08-004193GM Department Of Community Affairs vs. City Of Jacksonville Status: Closed Recommended Order on Monday, January 12, 2009.

Summary: Amendment to FLUM not in compliance; text amendment changing definition of Coastal High Hazard Area in compliance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY )

AFFAIRS, )

)

Petitioner, )

)

and )

)

VALERIE BRITT, KATHLEEN S. )

BROWN, MARY F. AND SAM )

BILLOTI, KIMBERLY A. CRAFT, )

LORETTA PERRONE, and )

PATRICIA T. HAIRSTON, )

)

Intervenors, )

)

vs. ) Case Nos. 07-3539GM

) 08-4193GM

CITY OF JACKSONVILLE, )

)

Respondent, )

)

and )

)

WESTLAND RESIDENTIAL )

DEVELOPMENT, LLC; MCCUMBER )

GOLF, INC.; M.D. MOODY & )

SONS, INC.; DUNN CREEK, LLC; )

JOHNNY I. DUDLEY, LLC; )

BALDWIN TRADEPLEX, INC.; L. )

CHARLES MANN; JAMES M. AND )

FAY S. COLEMAN; GEORGE SAYAR; )

SKYLINE REALTY SERVICES, )

INC.; HST VENTURES, INC.; R. )

LOUISE KITTRELL, INC.; )

WHITEHOUSE MANOR, INC.; D.R. )

HORTON-JACKSONVILLE; HASSCO, )

LLC; HIDDEN CREEK LANDING, )

LLC; TITAN LAND, LLC; FRAZIER )

TREMBLAY; and ADEL BARIN, )

)

Intervenors. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, these matters were heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on October 27,

28, 29, and 30, 2008, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Lynette Norr, Esquire

Matthew G. Davis, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399-2100

For Intervenors: Valerie Britt, pro se

378 Tilefish Court

Jacksonville, Florida 32225-3269

Mary F. Billoti, pro se

469 Pablo Point Drive

Jacksonville, Florida 32225-3259

Kimberly A. Craft, pro se

562 San Pablo Point Road North

Jacksonville, Florida 32225-3278

Patricia T. Hairston, pro se

13560 Picarsa Drive

Jacksonville, Florida 32225-3250

Kathleen S. Brown, pro se

365 Pablo Point Drive

Jacksonville, Florida 32225-3282

For Respondent: Shannon K. Eller, Esquire

City Hall at St. James

117 West Duval Street, Suite 480

Jacksonville, Florida 32202-3700

For Intervenor: Gary P. Sams, Esquire

(M.D. Moody) Miguel Collazo, II, Esquire

Hopping, Green & Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314-6526

STATEMENT OF THE ISSUE

The issue is whether the City of Jacksonville's (City's)

amendment to the Future Land Use Map (FLUM), also known as

Ordinance No. 2007-355-E, and a related text amendment to

Conservation/Coastal Management Element Policy 7.3.1 adopted by

Ordinance No. 2008-315-E are in compliance.

PRELIMINARY STATEMENT

This matter began on May 14, 2007, when the City adopted

Ordinance No. 2007-355-E, which changed the land use designation

for a 77.22-acre parcel at 13911 Atlantic Boulevard on the west

side of the Intracoastal Waterway from Water Dependent/Water

Related and Agriculture IV to Community/General Commercial. If

found to be in compliance, the change would potentially result

in a net increase in development by 1,146 dwelling units and

200,245 square feet of nonresidential land use. The property is

owned by Intervenor, M.D. Moody & Sons, Inc. (Moody). On the

same date, the City adopted nineteen other changes to the FLUM

by separate ordinances. On August 1, 2007, the 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 were not in compliance. The Petition was

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

amendments, only the Moody amendment is in issue here; all

others were abated pending efforts by the parties to settle

those disputes. One map change (Ordinance No. 2007-385-E) was

eventually resolved. Although the other fifteen FLUM amendments

are abated, they remain a part of Case No. 07-3539GM and the

applicants for those map changes and their counsel are included

in the style of the case and the service list, respectively. As

to Ordinance No. 2007-355-E, the Department generally alleged

that the amendment conflicted with certain provisions within

Chapter 163, Florida Statutes (2008) 1 , and Florida Administrative

Code Rule Chapter 9J-5 by increasing density in the Coastal High

Hazard Area (CHHA), impacting environmentally sensitive land,

and impacting transportation facilities. The Department also

alleged that the amendment conflicted with seven policies of the

State Comprehensive Plan, and it conflicted with a goal and

policy of the Northeast Florida Strategic Regional Policy Plan.

On July 31, 2007, Intervenor, Valerie Britt (Britt), filed

with the Department a paper styled "Petition to Intervene and

Petition for Hearing, Raising New Issues, in the Matter of

Jacksonville Plan Amendment 06D-001 as Adopted by Ordinance 07-

355-E and to Intervene in Support of Department of Community

Affairs' Notice of Intent to Find Amendment Adopted by Ordinance

2007-355-E Not in Compliance." On the same date, seven

individual residents who reside and own property near the

affected site, Kathleen S. Brown, Sarah Broadway, Sam and Mary

F. Billotti, Patricia T. Hairston, Loretta Perrone, and Kimberly

Craft (resident intervenors), filed with the Department a paper

styled "Seven Individual Residents' Petitions for Hearing and

Petitions to Intervene in the DCA Not in Compliance Proceeding

to find Jacksonville Plan Amendment Ordinance 07-355-E Not in

Compliance." Both filings were forwarded to DOAH. On August 8,

2007, Moody filed its Petition for Leave to Intervene in support

of the challenged FLUM amendment. By Order dated August 9,

2007, intervention was authorized for all parties. The matter

was originally scheduled for final hearing on December 17-21,

2007, in Jacksonville, Florida, but was later abated while the

parties attempted to informally resolve the disputes.

On June 10, 2008, the City adopted Ordinance No. 2008-315-

E, which modified the definition of the CHHA found in

Conservation/Coastal Management Element Policy 7.3.1, by

allowing site-specific data to be used to determine whether a

parcel lies outside of the CHHA. On August 25, 2008, the

Department filed its Petition for Formal Administrative Hearing

alleging that the plan amendment was not in compliance on the

grounds the amendment was inconsistent with the definition of

CHHA found in Section 163.3178(2)(h), Florida Statutes; it was

inconsistent with Policy 7.3.1 and Map C-18 within the Element;

it was inconsistent with four goals and three policies in the

State Comprehensive Plan; and it conflicted with a regional goal

of the Northeast Florida Strategic Regional Policy Plan. The

text amendment was given Case No. 08-4193GM and was originally

assigned to Administrative Law Judge J. Lawrence Johnston. On

September 25, 2008, Case No. 08-4193GM was transferred to the

undersigned.

On August 26, 2008, Valerie Britt filed her Petition for

Leave to Intervene in Alignment with Petitioner Department of

Community Affairs and Britt's Petition for Hearing in Case No.

