The Issue The issue is whether the City of Naples' plan amendment adopted by Ordinance No. 03-10305 on December 17, 2003, is not in compliance for the reasons alleged in Collier County's Petition for Administrative Hearing (Petition).
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In 2003, the City began the planning process to adopt an amendment to its Plan which would restrict, but not prohibit, the construction of traffic overpasses or flyovers within the City. Under the process in place for adopting amendments, a City planner initially drafts a proposed amendment; the draft amendment is presented in the form of a recommendation to the City Planning Advisory Board (Board); and the Board then forwards a recommendation to the City Council for a final decision. On July 2, 2003, the City staff submitted a Report to the Board recommending that a new Policy 1-10 be added to the Plan's Transportation Element, which read as follows: Due to impacts on traffic and aesthetics, the City shall not permit construction of road overpasses or flyovers in favor of alternative planning solutions that will improve the long-term traffic circulation patterns in the City. On July 9, 2003, the Board considered the Report and recommended that the language in the amendment be slightly amended by adding the word "vehicle" before the word "road" to clarify the kind of overpass addressed by the amendment. The Board then submitted a recommendation to the City Council that it adopt the following amendment: Due to impacts on traffic and aesthetics, the City shall not permit construction of vehicle road overpasses or flyovers in favor of alternative planning solutions that will improve the long-term traffic circulation patterns in the City. On October 8, 2003, the proposed amendment was transmitted to the Department for its preliminary review. After reviewing the proposal, on December 12, 2003, the Department issued a two-page letter which served as its Objections, Recommendations, and Comments (ORC) Report. In the ORC, the Department offered three comments regarding the proposed amendment: that the City had not "defined the circumstances under which an overpass or flyover would be allowed by the City"; that "issues of this nature are best addressed through the use of existing intergovernmental coordination"; and that the City was encouraged to resolve this matter through the MPO and other intergovernmental coordination avenues available to the City and County. However, there were no objections to the language in the amendment. (A comment in the ORC is advisory in nature, while an objection represents an assertion by the Department that there are inconsistencies in the proposed amendment.) On November 17 and 21, 2004, the Council submitted letters to the City indicating that it "had no adverse comments" to the amendment. After the City adopted the amendment, though, the Council decided to revise its recommendation to the Department and suggested that the amendment be slightly modified by adding language requiring the City to consider alternative planning solutions "in a timely manner." However, the Council supports the overall substance of the amendment. On December 17, 2003, the City approved the amendment without further changes. The amendment was then forwarded to the Department for its compliance determination. On February 13, 2004, the Department published its Notice determining that the amendment was in compliance. Since 1989, and at a cost of several million dollars, the County has been involved in the planning process for infrastructure needed to alleviate traffic demands at or near the intersection of Golden Gate Parkway and Airport-Pulling Road. One quadrant of the intersection lies within the City; the remaining portion of the intersection lies within the County. During this process, and based on recommendations by outside consultants, the County determined that a vehicle overpass (known as the Golden Gate Overpass) would be the most effective traffic planning solution. Alleging that the new amendment was designed solely for the purpose of prohibiting the construction of that overpass, on March 5, 2004, the County filed its Petition challenging the new amendment. As set forth in the parties' Joint Pre-Hearing Stipulations, the County raises three broad grounds for finding the amendment not in compliance: that the amendment is not based on the best available data and analyses, as required by Florida Administrative Code Rule 9J-5.005(2); that the amendment is inconsistent with other provisions within the Plan; and that the amendment lacks coordination with the County's Plan, in violation of Section 163.3177(4), Florida Statutes. The undersigned has rejected as untimely a contention raised for the first time by the County in its Proposed Recommended Order that the amendment is vague and lacks meaningful and predictable standards.2 Finally, because the Department and the City both contest the standing of the County to bring this action, that issue must also be resolved. Standing To demonstrate standing, the County, as an adjoining local government, must prove that the plan amendment "will produce substantial impacts on the increased need for publicly funded infrastructure or substantial impacts on areas designated for protection or special treatment within [its] jurisdiction." § 163.3184(1)(a), Fla. Stat. Therefore, the County must prove that the plan amendment prohibits the construction of the Golden Gate Overpass and