08-004753GM Belle Mer Owners Association, Inc. vs. Santa Rosa County And Department Of Community Affairs Status: Closed Recommended Order on Tuesday, April 7, 2009.

Summary: The challenger to a comprehensive plan amendment did not prove beyond fair debate that the amendment was not "in compliance."

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BELLE MER OWNERS ASSOCIATION, )

INC., )

)

Petitioner, )

)

vs. ) Case No. 08-4753GM

)

SANTA ROSA COUNTY and DEPARTMENT OF COMMUNITY )

AFFAIRS, )

)

)

Respondents, )

)

and )

)

PAUL A. KAVANAUGH and BHR )

PELICAN PALACE, LLC, )

)

Intervenors. )

)

RECOMMENDED ORDER

Pursuant to notice, the final hearing in the above-styled

case was held on January 28, 2009, in Milton, Florida, before

Charles A. Stampelos, Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner Belle Mer Owners Association, Inc.:

Jesse W. Rigby, Esquire

Clark, Partington, Hart, Larry,

Bond & Stackhouse

Post Office Box 13010

Pensacola, Florida 32591-3010

For Respondent Santa Rosa County:

Thomas V. Dannheisser, Esquire

County Attorney

6495 Carolina Street, Suite C

Milton, Florida 32570

For Respondent Department of Community Affairs:

Kelly A. Martinson, Esquire

Matthew G. Davis, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

For Intervenors Paul A. Kavanaugh and BHR Pelican Palace,

LLC:

David L. McGee, Esquire

Beggs & Lane, LLP

501 Commendencia Street

Pensacola, Florida 32502

STATEMENT OF ISSUES

The issues in this proceeding are whether Santa Rosa County

Comprehensive Plan Amendment 2007-R-047 adopted by Ordinance No.

2008-16, section 2, attachment A, on May 22, 2008 (Plan

Amendment), is "in compliance," as that term is defined by

Section 163.3184(1)(b), Florida Statutes, and, more

specifically, whether the Plan Amendment is "internally

consistent" with Objectives 7.1.B and 7.1.F and Policy 7.1.F.8

of the Santa Rosa County Comprehensive Plan (Plan) and supported

by adequate data and analyses. 1

PRELIMINARY STATEMENT

On May 22, 2008, Santa Rosa County (County) adopted

Ordinance No. 2008-16, which adopted several amendments to the

Future Land Use Map (FLUM) of the Plan. The Plan Amendment is

the only amendment relevant to this proceeding.

The Plan Amendment changes the future land use designation

of a 1.89-acre parcel (Property) from Navarre Beach Low Density

Residential (NBLDR) to Navarre Beach High Density Residential

(NBHDR).

The Department of Community Affairs (Department) reviewed

the Plan Amendment and caused to be published on August 27,

2008, a Notice of Intent (NOI) to find the Plan Amendment "in

compliance."

On or by September 12, 2008, Petitioner filed a Petition

for an Administrative Hearing (Petition) with the Department

regarding this NOI. The Department forwarded the Petition to

the Division of Administrative Hearings (DOAH).

A Petition to Intervene was filed on behalf of Paul A.

Kavanaugh and BHR Pelican Palace, LLC, who are the applicants

for the Plan Amendment and owners of the Property. The petition

was granted and they appear as Intervenors in this proceeding.

On January 16, 2009, the parties filed a Joint Pre-Hearing

Stipulation (JPS).

A final hearing was held on January 28, 2009. Joint

Exhibits (JE) 1 through 7 were admitted into evidence without

objection. Petitioner was given permission to submit Table 3-4

for inclusion in Joint Exhibit 3. Table 3-4 was filed at DOAH

and is included as part of Joint Exhibit 3.

Petitioner's Exhibits (PE) 1 through 4, 7 (pages 1 through

6), and 14 were admitted into evidence. Petitioner's Exhibit 7

consists of six photographs of the Property and adjacent

property. During the final hearing, Petitioner withdrew several

proposed exhibits (5-6, 8-13) from consideration. These

withdrawn exhibits were removed from the exhibit book containing

all of the hearing exhibits. The photographs (Exhibit 7) were

inadvertently removed at this time. Without objection, the

photographs, as re-annotated in some cases, were filed at DOAH,

and inserted in the exhibit book under Petitioner's Exhibit 7,

pages 1 through 6, with two pages numbered 4 as explained in the

Notice of Filing filed on April 2, 2009.

County Exhibits (CE) 1 and 2 and Department Exhibit 1 were

admitted into evidence.

