STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
1182/3526S ROUSE LLC AND 1185/3626N ROUSE LLC, Petitioners, vs. ORANGE COUNTY, Respondent. / | Case No. 18-5985GM |
RECOMMENDED ORDER
A duly-noticed final hearing was held in this case on
April 16, 2019, in Orlando, Florida, before Francine M. Ffolkes, an Administrative Law Judge with the Division of Administrative
Hearings (DOAH).
APPEARANCES
For Petitioners: Gregory M. Munson, Esquire
Gunster, Yoakley and Stewart, P.A.
215 South Monroe Street, Suite 601 Tallahassee, Florida 32301
For Respondent: William C. Turner, Esquire
Orange County Attorney's Office
201 South Rosalind Avenue, Third Floor Orlando, Florida 32801
STATEMENT OF THE ISSUE
Whether amendments to the Orange County Comprehensive Plan, adopted by Ordinance 2018-23 on October 16, 2018, are "in compliance," as that term is defined in section 163.3184(1)(b), Florida Statutes.1
PRELIMINARY STATEMENT
On November 15, 2018, the Petitioners, 1182/3526S Rouse LLC and 1185/3626N Rouse LLC (Petitioners), filed a Petition for Formal Administrative Hearing (Petition) under section 163.3184, Florida Statutes, challenging comprehensive plan amendments that the Respondent, Orange County (County), adopted on October 16, 2018, by Ordinance 2018-23. The parties filed their Joint Prehearing Stipulation on April 11, 2019.
At the final hearing, the Petitioners presented the testimony of Thomas Jokerst, the Petitioners' corporate representative; Jim Hall, an expert in Orange County's comprehensive planning process; and Dr. David Depew, an expert in comprehensive planning, zoning and land use planning. Joint Exhibits 1 through 22 were admitted into evidence.
The County presented the testimony of Olan Hill, assistant manager, Orange County Planning Division; and Chris Testerman, deputy county administrator, who was accepted as an expert in interpretation and application of the Orange County
Comprehensive Plan. The County's Exhibits 34, 52, 53, 55, and 56 were admitted into evidence.
The one-volume Transcript was filed with DOAH on April 29, 2018. The parties' proposed recommended orders were timely filed and have been considered in the preparation of this Recommended Order.
References to the Florida Statutes are to the 2019 version, unless otherwise stated.
FINDINGS OF FACT
Based on the parties' stipulations and the evidence adduced at the final hearing, the following findings of fact are made: The Parties
Orange County is a charter county in the State of Florida subject to the requirements of chapter 163, Florida Statutes, and a local government, as defined by section 163.3164(29), Florida Statutes.
The Petitioners own property in the County and are directly and materially impacted by the amendments. The Petitioners, through counsel, provided oral and written comments, recommendations, or objections to the County between the transmittal hearing for Ordinance 2018-23 on June 19, 2018, and adoption of the amendments on October 16, 2018. The Petitioners are "affected persons" as defined in section 163.3184(1)(a).
The Amendments
On October 16, 2018, in Ordinance 2018-23, the County amended its 2010-2030 Comprehensive Plan (comprehensive plan) by adopting amendment 2018-2-C-FLUE-2, which included amendments to Future Land Use (FLU) Element Policies 2.5.2, 2.5.4, 8.1.1, and adding Map 25(d) to the FLU Map Series. The amendments established the Rocking Horse Rural Residential Enclave (Rocking Horse RRE). Ordinance 2018-23 also created Policy FLU 2.5.8 regarding new proposed land use, zoning and development applications within or in close proximity to a Rural Residential Enclave (RRE).
In a prior action, on July 10, 2018, the County adopted plan amendment 2018-2-C-FLUE-1 through Ordinance 2018-17. This action was not challenged by any party including the Petitioners.
With the adoption of plan amendment 2018-2-C-FLUE-1 by Ordinance 2018-17, the County created or amended ten FLU Element objectives and policies to support and preserve the local character of designated RREs. Included in the amendment were Maps 25(a) through (c) of the FLU Map Series that depicted the geographic location of the Lake Mabel, Chickasaw, and Berry Dease RREs. The adopted plan amendments established a definition and intent for RREs, outlined the process for creating new enclaves, established minimum net developable land
area requirements for new residential lots, and prohibited the use of clustering for purposes of achieving smaller lot sizes. Development features and design techniques aimed at protecting and enhancing "rural character," such as fencing, street/rural corridor design, and prohibition of gated developments, were further outlined in Policy FLU 2.5.7. Finally, the "Zoning and Future Land Use Correlation" table of Policy FLU 8.1.1 was amended to establish consistency between the underlying FLU map and FLU designations for each enclave and their existing zoning districts.
