07-003539GM Dunn Creek, Llc vs. City Of Jacksonville And Department Of Community Affairs Status: Closed Recommended Order on Monday, December 28, 2009.

Summary: Remedial amendment changing land use back to original use is in compliance; less data and analysis are required for this type of amendment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DUNN CREEK, LLC, )

)

Petitioner, )

)

vs. ) Case No. 07-3539GM

)

CITY OF JACKSONVILLE and )

DEPARTMENT OF COMMUNITY )

AFFAIRS, )

)

Respondents, )

)

and )

)

VALERIE BRITT, )

)

Intervenor. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on October 5,

2009. The hearing was conducted by telephone with the parties

being present in Jacksonville and Tallahassee, Florida.

APPEARANCES

For Petitioner: T.R. Hainline, Esquire

Paige Hobbs Johnston, Esquire

Rogers Towers, P.A.

1301 Riverplace Boulevard, Suite 1500

Jacksonville, Florida 32207-9000

For Respondent: Lynette Norr, Esquire

(Department) Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399-2100

For Respondent: Dylan T. Reingold, Esquire

(City) Shannon K. Eller, Esquire

City Hall at St. James

117 West Duval Street, Suite 480

Jacksonville, Florida 32202-3700

For Intervenor: Valerie Britt, pro se

378 Tilefish Court

Jacksonville, Florida 32225-3269

STATEMENT OF THE ISSUES

The issues are whether the City of Jacksonville's (City's)

Ordinance No. 2008-628-E adopted on September 9, 2008, which

remediates Ordinance No. 2007-383-E, is in compliance, and

whether Chapter 2009-96, Laws of Florida, renders this

proceeding moot, as alleged by Petitioner, Dunn Creek, LLC (Dunn

or Petitioner).

PRELIMINARY STATEMENT

On May 14, 2007, the City adopted Ordinance No. 2007-383-E,

which changed the land use designation on the Future Land Use

Map (FLUM) of the Comprehensive Plan (Plan) for an 89.52-acre

parcel located on the south side of Starratt Road from Low

Density Residential (LDR) to Residential-Professional-

Institutional (RPI). The property is owned by Petitioner. On

the same date, the City adopted numerous other changes to the

FLUM by separate ordinances. After issuing a Notice of Intent

which determined that most of the map changes were not in

compliance, on August 1, 2007, Respondent, Department of

Community Affairs (Department), filed its Petition for Formal

Administrative Hearing (Petition) with the Division of

Administrative Hearings (DOAH) alleging that seventeen

amendments to the FLUM, including the amendment adopted by

Ordinance No. 2007-383-E, were not in compliance. The Petition

was assigned DOAH Case No. 07-3539GM. Of the seventeen map

amendments that were challenged, only the Dunn amendment remains

at issue. All others have been settled by the parties or

resolved by formal hearing. As to Ordinance No. 2007-383-E (and

the other amendments), the Department generally alleged that the

amendment lacked sufficient transportation impact data and

analysis to support the change in land use.

On July 16, 2007, Intervenor, Valerie Britt (Britt), filed

with the Department a Petition to Intervene in support of the

Department's position. On August 9, 2007, Dunn filed a Petition

to Intervene aligned with the City. Intervention was authorized

for both parties.

The case was abated for a period of time pending efforts to

reach a settlement. Eventually, all parties entered into a

settlement agreement to resolve the matter, which generally

called for the adoption of a remedial amendment capping the

amount of development on the property through an asterisk to the

Plan. The proposed agreement was presented to the City in

September 2008 as Ordinance No. 2008-627, while the remedial

amendment was presented as Ordinance No. 2008-628. After

consideration of the matter, the City voted to revise the

proposed settlement agreement and adopt a remedial amendment

that changed the land use on the property back to its original

LDR designation. Although Dunn objected to these changes, the

City adopted Ordinance Nos. 2008-627-E and 2008-628-E approving

the revised compliance agreement and a new remedial amendment.

On December 18, 2008, the Department issued a Cumulative Notice

of Intent finding Ordinance No. 2007-383-E, as remediated by

Ordinance No. 2008-628-E, to be in compliance.

On January 8, 2009, Dunn filed a Motion to Amend Petition

to Intervene pursuant to Section 163.3184(16)(f), Florida

Statutes (2009) 1 , for the purpose of challenging the remedial

amendment. The parties were then realigned, as required by

Section 163.3184(16)(f)1., Florida Statutes.

By Notice of Hearing dated July 10, 2009, a final hearing

was scheduled for October 5 and 6, 2009, in Jacksonville,

Florida. During a prehearing conference on September 29, 2009,

the parties agreed to conduct the final hearing by telephone on

October 5, 2009. A Pre-Hearing Stipulation was filed by the

parties on October 1, 2009.

At the final hearing, Dunn presented the testimony of Wayne

T. Petrone, a professional engineer and accepted as an expert,

and Bradley R. Coe, who is affiliated with Titan Land, LLC, a

Dunn partner. Also, it offered Petitioner's Exhibits 1, 2, 6,

8, 9, 12, 13, 15-17, and 24, which were received in evidence.