At the final hearing, Petitioner called the following

witnesses: Billy Harbert, an officer and the developer of Belle

Mer Condominium and owner of a Belle Mer Condominium unit;

Lori Leonard, owner of a Belle Mer Condominium unit and a member

of the condominium board of directors; Mary Ann Vance, a GIS

analyst in the County's planning and zoning department;

Jim Crumlish, state-wide regional evacuation program study

manager for the West Florida Regional Planning Council;

Beckie Faulkenberry, director of the planning and zoning

department for the County; Susan Poplin, A.I.C.P., a regional

planning administrator for the Department for three regions of

the state; Shawn Ward, planner II and coordinator for the

Coastal Planning Board; and Nancy Model, a transportation

planner for the County.

During the final hearing, the other parties questioned all

of the witnesses called by Petitioner in lieu of calling them

separately during their respective cases in-chief in the

interest of efficiency.

On February 19, 2009, the two-volume, final hearing

Transcript was filed at DOAH. On March 16, 2009, after

receiving an unopposed extension of time, Petitioner filed a

proposed recommended order and the County and the Department

filed a joint proposed recommended order. No proposed

recommended order was filed on behalf of Intervenors. All of

the post-final hearing submissions have been considered.

FINDINGS OF FACT

A. Parties

1. Petitioner, Belle Mer Owners Association, Inc. (Belle

Mer), is the condominium association for the Belle Mer

Condominium, which occupies a waterfront parcel of land

immediately east of the Property. The Belle Mer condominium

consists of 16 floors and 61 dwelling units and has a southwest

orientation toward the Gulf of Mexico. PE 7 at 1, 3-4; CE 1-2.

2. The parties stipulated that Belle Mer is an "affected

person" as defined in Section 163.3184(1)(a) Florida Statutes,

which owns property in the County and timely submitted comments

and objections to the Board of County Commissioners of Santa

Rosa County (Board) with regard to the Plan Amendment.

3. Santa Rosa County is a local government subject to the

requirements of the Local Government Comprehensive Planning and

Land Development Regulations Act, Section 163.3161 et seq. ,

Florida Statutes.

4. Intervenors are the owners of the Property that is the

subject of the Plan Amendment.

5. The Intervenors possess leases from the County for each

of the seven platted lots in Summer Place Subdivision, the

location of the Property. In 1967, the relevant leases provided

for the development of "multi-unit dwellings or light

commercial." In 1987, the leases were amended to provide for

the development of "up to 50 condominium units." In 1993, the

lease was further amended at the lessee's request to provide a

framework for the development of a single-family subdivision.

The present lease issued by the County for these lots restricts

the use of the lots to single-family residential.

B. The Property and Vicinity

6. The Property consists of 1.89 acres of gulf front

property located on Navarre Beach, Santa Rosa County, Florida.

There are four single-family homes and several vacant lots on

the Property, with a total of seven residential lots. PE 7 at

5; CE 1-2.

7. Since 1989, the Property has been zoned High Density.

8. Prior to approval of the Plan Amendment, the FLUM

designated the Property as NBLDR. The FLUM was adopted after

adoption of the zoning map and after the Property had been

subdivided and leased for single-family lots. The NBLDR

designation reflected the existing land use of the Property.

9. The Belle Mer property, including the condominium, is

adjacent to and east of the Property and is designated NBHRD on

the FLUM. The property to the east of the Belle Mer condominium

contains approximately 84 condominium units (Navarre Towers),

with a southeast orientation. T 54-55; PE 7 at 2; CE 1-2.

10. The property immediately to the west of the Property,

also designated NBHDR on the FLUM, contains 45 condominium units

known as Emerald Surf or Emerald Shore. Under current

regulations and subject to change, a 17-floor condominium could

be developed on this property. PE 7 at 5; CE 1-2.

11. The Navarre Beach Commercial Core Area is defined in

the County's Land Development Code (LDC), Section 6.07.00.

Prior to approval of the Plan Amendment, the Property was not

included in the Commercial Core Area.

12. All the land on Navarre Beach subject to the Plan is

owned by the County and either leased to individuals or

entities, or held by the County.

13. Navarre Beach acreage that is designated

Conservation/Recreation on the FLUM is owned by the County and

has not been leased. However, the County is not prohibited from

leasing this land to individuals.

14. The County is also not prohibited from modifying

current leases to allow a different land use.

C. The Plan Amendment and Change in Density

15. The Plan Amendment changes the FLUM designation of the

1.89-acre parcel from NBLDR to NBHDR.

16. The maximum theoretical density permitted in the area

designated NBLDR is four dwelling units per acre. The current

density of the Property (1.89 acres) is approximately seven

units.

17. The maximum theoretical density permitted in the area

designated NBHDR is 30 dwelling units per acre. The Plan

Amendment increases the maximum theoretical density allowed on

the Property from seven units to 56 units, an increase of 49

units.