08-4193GM. On the same date, Moody filed its Petition for Leave

to Intervene in support of the text amendment. By Orders dated

August 27 and 28, 2008, respectively, Britt and Moody were

authorized to intervene. On September 3, 2008, Sarah Broadway

filed a paper indicating she no longer wished to participate in

either case. This filing was treated as a notice of voluntary

dismissal. (The applicants for the other fifteen map changes

have not expressed an interest, or asked to participate, in the

text amendment case.)

On September 11, 2008, the City filed a Motion to

Consolidate (Motion) the Moody FLUM amendment and the text

amendment. The Motion was filed under Case No. 08-4193GM and

was served only on the parties in that case. By Order dated

September 25, 2008, the Motion was granted and the two cases

were consolidated. This Order was reconsidered after three

individual residents in Case No. 07-3539GM filed a paper

indicating that they were not served with a copy of the Motion

and objected to consolidation. The matter was reconsidered in

light of their objections, and after doing so, consolidation was

reaffirmed by Order dated October 8, 2008.

By Notice of Hearing issued on September 29, 2008, a final

hearing in both cases was scheduled for February 23-27, 2008, in

Jacksonville, Florida. On October 3, 2008, the City filed a

Demand for Expeditious Resolution under Section 163.3189(3),

Florida Statutes, which requires that, absent extraordinary

circumstances, a hearing be held within thirty days after the

filing of the demand. Thereafter, the final hearing was

rescheduled to October 27-30, 2008, in Jacksonville, Florida.

On October 27, 2008, the Department filed a Motion in

Limine to exclude Moody Exhibit LYC on the ground the materials

contained therein were irrelevant and hearsay in nature. That

Exhibit consists of documents taken from DOAH Case No. 06-

0049GM, including the Transcript of hearing, a topographic map,

the Hurricane Storm Tide Atlas for Lee County prepared by the

Southwest Florida Regional Planning Commission, and the

Recommended and Final Orders in the case, Department of

Community Affairs v. Lee County and Leeward Yacht Club, LLC ,

2006 Fla. ENV LEXIS 159 (DOAH Aug. 25, 2006); 2006 Fla. ENV

LEXIS 158 (Admin. Comm. Nov. 15, 2006). The Motion was denied

without prejudice to the Department presenting evidence at

hearing and/or argument in its proposed recommended order as to

why Case No. 06-0049GM was irrelevant and should not be

considered, or was distinguishable.

At the final hearing, the Department presented the

testimony of Dr. Joseph Addae-Mensa, a Principal Planner and

accepted as an expert; Patrick Odom, Statewide Incident

Management and Road Ranger Manager for the Florida Department of

Transportation (DOT) and accepted as an expert; Margo Moehring,

Director of Strategic Initiatives for the Northeast Florida

Regional Council (Council) and accepted as an expert; and

Jeffrey A. Alexander, Director of Emergency Preparedness Program

for the Council and accepted as an expert. Also, it offered

Department Exhibits 1, 2, 4, 7, 9, 12-14, 16-21, 28, and 32,

which were received in evidence. Intervenor Britt and the

resident intervenors participated through cross-examination but

offered no witnesses or exhibits. The City presented the

testimony of William B. Killingsworth, Chief of its Community

Planning Division and accepted as an expert, and Michael Sands,

Chief of the Development Services Division and accepted as an

expert. Also, it offered City Exhibits 1, 2, and 4, which were

received in evidence. Moody presented the testimony of Valerie

J. Hubbard, a planner and accepted as an expert; Anthony S.

Robbins, a planner and accepted as an expert; Nancy C. Zyski,

Chief Executive officer of Environmental Resource Solutions,

Inc., and accepted as an expert; David W. Spangler, a

geotechnical project engineer and accepted as an expert; Brian

R. Jarvinen, a storm consultant and accepted as an expert;

Alfred F. Kyle, III, a professional engineer and accepted as an

expert; Stephen A. Sabia, President of Buffy Environmental

Corporation and accepted as an expert; P. Dean Privett, Jr., a

land surveyor and accepted as an expert; and Paul M. Harden, an

attorney. Also, it offered Moody Exhibits GLD 1 and 2, DWS-1,

AFK-1 through 4, PDP-1 through 4, NCZ-1 and 2, SAS-1, BRJ-1

through 3, VJH-1 through 3, ASR-1 and 2, and LYC 1-4, which were

received in evidence. Finally, the parties submitted Joint

Exhibits 1 through 14, which were received in evidence.

Near the conclusion of the hearing, Moody (with the City's

concurrence) acknowledged through an expert and its counsel that

the map amendment adopted by Ordinance No. 2007-355-E was not in

compliance and that a recommended order to that effect should be

sent to the Administration Commission (Commission). (The City

and Moody still contend that the text amendment adopted by

Ordinance No. 2008-315-E is in compliance.) Moody suggested,

however, that during the course of the hearing, it had offered

proposed remedial actions that, if specified by the Commission

in its final order, and adopted by the City in a new remedial

amendment, would "bring the amendment into compliance." See

§ 163.3184(11)(a), Fla. Stat. Moody further requested that the

undersigned submit proposed remedial actions with his

recommended order that, if ordered to be adopted by the

Commission, would bring the amendment into compliance. Although

recommended orders issued by administrative law judges do not

include proposed remedial action to cure deficiencies in

amendments that are found to be not in compliance, the

undersigned nonetheless directed Moody to file proposed remedial

amendment commitments, together with their record support, for

review by the other parties prior to the filing of its proposed

recommended order. 2 On December 2, 2008, Moody and the City

filed a paper styled Proposed Remedial Amendment Commitments.

The Department filed a responsive paper (joined "in principle"

by Britt and the resident intervenors who are aligned with the

Department) on December 9, 2008, indicating generally that while

it did not object to the proposed commitments, it takes the

position that even if these commitments are adopted, the City

has still not demonstrated that it can meet certain rule and

statutory requirements necessary to bring the amendment into

compliance.

The Transcript of the hearing (seven volumes) was filed on

December 1, 2008. By agreement of the parties, proposed

findings of fact and conclusions of law were due no later than

December 15, 2008. A Proposed Recommended Order was timely

filed by the Department and jointly by Moody and the City on

that date, and they have been considered in the preparation of

this Recommended Order. No filings were made by Britt or the

resident intervenors.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

A. The Parties

1. The City (which also comprises Duval County) is a local

government in northeast Florida whose eastern boundary adjoins

the Atlantic Ocean. The City is partially bisected by the St.

Johns River (River), which begins several hundred miles to the

south, flows north through the lower half of the City, and then

turns east, eventually emptying into the Atlantic Ocean. The

Intracoastal Waterway is connected to the River and runs

parallel to the coast. The City adopted the plan amendments

which are being challenged by the Department and Intervenors.

2. Intervenor Valerie Britt and the six resident

intervenors own property and/or reside within the City. They

each presented oral or written comments to the City regarding

both amendments before transmittal but before their adoption.

As such, they are affected persons and have standing to

participate in this matter.