The objective and policies in the County's comprehensive plan regarding RREs created by Ordinance 2018-17 added the RRE concept to the County's Urban Strategies Goal FLU 2. Goal FLU 2 states that the County's long term vision
includes "an urban experience with a range of choices and living options."
The provisions in the County's comprehensive plan creating RREs adopted by Ordinance 2018-17 were not subject to challenge in this proceeding. However, the evolution of and support for RREs in general, was important for the Rocking Horse RRE amendments in Ordinance 2018-23.
Background
In 2015, and at the request of several members of the Board of County Commissioners (Board), County staff began a
small area study of four neighborhoods in unincorporated Orange County. By County staff's analysis, these four neighborhoods had relatively low densities of residential development, had retained a rural or agricultural character and development pattern, and had inconsistencies between the zoning districts of the area and the applicable FLU map designation.
The County staff collected data on all four neighborhoods, ranging from aerial map photography to zoning and FLU maps. The County staff conducted site visits, did lot size analyses, took and/or gathered ground photographs, and had a series of community meetings.2
On October 3, 2017, the Board conducted a work session in which staff presented the results of the small area study, and, in a subsequent meeting, directed staff to proceed with drafting comprehensive plan policies for RREs including the Rocking Horse RRE.
The results of the small area study showed that three neighborhoods, including Rocking Horse RRE, were located within the County's Urban Service Area (USA) and one was just outside of the USA. Despite their locations inside the USA, these neighborhoods had maintained a rural character exemplified by a low density development pattern. More specifically, they were single-family neighborhoods with a homogeneous and stable pattern of development and fairly-defined geographic boundaries.
They had existing roadways that were considered rural in character and were designated as rural corridors.
The residents of these neighborhoods desired to maintain their rural character into the future against suburban development pressure that is otherwise encouraged under the County's development framework and urban infill policies. Rocking Horse RRE
The small area study included the neighborhood located on the east and west sides of Rocking Horse Road, which lies south of the Orange County boundary line with Seminole County and is bisected in a north-south direction by both Rocking Horse Road and the Little Econlockahatchee River (Little Econ River). Ground photographs showed Rocking Horse Road's existing character as a rural corridor with rural features such as soft shoulders, coal-paved roads, split-rail fencing, and an equestrian-type atmosphere.
In connection with the part of the small area study related to the Rocking Horse Road neighborhood, County staff held three community meetings where comments and input were received from neighborhood residents and other attendees regarding the desired future density and character of development in the area.
Boundary of Rocking Horse RRE
The preponderance of the evidence showed that the final boundary of Rocking Horse RRE evolved over time. Back in 2015, the proposed study area for Rocking Horse RRE included properties on both the east and west sides of Rouse Road. Analysis by the County included looking at the existing characteristics of the properties on both sides of Rouse Road and taking existing development approvals into consideration.
On the east side of Rouse Road were a number of zoned planned developments (P-D) such as the Presidential Park, University Pines, and the Quadrangle. Quadrangle is the largest and is a Development of Regional Impact containing multi-family dwellings, commercial, and industrial development. The P-Ds surrounding the University of Central Florida included University College Center, Chancellor Commons, Arden Villas, and Collegiate Village.
The County removed the properties on the east side of Rouse Road from inclusion in Rocking Horse RRE. The stated reason was that these properties were already heavily impacted by existing and future development patterns, given their existing zoning and FLU designations.
On the west side of Rouse Road, the proposed study area extended almost all the way to University Boulevard and included properties east and west of the Little Econ River. The
properties were zoned Agricultural (A-2, A-R) and Residential
(R-CE, R-1A, and R-1AA), with FLU designations that included Low Density Residential (LDR) and Low-Medium Density Residential (LMDR). Some of the zoning districts were not consistent with the LDR FLU designation.