18. While subject to change, under the current County Land

Development Regulations (LDRs), the footprint for any building

constructed on the Property cannot exceed 19 percent of the

Property size, assuming all other LDR requirements are met,

including setback requirements. T 227-231.

19. The maximum theoretical density permitted in the area

designated Navarre Beach Medium Density Residential (NBMDR) is

ten dwelling units per acre.

D. Consideration of the Plan Amendment by the County and the

Department

20. The Board of County Commissioners of Santa Rosa County

(Board) voted to transmit the Plan Amendment at their meeting on

September 27, 2007. 2 On November 29, 2007, the Board voted to

transmit other plan amendments that had also been approved by

the Local Planning Board. On December 14, 2007, the Department

received the County's proposed plan amendments, including the

Plan Amendment.

21. On February 12, 2008, the Department completed its

review of several plan amendments adopted by the Board including

the Plan Amendment, and issued its Objections, Recommendations,

and Comments Report (ORC), raising concerns with the Plan

Amendment. The Department objected to the Plan Amendment "based

on internal inconsistencies with the [County's Plan] by

proposing high density development outside of the Navarre Beach

commercial core, directing population concentrations to Navarre

Beach, and by increasing evacuation times on Navarre Beach."

JE 4.

22. County staff developed a response to the Department's

ORC and an updated staff analysis that were presented to the

Board during the adoption hearing. JE 5.

23. In response to the Department's first objection and

prior to the adoption of the Plan Amendment, the County amended

its LDC to expand the boundaries of the Commercial Core Area on

Navarre Beach to include the Property and additional acreage.

See endnote 4; PE 4. The County had to expand the boundary of

the Commercial Core Area because the NBHDR designation is

permitted only within the Commercial Core Area. JE 1 at 3-10,

Policy 3.1.A.8 16)(The NBHDR "category shall only be located

within the commercial core area of Navarre Beach.").

24. The Department also commented in the ORC that the Plan

Amendment was inconsistent with Plan Coastal Management Element

Objective 7.1.B, which states that "[t]he County shall direct

population concentrations away from Navarre Beach and the entire

Coastal High Hazard Area" (CHHA) and Policy 7.1.F.8, which

states that "[a]mendments to the [Plan] on Navarre Beach shall

not be approved which will result in an increase in hurricane

evacuation times without mitigation of the adverse impact to

evacuation times." 3 The Department suggested that "[s]hould the

County decide to increase the density on the amendment site, the

County should coordinate with the West Florida Regional Planning

Council to draft a professionally acceptable hurricane

evacuation analysis, based on maximum development potential of

the site, demonstrating that the County evacuation time will

[be] maintained."

25. On May 22, 2008, the Board approved both the change to

the LDC text, which included the Property and other parcels

within the Navarre Beach Commercial Core Area, 4 and the Plan

Amendment.

26. On June 23, 2008, Belle Mer submitted a detailed

letter to the Department, with attachments, stating objections

to the Plan Amendment.

27. On August 27, 2008, the Department had published a NOI

to find the Plan Amendment "in compliance."

E. Internal Inconsistencies and Data and Analysis

28. Petitioner alleges that the Plan Amendment is

inconsistent with Objectives 7.1.B and 7.1.F and Policy 7.1.F.8

of the Plan and is not supported by adequate data and analysis.

1. Objective 7.1.B

29. Objective 7.1.B states that "[t]he County shall direct

population concentrations away from Navarre Beach and the entire

Coastal High Hazard Area."

30. When Objective 7.1.B of the Plan was adopted, all of

Navarre Beach, including the Property, was within the CHHA. As

a result of a 2006 change in state law, see Chapter 2006-68,

Section 2, Laws of Florida, amending Section 163.3178(2)(h),

Florida Statutes, and as applied to the Property, the Property

is not located in the CHHA. It also appears that very little of

Navarre Beach is currently in the CHHA. T 198-200.

31. Also, when the Plan was adopted, no state rule

required the County to direct population concentrations away

from areas other than the CHHA. The intent appears to "reflect

the requirement of the state to direct populations away from

the" CHHA and was not intended to apply to areas of Navarre

Beach outside of the CHHA.

32. In order to interpret the intent of Objective 7.1.B in

areas of Navarre Beach outside of the CHHA, it is appropriate to

consider Policy 7.1.B.1 that states: "At least 45% of the

developable land within the Navarre Beach Zoning Overlay

District shall remain within the Low Density Residential and

Conservation/Recreation Future Land Use Map Designations." 5 The

persuasive evidence indicates that the Plan Amendment is not

inconsistent with this policy.

33. In response to the Department's second ORC comment,

County staff advised the Board that Objective 7.1.B 6 "is

implemented by Policies 7.1.B.1, 7.1.B.2 and 7.1.B.3."