3. Moody (formerly known as the Moody Land Company, Inc.)

owns property and operates a business within the City. Moody

submitted oral or written comments in support of both amendments

to the City after transmittal but before adoption of the

amendments. As such, it has standing as an affected person to

participate.

4. The Department is the state land planning agency

charged with the responsibility for reviewing plan amendments of

local governments, including the City.

B. Coastal High-Hazard Area

5. Because the CHHA is relevant to both the FLUM amendment

and the text amendment challenges, a brief overview of its

history and development is appropriate. For local governments

abutting the Atlantic Ocean or Gulf of Mexico, or that include

or are contiguous to waters of the state, Section 163.3178,

Florida Statutes, enumerates certain requirements that must be

included within the coastal management element of their

comprehensive plans. See § 163.3178(2)(a)-(k), Fla. Stat. The

purpose of this directive is that comprehensive plans should

"protect human life and limit public expenditures in areas that

are subject to destruction by natural disaster." § 163.3178(1),

Fla. Stat. Because it lies adjacent to the Atlantic Ocean, the

City is subject to these requirements. One of the requirements

is the designation of a CHHA in the element. § 163.3178(2)(h),

Fla. Stat.

6. "[F]or uniformity and planning purposes," prior to

2006, the CHHA was simply defined as "category 1 evacuation

zones." § 163.3178(2)(h), Fla. Stat. (2005). Presumably to

eliminate inconsistencies in the application of this broad

definition, in 2006 the Legislature redefined the term as ”the

area below the elevation of the category 1 storm surge line as

established by a Sea, Lake, and Overland Surges from Hurricanes

law required that no later than July 1, 2008, local governments

situated on or near Florida's coastline amend their "future land

use map and coastal management element to include the new

definition of [CHHA] and to depict the [CHHA] on the [FLUM]."

§ 163.3178(9)(c), Fla. Stat. Because Policy 7.3.1 of the

Conservation/Coastal Management Element of the City's current

Plan still utilizes the old definition of CHHA, Ordinance No.

2008-315-E was adopted for the purpose of complying with this

requirement.

7. The SLOSH model is a computerized model developed by

the National Oceanic and Atmospheric Administration's National

Weather Service to calculate hurricane storm surge heights.

Storm surge is the abnormal rise of water caused by wind and the

pressure forces of hurricanes. Based upon various inputs, such

as the direction and speed of a hurricane, initial water

elevation, topography, and bathymetry, the model produces a

display with storm tide elevations per grid cell. The use of a

grid cell enables the model to predict storm surge in a smaller

land area. The outputs of the model are storm surge elevations

averaged over grid cells, which are accurate to within twenty

percent based upon post-storm observations from tide gauges

behind coastal barrier islands.

8. In July 1998, the Northeast Florida Regional Planning

Council, now known as the Northeast Florida Regional Council,

published a four-volume Storm Surge Atlas (Atlas) as a public

safety planning tool to assist with hurricane evacuation

planning within northeast Florida. (Each regional planning

council in the State is tasked with this responsibility.)

Volume 2 applies to Duval County. The Atlas reflects SLOSH

model storm surge data on a map with land elevations and water

features, thus providing emergency planners information they can

use to evacuate coastal areas at appropriate times. Areas

depicted in the Atlas below the elevation of the category 1

storm surge line are subject to evacuation and are considered to

be in the CHHA.

9. In preparing the Atlas, the Council used not only SLOSH

model data, but other "suggested changes" (not otherwise

disclosed) by emergency manager directors. Because of the time

and effort involved in preparing the original Atlas, it has not

been revised since its original publication in 1998.

10. The topographical data input for the SLOSH model and

the base map for Volume 2 of the Atlas was the 7.5-Minute Series

Jacksonville Beach Quadrangle Map produced by the United States

Geological Survey. These maps are used to establish the ground

elevations for the grids but are limited in their ability to do

fine resolution, that is, provide detailed information regarding

the elevation for small areas of land within the grid. Although

the Atlas indicates that it used the most current quadrangle map

available, which was the 1994 version, the Council actually used

the 1981 version. Except for some minor items, however, the

record does not disclose any material differences between the

two maps. Therefore, the use of the older version does not

affect the validity of the information in the Atlas. The Atlas

further indicates that the base contours taken from the

Quadrangle Map were five-foot contours. However, both the 1981

and the 1994 versions of the Quadrangle Map only show a ten-foot

contour line just to the south and southwest of the Moody

property, and no five-foot contour lines. See Moody Exhibit

BRJ-3. Thus, the map was "just saying that this property [the

Moody property] is 10 feet or less."

11. Time/History points are specific points within SLOSH

grid cells that are selected by the Council for the purpose of

giving detailed information at the point selected. Many of the

points are on or near critical roadways. The Moody property is

directly underneath Time/History Point 73. In terms of size,

the Moody property is a very small percentage of the total grid

cell in which that point is located. According to the Atlas,

Point 73 is where Atlantic Boulevard crosses the Intracoastal

Waterway. The Department, City, and Moody agree, and the Atlas

indicates, that the maximum category 1 storm surge elevation at

that point is five feet. Therefore, any land that is in the

vicinity of Time/History Point 73 and is less than or equal to

five feet in elevation will be inundated by the maximum category

1 hurricane storm surge.

12. According to the legend on the Atlas, areas depicted

in dark blue can anticipate inundation in a category 1 storm.

The geographic area within Time/History Point 73 is shown on

Plate 6 of Volume 2 of the Atlas and depicts the entire Moody

property, as well the land in the vicinity of that point, in

dark blue, thus implying that all or most of Moody's property is

within the storm surge for a category 1 storm. However, it is

noted that a significant portion of the Moody property is

obscured by the Point 73 label on the Atlas' Plate 6. Even so,

given the broad brush scope of that document and the solid dark

blue color extending along the Intracoastal Waterway in that

area, it is fair to infer that the land area under the label is

also dark blue and subject to category 1 evacuation

requirements.

13. For land use planning throughout the State, the

Department uses the CHHA that is established in the Atlas

published by the local regional planning council. (In both the

existing and amended versions of Policy 7.3.1, the City also

uses the Atlas for purposes of delineating the CHHA.)

Therefore, if the Atlas depicts a geographic area as being in

the CHHA, the Department relies upon that information when it

reviews plan amendments proposing to increase density within

that area. In doing so, the Department acknowledges that the

Atlas necessarily reflects the areas subject to storm surge on a

"broad-brush regional approach," but points out that it would be

impractical to attempt to carve out extremely small areas along

the coast or waterways, parcel by parcel or acre by acre, which

might have elevations above the storm surge line and not be

subject to the development requirements within a CHHA. It also

points out that if exceptions to the storm surge line in the

Atlas are allowed, the CHHA requirements could be circumvented

by a landowner simply placing fill on the property to raise the

elevation. Finally, the SLOSH model is based on average

elevations for an entire grid cell, and the model cannot produce

a map with land elevations for specific parcels. The Department

suggests, however, that generalized data is the best data

available for conducting an analysis of storm surge.