Petitioners own two properties between the Little Econ River and Rouse Road. The southerly property's address is
3526 Rouse Road and was initially included in the proposed study area. 3526 Rouse Road was zoned R-1A and has a FLU designation of LMDR. 3526 Rouse Road was excluded from the final boundary of Rocking Horse RRE because its zoning district and FLU designation were consistent.
Thus, Rocking Horse RRE's boundary contracted over time. Properties east and west of the Little Econ River with FLU designation of LDR and zoning districts A-R, A-2, and R-CE were included within Rocking Horse RRE. Petitioners' northerly property at 3626 Rouse Road was included. 3626 Rouse Road was zoned A-2 and has a FLU designation of LDR. The properties within Rocking Horse RRE had inconsistent FLU and zoning, including Petitioner's property at 3626 Rouse Road. That inconsistency was resolved by adoption of the amendment adding map 25(d) to the correlation table in Policy FLU 8.1.1.
Petitioners' Objections
The Petitioners argued that the Rocking Horse RRE amendments were not "in compliance" because they failed to provide relevant and appropriate data and analysis, lacked meaningful and predictable standards to guide the use and development of land, were internally inconsistent, and failed to discourage urban sprawl.
Data and Analysis
The County considered data from professionally accepted sources and applied an analysis based on the established RRE definition and implementing policies. The data included the small area study conducted by the County's professional staff over a period of years preceding the October 16, 2018, adoption.
Rocking Horse RRE was originally grouped with the established RREs, and so was part of the process involving surveys, studies, and public hearings about RREs in general.
During that time, data was collected, analyzed, and then re-analyzed in response to the Board's 2017 directive for
further study of the proposed RREs and the proposed amendments.
Petitioners' expert, Jim Hall, acknowledged that the County routinely conducted community meetings and small area studies "to help provide solutions as to how to deal with these enclaves" within the USA. The Petitioners' other expert,
Dr. David Depew, testified that community input constituted acceptable data, but suggested that the County should not rely "solely on community visioning."
Dr. Depew testified to a level of data collection and analysis that he would consider adequate to support the Rocking Horse RRE amendments. In Dr. Depew's opinion, the County lacked any prospective data regarding, or analysis of, anticipated growth, demographics, anticipated population demand, anticipated non-residential growth in the area, area infrastructure, utilities, traffic, mass transit, or any of the "prospective and proactive elements that you would normally anticipate being considered for a plan amendment[.]"
Dr. Depew testified that there should be an examination of the development surrounding Rocking Horse RRE to determine future growth in the area, and identify development pressures that might press against the enclave. In particular, Dr. Depew noted that infill policies have been in place for "years and years, and now all of a sudden, we are enacting an enclave policy that is really counter to all of those [policies]."
However, the preponderance of the evidence shows that, since at least 2015, the County staff, advisory committees, and Board conducted numerous neighborhood workshops, public hearings, and collected empirical data about these
neighborhoods, including Rocking Horse RRE. Dr. Depew's exhaustive list of data and analysis seemed more directed to whether the RRE concept was a good idea and should have been adopted in the first place, which is not under challenge in this proceeding.
The RRE concept already existed to maintain the rural character of so identified neighborhoods into the future. The RRE concept protects the identified neighborhoods against suburban development pressure that is otherwise encouraged under the County's development framework and urban infill policies.
There was no evidence presented that to designate Rocking Horse RRE in Ordinance 2018-23 should require a higher level of data and analysis than was collected to designate the first three RREs in Ordinance 2018-17.
The preponderance of the evidence showed that the final boundary of Rocking Horse RRE evolved over time. Analysis by the County included looking at the existing characteristics of the properties on both sides of Rouse Road and taking existing development approvals into consideration. Properties on the east side of Rouse Road were already heavily impacted by existing and future development patterns.
Properties on the west side of Rouse Road, including Petitioner's property at 3626 Rouse Road, having a FLU designation of LDR and zoning districts A-R, A-2, and R-CE were
included within Rocking Horse RRE. The Rocking Horse RRE properties had inconsistent FLU and zoning, which was resolved by the amendment adding Map 25(d) to Policy FLU 8.1.1.
Petitioners did not prove beyond fair debate that the Rocking Horse RRE final boundary was not supported by data and analysis. Petitioners did not prove beyond fair debate that the Rocking Horse RRE final boundary did not react appropriately to the data and analysis collected by the County since at least 2015.