34. County staff determined that the Low Density

Residential and Conservation/Recreation FLUM designated areas on

Navarre Beach comprise 48.02 percent without the Plan Amendment.

The addition of the 1.89 acres reduced the percentage to 47.77

percent, a change of .25 percent. JE 5 at 5.

35. Policy 7.1.B.2 states: "The County shall limit the

densities and intensities of land use as defined within this

Plan. Such limitations will assure generalized low density use

of land within the majority of the Coastal High Hazard Area of

Santa Rosa County." County staff determined that the County "is

a coastal county with three bay systems, a 20 mile long

peninsula, and more than 125 miles of shoreline, most of which

falls within the CHHA. The subject property has approximately

200 feet of shoreline, and is less than two acres in size. The

[FLUM] clearly shows that the vast majority of shoreline in [the

County] is designated for low density development between 1 and

4 units per acre, and much of the CHHA is designated as

Conservation/Recreation on the FLUM. This amendment, which

accounts for approximately 0.03% of the County's CHHA shoreline,

will not result in a perceptible change in the generalized low

density use within the majority of the CHHA as required by

Policy 7.1.B.2." After also considering Policy 7.1.B.3, staff

concluded that while the Plan Amendment increased "the total

number of potential dwelling units on Navarre Beach by 49 units,

it is not inconsistent with Objective 7.1.B or it's [sic]

implementing policies." JE 5 at 5-6.

36. Since at least 1996, the Department has consistently

determined that any increase above current density levels

increases the population concentration in the CHHA. T 241-242.

If the property under review is located in the CHHA, the

Department's "review is very much heightened with regard to the"

CHHA, but not applicable to the Property because it is not

located in the CHHA. T 261-262. The Department has no rule or

policy to address directing population concentrations away from

areas not in the CHHA. T 265. (Within the last three years,

the County has approved FLUM amendments within the CHHA, but has

not approved an increase in density within the CHHA. In each

case, the County directed population increases away from the

CHHA and the County's action is consistent with the Department's

prior determinations.)

37. The Department's position is credible, but not

applicable to the Property, which is not in the CHHA, and in

light of Policy 7.1.B.1.

38. Ms. Poplin testified she knew of no way to interpret a

comprehensive plan objective, e.g. , Objective 7.1.B, without

considering it in context with the implementing policies, e.g .,

Policy 7.1.B.1, and this position is consistent with the

Department's definition of "policy." See endnote 7. In other

words, the Plan objectives should not be read in isolation

without consideration of implementing policies. T 243-244. 7

39. Each relevant Plan objective and policy must be

considered. However, they are not considered as stand alone

requirements as suggested by Belle Mer. See Petitioner's PRO at

27, ¶ 97.

40. At the time the County adopted the original

comprehensive plan and FLUM (approximately 2003), densities

allowed on Navarre Beach were reduced by more than 600

residential units. T 216, 225-226. Ms. Faulkenberry did not

recall any additional reductions since that time.

41. The County considers an area as a whole in evaluating

the direction of population densities rather than on an acre-by-

acre basis. The County also does not require any density off-

set to occur concurrently with a density increase. T 217. See

Lee County and Leeward Yacht Club, Inc. , Case No. 06-0049GM

(DOAH August 25, 2006, at ¶¶ 42-45; Admin. Comm. November 15,

2006, at ¶ 8).

42. It was not proven that the increase in maximum

theoretical density that may occur on Navarre Beach as a result

of the Plan Amendment is inconsistent with Objective 7.1.B as

implemented, in part, by Policy 7.1.B.1 and is not otherwise

supported by adequate data and analysis.

2. Objective 7.1.F

43. Objective 7.1.F states that "[t]he County shall

maintain or reduce hurricane evacuation times by implementing

Policies 7.1.F.1 through 7.1.F.11, among others." 8

44. Policy 7.1.F.3 states: "The County shall maintain a

minimum medium response roadway clearance time for hurricane

evacuation of 12 hours on roads under local jurisdiction."

Roads under local jurisdiction mean roads within the

unincorporated area of the County, including state and

Interstate roads, but excluding roads outside the County. The

County uses this policy when evaluating the hurricane evacuation

times from Navarre Beach and to determine whether the specific

numerical criteria have been met.

45. Policy 7.1.F.8 states: "Amendments to the [Plan] on

Navarre Beach shall not be approved which will result in an

increase in hurricane evacuation times without mitigation of the

adverse impact to evacuation times." The persuasive evidence

indicates that the over-all reduction in densities on Navarre

Beach since the Plan was adopted is adequate mitigation. There

is no persuasive evidence that the Plan Amendment is likely to

adversely impact (increase) hurricane evacuation times beyond 12

hours.