The City presented the testimony of William B. Killingsworth,

Director of the City's Planning and Development Department and

accepted as an expert. Also, the City offered City Exhibits 1-

5, 7, and 8, which were received in evidence. The Department

and Britt did not present any witnesses; however, they adopted

the evidence presented by the City. Finally, the parties

offered Joint Exhibits 1-3 and 5-10, which were received in

evidence. Requests for Official Recognition by Dunn and the

City were also granted. 2

The Transcript of the hearing was filed on October 14,

2009. By agreement of the parties, proposed findings of fact

and conclusions of law were due no later than November 20, 2009.

They were timely filed and have been considered in the

preparation of this Recommended Order.

Finally, on September 11, 2009, Dunn filed a Suggestion of

Mootness and Motion to Dismiss Petition as to Ordinance 2007-

383-E contending that the Legislature's enactment of Chapter

2009-96, Laws of Florida, removed the Department's authority to

review and challenge FLUM amendments in the City for maintenance

of Level of Service (LOS) of affected roadways and therefore

rendered this proceeding moot. Besides opposing Dunn's request

for relief, on September 18, 2009, the Department and City

jointly filed a Motion to Relinquish Jurisdiction arguing that

there are no disputed issues of material fact and that the

matter should be resolved by the Department in an informal

proceeding. On September 25, 2008, the City filed a Notice of

Supplemental Authorities. A ruling was reserved on those

filings. At the final hearing, the undersigned authorized the

parties to file extrinsic evidence regarding the legislative

intent of Chapter 2009-96, Laws of Florida. On November 3,

2009, Dunn filed its Notice of Supplemental Evidence of

Legislative Intent, with attached Appendices A through I. A

Response was filed by the City on November 20, 2009.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

A. The Parties

1. Petitioner is the owner of a vacant 89.52-acre parcel

of property in Council District 11, which is located in the

northern reaches of the City. More specifically, the property

lies around four or five miles east of the airport and

Interstate 95, just south of Starratt Road between Dunn Creek

Road and Saddlewood Parkway, and within a "couple of miles of

Main Street," a major north-south State roadway. Dunn submitted

oral and written comments to the City during the plan amendment

process. As such, it is an affected person and has standing to

participate in this proceeding.

2. The City is a local government that is subject to the

requirements of Chapter 163, Florida Statutes. It adopted the

amendments being challenged by Dunn. Except for the challenged

plan amendment, the City's current Plan is in compliance.

3. Intervenor Britt owns property and resides within the

City. The parties have stipulated to the facts necessary to

establish that she is an affected person and therefore has

standing to participate in this matter.

4. The Department is the state land planning agency

charged with the responsibility for reviewing plan amendments of

local governments, including the City.

B. Background

5. On May 14, 2007, the City adopted Ordinance No. 2007-

383-E, which amended the FLUM by changing the land use category

on Dunn's property from LDR to RPI, which would allow an

increase in the density and intensity of use on the property.

(The LDR land use allows up to seven dwelling units per acre,

while RPI is a mixed-use category that allows up to twenty

dwelling units per acre if built to the maximum development

potential.) On July 9, 2007, the Department issued its Notice

and Statement of Intent finding that the Ordinance was not in

compliance on the ground the map change was not supported by

adequate data and analysis to demonstrate that the City would

achieve and maintain the adopted LOS standards for the roadways

within its jurisdiction. The Department further determined that

the traffic study submitted by the City was not based on the

maximum development allowed under the RPI category.

6. On August 1, 2007, the Department initiated this case

by filing a Petition, which tracked the objections described in

its Notice and Statement of Intent. The City, Dunn, Department,

and Britt later entered into settlement discussions. As part of

the settlement discussions, Dunn submitted a revised traffic

study and coordinated with other applicants for map changes to

perform cumulative traffic impact studies.

7. The parties eventually entered into a proposed

settlement agreement which would limit development of the

property to 672 condominiums/townhomes and 128,000 square feet

of non-residential uses through an asterisk to the Plan. See

Petitioner's Exhibit 1, p. 25. Also, the proposed settlement

agreement noted that the data and analysis confirmed that

certain future road improvements in the Capital Improvement

Element (CIE) of the Plan would offset the traffic impacts of

the new RPI land use. These were improvements to the East-West

Connector (U.S. Highway 17 to New Berlin Road) and Starratt

Road. Id. Finally, Dunn agreed to pay $4.3 million in "fair

share money" to the City to offset the proportionate share of

the development's traffic impacts. See Petitioner's Exhibit 6.

The proportionate share agreement was intended to match the trip

count anticipated from the RPI development.

8. On September 3, 2008, the proposed settlement agreement

and remedial amendment were presented to the City Council Land

Use and Zoning Committee (Committee) for approval as Ordinance

Nos. 2008-627 and 2008-628, respectively. 3 At that meeting, the

Committee heard comments from several members of the public who

opposed the amendment, a Dunn attorney, and the City's Director

of Planning and Development, William B. Killingsworth. The City

Council member who represents District 11 and is a member of the

Committee also spoke in opposition to the proposal. Based

primarily upon data in a new traffic study prepared on

August 28, 2008, by a member of Mr. Killingsworth's staff, and

the opposition of the District 11 Council member, the Committee

voted unanimously to revise the proposed settlement agreement

and remedial amendment by changing the land use designation on

the property back to LDR, its original classification. The

revised settlement agreement was approved by Ordinance No. 2008-

627-E, while the remedial amendment changing the land use was

approved by Ordinance No. 2008-628-E. The two Ordinances were

then forwarded to the full City Council, which approved them on

September 9, 2008. The revised settlement agreement was later

executed by the City, Department, and Britt, but not by Dunn,

and is known as the Sixteenth Partial Stipulated Settlement

Agreement. See Petitioner's Exhibit 2. The essence of the

revised agreement was that by changing the land use back to its

original designation, the potential adverse impacts to

transportation facilities would be resolved. Id.