14. Because of the "broad-brush" and "averaging"

constraints inherent in the Atlas and SLOSH, and the fact that

the Atlas' delineation of the CHHA is used primarily for

evacuation planning purposes rather than land use planning, the

City and Moody contend that site-specific data is more desirable

when determining land use entitlements. They suggest that

professionally prepared surveys are far more accurate and

precise in determining the elevation on a parcel than the

Quadrangle Map, which in this case only depicted ten-foot

contours. In this vein, the amended version of Policy 7.3.1

(which is the subject of Case No. 08-4193GM) allows a property

owner to submit site-specific data (such as a survey) to

demonstrate that the property, or part of it, is not below the

category 1 storm surge elevation and is not within the CHHA.

15. An increase of density (or development) within a CHHA

is not barred by the statute. In fact, Section 163.3178(9)(a),

Florida Statutes, provides that plan amendments proposing an

increase in density within a CHHA may be found in compliance if

(a) the adopted level of service (LOS) for out-of-county

hurricane evacuation is maintained for a category 5 storm event;

or (b) a 12-hour evacuation time to shelter is maintained for a

category 5 storm event and shelter reasonably expected to

accommodate the residents of the contemplated development is

available; or (c) appropriate mitigation is provided that will

satisfy the provisions of items (a) and (b), including payment

of money, contribution of land, and construction of hurricane

shelters and transportation facilities. Therefore, even if the

Moody parcel is found to be within a CHHA, it may still increase

density within that parcel so long as the above criteria are

met. By way of example, payments into a shelter mitigation fund

would be one way to mitigate the effects of increasing

residential density within the CHHA.

C. FLUM Amendment

a. The property

16. In early 1995, Moody acquired the 77.22-acre tract of

property which is the subject of the FLUM amendment, although it

has been used as an industrial shipyard since 1951. The

property lies on the north side of Atlantic Boulevard, a

principal arterial roadway which generally extends from the

coast (beginning just north of Neptune Beach) westward to the

"downtown" area. The eastern boundary of the property adjoins

the Intracoastal Waterway.

17. Approximately 37 acres of the property, or a little

less than one-half of the total acreage, consists of

environmentally sensitive saltwater marshes. These are located

on the west, north, and northeast sides of the property. Near

the southwest corner of the property there is also a small

wetland scrub vegetative community. The commercial activities

on the current site consist of approximately 116,500 square feet

of heavy industrial uses involved in the construction and repair

of large ships. They are located on that part of the southern

half of the property which sits closest to Atlantic Boulevard

and the Intracoastal Waterway. The site also includes a small

harbor for docking of ships. The area immediately surrounding

the existing boat basin in the south-central part of the

property has been environmentally disturbed as part of the

ongoing shipyard operations.

18. The development surrounding the Moody site is a mix of

residential, commercial, and industrial uses. Single-family

residences are the dominant use, occupying seventy-four percent

of parcels within a one-half mile radius of the property.

19. Britt and the resident intervenors all reside or own

property in a residential development known as Pablo Point,

which begins a hundred feet or so to the west of the Moody

property, separated only by a marshland.

20. Directly south of the Moody property, and on the south

side of Atlantic Boulevard, is a new development known as

HarborTown, which in 2002 was the subject of two land use

changes, one from Agriculture IV to Conservation and one from

Water-Dependent and Water Related (WD-WR) to Community/General

Commercial (C/GC). A companion Planned Unit Development (PUD)

provides for a mixed residential development with a maximum of

690 dwelling units, 28,000 square feet of office and commercial

space, 150 wet slips, and conservation of approximately 29 acres

of marshlands. According to the Atlas, it appears that at least

part, if not all, of that development may be within the CHHA.

21. The property is accessed by a service road at the

Intracoastal Waterway, off Atlantic Boulevard. The eastbound

exit ramp, which would be used by emergency rescue teams to

access the site, exits to the right and goes under Atlantic

Boulevard adjacent to the Intracoastal Waterway in order to

reach the Moody site. Egress from the site westbound is by way

of a service road on the north side of Atlantic Boulevard.

22. The Moody property is in two flood zones: X5 and AE.

Flood zone X5 generally corresponds with the upland areas at the

center of the property that have been historically disturbed by

shipyard operations and are not likely to flood. Floodzone AE

generally corresponds with the environmentally sensitive wetland

areas of the property and will likely flood in a 100-year storm.

b. The Application and Review Process

23. Sometime in 2006, Moody filed an application with the

City to change the land use designation on its property from WD-

WR and Agriculture IV to C/GC. The WD-WR classification allows

for water dependent industrial uses such as shipyards,

industrial docks, and port facilities. The Agriculture IV land

use allows various agriculture uses and single-family

residential development at the maximum density of 2.5 units per

acre. The C/GC designation permits a wide range of uses,

including multi-family residential and boat storage and sales,

and is the same land use classification as the HarborTown

project across Atlantic Boulevard and to the south. In contrast

to the Agriculture IV land use, however, the C/GC land use

allows residential development up to twenty units per gross

acre. Thus, the map amendment will result in a potential net

increase in development by 1,146 dwelling units and 200,245

square feet of nonresidential land use.

24. After reviewing the application, the City approved the

map change in December 2006 as a part of its semi-annual land

use changes to its Plan. The amendment was then transmitted to

the Department for its review. On March 5, 2007, the Department

issued its Objections, Recommendations and Comments (ORC)

Report, which noted six objections and one comment.

25. Despite the objections contained in the ORC, on

May 14, 2008, the City approved the map change by enacting

Ordinance No. 2007-355-E. In conjunction with the land use

change, the City also approved a PUD for the property (Ordinance

No. 2007-356-E enacted the same date), which authorizes a

maximum residential development of four residential buildings

and 590 dwelling units on the property. This density would be

achieved by the construction of four twelve-story buildings,

each standing around 144 feet high. In addition, Moody intends

to develop marina-related specialty retail (including a club,

retail, and restaurant activities) not exceeding 6,500 square

feet; a marina consisting of 650 slips, a minimum of which will

be available to the public on a first come, first served basis;

and a public boat ramp. However, the PUD conditions the

residential approval through the restriction that no residential

development shall be permitted on any portion of the property in

the CHHA unless residential units are made available as a result

of a program of mitigation for development in the CHHA, approved

by the City and the Department under Section 163.3178(9)(a),

Florida Statutes. This meant that the mitigation plan would

take those impacts created by residential density in vulnerable

areas and negate those impacts by minimizing the time it would

take to evacuate and by providing adequate sheltering for those

individuals if there was not adequate sheltering already

available.

26. On July 9, 2008, the Department issued its Statement

of Intent to Find Comprehensive Plan Amendments Not in

Compliance (Statement of Intent). (This action was directed not

only to Ordinance No. 2007-355-E, but also to the other sixteen

FLUM amendments, as well as certain other amendments not

relevant here.) On August 1, 2008, the Department filed its

Petition alleging that Ordinance No. 2007-355-E is not in

compliance.

c. The Department and Intervenors' Objections

27. Moody (with the City's concurrence) has acknowledged

on the record that the FLUM amendment is not in compliance.