46. In the ORC, the Department suggested that "[s]hould

the County decide to increase the density on the amendment

site," that it "coordinate with the West Florida Regional

Planning Council to draft a professionally acceptable hurricane

evacuation analysis, based on maximum development potential of

the site, demonstrating that the County evacuation time will

[be] maintained."

47. The Department does not usually examine evacuation

times for plan amendments for property not located in the CHHA.

The Department raised an issue regarding the evacuation times

because Policy 7.1.F.8 refers to Navarre Beach and the

requirement of mitigation of the adverse impact to evacuation

times. T 268-269. 9

48. County staff contacted the West Florida Regional

Planning Council and determined that the latest study was the

Northwest Florida Hurricane Evacuation Study Technical Data

Report, July 1999 (Study). (The Department was not aware of

models (to study hurricane evacuate times) other than as

prepared by the regional planning councils. T 270.)

49. There is no statute or rule that requires the County

to use "every detail" of the Study. Mr. Crumlish advised that

he would expect the County to modify the Study over time.

50. A spreadsheet to aid in calculating clearance

evacuation time was distributed with the Study by the U.S. Army

Corps of Engineers. The County utilized the spreadsheet

produced by the 1999 Corps Study. The spreadsheet is used by

the County each year to perform an annual update of hurricane

evacuation times, but had not been used by the County in

conjunction with a land use change request before it was used

during the evaluation of the Plan Amendment.

51. The spreadsheet incorporates various factors contained

in the Study and is driven by assumptions and conclusions in the

Study. 10 There are assumptions made in the Study that when the

number of units increases, other numbers may change in

relationship to the change in dwelling units. T 149.

52. The spreadsheet is set up so that the County staff may

only change or input three columns of data: number of single

family units; number of mobile home units; and number of tourist

units. Otherwise, "[t]he program is locked." Actual units are

counted, e.g. , a house, not platted lots without a unit. The

spreadsheet also does not allow the County to update road

improvements. "Another unknown is the response rate of the

population to evacuation orders: rapid, medium or long."

53. According to the County, the spreadsheet is the only

and best available data. If other data were used, other than

dwelling units described above, the spreadsheet received from

the Corps would be altered.

54. Each year the County updates the spreadsheet and

accounts for all dwelling units constructed within the County as

of the update. Except for consideration of the Plan Amendment,

the information was not updated from June 2007 through May 22,

2008. There could have been a change and a significant

difference in the number of dwelling units in the County between

June 2007 and May 22, 2008, T 99-100, although the number of

additional, existing dwelling units during this time period was

not quantified.

55. When using the spreadsheet, the County planning staff

added 49 units (accounting for the additional units that could

be generated by the Plan Amendment) to the annual run of the

spreadsheet that was last completed in June 2007. For the

purpose of computing the hurricane evacuation time in light of

the Plan Amendment, the County did not input any other data into

the spreadsheet for the purpose of assessing the hurricane

evacuation times. 11

56. County staff provided data and analysis indicating

that "the clearance times for critical segments in the County

remain less than 12 hours for Cat 1 - 3 hurricanes with the

[Plan Amendment]. For Cat 4 - 5 hurricanes, the clearance times

already exceeded 12 hours at the following critical segments: US

90 east of Milton, Pensacola Bay Bridge, and I-10 eastbound, but

the increased density with the amendment showed no increase in

clearance times. The clearance time on SR 87 south of I-10

increased from 9.57 hours to 9.60 hours (again, the widening of

that roadway is not factored in). Overall, the effect of the

[Plan Amendment] was three hundredths of an hour or less on the

critical segments. Therefore, we conclude that County

evacuation times will be maintained with the amendment." JE 5

at 6.

57. The County did not assess whether the hurricane

evacuation times would increase based on the County's

redefinition of the Commercial Core Area other than the

Property. According to the County, the changes to the

Commercial Core Area were not relevant to its consideration of

the Plan Amendment because it did not involve any other plan

amendments or changes in density that would impact the hurricane

evacuation analysis. T 272.

58. Overall, it was not proven that adverse impacts

resulted from the Plan Amendment or that the Plan Amendment was

inconsistent with the Plan's objectives and policies referred to

herein and not based on appropriate data and analysis.

F. Impact of the Plan Amendment on Potential Loss of View and

Financial Impacts on Belle Mer Condominium Unit Owners

59. Petitioner presented two witnesses who own Belle Mer

Condominium units, units 1602 and 904 (PE 7 at 4), and who

testified regarding their potential loss of view if the Plan

Amendment is approved and also that their property values would

be reduced.

60. These issues were raised in the JPS at pages 2-3, but

not expressly raised in the Petition. See , e.g. , T 31-37, 73-

75; see also Petition at 3, ¶¶ 9-12.

