonal population projections reflected in Table 1 of the EAR. For future planning purposes the EAR document clearly stated that "[i]f the City intends to incorporate population projections into any future E.A.R. based amendments, these projections should be updated to assure that the information is the most currently available."
The Petitioner did not prove beyond fair debate that the City violated section 163.3177(1)(f).
The City's Proposed Amendments Create Internal Inconsistencies
The Petitioner challenged the amendments to the Future Land Use and Capital Improvements Elements as contrary to section 163.3177(2), which requires the several elements of the comprehensive plan to be consistent. Section 163.3177(2) states that "[c]oordination of the several elements of the local comprehensive plan shall be a major objective of the planning process."
The Petitioner essentially argued that even if a phased approach is acceptable, the City's choice to not update
certain maps and figures in this first phase created internal inconsistencies in violation of section 163.3177(2). The argument focused on the fact that the DRGR approximate gross acreage in amended FLU Policy 1.1.21 included the Lee County annexed acreage, which is the mine property. And, the mine property was not depicted on the existing maps and figures in the Comprehensive Plan.
Contrary to the Petitioner's argument, since the amendment to FLU Policy 1.1.21 did not formally place the mine property in the City's DRGR FLU category, the maps and figures of the City's Comprehensive Plan were not relevant. The principles, guidelines, and standards applicable to the mine property are those of Lee County's Comprehensive Plan and not the City's Comprehensive Plan. Thus, amended FLU Policy 1.1.21 did not create inconsistencies with the existing maps and figures in the Comprehensive Plan.
The Petitioner argued that the new Capital Improvements Element Policy 1.2.2. that included the statement that the City shall enforce its facility level of service standards for transportation "under the requirements established by Florida law," was inconsistent with the existing Transportation Element Policy 1.1.2. Transportation Element Policy 1.1.2 incorporated an allegedly now outdated version of the Lee County Metropolitan Planning Organization (MPO) long
range transportation plan. The Petitioner argued that the alleged inconsistency violated section 163.3177(3)(a)5.
Section 163.3177(3)(a)4. requires a schedule of capital improvements and what projects must be included. Section 163.3177(3)(a)5. further provides that the schedule must include transportation improvements from the applicable MPO's transportation improvement program "to the extent such
improvements are relied upon to ensure concurrency and financial feasibility." The City's most recent schedule was its
2017 Five-Year Capital Improvement Program Annual Update adopted by Ordinance No. 17-19. The Petitioner did not prove that Ordinance No. 17-19 does not contain transportation improvements that comply with section 163.3177(3)(a)5.
The Petitioner also argued that new Capital Improvements Element Policy 1.2.2 created an inconsistency with the existing Capital Improvements Element, City of Bonita Springs, Fiscal Year 2013-2014, Capital Improvement Projects, which is an outdated schedule in the existing Comprehensive Plan, in violation of Florida law, sections 163.3180(1)(b), (5)(b), and (5)(d) and 163.3177(3). However, as previously found, the schedule is updated annually by ordinance and not by comprehensive plan amendment. The City's most recent schedule was its 2017 Five-Year Capital Improvement Program Annual Update adopted by Ordinance No. 17-19.
The Petitioner did not prove beyond fair debate that the amendments to the Future Land Use and Capital Improvements Elements are contrary to section 163.3177(2).
Ultimate Findings
The Petitioner did not prove beyond fair debate that the Ordinance is not in compliance. All other contentions not specifically discussed have been considered and rejected.
The City's determination that the Ordinance is in compliance is fairly debatable.
CONCLUSIONS OF LAW
Standing and Scope of Review
To have standing to challenge a comprehensive plan amendment, a person must be an "affected person" as defined in section 163.3184(1)(a). The Petitioner is an affected person and has standing to challenge the Ordinance.
An affected person challenging a plan amendment must show that the amendment is not "in compliance" as defined in section 163.3184(1)(b). "In compliance" means consistent with the requirements of sections 163.3177, 163.3178, 163.3180, 163.3191, 163.3245, and 163.3248. The statutes listed in section 163.3184(1)(b) do not include section 163.3171(1). Therefore, consistency with that statutory provision is not relevant to an "in compliance" determination.
Burden and Standard of Proof
As the party challenging the Ordinance, the Petitioner has the burden of proof.
The City's determination that the Ordinance is "in compliance" is presumed to be correct and must be sustained if the City's determination of compliance is fairly debatable. See § 163.3184(5)(c)1., Fla. Stat.