Although the Department has stated a number of reasons why the

amendment is not in compliance, unfortunately, there is no

record stipulation by the parties as to which specific

deficiencies in the Statement of Intent, if any, the City and

Moody still dispute. Further, in their Joint Proposed

Recommended Order, the City and Moody contend that the

Department and supporting Intervenors failed to sustain their

objections in several respects. Because of this, a discussion

of the Department and Intervenors' objections is appropriate.

This Recommended Order will focus only on the objections to the

amendment as adopted by the City, and not whether proposed

mitigation measures will bring the amendment into compliance.

28. The Department asserts that the FLUM amendment is not

in compliance for four reasons. First, it alleges that the City

has failed to direct population concentrations away from a known

or predicted CHHA, maintain or reduce hurricane evacuation

times, or present sufficient mitigation to offset these impacts.

Fla. Stat. Second, it alleges that the amendment does not

comply with the wetlands protection and conservation

requirements of Florida Administrative Code Rule 9J-5.013(3),

and it is internally inconsistent with Conservation/Coastal

Management Element Goal 4 and Objective 4.1 of the Plan. Third,

the Department alleges that the amendment will cause LOS

standards on two segments of Atlantic Boulevard to fail, that

the traffic analysis performed by Moody was flawed, and that the

amendment did not include a financially feasible transportation

improvement plan to mitigate traffic impacts. Fla. Admin. Code

R. 9J-5.019(3)(a), (c), and (h). Finally, it contends that

because of these deficiencies, the amendment is inconsistent

with certain goals and policies of the State Comprehensive Plan

(State Plan) and Northeast Florida Strategic Regional Policy

Plan (Regional Plan). In resolving these contentions, it is

noted that the Department's Petition adopts the allegations in

the Statement of Intent, which alleges that the amendment is

inconsistent with numerous provisions within Chapter 163,

Florida Statutes, Florida Administrative Code Rule Chapter 9J-5,

and the City, State, and Regional Plans. However, in its

Proposed Recommended Order, the Department relies on only some,

but not all, of these grounds for urging that the amendment be

found not in compliance. 3 The undersigned assumes that the

Department has simply conformed its allegations to the proof

adduced at hearing. (In any event, because the parties agree

the amendment is not in compliance, this assumption does not

affect the outcome of the case.)

29. Britt and the resident intervenors are aligned with

the Department and also contend that the amendment is

inconsistent with Future Land Use Element Objective 1.1 and

Policies 1.1.7, 1.1.10, and 1.1.14; Conservation/Coastal

Management Element Goals 2, 3, 4, and 7, Objectives 4.1 and 7.4,

and Policies 2.8.3, 7.1.6, 7.1.9, 7.3.12, 7.4.8, 7.4.12, and

11.1.1; and Transportation Element Objectives 1.1 and 1.2 and

Policy 1.1.4. They further assert that archeological resources

will be impacted.

i. Development Within the CHHA

30. The Department has alleged that the FLUM amendment

constitutes a failure by the City to direct population

concentrations away from a known or predicted CHHA, maintain or

reduce hurricane evacuation times, or present sufficient

mitigation to offset these impacts. These requirements are

applicable when an increase in density is proposed for property

within a CHHA. See Fla. Admin. Code R. 9J-5.012(3)(b)6. and 7.;

§ 163.3178(9)(a), Fla. Stat. As noted above, the parties

sharply disagree on whether, for land use entitlement purposes,

the entire site is within a CHHA. Although existing and amended

Policy 7.3.1 rely upon the Atlas for delineating the areas of

the City within the CHHA, the proposed amendment to Policy 7.3.1

also allows property owners to provide site-specific data

indicating that the property is above the category 1 storm surge

elevation and therefore is not subject to the development

constraints associated with the CHHA.

31. A professionally prepared survey confirms that about

23.88 acres of the Moody property, mostly located at the south-

center of the site where existing commercial activities take

place, are above five feet in elevation. (The elevation on the

entire parcel ranges from two or three feet along the marsh of

the lower lands to nearly twelve feet in the southwest corner of

the property, or an average elevation of about seven feet.)

Therefore, only the approximately 53.34 acres of the property

below five feet in elevation can be expected to be inundated by

the maximum category 1 storm surge; the other 23.88 acres will

not be affected.

32. The areas on the property which are above the five-

foot contour line are connected to Atlantic Boulevard by a

service road with an elevation of eleven or twelve feet down to

eight feet at its lowest point. Thus, this part of the property

is unlikely to ever become completely surrounded by water or

inaccessible by emergency personnel or others by car in a

category 1 storm event. Even those areas that are below five

feet and subject to the storm surge will only reach and maintain

an elevation of five feet of water for five or ten minutes

before the water begins receding.

33. The evidence shows that slightly less than twenty-four

acres of the property are above the category 1 storm surge

elevation of five feet, as established by the SLOSH. The

evidence further shows that the Atlas is not the most accurate

or precise in terms of land elevations because it only depicts

ten-foot contours taken from the Quadrangle Map. Thus, it does

not identify the elevation on any property less than ten feet.

Because of this, on a site-specific scale, based on the Atlas,

it cannot be said with certainty that a site or portions of a

site are inside or outside of the CHHA. The more persuasive

evidence supports a finding that, for land use entitlement

purposes within the City, a professionally prepared survey

constitutes the best available data regarding land elevations.

Therefore, as long as Moody restricts its development to the

twenty-four acres that have an elevation of five feet or higher,

the mitigation requirements cited by the Department for

development within a CHHA do not apply.

ii. Environmental Issues

34. The Department asserts that the amendment fails to

comply with the wetlands protection and conservation

requirements of Florida Administrative Code Rule 9J-5.013(3)(a)

and (b) and is internally inconsistent with Goal 4 and Objective

4.1 of the Conservation/Coastal Management Element of the Plan.

The Department also cites to Section 163.3177(6)(d), Florida

Statutes, 4 which requires that the Plan protect wetlands and

other natural resources. These requirements are relevant here

since the site to be developed is bordered on the north and west

by wetland areas and other environmentally sensitive lands that

are characterized as primarily saltwater marshes.

35. Florida Administrative Code Rule 9J-5.013(3)(a) and

(b) addresses policies regarding the protection and conservation

of wetlands. It reads as follows:

(a) Wetlands and the natural functions of

wetlands shall be protected and conserved.

The adequate and appropriate protection and

conservation of wetlands shall be

accomplished through a comprehensive

planning process which includes

consideration of the types, values,

functions, sizes, conditions and locations

of wetlands, and which is based on

supporting data and analysis.