that this prohibition will result in the substantial adverse impacts described in the statute. On its face, the amendment restricts, but does not prohibit, the construction of vehicle overpasses within the City. That is, the amendment merely states a preference on the part of the City for "alternative planning solutions" before a vehicle overpass may be permitted. This general expression of policy preferences cannot be read as a blanket prohibition on overpasses, or a specific direction to deny any request by the County that the overpass be constructed. If the amendment is found to be in compliance, the precise manner in which it will be implemented is unknown. These details, however, are not the subject of this dispute. In any event, until the City actually implements the amendment and makes a decision that another alternative planning solution exists, there can be no "substantial impacts on the increased need for publicly funded infrastructure or substantial impacts on areas designated for protection or special treatment," as required by the statute. In support of its standing claim, the County argues that if the amendment is found to be in compliance, the City may implement the amendment in an arbitrary manner. Assuming this to be a legitimate concern, there can still be no "substantial impacts" until a decision is made by the City. The County also points out that in a meeting of the City Council on April 21, 2004, or four months after the amendment was adopted, the City determined that the amendment applies to the Golden Gate Overpass, and that as of that date, the County had still not "satisfied the requirement" that it explore alternative planning solutions. The City did not vote, however, to prohibit the overpass. That post-adoption determination by the City in no way alters the finding that the amendment will not produce substantial impacts on the increased need for publicly-funded infrastructure. As noted above, these impacts, if any, will not occur until the amendment is implemented in a manner adverse to the County's interests. Accordingly, the evidence supports a finding that the County is not an affected person and lacks standing to file this challenge.3 Although this ruling is dispositive of the case, for the purpose of rendering a complete Recommended Order, the County's compliance contentions will be addressed below. The Plan Amendment The goal of the Transportation Element of the Plan is as follows: Provide an efficient, balanced, attractive, and safe multimodal system of transportation facilities in accordance with recognized safety standards, various land use demands and environmental considerations unique to the City of Naples. Under the goal, the Plan contains eight adopted objectives. Objective 1 reads as follows: Protect the character of existing and future residential neighborhoods by maintaining the integrity of the City's identified collector and arterial circulation plan and, where possible, manage traffic flow to protect the residential neighborhoods. Prior to the enactment of the amendment, the Plan contained nine adopted policies to implement this objective. These policies further Objective 1 by requiring that the City ensure the protection of neighborhoods when assessing transportation improvements. For example, street improvements should be evaluated to "protect residential neighborhoods" (Policy 1-1); the City shall "require landscape buffers between residential neighborhoods and arterials" (Policy 1-2); and the City should enhance flow on major roads to divert traffic from "neighborhood collectors and local streets" (Policy 1-4). The amendment adds a tenth policy under Objective 1 to read as follows: Due to impacts on traffic and aesthetics, the City shall not permit construction of vehicle road overpasses or flyovers in favor of alternative planning solutions that will improve the long-term traffic circulation patterns in the City. The new policy is intended to apply to road improvements throughout the City, and not just the Golden Gate Overpass, and would require that "feasible alternative planning solutions" be explored before a vehicle road overpass is permitted. The policy is not intended to act as an absolute prohibition on overpasses in general or any one specific overpass, but only "restricts construction of vehicle road overpasses . . . in the City" if other alternative planning solutions exist. By requiring this type of analysis, the City can further Objective 1 by "protect[ing] residential neighborhoods." Golden Gate Parkway is an east-west arterial roadway that traverses both the City and the County. The County is responsible for maintaining and improving the entire length of Golden Gate Parkway, including that portion lying within the City. Airport-Pulling Road is a north-south thoroughfare that traverses both the City and the County. The two roads intersect around two miles north of the Naples Municipal Airport in the northeastern corner of the City. Three of the four quadrants of the intersection are within the County, while the fourth is within the City. Data and Analysis In the context of the requirement that plan amendments be supported by data and analyses requirement, there are two types of amendments: mandatory and aspirational. A mandatory amendment is one that is required by Chapter 163, Florida Statutes, or Florida Administrative Code Chapter 9J-5. Conversely, an aspirational or qualitative amendment is not required by statute or rule. The most