9. The remedial amendment package was transmitted by the

City to the Department for its review. On December 18, 2008,

the Department issued a Cumulative Notice of Intent to Find

Ordinance Nos. 2007-383-E and 2008-628-E in compliance.

10. On January 8, 2009, Dunn filed a Motion to Amend

Petition to Intervene pursuant to Section 163.3184(16)(f)1.,

Florida Statutes. Because Dunn objected to the revised

settlement agreement and challenged the remedial amendment, the

parties were realigned, as reflected in the style of this case.

11. On June 1, 2009, Senate Bill 360, engrossed as Chapter

2009-96, Laws of Florida, became effective. That legislation

amends Chapter 163, Florida Statutes, in several respects.

Among other things, it designates the City as a Transportation

Concurrency Exception Area (TCEA). 4 See § 163.3180(5), Fla.

Stat. The new law also provides that plan amendments for land

uses of a local government with a TCEA are deemed to meet the

LOS standards for transportation. See § 163.3177(3)(f), Fla.

Stat. Therefore, after a TCEA becomes effective, the Department

no longer has the authority to review FLUM amendments in the

TCEA for compliance with state-mandated transportation

concurrency requirements. However, Senate Bill 360 contains a

savings clause, which provides that "this subsection does not

affect any contract or agreement entered into or development

order rendered before the creation of the [TCEA] except as

provided in s. 380.06(29)(e)." See § 163.3180(5)(f), Fla. Stat.

The City, Department, and Britt contend that this provision

"saves" the Sixteenth Partial Stipulated Settlement Agreement

executed by them in November 2008, and that the Department still

retains jurisdiction to consider the remedial amendment.

Conversely, Dunn contends that the savings clause does not apply

to the revised agreement, that the Department no longer has

jurisdiction to review the challenged amendment, that the

remedial amendment was not authorized, and that because the

remedial amendment never became effective, the Department's

Petition should be dismissed as moot.

C. Objections to the Remedial Amendment

12. Besides the contention that the proceeding is moot,

Dunn raises three issues in its challenge to the amendment.

First, it contends that the amendment is not supported by

relevant and appropriate data and analysis related to traffic

impacts and therefore is not in compliance. Second, Dunn

contends that the amendment does not address the concerns raised

in the Department's original Notice and Statement of Intent

regarding the City's achieving and maintaining the adopted LOS

of affected roadways. See § 163.3184(16)(f)2., Fla. Stat.

Third, Dunn contends that due to procedural errors in the

amendment adoption process, it was unduly prejudiced.

a. Data and analysis

13. Because almost all of the unresolved FLUM amendments

in this case involved "traffic issues," on September 4, 2007, a

Department employee, Melissa Hall, sent an email to counsel for

a number of applicants, including Dunn, describing "what the

department would be looking for in terms of traffic analysis."

See Petitioner's Exhibit 12, p. 1. The email required those

applicants to submit revised traffic studies. Id. Among other

things, the applicants were advised that the revised traffic

impact analysis for each amendment had to use "a professionally

acceptable traffic impact methodology." Id. Dunn followed the

requirements of the email in preparing its revised traffic

study.

14. At the time Ordinance No. 2007-383-E was adopted,

based on total background traffic, which includes existing

traffic plus reserve trips for approved but not-yet-built

developments, eight road segments in the study area already

failed to meet LOS standards. (LOS E is the adopted passing

standard on those roadways.) The study area includes affected

roadways within a two-mile radius of the boundaries of the

proposed project site where project traffic consumes more than

one percent of the service volume. If the Dunn project is

built, six segments impacted by the development will continue to

fail. According to the City's expert, as a general rule, an

applicant for a land use amendment is not required to bring a

failing segment back up to its adopted LOS. Rather, it is only

required to pay its proportionate share of the improvements for

bringing it up to compliance. The unique aspect of this case is

that the City has simply reclassified the property back to what

it was, LDR, when Ordinance No. 2007-383-E was adopted. At that

time, the Plan was in compliance.

15. In response to Dunn's contention that Ordinance No.

2008-628-E is not supported by relevant and appropriate data and

analysis, the City, joined by the Department and Britt, first

contends that, given the unique circumstances presented here, no

data and analysis were required. Alternatively, it contends

that there are sufficient relevant and appropriate data and

analysis to support maintaining the LDR land use designation.

The data and analysis include the traffic study prepared by

Dunn's consultant in October 2007, the additional traffic

analysis performed by the City staff just before the Committee

meeting, and the testimony provided at the Committee meeting on

September 3, 2008.

16. At hearing, the City first pointed out that the RPI

designation was never determined to be in compliance, Ordinance

No. 2007-383-E never became effective, and the property has

remained LDR throughout this proceeding. See § 163.3189(2)(a),

Fla. Stat. ("[p]lan amendments shall not become effective until

the [Department] issues a final order determining the adopted

amendment to be in compliance in accordance with s. 163.3184(9),

or until the Administration Commission issues a final order

determining the adopted amendment to be in compliance").