61. Assuming for the sake of argument that the two issues

were timely raised and may be considered, resolution of the

issues is speculative at best given the nature of this

proceeding. Notwithstanding the lay testimony of what might be

constructed on the Property in the event the Plan Amendment is

approved, such as a "needle" or "high rise," T 41-42, the

nature, scope, and extent of the loss of view and financial

impact can not be readily determined without, among other

information, a site plan showing the actual development of the

Property.

CONCLUSIONS OF LAW

A. Jurisdiction

62. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

B. Standing

63. Belle Mer Owners Association, Inc., is an "affected

person" as that term is defined in Section 163.3184(1)(a),

Florida Statutes, and has standing to participate as a party in

this proceeding.

C. In Compliance

64. In this proceeding, which follows the Department's

issuance of a NOI to find the Plan Amendment to be in

compliance, the Plan Amendment "shall be determined to be in

compliance if the local government's determination is fairly

debatable." § 163.3184(9)(a), Fla. Stat. Petitioner bears the

burden of proving beyond fair debate that the challenged Plan

Amendment is not "in compliance." See Young v. Dep't of Cmty.

Affairs , 625 So. 2d 831 (Fla. 1993). "The fairly debatable

standard of review is a highly deferential standard requiring

approval of a planning action if reasonable persons could differ

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

1288, 1295 (Fla. 1997)(citation omitted). The court also stated

that "even with the deferential review of legislative action

afforded by the fairly debatable rule, local government action

still must be in accord with the procedures required by chapter

163, part II, Florida Statutes, and local ordinances." Id.

(citation omitted).

65. Under Section 163.3184(1)(b), Florida Statutes, "in

compliance" means:

consistent with the requirements of ss.

163.3177, when a local government adopts an

educational facilities element, 163.378,

163.3180, 163.3191, and 163.3245, with the

state comprehensive plan, with the

appropriate strategic regional policy plan,

and with chapter 9J-5, Florida

Administrative Code, where such rule is not

inconsistent with this part and with the

principles for guiding development in

designated areas of critical state concern

and with part III of chapter 369, where

applicable.

66. Section 163.3177(2), Florida Statutes, provides that

the several elements of a comprehensive plan must be coordinated

and consistent. See also Fla. Admin. Code R. 9J-5.005(5)(a).

Any amendment to the FLUM must be internally consistent with the

other elements of the comprehensive plan. See Coastal Dev. of

N. Fla., Inc. v. City of Jacksonville , 788 So. 2d 204, 208 (Fla.

2001).

67. As found herein, Petitioner failed to prove to the

exclusion of fair debate that the Plan Amendment is inconsistent

or not coordinated with several objectives and policies of the

County's Plan.

68. Any plan amendment must be based upon appropriate

data. Although such data need not be original data, local

governments are permitted to utilize original data as long as

appropriate methodologies are used for data collection.

§ 163.3177(8) and (10)(e), Fla. Stat.

69. The requirement for data and analysis in support of

comprehensive plan and plan amendments is set forth in Florida

Administrative Code Rule 9J-5.005(2)(a): "All goals, policies,

standards, findings and conclusions within the comprehensive

plan and its support documents, and within plan amendments and

their support documents, shall be based upon relevant and

appropriate data and analysis applicable to each element. To be

based on data means to react to it in an appropriate way and to

the extent necessary indicated by the data available on that

particular subject at the time of adoption of the plan or plan

amendment at issue." The data must also be the "best available

existing data" and "collected and applied in a professionally

acceptable manner." Fla. Admin. Code R. 9J-5.002(2)(a)-(c); see

also § 163.3177(10)(e), Fla. Stat.

70. This rule requires only that data exist and be

available at the time the plan amendment is adopted. It does

not require that such data be submitted by the local government

to the Department. In a de novo proceeding such as this one,

the question is not whether the local government submitted

sufficient data and analysis to the Department, but rather

whether the data in existence and available at the time of

adoption supports the plan amendment. If the data existed and

was available at the time of adoption, analysis of that data may

be made at the compliance hearing. See Zemel v. Lee County and

Dep't of Cmty. Affairs , Case No. 90-7793GM (DCA June 22, 1993),

aff'd , 642 So. 2d 1367 (Fla. 1st DCA 1994). See also Allessi,

et al. v. Wakulla County, et al. , Case No. 03-0052GM (DOAH

Recommended Order, July 11, 2003; DCA Order, October 8, 2003, at

3-5; DOAH Order on Remand, October 29, 2003; DCA Amended

Determination of Noncompliance, April 1, 2004; Admin. Comm.

Final Order, July 1, 2004).