common example of an aspirational amendment is one which prohibits skyscrapers or imposes a height restriction on structures within the boundaries of a local government. The County contends that the plan amendment is not supported by data and analyses, as required by Florida Administrative Code Rule 9J-5.005(2). That rule requires that all policies "shall be based upon relevant and appropriate data and the analyses applicable to each element." When the amendment package was transmitted to the Department on October 8, 2003, it contained no supporting data and analyses. The City's submission, however, was consistent with the Department's long-standing view, supported by the evidence here, that if an amendment is aspirational in nature, it does not require supporting data and analyses. This is because an aspirational amendment is merely a policy choice by a local government which has a limited or cosmetic effect. Or as stated by Department witness Gauthier, Policy 1-10 is "conditional in nature . . . and it would rely on . . . some subsequent analysis and decision-making [by the City]." In other words, "the scenarios and what direction the policy take will really depend on activities and assessments by the City, which happen later." Therefore, it requires little, if any, data and analyses. Here, the restriction on overpasses is an aspirational amendment, and it represents a policy choice on the part of the City that expresses disfavor for overpasses and flyovers and a preference for at-grade improvements. The amendment does not excuse the City from complying with any of the substantive planning requirements imposed by Chapter 163, Florida Statutes, or Florida Administrative Code Chapter 9J-5. The only change accomplished by the amendment is to favor at-grade improvements as the primary way to address level of service standards and access points and other substantive planning requirements. It also represents the City's primary choice when planning for transportation needs with other regional and state entities. Given the nature of the amendment, there is no need for "appropriate and relevant data and analysis" within the meaning of the rule. Notwithstanding the fact that no data and analyses were required, at the time the amendment was adopted, the City had numerous traffic studies indicating that there are often alternatives to overpasses.4 Information was also available which indicated that overpasses can have negative aesthetic impacts on neighborhoods; that overpasses can cause traffic impacts by moving congestion from one intersection to another; and that improvements which improve long-term vehicle flow in the City will also impact the County. Besides the foregoing data, the City had received citizens' concerns about the traffic impacts of intersections and their desire to seek alternatives to overpasses before authorizing one to be built. Assuming arguendo that data are required to support an aspirational amendment, it is at least fairly debatable that the amendment is supported by adequate data and analyses. Consistency With Other Plan Provisions The County next contends that the amendment is inconsistent with portions of the Vision 2005 Work Plan (Vision 2005); certain introductory language in the Future Land Use Element (FLUE); Objective 6 and Policies 2-1, 5-4, and 8-1 of the Transportation Element; Policies 4-5 and 5-8 of the Capital Improvements Element; the Transportation Element Support Document; and the Goal, Objective 1, and Policies 1-2 and 1-6 of the Intergovernmental Coordination Element. All of the cited provisions generally relate to the City's responsibility to provide a safe and efficient transportation system, or they encourage the City to cooperate with the County and other entities in the planning process. For the following reasons, it is at least fairly debatable that Policy 1-10 does not conflict with the above-cited portions of the Plan. Vision 2005 Work Plan Vision 2005 (which was adopted in 1998) is a part of the Plan which identifies "desired future conditions through vision statements," and a "series of action plans [eleven strategies] to carry out this vision." The County contends that the amendment conflicts with Goal 3 and Objective 3-6 of Vision 2005. The cited goal provides that the "City should enhance its cooperative relationship with the County," while Objective 3-6 states that one of the City's objectives is to have "positive opportunities for the County to enhance its motivation to cooperate with the City." The County has failed to show that Policy 1-10 conflicts with the goal or objective in any respect. Therefore, the County's contention is found to be without merit. Future Land Use Element The County next contends that the amendment conflicts with certain language found in the Introduction portion of the FLUE. The precatory portion of the FLUE describes the general purposes of the FLUE, the principal implementation mechanisms, and the broad functions of the goals, objectives, and policies contained therein. There are, however, no goals, objectives, or policies within the Introduction itself. The County asserts that the amendment conflicts with that part of the Introduction which states that the goals, objectives, and policies within the FLUE should provide guidance for future growth and redevelopment based on the Vision 2005 strategy to "strengthen City and County cooperative planning programs." Assuming that consistency with this language is required under