Therefore, the City takes the position that Ordinance No. 2008-

628-E did not need to be supported by data and analysis because

the LDR category was the land use designation on the property at

the time of the adoption of Ordinance No. 2008-628-E. In the

same vein, it argues that the remedial amendment is the

equivalent of a repeal of the prior ordinance (2007-383-E),

which would not require any data and analysis support. While at

first blush these arguments appear to be plausible, the City

could not cite any provision in Chapter 163, Florida Statutes,

or Florida Administrative Code Rule Chapter 9J-5 5 that relieves a

local government from the requirement that a plan amendment be

supported by data and analysis.

17. The City also argues that even if Ordinance No. 2008-

628-E is deemed to be a change in the land use (from LDR to

LDR), the net impact of the change would be zero. This argument

is based on the accepted testimony of Mr. Killingsworth, who

stated that the City, Department, and Florida Department of

Transportation (FDOT) agreed upon a methodology which entitled

the City to give "credit" for uses permitted under the existing

land use category. 6 Under that methodology, the City subtracts

the number of trips that the existing land use (LDR) generates

from the additional trips generated by the proposed land use

(LDR). Therefore, the net transportation impact of a change

from LDR to LDR, in effect, would be zero. The methodology is

described in Petitioner's Exhibit 15, a memorandum authored by

Mr. Killingsworth and sent on October 4, 2007, to Dunn and other

parties seeking map changes in this case. The memorandum stated

that the methodology described therein was "developed in

coordination [with] FDOT District 2" and "is the suggested

methodology for use in determining traffic impacts of proposed

land uses for the City." See Petitioner's Exhibit 15, p. 1.

18. Mr. Killingsworth could not cite any provision in

Chapter 163, Florida Statutes, or Chapter 9J-5 allowing for such

a credit for traffic generated by a prior permitted land use in

the data and analysis required for a FLUM amendment. At the

same time, however, Petitioner could not cite any rule or

statute that prohibits the Department from allowing this type of

methodology when deemed to be appropriate. Even though it

differed from the methodology described in Ms. Hall's earlier

email by allowing credit for the existing land use, it was

nonetheless "a professionally acceptable traffic impact

methodology" approved by the Department and FDOT and could be

used as data and analysis to support a change back to the

property's original land use classification. Therefore, it

constitutes relevant and appropriate data and analysis to

demonstrate that the net traffic impact of the change in land

use from LDR to LDR is zero.

19. The City further argues that if it was required to

provide other data and analysis, the traffic impacts of the new

ordinance are offset by the two roadway improvements negotiated

with the Department in the proposed settlement agreement for

Ordinance No. 2008-627. See Finding 7, supra . Based upon the

City staff's analysis, which is found in City Exhibit 3, the LDR

land use generates less trips than the RPI land use. (This

study was prepared a few days before the Committee meeting in

response to an inquiry from a Committee member.) More

specifically, page 3 of that exhibit reflects that there are

169 less afternoon peak hour trips for LDR than RPI with the

development cap of 672 dwelling units and 128,000 square feet of

non-residential uses. It is fair to infer, then, that if the

proposed mitigation in the original settlement agreement offsets

the impacts of the more intense RPI land use, the mitigation

also offsets the impacts of the less intense LDR land use.

20. City Exhibit 3 is a comparative calculation of the

difference in vehicle trips generated by development of the

property under the LDR category approved by Ordinance No. 2008-

628-E and the development of the property under the RPI category

approved by Ordinance No. 2007-383-E. Dunn points out, however,

that the exhibit does not show how the trips generated are

distributed on affected roadways or how those trips, as they may

be distributed, affect LOS of any roadways. Despite the fact

that the data in Exhibit 3 are limited to trip generation data,

and establish no facts relating to the LOS of affected roadways,

they support a finding that more trips will be generated under

the RPI designation than the existing LDR designation. Also,

they provide further support for a finding that if the proposed

road improvements offset the impacts of the RPI use, the

mitigation will offset the impacts, if any, of the original LDR

use.

21. For data and analysis relating to the LOS of affected

roadways, the City, joined by the Department and Britt, rely

upon a traffic study performed by Dunn's traffic consultant,

King Engineering Associates, Inc. (King). That firm prepared a

transportation analysis dated November 19, 2007, for the purpose

of supporting a mixed-use development on the property under the

RPI category. See Petitioner's Exhibit 8. This study, however,

does not apply to development of the property under the LDR

category because it was based upon a mixed-use project which

would allow for credit based upon the internal capture of some

trips. (In other words, a portion of the new trips will be

internal to the site, that is, trips between the residential and

commercial land uses on the property.) Because of this, any

reference to the King study and proposed mitigation therein was

deleted from the revised settlement agreement. In this respect,

the study does not support the amendment.

22. The King study addresses impacted roadway segments,

existing and background traffic, proposed traffic generated by

the development, and LOS for the impacted roadways, as suggested

by Ms. Hall in her email. Dunn's traffic engineer established

that in the impacted study area, six out of eight roadway links

will continue to fall below adopted LOS standards based upon

existing traffic and that generated by the RPI development

(segments 174, 372, 373, 374, 377, and 543). See Table 4,

Petitioner's Exhibit 8. The study also identifies proposed

roadway improvements in the vicinity of the project site that

are intended to help cure or mitigate the failing standards.