It is fairly debatable that the Rocking Horse RRE amendments react appropriately to the data and analysis collected by the County since at least 2015, including the small area study.
Meaningful and Predictable Standards
Prior to Ordinance 2018-23, there was an inconsistency between the A-2, A-R, and R-CE zoning districts and the LDR FLU category that applied within the Rocking Horse RRE. The County eliminated this inconsistency through adoption of Ordinance
2018-23, which established a consistent density standard in Policy FLU 2.5.4 for development throughout the Rocking Horse RRE, regardless of zoning district or FLU designation.
In addition, Ordinance 2018-17 had already established Policy FLU 2.5.6 regarding uses of property within an RRE. Uses were specifically stated to be permitted by right or special
exception, permitted with conditions or prohibited, in accordance with the zoning district in which the property is located.
New Policy FLU 2.5.8 required review of new land use, zoning, and development applications within or in close proximity to an RRE boundary for compatibility in the context of the RRE's rural character. The County viewed Policy FLU 2.5.8 as a restatement of its existing policies regarding compatibility, a so-called "belt and suspenders" approach.
The County's witness, Olan Hill, testified that it was an approach "ensuring that we address compatibility for all new development, whether it be within the enclave boundary or beyond the boundary of the enclave, that could potentially influence the character of the enclave." Mr. Hill confirmed that Objective FLU 8.2 contained policies regarding implementing compatibility as a fundamental consideration in all land use and zoning decisions.
Petitioners argued that the terms "close proximity" and "the context of the [RRE's] rural character" are too vague to provide any objective guidance. However, new Policy
FLU 2.5.8 followed already-adopted Policy FLU 2.5.7. Policy FLU 2.5.7 set forth a series of requirements and guidelines to "protect and enhance existing rural character," which must be
applied to "all new development or redevelopment within [RREs]."
Thus, Policy FLU 2.5.7 already provided objective guidance as to "rural character."
"Close proximity" is a phrase that already appears elsewhere in the County's comprehensive plan. As found above, the County would look at new development "beyond the boundary of the enclave, that could potentially influence the character of the enclave."
Petitioners did not prove beyond fair debate that Policy FLU 2.5.8 does not guide future development decisions in a consistent manner, and does not establish meaningful and predictable standards for the use and development of land.
It is fairly debatable that Ordinance 2018-23 guides future development decisions in a consistent manner, and establishes meaningful and predictable standards for the use and development of land.
Internal Consistency
Petitioners argued that Policy FLU 2.5.2's amendment designating Rocking Horse RRE as an RRE was inconsistent with the RRE definition in Policy FLU 2.5.1. However, as articulated, the argument was a data and analysis dispute masquerading as an internal inconsistency dispute.
Petitioners essentially argued that the empirical data, and an analysis of that data, did not support Rocking Horse's designation as an RRE, including its boundaries shown on
the new FLU Map 25(d). As found above, Petitioners did not prove beyond fair debate that the Rocking Horse RRE final boundary was not supported by data and analysis, and that it did not react appropriately to the data and analysis collected by the County since at least 2015, including the small area study.
Petitioners also argued inconsistency between Policy FLU 2.5.4, which established a density for Rocking Horse RRE of one dwelling unit (du) per two acres, and Housing Element Objective H1.1. Objective H1.1 states that the County will continue to support private sector housing production capacity sufficient to meet the needs of existing and future residents.
Neither Objective H1.1 nor its implementing polices contain a prohibition against establishing a density standard for the Rocking Horse RRE. In fact, properties within the Rocking Horse RRE with inconsistent future land use and zoning, such as Petitioners' property, did not have a pre-existing entitlement to build four units per acre, as argued. Instead, property owners of such properties would have had to seek a rezoning from their existing A-R, A-2, or R-CE zoning districts, a comprehensive plan amendment to change their FLU designation from LDR, or both.
Petitioners did not prove beyond fair debate that Policy FLU 2.5.4 was internally inconsistent with Objective H1.1.
Petitioners argued that the Rocking Horse RRE amendments were inconsistent with the portions of the County's comprehensive plan promoting urban infill and redevelopment, including Policies FLU 1.1.5, 1.3.2, Goal FLU 2, Objective
FLU 2.1, Urban Design Element Goal UD 3, Objective UD 7.1, and Neighborhood Element Policy N 6.1.5. The area comprising Rocking Horse RRE was considered a potential infill opportunity by the County. A map in the Infill Master Plan still reflects Petitioners' properties as potential infill properties.