(b) Future land uses which are incompatible

with the protection and conservation of

wetlands and wetland functions shall be

directed away from the wetlands. The type,

intensity or density, extent, distribution

and location of allowable land uses and the

types, values, functions, sizes, conditions

and location of wetlands are land use

factors which shall be considered when

directing incompatible land uses away from

wetlands. Land uses shall be distributed in

a manner that minimizes the effect and

impact on wetlands. The protection and

conservation of wetlands by the direction of

incompatible land uses away from wetlands

shall occur in combination with other goals,

objectives and policies in the comprehensive

plan. Where incompatible land uses are

allowed to occur, mitigation shall be

considered as one means to compensate for

loss of wetlands functions.

36. Goal 4 of the Conservation/Coastal Management Element

provides that a City goal shall be "[t]o achieve no further net

loss of the natural functions of the City's remaining wetlands,

improve the quality of the City's wetlands resources over the

long-term and improve the water quality and fish and wildlife

values of wetlands."

37. Objective 4.1 of the same Element implements Goal 4

and reads as follows:

The City shall protect and conserve the

natural functions of its existing wetlands,

including estuarine marshes. In order to

achieve this objective and its associated

policies, the City shall continue to work

with the applicable regional, state and

federal agencies charged with these

regulatory responsibilities.

38. As the FLUM amendment now reads, development is

limited only by the PUD. Although the PUD contains specific

criteria that can be used to prevent adverse impacts to the

wetland system, unless appropriate restrictions are incorporated

into the Plan itself, the PUD can be amended at any time in the

future to allow the property to be developed to its maximum

potential. Because the data and analysis for impacts to

wetlands are based on the PUD, and not the maximum development

potential, the amendment is not supported by adequate data and

analysis to ensure that there will be no net loss in existing

wetlands, or that existing wetlands will be preserved and

protected, as required by Goal 4 and Objective 4.1. Further,

the amendment is not supported by adequate data and analysis to

show that the City is protecting and preserving natural

resources by directing incompatible uses away from the wetlands,

as required by Florida Administrative Code Rule 9J-5.013(a) and

(b). Therefore, the amendment is internally inconsistent with a

goal and objective and is inconsistent with a Department rule.

It is also inconsistent with Florida Administrative Code Rule

9J-5.005(5), which requires that there be internal consistency

within a Plan. Finally, the amendment is inconsistent with

Section 163.3177(6)(d), Florida Statutes, which requires that

the Plan protect all natural resources, including wetlands.

iii. Transportation Impacts

39. The Department contends that the amendment will cause

the LOS on two roadway links to fail, that the traffic analysis

submitted inappropriately assumed densities and intensities that

were less than allowed by the amendment, and that the amendment

did not include a financially feasible transportation

improvement plan to mitigate traffic. Fla. Admin. Code R. 9J-

5.019(3)(a), (c), and (h).

40. To address potential traffic impacts from the project,

Moody's engineering consultant prepared a transportation

analysis and hurricane evacuation study dated April 2007. This

analysis was based on the amount of development approved under

the PUD rezoning, and not the maximum development allowed under

the Plan. The study showed that the amendment will cause the

adopted LOS standards for two links on Atlantic Boulevard to

fail. Those links include the segment from the Intracoastal

Waterway to San Pablo Road and the segment from San Pablo Road

to Girvin Road. The study does not show how the City will

maintain its LOS standards on those links, assuming that the

maximum development is allowed. In this respect, the amendment

is inconsistent with Florida Administrative Code Rule 9J-

5.019(3)(c) and (h).

41. Also, the package did not include a financially

feasible transportation improvement plan to mitigate the traffic

impacts. Although one roadway improvement project is under

construction and a second is included in the Capital

Improvements Element, both of which should assist in alleviating

the traffic impacts caused by the development, these mitigation

measures assume that the project will be based upon the

development restrictions contained in the PUD and not on the

densities and intensities that are potentially allowed under the

FLUM amendment. Therefore, in this respect, the amendment is

inconsistent with Florida Administrative Code Rule 9J-

5.019(3)(c) and (h).

42. After this proceeding began, the City engaged the

services of Prosser Hallock Planners and Engineers to perform a

Transportation Analysis Update (Update). The results of that

study are dated September 2008. See Moody Exhibit AFK-4.

43. Like the original study, the Update was "based on the

site plan [described in the PUD] and not on the maximum

densities allowed in the land uses requested." Therefore,

because the current FLUM amendment does not restrict development

to the maximum densities allowed under the land uses requested,

the study fails to properly assess the traffic impacts of the

changes, as required by Florida Administrative Code Rule 9J-

5.019(3)(c) and (h).

44. To test transportation impacts from the project, both

the original traffic analysis and the Update used a methodology

taken from a September 2006 memorandum prepared by the DOT's

District II office. See Moody Exhibit AFK-3. However, this

methodology uses a "significant and adverse" test to determine

road impacts for Development of Regional Impacts (DRIs) under

Florida Administrative Code Rule Chapter 9J-2. In using the so-

called DRI methodology, the City and Moody assumed that the

Department had approved this methodology when it entered into

settlement agreements with the applicants for the other sixteen

FLUM amendments in Case No. 07-3539GM. However, this assumption

was incorrect. While the DRI methodology is not specifically

prohibited for use in a plan amendment review, a better

methodology to assess traffic impacts for plan amendments is the

LOS standard referred to in Florida Administrative Code Rule 9J-

5.019(3)(a) and (h). Therefore, the amendment is not consistent

with this rule.

iv. Archaeological Resources

45. The Division of Historical Resources of the Department

of State has reviewed the amendment and expressed no concerns

regarding potential impacts on historical or archaeological

resources. The contention by Britt and the resident intervenors

that such resources will be impacted has been rejected.

v. Consistency with the State and Regional Plans

46. The Department argues that when the State Plan is

construed as a whole, the amendment is inconsistent with that

Plan, in contravention of Section 187.101(3), Florida Statutes.

It also contends that the amendment is inconsistent with certain

(19)(a), 5 which are codified in Section 187.201, Florida

Statutes. Those goals relate generally to natural systems and

recreational lands, land use, public facilities, and

transportation, respectively. Specifically, the Department

contends the amendment is inconsistent with Policies

(9)(b)1.,5., and 7., (15)(b)5. and 6., (17)(b)6., and

(19)(b)15., which implement the Goals. The Department further

contends that the FLUM amendment is inconsistent with Regional

Goal 3.2 and Regional Policy 3.2.2. The Regional Goal requires

that future development be directed away from areas most

vulnerable to storm surge and flooding, while Regional Policy

3.2.2 provides that "[d]evelopment within hurricane evacuation

areas should be responsible and permitted only when evacuation

route capacity and shelter space capacity is available.

Responsible development includes but is not limited to:

structures elevated in storm surge and flooding areas, adequate

drainage in flooding areas, and sufficient access for emergency

response vehicles to all development."

47. Because the FLUM amendment is now limited only by the

PUD, and not by other development restrictions in the Plan, the

amendment is inconsistent with the cited policies within the

State Plan until appropriate remedial measures are adopted. For

the same reason, the FLUM amendment is inconsistent with the

Regional Goal and Policy.

vi. Other Objections

48. Because the City and Moody concede that the amendment

is not in compliance, it is unnecessary to address the remaining

objections lodged by Britt and the resident intervenors.