See Petitioner's Exhibit 8, p. 12. These improvements are

listed in the CIE and will cost around $85 million. A "fair

share" agreement has also been executed by the City and Dunn,

which requires Dunn to pay more than $4.3 million to offset

impacts of the RPI development. Those monies would be applied

to improvements in Sector 6.1 (the North Planning District),

which includes Starratt Road and the East-West Connector. The

agreement notes that this contribution would offset the

proportionate share of traffic impacts of the proposed RPI

development. Notably, the City has already funded both the

widening of Starratt Road and the improvements to the East-West

Connector, U.S. Highway 17 to Berlin Road, through the Better

Jacksonville Plan. Therefore, even if the Dunn fair share

agreement is not implemented, the two improvements will still be

made.

23. According to Dunn's engineer, the completion of the

four projects listed on page 12 of his traffic study, which are

labeled as "mitigation," will not restore or cure any of the LOS

failures that now exist on the six impacted segments in Table 4

of the study. However, two of the failing segments (373 and

543) may be "helped" by the projects listed on that page.

24. Dunn's engineer also analyzed City Exhibit 3 and

concluded that if the Dunn property is developed as LDR, rather

than RPI, there would be potentially one less roadway segment

(374) impacted by development, while five other segments would

continue to fail. When the proposed mitigation in the King

study is factored in, he opined that the East-West Connector may

help two other failing segments. He further opined that if LDR

development on the property occurs, probably three of the six

impacted segments will continue to fail adopted LOS standards.

Even so, the improvements identified in the CIE, including those

already funded by the Better Jacksonville Plan, should offset

the proportionate share of traffic impacts associated with any

future LDR development. 7

25. The foregoing data and analysis establish that the LDR

land use category generates less traffic impacts than the

originally-proposed RPI use; that a change from LDR to LDR

should have zero effect in terms of traffic impacts; that even

if there are impacts caused by a change back to LDR, the

proposed mitigation in the CIE will offset the proportionate

share of the impacts associated with any LDR use; that while it

differed from other studies, a professionally acceptable traffic

impact analysis was used by the City to support the remedial

amendment; and that the proposed road improvements are fully

funded without having to implement the fair share agreement.

Finally, in adopting the amendment, the City has reacted to the

data and analysis in an appropriate manner.

b. Does the Remedial Amendment Resolve All Issues ?

26. Dunn also asserts that the amendment does not resolve

the issues raised by the Department in its Notice and Statement

of Intent dated July 9, 2007. Under Section 163.3184(16)(f)2.,

Florida Statutes, an affected party may assert that a compliance

agreement does not resolve all issues raised by the Department

in its original notice of intent. The statute allows an

affected party to then address those unresolved issues in the

realigned proceeding. In this case, Petitioner asserts that the

Department's original objection that the change in land use

would result in a lowering of the LOS in the study area was not

addressed by the remedial amendment.

27. In its Notice and Statement of Intent to find the

amendment not in compliance, the Department cited the following

rules and statutes as being contravened: Sections 163.3164(32)

9J-5.016(4)(a)1. and 2., and 9J-5.019(3)(a) through (h) and

(4)(b)2. Although these sources of authority were cited in a

single generic notice of intent as a basis for objecting to all

seventeen map changes, it is assumed that they have equal

application to this proceeding. The cited statutes relate to

funding of transportation projects and concurrency issues, while

the rules relate to data and analysis requirements, concurrency

issues, the capital improvement element, and required

transportation analyses, all subjects addressed by Dunn at the

final hearing. Assuming arguendo that the remedial amendment

does not address all of the issues raised in the original notice

of intent, Dunn was given the opportunity to fully litigate

those matters in the realigned proceeding.

c. Procedural Irregularities

28. Rule 9J-5.004 requires that the City "adopt procedures

to provide for and encourage public participation in the

planning process." See also § 163.3181(1), Fla. Stat. ("it is

the intent of the Legislature that the public participate in the

comprehensive planning process to the fullest extent possible").

Dunn does not contend that the City failed to adopt the required

procedures. Rather, it contends that the City did not follow

those procedures during the adoption of the remedial amendment.

More specifically, prior to the Committee meeting, Dunn says it

spent "hundreds of thousands of dollars on top of the millions

that [it] had spent previously, working for fourteen months in

conjunction with the City and [Department]" so that the parties

could resolve the Department's objections. Dunn argues that it

was unduly prejudiced by the last-minute revisions made by the

Committee and City Council, and that it did not have an adequate

opportunity to respond.

29. Dunn points out that a City Planning Commission

meeting was conducted before the Committee meeting, and that

body unanimously recommended that Ordinance Nos. 2008-627 and

628 be approved. It further points out that when the Committee

met on September 3, 2008, the proposed revisions to the

settlement agreement, the accompanying remedial amendment, and

the new traffic data were not discussed until after the public

comment portion of the meeting was closed. (The transcript of

that meeting reflects, however, that after the new revisions and

traffic study were raised, Dunn's counsel was briefly questioned

about Dunn's traffic study and the density/intensity of the

project. Also, according to Mr. Coe, a copy of the City's

newly-prepared traffic study was given to a Dunn representative

just before the Committee meeting.) For both public meetings,

the City's published notices indicated that the purpose of the

meetings was to consider the proposed revised settlement

agreement and remedial amendment allowing a cap on the

development of the RPI property through the use of an asterisk,

as reflected in Ordinance Nos. 2008-627 and 2008-628. See

Petitioner's Exhibits 16 and 17.