Section 163.3184(1)(b), Florida Statutes, there is nothing in Policy 1-10 that conflicts with this vision. Transportation Element The County also contends that the amendment conflicts with Objective 6 and Policies 2-1 and 5-4 of this element. Objective 6 requires that the City "[a]ssure intergovernmental consistency by an annual review of plans and programs with Collier County . . . ." Nothing in Policy 1-10 interferes with this objective. Policy 2-1 requires that, "based on a system wide study," the City "develop an efficient transportation network that encourages the diversion of traffic from local streets to collectors and arterials." Because Policy 1-10 will require system-wide studies to determine whether overpasses, or some other alternative, are the appropriate choice, the amendment is consistent with Policy 2-1. Policy 5-4 provides that [w]ith the cooperation of Collier County's Department of Transportation, [the City shall] limit direct access onto Goodlette- Frank Road from abutting properties by requiring properties fronting other roadways to use those for access where it is a safe alternative to access on Goodlette-Frank Road. This policy routes traffic from properties abutting Goodlette-Frank Road onto other roads. Because the County has failed to show any logical nexus between Policy 5-4 and Policy 1- 10, it is found that Policy 5-4 has no application to this controversy. Finally, Policy 8-1 requires that the City provide support data and analyses to the MPO as necessary to assist in the development of a public transportation system. Because this policy deals with public or mass transportation such as buses, and not vehicle transportation, Policy 8-1 has no application here. Transportation Element Support Document The City next contends that the amendment conflicts with certain language found in the Transportation Element Support Document. That document is attached to the Plan and is designed to fulfill the Transportation Element data and analyses requirements of Florida Administrative Code Rule 9J-5.019. Among other things, the lengthy analyses of the data contains language stating that the intersection for the Golden Gate Overpass is "under Collier County's jurisdiction"; that there will be "increased traffic" in the area of the overpass; that a new interchange to be constructed at Interstate 75 and Golden Gate Parkway (several miles east of the proposed overpass) will generate "heavy traffic"; and that the City "should enhance its cooperative relationship with the County." Assuming that consistency with a support document is required in a compliance determination, the County has not demonstrated that Policy 1-10 conflicts with the cited language. Capital Improvements Element The County also contends that the amendment conflicts with Policies 4-5 and 5-8 in the Capital Improvements Element of the Plan. Policy 4-5 requires the City to Revise the Capital Improvements Program in the future to include projects and programs listed in the Comprehensive Plan which are in addition to those needed to maintain level of service standards or to correct deficiencies if not correctly funded. (Emphasis added). The County contends that the amendment conflicts with the underscored portion of the policy. However, this policy simply requires revisions to the City's capital improvements program to maintain level of service or to correct deficiencies. There is nothing in Policy 1-10 that interferes with the ability of the City to revise its program in the future to satisfy those concerns. Policy 5-8 generally requires that the City coordinate its capital improvements program with all other agencies that provide public facilities to the City and that it participate in the plans of any agency providing public facilities within the City. However, Policy 1-10 does not prevent the City from coordinating its projects with other state agencies, or prevent the City from participating in the plans of other agencies or local governments that provide public facilities. Intergovernmental Coordination Element The County further contends that the amendment conflicts with the Intergovernmental Coordination Element in three respects. First, it argues that because the amendment is inconsistent with the Collier County Plan, it is inconsistent with Objective 1 of this element. That objective requires in part that the City's Plan "should be consistent with the plans of Collier County, the School Board, and other units of government without regulatory authority over land use." Nothing in Policy 1-10 prevents the development of these mechanisms, nor does anything in the policy prevent addressing how the Plan impacts adjacent jurisdictions. Policy 1-2 of the same element requires that the City monitor the County's comprehensive planning efforts to ensure coordination and reduce conflicts between the two local governments. Nothing in Policy 1-10 interferes with those monitoring requirements. Policy 1-6 requires the development of joint planning agreements and land use studies between the County and the City to increase the consistency of land use within two miles of the City/County line. Again, nothing in the challenged policy conflicts with this requirement. Lack of Intergovernmental Coordination Finally, the County contends that because Policy 1-10 "is incompatible with the overpass designated in the Collier County Growth Management Plan, the 1989 interlocal agreement, [and] the Grey Oaks PUD, DRI, and DO," it violates Section 