The term "fairly debatable" is not defined in chapter 163. In Martin County v. Yusem, 690 So. 2d 1288, 1295 (Fla. 1997), the Florida Supreme Court explained "[t]he fairly debatable standard is a highly deferential standard requiring approval of a planning action if a reasonable person could
differ as to its propriety." The Court further explained, "[a]n ordinance may be said to be fairly debatable when for any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction that in no way involves its constitutional validity." Id. Put another way, where there is
"evidence in support of both sides of a comprehensive plan amendment, it is difficult to determine that the County's decision was anything but 'fairly debatable.'" Martin Cnty. v. Section 28 P'ship, Ltd., 772 So. 2d 616 (Fla. 4th DCA 2000).
Moreover, "a compliance determination is not a determination of whether a comprehensive plan amendment is the best approach available to the local government for achieving
its purpose." Martin Cnty. Land Co. v. Martin Cnty., Case
No. 15-0300GM at ¶ 149 (Fla. DOAH, Sept. 1, 2015; Fla. DEO, Dec. 30, 2015).
The standard of proof for findings of fact is preponderance of the evidence. See § 120.57(1)(j), Fla. Stat.
Challenging Unchanged Provisions
Throughout this proceeding, the Petitioner argued that the State-Mandated Plan Amendments adopted by the Ordinance are not in compliance because the City failed to update or amend other provisions of its Comprehensive Plan. At various points in this proceeding, this tribunal ruled that the Petitioner would not be allowed to challenge unchanged provisions of the City's Comprehensive Plan.
In Dibbs v. Hillsborough County, Case No. 12-1850GM
(Order on Motion) (Fla. DOAH July 2, 2012; Fla. DEO May 17, 2012), the ALJ granted the county's motion to strike portions of a petition for administrative hearing that raised matters beyond the scope of the actual amendments at issue, stating, in pertinent part:
A well-established principle in a compliance proceeding is that once a plan provision is determined to be in compliance, it cannot be collaterally attacked in a subsequent proceeding. . . . This means that, with certain exceptions not relevant here, when a local government periodically "readopts" or "updates" a plan or even just a subset of a plan element, only those provisions that are
actually amended are subject to challenge. Therefore, the Motion is granted, and all allegations directed to provisions in the plan amendments which are not amended are hereby stricken.
(Emphasis added). This conclusion of law was specifically upheld in the Final Order. See Dibbs v. Hillsborough Cnty., Case
No. 12-1850GM (Fla. DOAH Apr. 22, 2013; Fla. DEO Dec. 10,
2013)("The ALJ correctly noted that the state land planning agency has consistently followed the principle that existing plan provisions that were previously determined to be in compliance and that are not amended are not subject to review or challenge in a subsequent plan amendment proceeding.").
The Petitioner argued that it was necessary to refer to "unchanged" provisions of the City's Comprehensive Plan in order to raise issues like inconsistency and enforcing the requirements of chapter 163. Those arguments are addressed in this Recommended Order only to the extent of not violating the legal principle reiterated in Dibbs.
Evaluation and Appraisal Review
The statutory requirements for the evaluation and appraisal of a local government's comprehensive plan are set forth in section 163.3191:
At least once every 7 years, each local government shall evaluate its comprehensive plan to determine if plan amendments are necessary to reflect changes in state requirements in this part since the last
update of the comprehensive plan, and notify the state land planning agency as to its determination.
If the local government determines amendments to its comprehensive plan are necessary to reflect changes in state requirements, the local government shall prepare and transmit within 1 year such plan amendment or amendments for review pursuant to s. 163.3184.
Local governments are encouraged to comprehensively evaluate and, as necessary, update comprehensive plans to reflect changes in local conditions. Plan amendments transmitted pursuant to this section shall be reviewed pursuant to s. 163.3184(4).
If a local government fails to submit its letter prescribed by subsection (1) or update its plan pursuant to subsection (2), it may not amend its comprehensive plan until such time as it complies with this section.
The state land planning agency may not adopt rules to implement this section, other than procedural rules or a schedule indicating when local governments must comply with the requirements of this section.
The 2011 Community Planning Act requires an evaluation and appraisal review but does not require a local government to produce a document such as the City's EAR prepared by
Dr. Banyan's Team. In 2011, the sweeping changes to part II of chapter 163 did away with the cumbersome "Evaluation and Appraisal Report," which was the principal process for updating local comprehensive plans and required an extensive state sufficiency review.5/ The review of that document by the state
land planning agency was discrete from amendments and needed to be accomplished first. See, e.g., The Sunshine Ranches Homeowners Ass'n, Inc. v. City of Cooper City, Case No. 96-5558GM
(Fla. DOAH July 23, 1997; Fla. DCA Nov. 18, 1997).