The County's witnesses testified that the adopted objective and policies for RREs recognized and created an exception for the urban development pattern allowed within the USA. Although infill development is a priority for the County, the County's witnesses testified that the County had ample opportunities for future infill development within the USA that would not be impacted by the removal of the 220 acres comprising Rocking Horse RRE.
Since the Rocking Horse RRE amendments were adopted as an exception to the urban development pattern allowed within the USA, it is fairly debatable that the amendments are inconsistent with the portions of the County's comprehensive plan promoting urban infill and redevelopment, including Policies FLU 1.1.5, 1.3.2, Goal FLU 2, Objective FLU 2.1, Urban Design Element Goal UD 3, Objective UD 7.1, and Neighborhood Element Policy N 6.1.5.
Urban Sprawl
Petitioners challenged the Rocking Horse RRE amendments for failing to discourage urban sprawl. Dr. Depew analyzed the amendments using the primary indicators and factors detailed in section 163.3177(6)(a)9.a. and b. He testified that the amendments met ten of the thirteen primary indicators of urban sprawl, and failed to meet at least four of the factors that discouraged urban sprawl.
The County's expert witness, Chris Testerman, testified that the amendments could not constitute urban sprawl since the Rocking Horse RRE was within the USA.
I don't know how you can have sprawl within the urban service area. Historically, any
-- the accusations of promoting urban sprawl have been when we have tried to expand the urban service area and not -- not within the urban service area.
Tr. p. 214, lines 1-6.
Only the Petitioners' expert presented an analysis of the amendments using the urban sprawl primary indicators and factors detailed in section 163.3177(6)(a)9.a. and b. As a result, Petitioners proved beyond fair debate that the amendments failed to discourage urban sprawl, in violation of section 163.3177(6)(a)9.a. and b.
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 the Community Planning Act's section 163.3184(1)(a). The Petitioners are affected persons and have standing to challenge Ordinance 2018-23.
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.
Burden and Standard of Proof
As the party challenging Ordinance 2018-23, the Petitioners have the burden of proof.
The County's determination that Ordinance 2018-23 is "in compliance" is presumed to be correct and must be sustained if the County'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, "an ordinance may be said to be fairly debatable when for any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction that in no way involves its constitutional validity." 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 Pshp, Ltd., 772 So. 2d 616 (Fla. 4th DCA 2000).
"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." See Martin Cnty. Land Co. v. Martin Cnty., Case No. 15-0300GM at
¶ 149 (Fla. DOAH Sept. 1, 2015; Fla. DEO Dec. 30, 2015).
Moreover, in a compliance determination, the motives of the local government are not relevant. See Pacetta, LLC v. Town of
Ponce Inlet, Case No. 09-1231GM (Fla. DOAH Mar. 20, 2012; Fla.
DEO June 19, 2012).
The standard of proof for findings of fact is preponderance of the evidence. See § 120.57(1)(j), Fla. Stat.
In Dibbs v. Hillsborough County, Case No. 12-1850GM
(Fla. DOAH July 2, 2012)(Order on Motion), 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. 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.").
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. Pursuant to the statute, "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. "However, the evaluation may not include whether one accepted methodology is better than another." § 163.3177(1)(f)2., Fla. Stat. While data supporting a comprehensive plan amendment must be taken from professionally accepted sources, local governments are not required to collect original data. Id.
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 challenged amendments may be presented. See Zemel v. Lee Cnty., 15 F.A.L.R. 2735
(Fla. Dep't of Cmty. Aff. 1993)(Final Order), aff'd, 642 So. 2d 1367 (Fla. 1st DCA 1994).
Section 163.3177(1)(f) lists "community goals and vision" as a type of data, along with surveys, studies, and other data available at the time the plan amendment was adopted, on which the plan amendment must be based. The statute anticipates "community goals and vision" as something separate from, or other than, the comprehensive plan itself. Many communities have a free-standing vision statement which may, in part, inform future planning decisions. See Seminole Tribe of Fla. v. Hendry Cnty., Case No. 14-1441GM (Fla. DOAH Feb. 12,
2015).