30. Dunn contends that it had insufficient time between

the Committee meeting on September 3, 2008, and the final City

Council meeting on September 9, 2008, in which to review and

evaluate the new traffic information and respond to the comments

of the Committee member who supported the revisions. It also

points out that, like other members of the public, Dunn's

attorney was only given three minutes to present comments in

opposition to the revised agreement at the City Council meeting

on September 9, 2009.

31. Notwithstanding any procedural errors that may have

occurred during the City's adoption process, Dunn received

notice and attended both the Committee and City Council

meetings, it presented written and oral objections to the

revised plan amendment prior to and at the City Council meeting

on September 9, 2008, and it was given the opportunity to file a

petition to challenge the City's decision and present evidence

on the revisions at the hearing in this case.

D. Savings Clause in Senate Bill 360

32. In support of its position that the matter is now

moot, and that the savings clause in Senate Bill 360 does not

"save" the revised settlement agreement executed by the City,

Department, and Britt, on November 10, 2008, Dunn submitted

extrinsic evidence to show the Legislature's intent in crafting

a savings clause, which include four separate analyses by the

Legislative staff (Appendices A-D); an article authored by the

Bill's Senate sponsor (Senator Bennett) and published in the St.

Petersburg Times on May 23, 2009 (Appendix E); a similar article

authored by the same Senator and published in the Sarasota

Harold-Tribune on June 11, 2009 (Appendix F); a seven-page

letter from Secretary Pelham to Senator Bennett and

Representative Murzin dated July 23, 2009, concerning the new

law and a two and one-half page summary of the bill prepared by

the Department (Appendix G); a power point presentation for the

Senate Community Affairs Committee on October 6, 2009 (Appendix

H); and an article published in the October 2009 edition of The

Florida Bar Journal (Appendix I).

33. The Florida Senate Bill Analysis and Fiscal Impact

contained in Appendix A was prepared on February 17, 2009, and

does not reference the relevant savings clause. A second Senate

Bill Analysis and Fiscal Impact contained in Appendix B and

prepared on March 19, 2009, merely acknowledges that the

legislation includes a savings clause but provides no further

explication. See App. B, p. 9.

34. Appendix C is the Florida House of Representatives

2009 Session Summary prepared in May 2009, while Appendix D is a

Summary of Passed Legislation prepared by the House of

Representatives Economic Development and Community Affairs

Policy Council on an undisclosed date. Neither document

addresses the issue of what types of agreements were intended to

be saved.

35. Appendices E through I are guest newspaper columns,

correspondence, a power point presentation, and an article in a

professional journal. None are authoritative sources of

legislative intent.

CONCLUSIONS OF LAW

36. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569, 120.57(1), and 163.3184(16),

Florida Statutes.

37. The parties agree that there are sufficient facts to

establish that Britt and Dunn are affected persons and have

standing to participate in this matter. See § 163.3184(1)(a),

Fla. Stat.

38. Section 163.3184(16)(f)1., Florida Statutes, provides

in part as follows:

If the local government adopts a

comprehensive plan pursuant to a compliance

agreement and a notice of intent to find the

plan amendment in compliance is issued, the

[Department] shall forward the notice of

intent to the [DOAH] and the administrative

law judge shall realign the parties in the

pending proceeding under ss. 120.569 and

120.57, which shall be governed by the

process contained in paragraphs (9)(a) and

(9)(b), including provisions relating to

challenges by an affected person, burden of

proof, and issues of a recommended order and

a final order.

39. Because the Department issued a cumulative notice of

intent to find Ordinance No. 2007-383-E, as remediated by

Ordinance No. 2008-628-E, to be in compliance, the "plan

amendment shall be determined to be in compliance if the local

government's determination of compliance is fairly debatable."

See § 163.3184(9)(a), Fla. Stat. This standard requires

"approval of a planning action if reasonable persons could

differ as to its propriety." Martin County v. Yusem , 690 So. 2d

1288, 1295 (Fla. 1997).

40. Like any other FLUM amendment, a remedial FLUM

amendment requires relevant and appropriate data and analysis to

support the amendment. See § 163.3177(8), Fla. Stat.; Fla.

Admin. Code R. 9J-5.005(2). By its express terms, Ordinance No.

2008-628-E is a FLUM amendment and is not a repeal or rescission

of Ordinance No. 2007-383-E. (Had the City simply repealed the

original ordinance, rather than adopting a remedial amendment,

the administrative process would have ended.) Therefore, in

order to be in compliance, Ordinance No. 2008-628-E must be

supported by relevant and appropriate data and analysis. In

this case, however, because the map amendment simply changes the

land use back to its original classification (which land use was

in compliance at that time), it follows that the amendment here

can be based on less data and analysis than may be otherwise

required for other types of amendments. Compare Indian Trail

Improvement District v. Department of Community Affairs, et al. ,

946 So. 2d 640, 641 (Fla. 4th DCA 2007)(approving Department's

policy that aspirational amendments do not require the same

amount or type of data as other plan amendments); Zemel, et al.

v. Lee County, et al. , DOAH Case No. 90-7793GM, 1992 Fla. Div.