A local government is now required to evaluate whether any changes are needed in its comprehensive plan and then to send a notification letter to the DEO regarding its determination of whether such changes are needed. The notification letter is the "principal process for updating local comprehensive plans to reflect changes in state requirements." Fla. Admin. Code R. 73C-
49.001. Thus, the City fulfilled the requirements mandated by section 163.3191. See also Alerts of PBC, Inc. v. Palm Beach Cnty., Case No. 14-5657GM (Fla. DOAH Apr. 17, 2015; Fla. DEO
July 7, 2015)("However, any determination as to whether or not plan amendments are necessary after such a review is left up to the local government.").
The plain language of section 163.3191 does not preclude the City from addressing its State-Mandated Amendments in a phased manner. Moreover, even if section 163.3191, precluded the City from addressing its State-Mandated Amendments in a phased manner, which it does not, the "penalty" for doing so would not be a determination of "not in compliance" for the incomplete State-Mandated Amendments. Rather, pursuant to section 163.3191(4), the "penalty" for doing so would be a
temporary ban on non-state-mandated amendments, until such time as all the State-Mandated Amendments were adopted.
Meaningful and Predictable Standards
Comprehensive plans must provide "meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development and use regulations." § 163.3177(1), Fla. Stat. The Petitioner failed to prove the Ordinance violates this requirement.
Contrary to the Petitioner's argument, postponing the assignment of a City FLU category to the annexed properties would not result in a lack of meaningful and predictable standards for those properties. Under section 171.062(2), FLU Policy 1.1.10.3, and any applicable annexation agreements, the requirements of Lee County's Comprehensive Plan and Lee County's Land Development Code would continue to apply to annexed properties until the City assigns or creates a new City FLU category.
The Petitioner contended that the State-Mandated Plan Amendments are not "in compliance" because the amendments allegedly failed to update the Capital Improvements Element of the City's Comprehensive Plan to reflect a five-year time frame. The Petitioner's contention was premised on the argument that a local government's capital improvements schedule must be updated as a comprehensive plan amendment. However, section
163.3177(3)(b) expressly provides that "[m]odifications to update the 5-year capital improvement schedule may be accomplished by ordinance and may not be deemed to be amendments to the local comprehensive plan." See Anderson v. City of St. Pete Beach, Case No. 17-1884GM (Fla. DOAH Aug. 29, 2017; Fla. DEO Nov. 27,
2017) ("By adopting this statutory scheme, the Legislature obviously intended to give local governments the flexibility of annually updating their schedules without following the rigors of the plan amendment process.").
The City adopted a provision that authorizes the adoption of a capital improvement schedule by local ordinance outside of the comprehensive planning process. Consequently, the identification of deficiencies, needs, costs, and schedules are, therefore, a determination that centers on such local ordinance, not on the City's Comprehensive Plan.
Consistent with section 163.3177(3)(b), the City adopted its 2017 Five-Year Capital Improvement Program Annual Update by way of Ordinance No. 17-19. The City's interpretation of the law is more reasonable than the Petitioner's and is hereby accepted.
The Petitioner did not prove beyond fair debate that the City's election to maintain transportation concurrency but use a phased approach resulted in a lack of "meaningful and predictable standards for the use and development of land." The
City would maintain the pre-existing transportation concurrency scheme and level of service standards in the City's Comprehensive Plan. Individual projects would continue to be evaluated under those provisions of the City's Comprehensive Plan and the implementing land development regulations in the City's land development code.
Data and Analysis
Section 163.3177(1)(f) requires that all plan amendments be based on relevant and appropriate data and an analysis by the local government. The statute explains: "To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue." § 163.3177(1)(f), Fla. Stat. The evaluation, however, "may not include whether one accepted methodology is better than another." § 163.3177(1)(f)2., Fla. Stat.
The data which may be relied upon in this proceeding is not limited to the data identified or used by the local government. All data available to the local government and in existence at the time of adoption of the State-Mandated Plan Amendments may be presented. See Zemel v. Lee Cnty., 15 F.A.L.R. 2735 (Fla. Dep't of Cmty. Aff. 1993), aff'd, 642 So. 2d 1367
(Fla. 1st DCA 1994).
Relevant analyses of data need not have been in existence at the time of adoption of a plan amendment. Data existing at the time of adoption may be analyzed through the time of the administrative hearing. Id.
Data supporting an amendment must be taken from professionally accepted sources. See § 163.3177(1)(f)2., Fla.
Stat. However, local governments are not required to collect original data. Id.