The preponderance of the evidence, however, established that the County did not rely on "community goals and vision" as the only data and analysis to support the amendments. The County gathered data, and analyzed that data, in a small area study, so as to enact plan amendments that reacted appropriately to the information revealed by the small area study. See also § 163.3177(6)(a)2., Fla. Stat. ("The future land use plan and plan amendments shall be based upon surveys, studies, and data regarding the area, as applicable[.]").
Many of the issues raised by the Petitioners were focused on attacking the sufficiency of the data and analysis to support the prior amendments adopting the RRE concept, which were not the subject of this proceeding.
The Petitioners did not prove beyond fair debate that the amendments were not supported by relevant and appropriate data and analysis, or that the County did not react appropriately to the data and analysis.
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 Petitioners failed to prove beyond fair debate that the Rocking Horse RRE amendments violate this requirement.
The Petitioners' argument focused on Policy FLU 2.5.8.
The County's view of this policy as described above is consistent with the Community Planning Act's definition of compatibility. See § 163.3164(9), Fla. Stat. ("'Compatibility'
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.").
Petitioners did not prove beyond fair debate that Policy FLU 2.5.8 does not guide future development decisions in a consistent manner and does not establish meaningful and predictable standards for the use and development of land. Internal Consistency
Section 163.3177(2) requires the several elements of the comprehensive plan to be consistent. A plan amendment creates an internal inconsistency when it conflicts with an existing provision of the comprehensive plan.
The County's comprehensive plan is formatted with goals, objectives, and policies which describe how the County's programs, activities, and land development regulations will be initiated, modified, or continued, to implement the comprehensive plan in a consistent manner. See § 163.3177(1),
Fla. Stat. In the context of the Community Planning Act, goals are statements of long-term vision or aspirational outcomes and are not measurable in and of themselves. Goals must be implemented by intermediate objectives and specific policies to carry out the general plan goals. See § 163.3164(19), (34), and
(37), Fla. Stat.
Internal consistency does not require a comprehensive plan amendment to further every other goal, objective, and policy in the comprehensive plan. It is enough if a plan provision is "compatible with," i.e., does not conflict with,
other goals, objectives, and policies in the plan. If the compared provisions do not conflict, they are coordinated, related and consistent. See Melzer, et al., v. Martin Cnty., et
al., Case Nos. 02-1014GM and 02-1015GM, RO at 194-195 (Fla. DOAH
July 1, 2003; Fla. DCA Oct. 24, 2003). If an amendment expressly creates an exception or waiver to a general rule set forth in the plan, it does not create an internal inconsistency. Id.
Petitioners did not prove beyond fair debate that Policy FLU 2.5.2's amendment designating Rocking Horse RRE as an RRE was inconsistent with the RRE definition in Policy FLU
2.5.1. Petitioners did not prove beyond fair debate that Policy FLU 2.5.4 was internally inconsistent with Objective H1.1.
Petitioners did not prove beyond fair debate that the Rocking Horse RRE amendments are inconsistent with the portions of the County's comprehensive plan promoting urban infill and redevelopment, including Policies FLU 1.1.5, 1.3.2, Goal FLU 2, Objective FLU 2.1, Urban Design Element Goal UD 3, Objective
UD 7.1, and Neighborhood Element Policy N 6.1.5. Urban Sprawl
The Community Planning Act defines urban sprawl as "a development pattern characterized by low density, automobile- dependent development with either a single use or multiple uses that are not functionally related, requiring the extension of
public facilities and services in an inefficient manner, and failing to provide a clear separation between urban and rural uses." § 163.3164(52), Fla. Stat.
Section 163.3177(6)(a)9.a. lists 13 primary indicators of urban sprawl, the presence of which determine whether the amendments encourage the proliferation of urban sprawl. See Herrin v. Volusia Cnty., Case No. 10-2419GM (Fla. DOAH Jan. 24,
2012; Fla. DEO Mar. 29, 2012). If four of the eight factors listed in section 163.3177(6)(a)9.b. are met by the amendments, then the amendments discourage urban sprawl regardless of the outcome of the evaluation under the 13 primary indicators. Id. at ¶ 313.