Adm. Hear. LEXIS 5927 at *49-50 (DOAH Dec. 12, 1992, DCA June

22, 1993)(the complexity and detail of data and analysis should

be commensurate with the type of amendment being adopted).

Under the unique circumstances here, it is concluded that the

amount and type of data presented are relevant and appropriate.

41. For the reasons previously found, Dunn has failed to

prove beyond fair debate that Ordinance No. 2007-383-E, as

remediated by Ordinance No. 2008-628-E, are not supported by

relevant and appropriate data and analysis. This being so, the

Department's determination of compliance is fairly debatable and

should be sustained. Martin County , supra .

42. Dunn further contends that the remedial amendment

fails to resolve all issues raised in the Department's original

Notice of Intent and is therefore not in compliance. See

an affected person may require unresolved "issues to be

addressed in the pending consolidated realigned proceeding under

ss. 120.569 and 120.57." Whether the remedial amendment

resolves all issues is in dispute. When confronted with a

similar issue in a much earlier case, the Department contended

during that proceeding that "resolved" means "eliminated from

contention between the Department and the other party or parties

to an agreement, even if an objective observer might quarrel

with whether or not the agreeing parties (1) had provided

sufficient evidence that an objection should no longer be

maintained or (2) had changed plan or plan amendment language

enough to address the issue concretely." See Board of County

Commissioners of Palm Beach County, et al. v. Department of

Community Affairs, et al. , DOAH Case Nos. 95-5930GM and 96-

2563GM, 1997 Fla. ENV LEXIS 159 at *53-54 (DOAH Jan. 24, 1997),

dismissed by Admin. Comm. Oct. 21, 1997. In accepting this

interpretation of the statute, the administrative law judge

concluded that an issue is resolved "if the issue was initially

raised by the Department in its statement of intent as a basis

for its determination that a plan amendment is not in

compliance, the Department and local government subsequently

enter into a compliance agreement, the local government adopts

the remedial amendment consistent with the compliance agreement,

and the Department subsequently issues a notice of intent

finding the remedial amendment in compliance." Id. at *54.

There are no reported cases overturning or modifying this

holding. Under this rationale, Ordinance No. 2008-628-E

resolves all issues since it is consistent with the revised

compliance agreement, and the Department issued a notice of

intent finding the remedial amendment in compliance. Even if

some of the issues were not "resolved," as Dunn alleges, it was

given the opportunity to fully address those issues in the

realigned proceeding. The contention is therefore rejected.

43. The evidence supports a conclusion that no violation

of Rule 9J-5.004 has occurred. Dunn does not contend that the

City failed to adopt the procedures described in the rule.

Rather, it contends that the City failed to conduct the plan

amendment process in accordance with those procedures. Whether

a local government followed its procedures is not within the

scope of compliance review. See , e.g. , Current v. Town of

Jupiter, et al. , DOAH Case No. 03-0718GM, 2003 Fla. ENV LEXIS

250 (DOAH Oct. 24, 2003), adopted, 2004 Fla. ENV LEXIS 209 (DCA

April 8, 2004). Even if a procedure was not followed, the

record shows that Petitioner attended all meetings during the

adoption process, and it was allowed to make written and oral

objections to the revisions prior to and at the meeting

conducted by the full City Council. Finally, Dunn has been

afforded an opportunity to challenge the remedial amendment and

fully participate in the instant proceeding. The contention

that it was unduly prejudiced is rejected.

44. Dunn's Suggestion of Mootness and Motion to Dismiss

Petition as to Ordinance 2007-383-E is denied. The language

giving rise to this dispute is found in Section 163.3180(5)(f),

Florida Statutes. That provision reads as follows:

(5)(f) The designation of a [TCEA] does not

limit a local government's home rule power

to adopt ordinances or impose fees. This

subsection does not affect any contract or

agreement entered into or development order

rendered before the creation of the [TCEA]

except as provided in s. 380.06(29)(e).

45. The language in the second sentence provides that all

"agreements" entered into prior to the effective date of the new

law are not affected. Under Chapter 163, Florida Statutes, the

Sixteenth Partial Stipulated Settlement Agreement is an

"agreement." See § 163.3184(16)(a), Fla. Stat. (parties to a

plan amendment challenge may "voluntarily enter into a

compliance agreement to resolve one or more of the issues raised

in the proceedings").

46. Dunn contends the documents submitted in its Notice of

Supplemental Evidence of Legislative Intent reflect an intent by

the Legislature to remove the Department's jurisdiction to

review this FLUM amendment. However, none of the documents

provide evidence that the Legislature intended to exclude

compliance agreements from the purview of the statute. The

various summaries by Legislative staff found in Appendices A

through D make no mention of the subject or simply acknowledge

that the Bill contains a savings clause. 8 Likewise, the other

materials submitted by Dunn concerning legislative intent have

little, if any, value. For example, comments by a bill's

sponsor concerning his intent in adopting legislation "is of

doubtful worth." State v. Patterson , 694 So. 2d 55, 58 n. 3

(Fla. 5th DCA 1997). See also McLellan v. State Farm Mutual

Automobile Insurance Co. , 366 So. 2d 811, 813 (Fla. 4th DCA

1979)(affidavit of legislator stating his view of legislative

intent is inadmissible). Finally, correspondence between the

Department and a senator, a power point presentation given to a

legislative committee by agency representatives after the law

was enacted, and an article in a professional journal are not

admissible evidence of legislative intent.