The methodology used in data collection must be professionally acceptable, but the question of whether one professionally acceptable methodology is better than another cannot be evaluated. Id.
Many of the issues raised by the Petitioner were more focused on attacking the sufficiency of the EAR document than on the amendments that were actually the subject of this proceeding. The Petitioner mistakenly believed that in this proceeding, it should be able to "enforce" the City's alleged failure to react appropriately to data and analysis by proposing amendments that would adjust the City's FLU categories and/or development densities. However, this proceeding was about the amendments actually proposed and not about amendments that allegedly should have been proposed. See § 163.3184(5)(a), Fla. Stat.; Dibbs v. Hillsborough Cnty., Case No. 12-1850GM (Fla. DOAH Apr. 22, 2013;
Fla. DEO Dec. 10, 2013).
As found above, the State-Mandated Plan Amendments adopted by the Ordinance were not based on Table 5–Vacant Lands or Figure 2–Vacant Lands Map of the EAR. Also, the State- Mandated Plan Amendments were not based on Dr. Banyan's permanent and seasonal population projections as reflected in Table 1 of the EAR.
As a matter of law, therefore, it was not necessary to determine if the data and analysis behind Table 1, Table 5, and Figure 2 of the EAR were relevant and appropriate. However, as found above, Dr. Banyan's Team used data from professionally accepted sources and their methodology was professionally acceptable. See, e.g., Zemel v. Lee Cnty., 15 F.A.L.R. 2735 (Fla. Dep't of Cmty. Aff. 1993), aff'd, 642 So. 2d 1367 (Fla. 1st
DCA 1994); Martin Cnty. Conservation Alliance, Inc., et al. v. Martin Cnty., et al., Case No. 10-0913GM (Fla. DOAH Sept. 3,
2010; Fla. DCA Jan. 3, 2011)(reflecting that local governments are required to use theoretical maximum densities unless there are policies in the comprehensive plan prohibiting landowners from attaining the theoretical maximum densities).
Internal Consistency
Section 163.3177(2) requires the elements of a comprehensive plan to be internally consistent.
The Petitioner did not prove beyond fair debate that the amendments to the Future Land Use and Capital Improvements Elements are contrary to section 163.3177(2).
Summary
The City's determination that the Ordinance is in compliance is fairly debatable.
The Petitioner did not prove beyond fair debate that the Ordinance is not in compliance.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Department of Economic Opportunity issue a final order determining that the State-Mandated Plan Amendments adopted by the City's Ordinance No. 17-08 are in compliance.
DONE AND ENTERED this 18th day of December, 2018, in Tallahassee, Leon County, Florida.
S
FRANCINE M. FFOLKES
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 2018.
ENDNOTES
1/ All references herein to the Florida Statutes are to the 2017 version, unless otherwise noted.
2/ § 163.3161, et seq., Fla. Stat.
3/ Fla. Admin. Code R. 73C-49.002 (2012). Rule 73C-49.002 was repealed in 2017 and the schedule was moved into rule 73C-49.001. The current schedule shows the City's next due date as April 1, 2023, which is seven years from its first due date of April 1, 2016, in accordance with section 163.3191(1).
4/ The undersigned takes official recognition of the City's Ordinance 17-19. See § 90.202(10), Fla. Stat.
5/ § 163.3191, Fla. Stat. (2010).
COPIES FURNISHED:
Timothy P. Atkinson, Esquire Sidney Conwell Bigham, Esquire
Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110
Tallahassee, Florida 32302 (eServed)
David A. Theriaque, Esquire
S. Brent Spain, Esquire
Law Firm of Theriaque and Spain
433 North Magnolia Drive Tallahassee, Florida 32308 (eServed)
Terrell K. Arline, Esquire Terrell K. Arline, Attorney
at Law, Company 1819 Tamiami Drive
Tallahassee, Florida 32301 (eServed)
Audrey E. Vance, Esquire City of Bonita Springs 9101 Bonita Beach Road
Bonita Springs, Florida 34135 (eServed)
Peter Penrod, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110
107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
Cissy Proctor, Executive Director Department of Economic Opportunity Caldwell Building
107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
Stephanie Webster, Agency Clerk Department of Economic Opportunity Caldwell Building
107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
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 |
|---|---|---|
| Mar. 18, 2019 | Agency Final Order | |
| Dec. 18, 2018 | Recommended Order | The City of Bonita Springs determination that Ordinance 17-08 is in compliance under section 163.3184 is fairly debatable. The Petitioner did not prove beyond fair debate that the Ordinance is not in compliance. |