71. Petitioner contends that the Plan Amendment is not

supported by adequate data because the County did not consider

whether there were any increases in dwelling units in Okaloosa

County since 1999, and in the County between June 2007 and the

date the Plan Amendment was adopted in May 2008, as well as any

increased travel on adjacent county highways, which, according

to Petitioner, necessarily led the County to underestimate the

County hurricane evacuation clearance times.

72. In this de novo hearing, the Petitioner has the burden

to prove the precise nature of the best existing and available

data overlooked or not considered by the local government and

how consideration of such data causes the Plan Amendment to be

not "in compliance." Also, such evidence may not be based on

conjecture. See , e.g. , Alessi , Case No. 03-0052GM (DOAH Order

on Remand, October 29, 2003, at ¶¶ 8-11; DCA Amended

Determination on Noncompliance, April 1, 2004, at 10, ¶ D.).

73. A County staff member stated that there could have

been a significant difference in the evacuation times if there

was an increase in and consideration of the construction of

three types of residential dwelling units between June of 2007

and May of 2008. T 99. However, Petitioner did not prove the

precise nature of the existing and available data that could

have been considered and whether an increase in dwelling units

would have altered or increased the analyzed hurricane

evacuation times.

74. As found, Petitioner did not prove to the exclusion of

fair debate that the Plan Amendment is not based on appropriate

data and analysis.

75. Petitioner also contends that approval of the Plan

Amendment interferes with two condominium unit owners' view of

the Gulf of Mexico and will have an adverse financial impact on

them. See § 163.3161(9), Fla. Stat.; Fla. Admin. Code R. 9J-

5.005(8). In essence, Petitioner claims that the County should

have considered these alleged adverse impacts when considering

the Plan Amendment. These issues were not expressly raised in

the Petition.

76. Section 163.3161, Florida Statutes, provides for a

legislative recognition and protection of private property

rights. Any relief, such as a claim for compensation, which may

be afforded "must be determined in a judicial action." This

proceeding does not involve a judicial action or, as Petitioner

agrees, a claim for damages.

77. Florida Administrative Code Rule 9J-5.005(8) also

recognizes private property rights and vested rights, but

provides that "[l]ocal governments may include appropriate

provisions in their plans for the recognition of statutory and

common law vested rights." Petitioner does not argue that the

Plan Amendment is inconsistent with any such provision in the

County's Plan, if one exists.

78. The issues raised by Petitioner are premature and

speculative.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be issued determining that

the Plan Amendment 2007-R-047, adopted by Santa Rosa County in

Ordinance No. 2008-16, section 2, attachment A, on May 22, 2008,

is "in compliance" as defined in Section 163.3184(1)(b), Florida

Statutes.

DONE AND ENTERED this 7th day of April, 2009, in

Tallahassee, Leon County, Florida.

S

CHARLES A. STAMPELOS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of April, 2009.

ENDNOTES

1 / All citations are to the 2008 version of the Florida Statutes

unless otherwise noted.

2 / At some point in 2007 and prior to the Board's September 27,

2007, transmittal hearing and consideration of the Plan

Amendment, in response to a plan amendment application, staff

prepared an initial staff analysis and concluded that the

proposed plan amendment, which did not differ materially from

the Plan Amendment, was inconsistent, in part, with Objective

7.1.B. PE 3; T 162. This staff analysis was submitted to the

Local Planning Board. On May 10, 2007, the Local Planning Board

approved the FLUM change application. The Board denied the

application. See T 160-163, 281-283; JE 5 at 2, Background and

10. Thereafter, there was a second application submitted to the

Board that was substantially the same as the first. T 164, 170.

County staff prepared another staff analysis that materially

mirrored the first stating in part that the proposal was

inconsistent with Objective 7.1.B because the Property was

located on Navarre Beach. T 167-170. This staff analysis was

presented to the Board for its transmittal hearing held on

September 27, 2007. T 170-171. (The second application was not

presented to the Local Planning Board because the first

application had been approved by this board in May 2007.) The

Board approved the Plan Amendment and the matter was transmitted

to the Department. Thereafter, staff prepared another staff

analysis included with the recommendation and staff's response

to the ORC Report that was presented to the Board on May 22,

2008. JE 5 at 8-11. This staff analysis stated in part "that

the amendment is generally consistent with the [Plan], except as

noted in this staff analysis." JE 5 at 11. See also endnote 6.