163.31771(4)(a), Florida Statutes. That statute essentially requires that there be "coordination" between the City's Plan and the comprehensive plan of the County (and other adjoining local governments, if any). The City provided a copy of the amendment to the County and received no objections. Moreover, nothing in Policy 1-10 changes either the objectives of the City to coordinate its Plan or the policies that define the relationship of the Plan to the plans of other local governments. While the City and the County may disagree over whether an overpass should be built, there is no evidence that Policy 1-10 affects the intergovernmental relations structures established by the two comprehensive plans. Stated differently, Policy 1-10 does not alter or remove objectives and policies in the Plan regarding coordination with the comprehensive plans of adjoining governments, nor does it conflict with the County's Plan, the MPO, or interlocal agreements of adjoining governments. In the same vein, the County argues that the City cannot express a preference for at-grade improvements without violating intergovernmental coordination because the overpass is in the MPO and the County's Plan. The inclusion of a project in the MPO and County's Plan, however, does not compel the City to accede to the project or risk inconsistency with the intergovernmental coordination provisions of its own Plan. See Department of Community Affairs et al. v. City of Fort Myers, Case No. 89-2159GM, 1992 WL 880106 at *31 (DOAH Jan. 7, 1992, Admin. Comm. April 8, 1992). Other Contentions All other contentions raised by the County not discussed herein or in the Endnotes have been considered and rejected as being without merit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the plan amendment adopted by Ordinance No. 03-2003-45 on December 17, 2003, is in compliance. DONE AND ENTERED this 24th day of August, 2004, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 2004.
The Issue The issue in the case is whether a statement made by a representative of Respondent Department of Community Affairs in a letter to legal counsel for Petitioners, and statements made in a Final Order of Dismissal entered by Respondent, constitute unpromulgated rules in violation of applicable Florida law.
Findings Of Fact Petitioner Alachua Leadership Alliance-Citizens Helping Us All, Inc. (ALA-CHUA), is a corporation created to represent the interests of certain citizens within the community, to "share information with the community," and to be "a citizen's watchdog group overlooking the expenditures" of funds. ALA-CHUA holds regular meetings, attends public meetings, and initiates litigation. ALA-CHUA president Tamara Kay Robbins and ALA-CHUA member Eileen McCoy testified at the hearing. Petitioners Robert A. Perez, Thalia Gentzel, and Madalene Rhyland, did not testify at the hearing. Respondent is the state agency charged with administration of the Local Government Comprehensive Planning and Land Development Regulation Act ("Act"), Chapter 163, Part II, Florida Statutes. As stated at Subsection 163.3161(2), Florida Statutes (2004), the purpose of the Act is to "utilize and strengthen the existing role, processes, and powers of local governments in the establishment and implementation of comprehensive planning programs to guide and control future development." The Act requires local governments to adopt comprehensive plans that address numerous areas of responsibility. As set forth at Subsection 163.3191(1), Florida Statutes (2004), each local government is required to adopt an evaluation and appraisal report ("EAR") to assess "the progress in implementing the local government's comprehensive plan" and identifying portions of the plan that require updating. Subsection 163.3191(9), Florida Statutes (2004), requires that Respondent establish a schedule for adoption of EARs that provides "each local government at least 7 years from plan adoption or last established adoption date for a report. " After the EAR is completed, it is submitted to Respondent for a "sufficiency determination" as required at Subsection 163.3191(6), Florida Statutes (2004). Once Respondent determines an EAR to be sufficient, the local government is required to adopt within 18 months from the sufficiency determination, EAR-related comprehensive plan amendments. Subsection 163.3191(10), Florida Statutes (2004), provides that the 18-month deadline may be extended for six months by Respondent for "good and sufficient cause" and may again be extended if the additional extension would "result in greater coordination between transportation and land use, for the purposes of improving Florida's transportation system." Subsection 163.3191(11), Florida Statutes (2004), provides as follows: The Administration Commission may impose the sanctions provided by s. 163.3184(11) against any local government that fails to adopt and submit a report, or that fails to implement its report through timely and sufficient amendments to its local plan, except for reasons of excusable delay or valid planning reasons agreed to by the state land planning agency or found present by the Administration Commission. Sanctions for untimely or insufficient plan amendments shall be prospective only and shall begin after a final order has been issued by the Administration Commission and a reasonable period of time has been allowed for the local government to comply with an adverse determination by the Administration Commission through