D. Ordinance No. 2008-315-E

49. Prior to the adoption of Ordinance No. 2008-315-E,

Policy 7.3.1 of the Conservation/Coastal Management Element read

as follows:

The City shall designate the Coastal High

Hazard Areas (CHHA) as those areas

designated as the evacuation zone for a

category 1 hurricane as established by the

1998 Northeast Florida Hurricane Evacuation

Study or the most current study.

50. In order to comply with the mandate that before

July 1, 2008, it amend the definition of a CHHA to be consistent

with state law, the City originally proposed to amend its

current policy by redefining the CHHA as follows:

The Coastal High Hazard Area (CHHA) is the

area below the elevation of the Category 1

storm surge line as defined by the Sea,

Lake, and Overland Surges from Hurricanes

(SLOSH) computerized storm surge model as

established by the most current Northeast

Florida Hurricane Evacuation Study. It is

shown on Map C-18.

51. In February 2008, the foregoing amendment, along with

an amendment to another policy not relevant here, was

transmitted to the Department for its preliminary review. On

March 21, 2008, the Department issued an ORC in which it lodged

only one technical objection to new Policy 7.3.1. -- that the

amendment was inconsistent with Florida Administrative Code Rule

9J-5.005(2), which requires that when a local government adopts

by reference a document that may be revised subsequent to plan

adoption, the local government "will need to have [its]

reference updated within the plan through the amendment

process." For reasons not of record, this specific objection

was not included in the Statement of Intent or in the parties'

Joint Prehearing Stipulation. Even though the Department's

Proposed Recommended Order now relies upon that objection, the

issue has been waived. Heartland Environmental Council, Inc. v.

Department of Community Affairs, et al. , DOAH Case No. 94-

2095GM, 1996 Fla. ENV LEXIS 163 at *63 (DOAH Oct. 15, 1996; DCA

Nov. 25, 1996)("[challenger] is bound by the allegations in its

Petition for Hearing as to the alleged deficiencies in the Plan,

as further limited by the Prehearing Stipulation filed in [the]

case").

52. Notwithstanding the technical objection, an adoption

hearing was scheduled on June 10, 2008, at which time the City

proposed to amend Policy 7.3.1 by adopting the provision as

submitted to the Department. During the meeting, but prior to a

vote on the matter being taken, a Moody representative submitted

for consideration revised language, which added the following

sentence at the end of the Policy: "A property shall be deemed

to be within the CHHA unless site specific, reliable data and

analysis demonstrates otherwise." See City Exhibit 1. The City

then adopted the proposed amendment, including the language

suggested by Moody.

53. On August 7, 2008, the Department issued a Statement

of Intent to Find Comprehensive Plan Amendments Not in

Compliance (Statement of Intent). A Notice was also published

on August 8, 2008. The Statement of Intent indicated that the

text amendment is not in compliance because it is inconsistent

with the statutory definition found in Section 163.3178(2)(h),

Florida Statutes, and it creates an internal inconsistency with

Conservation/Coastal Element Map C-18 attached to the text

amendment. That Map defines and depicts the CHHA as the

Category 1 surge zone based on the SLOSH model in the Atlas.

The Statement of Intent further asserts that the foregoing

deficiencies render the amendment inconsistent with State Plan

of these objections are based upon the City's inclusion at the

end of the amendment the words "unless site specific, reliable

data and analysis demonstrates otherwise." Intervenor Britt has

adopted the objections lodged by the Department.

54. The statutory definition of CHHA does not reference an

Atlas or a Hurricane Evacuation Study, but instead only

references the SLOSH storm surge elevation for a category 1

storm event. Florida Administrative Code Rule 9J-5.005(2)(c)

requires that "[d]ata are to be taken from professionally

accepted existing sources, such as . . . regional planning

councils . . . or existing technical studies." No matter which

the City uses, "[t]he data used shall be the best available

data, unless the local government desires original data or

special studies." Id. In this case, the City has chosen to

utilize the Atlas as the best available data regarding

delineation of the CHHA unless rebutted by better data and

analysis in the form of "site specific, reliable data and

analysis." So long as the SLOSH storm surge elevation for a

category 1 storm event is used, the greater weight of evidence

supports a finding that use of either the Atlas or a land survey

identifying the category 1 storm surge contour line on a given

property is consistent with the statutory definition.

Therefore, the Department's contention that the text amendment

conflicts with the statutory definition has not been accepted.

55. The Department also contends that the text amendment

creates an internal inconsistency with Map C-18 of the Plan.

However, the evidence shows that Map C-18 is used for

illustrative purposes only and is intended to be a depiction of

the information contained in the Atlas. For the reasons cited

in the previous Finding of Fact, the Department and Intervenors

have failed to show beyond fair debate that the use of site

specific data is inconsistent with other provisions in the Plan.

56. The Department further contends that if the amendment

is approved, the requirements of the CHHA can be circumvented by

a property owner simply filling his property above the elevation

of a category 1 storm surge line. Provided all applicable

permitting requirements have been met, however, there is nothing

of record to indicate that this would be inappropriate or

unlawful.

57. There is insufficient evidence to support a finding

that the text amendment is inconsistent with the State or

Regional plans.

58. The evidence shows that the City's determination that

Policy 7.3.1 is in compliance is fairly debatable.

E. Proposed Remedial Measures for Ordinance 2007-355-E

59. The City and Moody have proposed the following

remedial measures to bring the FLUM amendment into compliance,

which would be incorporated into a new text amendment or by

using an asterisk on the FLUM:

a. Limit residential development to 590

dwellings;

b. Limit marina-related specialty retail

(including club, retail, and restaurant

activities) to 6,500 square feet;

c. Make available to the general public a

minimum of 100 wet and dry slips;

d. Make available to the 590 dwelling units

a maximum of 550 wet and dry slips;

e. Comply with the current Florida Clean

Marina Program as designated by state law;

f. Confine all residential and non-

residential uses (other than boat channels,

basins, docks, slips, and ramps) to the mean

high water line;

g. Confine all residential uses to areas

above the elevation of the Category One

storm surge line as established by the Sea,

Lake, and Overland Surges from Hurricanes

(SLOSH) computerized storm surge model,

which on the Moody property is 5.0 feet

(NGVD-29);

h. Obtain, prior to final site plan

approval, a final wetlands jurisdictional

line from the appropriate regulatory

agencies; and

i. Provide a conservation easement (except

for boat channels, basins, docks, slips, and

ramps), which will provide the highest level

of protection, to the appropriate state

agency or agencies for all wetlands that it

or they require to be preserved.

60. The City and Moody have also agreed to "correct

certain inaccurate traffic-roadway improvement descriptions

contained in its Traffic Circulation and Mass Transit 5-Year

Plan" by:

(a) Revising the Hodges Boulevard roadway

project to describe the construction of a 4-

lane urban section from Atlantic Boulevard

to Beach Boulevard; and

(b) Revising the Atlantic Intracoastal West

Area Intersection Improvements roadway

project (Atlantic Boulevard at Girvin Road,

Hodges Boulevard, and San Pablo Road) to

describe additional through lanes (from 6 to

8 lanes) to Atlantic Boulevard between each

of the three intersections.