3 / Florida Administrative Code Rule 9J-5.012(3)(b)6. requires a

local government to have one or more objectives for each goal

statement which "[d]irect population concentrations away from

known or predicted coastal high-hazard areas." The term

"population concentrations" is not defined in any statute or

rule. In the context of Rule 9J-5.012, it would appear that the

term means population densities (dwelling units per acre) of a

certain level, but the level is not stated. There is no statute

or rule requiring that population concentrations be directed

away from any property or area other than the CHHA. The rule is

used in the context of plan amendments within the CHHA and it is

synonymous with residential density. See generally Dep't of

Cmty. Affairs v. Lee County and Leeward Yacht Club, Inc. , Case

No. 06-0049GM (DOAH August 25, 2006 at ¶¶ 29-31; Admin. Comm.

November 15, 2006). The Plan Amendment does not increase the

density in the CHHA. T 264-265.

4 / The Commercial Core Area was expanded to include several

hundred feet of Gulf of Mexico property, including the Property,

and a narrow strip of nine acres running south to north within

an area that appears to be designated Navarre Beach Utilities

(waste water treatment plant) on the FLUM. T 176, 219-220; PE

4.

5 / This case is the County's first application of the 45 percent

policy to a FLUM amendment. T 190, 290. According to the

County's planning director, the 45 percent rule subsumes the

requirement to direct population concentrations away from

Navarre Beach. The planning director was also questioned about

several scenarios involving conversion of acreage from one land

use designation to another without exceeding the minimum 45

percent rule. T 190-198.

6 / In the staff analysis, staff determined that the Plan

Amendment "results in a very minimal increase in coastal density

and is not inconsistent with" Objective 7.1.B. T 164-166; JE 5

at 11. The Plan does not expressly provide for consideration of

de minimus impacts regarding directing population away from

Navarre Beach, "just the 45 percent criteria." T 187.

7 / By definition, a "goal" "means the long-term end toward which

programs or activities are ultimately directed." Fla. Admin.

Code R. 9J-5.003(52). An "objective" "means a specific,

measurable, intermediate end that is achievable and marks

progress toward a goal." Fla. Admin. Code R. 9J-5.003(82). A

"policy" "means the way in which programs and activities are

conducted to achieve an identified goal." Fla. Admin. Code R.

9J-5.003(90). See also Fla. Admin. Code R. 9J-5.012(3) for the

requirements for Coastal Management Goals, Objectives, and

Policies and particularly subsection (3)(c)6. requiring the plan

element to "contain one or more policies for each objective and

shall identify regulatory or management techniques for" "6.

Designating coastal high-hazard areas and limiting development

in these areas." In other words, a policy is "supposed to

describe the programs and activities that one would undertake to

achieve the objective, which should be a measurable intermediate

end." "The definition of objective is a measurable intermediate

end towards achieving the goals." The goals are broader

statements. T 250-251, 267-268.

8 / Florida Administrative Code Rule 9J-5.012(3)(b)7. requires a

local government to have one or more objectives for each goal

statement which "[m]aintain or reduce hurricane evacuation

times." This rule means no increase. Also, the maintain and

reduce provision has usually been tied to plan amendments within

the CHHA. The Department usually uses the best available model

for a particular regional hurricane evacuation analysis. T 245-

247.

9 / Policies 7.1.F.3 and 7.1.F.8 are not mutually exclusive.

T 273.

10 / The Study contains several analyses including the behavioral

analysis section and a list of critical facilities that have not

been updated since 1999. Population projections have not been

updated. There is inconclusive testimony that a study to update

the behavioral analysis factor was completed before May 22,

2008. The vulnerability analysis in the Study is in the process

of being updated, but the updates are not complete or approved.

T 122-128, 142.

11 / The Study also states that "[e]stimates of evacuation

clearance times for the study area must include the effects of

evacuation traffic generated by neighboring counties that will

use other counties' roadways." JE 3 at 6-1.

In analyzing the Plan Amendment, the County did not evaluate

the impact of any increase in population and dwelling units in

the western portion of adjacent Okaloosa County that might use

Highway 87. Mr. Crumlish suggested that the County should

utilize growth in housing units in adjacent counties when

evaluating hurricane evacuation times. He also indicated that

counties will do their own updates in light of particular

circumstances. T 133. But, Ms. Faulkenberry stated that the

County has no "way to do that." The tool used by the County

does not allow the County to "incorporate that data" and the

tool used showed appropriate hurricane evacuation times. T 205-

207.

COPIES FURNISHED :

Matthew G. Davis, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

Thomas V. Dannheisser, Esquire

Santa Rosa County

6495 Caroline Street, Suite C

Milton, Florida 32570-7923

Jesse W. Rigby, Esquire

Clark, Partington, Hart, Larry, Bond & Stackhouse

125 West Romana Street, Suite 800

Post Office Box 13010

Pensacola, Florida 32591-3010

David L. McGee, Esquire

Beggs & Lane, LLP

Post Office Box 12950

Pensacola, Florida 32591-2950

Thomas Pelham, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399-2100

Shaw Stiller, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399-2160

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.