47. Dunn also contends that the savings clause is

expressly limited to the effects of "this subsection" --

Section 163.3180(5)(f) -- on agreements. It points out that the

provision which removes the Department's authority to review

FLUM amendments for maintenance of LOS of affected roadways is

in a different statutory section -- Section 163.3177(3)(f) --

and therefore the savings clause provides no protection for

agreements pertaining to the latter provision. It goes on to

argue that the savings clause is intended to protect a local

government's home rule powers to enact and enforce local

concurrency systems and impact fee systems, and not settlement

agreements entered into by the Department. Dunn suggests that

the fair share agreement entered into with the City, which

provides for the payment of an assessment as required under the

City's local traffic concurrency system, is the type of

agreement that the new law is intended to "save."

48. Section 163.3180, Florida Statutes, governs all types

of concurrency issues in the planning process. Subsection (5)

of the statute, and the new amendments thereto, relate

exclusively to transportation concurrency issues. Similarly,

Section 163.3177(3)(f), as amended, relates to transportation

concurrency issues and removes the Department's jurisdiction

over FLUM changes in a City designated as a TCEA by providing

that "land uses within all [TCEAs] that are designated and

maintained in accordance with s. 163.3180(5) shall be deemed to

meet the requirement to achieve and maintain [LOS] standards for

transportation." While Dunn's argument is plausible, it is just

as reasonable to conclude that when new Sections 163.3177(3)(f)

and 163.3180(5) are read in pari materia , absent any specific

expression of intent to the contrary, the savings clause

protects settlement agreements entered into by the Department

prior to June 1, 2009, for the purpose of resolving a challenge

to a local government's FLUM amendments. Therefore, the

Sixteenth Partial Stipulated Settlement Agreement is not

affected by Senate Bill 360.

49. The City and Department's Motion to Relinquish

Jurisdiction is denied.

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. 2008-628-E, which remediates Ordinance No. 2007-

383-E, is in compliance.

DONE AND ENTERED this 28th day of December, 2009, in

Tallahassee, Leon County, Florida.

S

D. R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of December, 2009.

ENDNOTES

1/ All statutory references are to the 2009 version of the

Florida Statutes.

2/ Matters officially recognized pursuant to Dunn's request are

Chapter 2009-96, Laws of Florida; Ordinance No. 2007-383-E;

Ordinance No. 2008-628-E; the Department's Cumulative Notice of

Intent issued on December 18, 2008; a document entitled

"Department of Community Affairs, Division of Community Planning

Public Notices: 2009 Growth Management Legislation"; the

Department's List of Local Governments Qualifying as Dense Urban

Land Areas; and the Department's Summary for Presentation by

Secretary Tom Pelham, dated June 11, 2009, Implementing SB 360.

Matters officially recognized pursuant to the City's request are

Ordinance No. 2008-621-E; Ordinance No. 2008-622-E; and the

transcript of the City Council Land Use and Zoning Committee

meeting on September 3, 2008.

3/ Under the City's amendment process, proposed land use changes

are first presented to the City Planning Commission, then to the

Committee, and finally to the full City Council. According to

Mr. Coe, the City Council rarely overrules a recommendation by

the Committee.

4/ The TCEAs are intended to promote urban infill and economic

activity within these urban service areas.

5/ All references are to the current version of the Florida

Administrative Code.

6/ The record does not show when the Department and FDOT agreed

that the City could use this methodology. The record does show

that the Department accepted traffic studies using the

methodology suggested by Ms. Hall when it approved other FLUM

changes prior to the Dunn remedial amendment being adopted.

7/ The City also contended that even if all of the six impacted

segments are not cured, the mitigation will still improve the

capacity of the system as a whole, thereby satisfying the

requirements of the law. This position, however, is contrary to

Rule 9J-5.005(3)(LOS standards "shall be set for each individual

facility or facility type and not on a systemwide basis").

8/ While not determinative of legislative intent, legislative

analyses are "one touchstone of the collective legislative will."

Stivers v. Ford Motor Credit Co. , 777 So. 2d 1023, 1025 (Fla. 4th

DCA 2000). But here the staff analyses offer no insight into the

"collective legislative will" concerning the type of agreements

the savings clause was intended to save.

COPIES FURNISHED:

Thomas G. Pelham, Secretary

Department of Community Affairs

2555 Shumard Oaks Boulevard

Tallahassee, Florida 32399-2100

Shaw P. Stiller, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

T.R. Hainline, Jr., Esquire

Rogers Towers, P.A.

1301 Riverplace Boulevard

Suite 1500

Jacksonville, Florida 32207-9000

Lynette Noor, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399-2100

Valerie Britt

378 Tilefish Court

Jacksonville, Florida 32225-3269

Dylan T. Reingold, Esquire

City Hall at St. James

117 West Duval Street, Suite 480

Jacksonville, Florida 32202-3700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days of the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

render a final order in this matter.