61. No findings are made as to whether the above-proposed

remedial measures will bring the FLUM amendment into compliance.

See endnote 2, infra .

CONCLUSIONS OF LAW

62. 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(10),

Florida Statutes.

63. In order to have standing to challenge a plan

amendment, a challenger must be an affected person as defined in

Section 163.3184(1)(a), Florida Statutes. The parties agree

that there are sufficient facts to establish that Britt, the

resident intervenors, and Moody are affected persons and have

standing to participate in this matter.

64. Because the Department issued Notices of Intent to

find the two amendments not in compliance, those amendments

shall be determined to be not in compliance if the Department

demonstrates such non-compliance by a preponderance of the

evidence. § 163.3184(10)(a), Fla. Stat. As to allegations of

internal consistency, however, the local government's

determination of compliance will be upheld if it is fairly

debatable. Id. In Martin County v. Yusem , 690 So. 2d 1288

(Fla. 1997), the Court stated that the fairly debatable standard

is deferential and requires "approval of a planning action if

reasonable persons could differ as to its propriety." Id. at

1295. Therefore, the Department must prove by a preponderance

of the evidence that the amendments are inconsistent with the

statutes, rules, and State and Regional Plan provisions cited in

its Proposed Recommended Order. As to the allegations that the

amendments are internally inconsistent with other City Plan

provisions, they will not be sustained if the City's

determination of compliance is fairly debatable.

65. For the reasons given in Findings of Fact 16-48, and a

concession by Moody and the City at the hearing, the FLUM

amendment adopted by Ordinance No. 2007-355-E is not in

compliance. Whether the remedial amendments proposed by the

City and Moody will bring the amendment into compliance need not

be addressed in this Recommended Order. See endnote 2, infra .

66. The Department and Intervenors have failed to

demonstrate by a preponderance of the evidence that new Policy

7.3.1 is inconsistent with any statutes, rules, or provisions

within the State or Regional Plans. The evidence further shows

that the Department and Intervenors have failed to establish

beyond fair debate that the amendments are internally

inconsistent with other Plan provisions. This being so, the

City's determination that the plan amendment adopted by

Ordinance No. 2008-315-E is in compliance should be sustained.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Administration Commission enter a

final order determining that the plan amendment adopted by

Ordinance No. 2007-355-E is not in compliance. It is further

recommended that the final order make a determination that the

plan amendment adopted by Ordinance No. 2008-315-E is in

compliance.

DONE AND ENTERED this 12th day of January, 2009, in

Tallahassee, Leon County, Florida.

S

DONALD 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 12th day of January, 2009.

ENDNOTES

1/ Unless otherwise indicated, all statutory references are to

the 2008 version of the Florida Statutes.

2/ After researching the issue, the Department cited only one

occasion when proposed remedial action was included in a

recommended order. In Department of Community Affairs, et al. v.

Lee County, et al. , DOAH Case No. 95-0098GM, 1996 Fla. ENV LEXIS

101 (DOAH Jan. 31, 1996; Admin. Comm. July 25, 1996), the hearing

officer included specific recommendations for remedial plan

amendments to cure the deficiencies in the plan amendment. In

rejecting a contention by Lee County that this action constituted

a usurpation of the Commission's role, the Commission noted that

"since the recommendations for remedial actions are no more than

recommendations which can be accepted or rejected as the

Administration Commission deems appropriate, we do not conclude

that the Hearing Officer usurped the role of the Commission."

Id. at *22. Except for this single occasion, no other precedent

for doing so has been disclosed. This is probably because the

Department of Community Affairs, which must review all remedial

amendments, is the appropriate party to suggest remedial actions

that are necessary to bring an amendment into compliance.

Further, it would be inappropriate to make that determination

here since any remedial amendment adopted by the City will be

subject to challenge and a formal hearing conducted at a later

time by DOAH under Section 163.3184(9) or (10), Florida Statutes,

if requested by the Department or an affected person.

3/ For example, the Statement of Intent indicates that, besides

certain statutory provisions, the City's failure to consider the

maximum traffic impacts of the land use change requires a finding

of inconsistency with Florida Administrative Code Rules 9J-

9J-5.019(4)(b)2. In contrast, the Proposed Recommended Order

alleges only that the amendment is not consistent with Rule 9J-

5.019(3)(a), (c), and (h). See Proposed Recommended Order, page

36, paragraph 8.

4/ Although the Statement of Intent and the Proposed Recommended

Order cite Section 163.3177(6)(a), Florida Statutes, as the

statute which underpins these objections, the undersigned assumes

that paragraph (6)(d) is the correct citation, since it requires

that the Plan include provisions that ensure the "protection of

natural resources," including wetlands.

5/ In its Proposed Recommended Order and the Statement of

Intent, the Department cites Goal 18 of Section 187.201, Florida

Statutes, as being inconsistent with the FLUM amendment. That

provision relates to Cultural and Historical Resources. The

undersigned assumes that the Department intended to cite

Policy (b)13. of Goal 19, which requires that "transportation

improvements" be coordinated with state, local, and regional

plans.

COPIES FURNISHED:

Barbara Leighty, Clerk

Growth Management and Strategic Planning

The Capitol, Room 2105

Tallahassee, Florida 32399-0001

Jason Gonzalez, General Counsel

Office of the Governor

The Capitol, Room 209

Tallahassee, Florida 32399-0001

Shaw P. Stiller, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

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

Kathleen S. Brown

365 Pablo Point Drive

Jacksonville, Florida 32225-3282

Mary and Sam Billotti

469 Pablo Point Drive

Jacksonville, Florida 32225-3259

Kimberly A. Craft

562 San Pablo Point Road North

Jacksonville, Florida 32225-3278

Loretta Perrone

461 Pablo Point Drive

Jacksonville, Florida 32225-3250

Patricia T. Hairston

13560 Picarsa Drive

Jacksonville, Florida 32225-3250

Shannon K. Eller, Esquire

City Hall at St. James

117 West Duval Street, Suite 480

Jacksonville, Florida 32202-3700

Gary P. Sams, Esquire

Hopping Green & Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314-6526

Paul M. Harden, Esquire

1301 Riverplace Boulevard

Suite 2601

Jacksonville, Florida 32207-9032

T.R. Hainline, Jr., Esquire

Rogers Towers, P.A.

1301 Riverplace Boulevard

Suite 1500

Jacksonville, Florida 32207-9000

Bruce J. Fletcher, Esquire

Smith, Gambrell & Russell, LLP

50 North Laura Street, Suite 2600

Jacksonville, Florida 32202-3629

Karl J. Sanders, Esquire

Edwards, Cohen, Sanders,

Dawson & Mangu, P.A.

6 East Bay Street, Suite 5

Jacksonville, Florida 32202-5421

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.