The Community Planning Act, which was enacted in 2011, does not reserve the urban sprawl analysis of FLU amendments to urban development or urban-type development that is being extended into rural areas. The prior case law and rule definitions made that distinction. See Home Builders &
Contractors Ass'n v. Dep't of Cmty. Aff., 585 So. 2d 965, 968 (Fla. 1st DCA 1991); Fla. Admin. Code R. 9J-5.003(134)(2010)
(definition repealed by section 72, chapter 2011-139, Laws of Florida). Thus, the current language of the Community Planning Act "may require some amendments that look less like urban sprawl to go through more steps to get that determination." Kathryn Barkett Rossmell, Note: From Tools to Toys – The Gutting
of the Infamous Primary Indicators: How the Florida Legislature
Accidentally Encouraged Urban Sprawl, 23 U. Fla. J. L. & Pub. Pol'y 215, 224 (2012).
Petitioners proved beyond fair debate that the amendments failed to discourage urban sprawl, in violation of section 163.3177(6)(a)9.a. and b.
Summary
The County's determination that Ordinance 2018-23 is in compliance is not fairly debatable.
Petitioners proved beyond fair debate that Ordinance 2018-23 is not in compliance.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Administration Commission issue a final order determining that the Rocking Horse RRE amendments adopted by Ordinance 2018-23 are not in compliance.
DONE AND ENTERED this 14th day of October, 2019, 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 14th day of October, 2019.
ENDNOTES
1/ The Petitioners' proposed recommended order suggested that a constitutional claim regarding impairment of contracts is a separate cognizable issue in this proceeding. However, it is well established that the administrative law judge in this type of proceeding does not have the authority to adjudicate constitutional issues. See Southern Alliance v. Graham, 113 So. 3d 742, 748 (Fla. 2013); Fla. Hosp. v. Ag. for Health Care Admin., 823 So. 2d 844, 849 (Fla. 1st DCA 2002).
The argument that the administrative law judge is required to address the Petitioners' constitutional claim with affirmative findings of fact and conclusions of law that are not relevant to an "in compliance" determination under section 163.3184(1)(b), Florida Statutes, is contrary to existing case law. See Albrecht v. State, 444 So. 2d 8, 12-13 (Fla.
1984)(reflecting that the facts necessary to maintain the constitutional claim may be irrelevant to the determination of the propriety of the challenged agency action), superseded by statute on other grounds; Modern, Inc. v. Florida, 381 F. Supp. 2d 1331 (M.D. Fla. 2004); Peck Plaza Condo. v. Div. of Land Sales, 371 So. 2d 152, 154 (Fla. 1st DCA 1979)(jurisdiction to interpret contracts is vested solely in the judiciary). The argument is an improper interpretation of the statement in Key
Haven Associated Enterprises, Inc. v. Board of Trustees of the Internal Improvement Trust Fund, 427 So. 2d 153 (Fla. 1982), that a constitutional claim can be raised on direct appeal "if an adequate record is available." Key Haven, 427 So. 2d at 159.
2/ The Orange County Comprehensive Plan 2010-2030 provides: OBJ FLU2.4 SMALL AREA STUDIES. Orange County
shall use Small Area Studies as an
appropriate urban strategy to facilitate infill, mixed use development, and redevelopment in a manner compatible with existing communities. Small Area Studies shall incorporate public outreach techniques, such as charettes, community meetings, and other public involvement, to ensure they reflect the community's preferred vision for the area's future. (Added 10-13-09, Ord. 2009-28)
POLICY FLU8.2.12 Public or private sector sponsored Small Area Studies (completed in coordination with the County's recommendations) may be conducted to identify strategies for physically and functionally integrating a mixture of land uses in developed areas within the USA. Upon Board of County Commissioner's approval, the Future Land Use Map shall be amended. (Policy 3.1.2-r)
COPIES FURNISHED:
Gregory M. Munson, Esquire Gunster, Yoakley and Stewart, P.A.
215 South Monroe Street, Suite 601 Tallahassee, Florida 32301 (eServed)
William C. Turner, Esquire Orange County Attorney's Office
201 South Rosalind Avenue, Third Floor Orlando, Florida 32801
(eServed)
William Chorba, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110
107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
Taya Orozco, Agency Clerk Department of Economic Opportunity Caldwell Building
107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
Ken Lawson, Executive Director 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 |
|---|---|---|
| Oct. 14, 2019 | Recommended Order | Petitioners proved beyond fair debate that Ordinance 2018-23 is not in compliance. |