adoption of plan amendments that are in compliance. The state land planning agency may initiate, and an affected person may intervene in, such a proceeding by filing a petition with the Division of Administrative Hearings, which shall appoint an administrative law judge and conduct a hearing pursuant to ss. 120.569 and 120.57(1) and shall submit a recommended order to the Administration Commission. The affected local government shall be a party to any such proceeding. The commission may implement this subsection by rule. Section 14.202, Florida Statutes (2004), identifies that the Administration Commission is the Governor and the Cabinet. The sanctions available to the Administration Commission include various restrictions on the eligibility for and provision of certain state funds to non-complying local governments. The City of Alachua (City) is a local government with responsibility for adoption of a comprehensive plan. According to the Respondent's letter to City Mayor James A. Lewis dated December 29, 1998, the City's EAR was determined to be sufficient by the Respondent. The 18-month deadline for the City to adopt EAR- related comprehensive plan amendments expired at the end of June 2000. There were no deadline extensions granted by Respondent to the City. The City failed to meet the 18-month deadline for the adoption of EAR-related comprehensive plan amendments. By letter dated June 30, 2004, to Thaddeus Cohen, Secretary of the Department of Community Affairs, David Jon Russ (counsel for Petitioners) asked Respondent to initiate proceedings against the City of Alachua under the provisions of Subsection 163.3191(11), Florida Statutes (2004), by no later than July 8, 2004. By letter dated July 20, 2004, David L. Jordan, Deputy General Counsel for Respondent, advised Mr. Russ that Respondent "respectfully declines your request to seek sanctions against the City." The letter further states as follows: The City transmitted proposed EAR-based amendments on May 12, 2004, and the Department issued its Objections, Recommendations, and Comments ("ORC") report on July 16, 2004. Although the ORC report raises some objections to the proposed EAR- based amendments, the Department believes that the City can revise the amendments to resolve those objections. Therefore, the City is on course to adopt sufficient plan amendments to implement the EAR. The Department will not commence litigation to force the City to perform a duty that the City is already performing. Subsection 163.3184(7), Florida Statutes (2004), provides that a local government has 120 days from the date of the ORC report to adopt (or adopt with changes) the EAR-based amendments. Accordingly, the deadline for the City to adopt the amendments was November 15, 2004. The City adopted the EAR- based amendments on September 13, 2004. In response to the Jordan letter dated July 20, 2004, on August 16, 2004, Petitioners filed with Respondent a Petition for Hearing on Decision Affecting Substantial Interests and for Rulemaking, stating that Petitioners "demand a hearing before DOAH, a recommended order finding the action illegal, a final order adopting it, and rule-making by the Department." The Petition indicates that Petitioners desire a hearing on Respondent's decision not to initiate administrative proceedings against the City and to require Respondent to initiate rulemaking related to Subsection 163.3191(11), Florida Statutes (2004). On August 31, 2004, Respondent entered a Final Order Dismissing Petition, in which Petitioners' requests were dismissed with prejudice. The Final Order was not appealed. As grounds for the dismissal of the request for hearing, the Final Order of Dismissal stated that Petitioners failed to "identify any interest protected by pertinent substantive law that will suffer injury by virtue of the Department's decision not to seek sanctions against the City" and that Petitioners failed to identify any substantive right protected under Section 163.3191, Florida Statutes (2004). As grounds for dismissal of the request for rulemaking, the Final Order noted that Subsection 163.3191(11), Florida Statutes (2004), vests authority for adoption of rules related to implementation of the subsection in the Administration Commission, and that Respondent had no authority to initiate rulemaking. The evidence presented at the hearing established that Respondent's general policy is to encourage and negotiate with non-complying local governments, and that various types of technical and financial assistance is available to local governments, depending on the circumstances, to enable such compliance. The evidence further established that Respondent would initiate Subsection 163.3191(11) proceedings against a non- complying local government if the local government failed to proceed into compliance after receiving appropriate technical and financial assistance from Respondent. As of the date of the hearing, Respondent has not initiated Subsection 163.3191(11) proceedings against a local government for failing to timely adopt EAR-based comprehensive plan amendments. There is no evidence that any local government has failed to come into compliance with applicable comprehensive plan requirements after receiving assistance from Respondent. There is no evidence that Respondent has made any statement indicating that it would never initiate proceedings against any local government under the provisions of Subsection 163.3191(11), Florida Statutes (2004).
