02-001630GM Shelly W. Sutterfield, William E. Sutterfield, Becky Kosher, And James Kosher vs. City Of Rockledge And Department Of Community Affairs Status: Closed Recommended Order on Monday, September 16, 2002.

Summary: Petitioners did not prove that the City of Rockledge`s Comprehensive Plan Amendment was not in compliance with Chapter 163, Part II, Florida Statutes, and Rule 9J-5, Florida Administrative Code.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHELLY W. SUTTERFIELD, WILLIAM )

E. SUTTERFIELD, BECKY KOSHER, )

and JAMES KOSHER, )

)

Petitioners, )

)

vs. ) Case No. 02 - 1630GM

)

CITY OF ROCKLEDGE and )

DEPARTMENT OF COMMUNITY )

AFFAIRS, )

)

Respondents, )

)

and )

)

FOUNTAIN DEVELOPMEN T, L.L.P., )

)

Intervenor. )

)

RECOMMENDED ORDER

Notice was given and on May 29 - 30, 2002, a final hearing

was held in this case. Authority for conducting the hearing is

set forth in Sections 120.569, 120.57(1), and 163.3184(9)(b),

Florida Statutes. The hearing was conducted at the Brevard

County Library, 219 Indian River Drive, Second Floor, Cocoa,

Florida, by Charles A. Stampelos, Administrative Law Judge of

the Division of Administrative Hearings.

APPEARANCES

For Petitioners: James P. Beadle, Esquire

Spira, Boyd, Beadle, McGarrell

& Marks, L.L.C.

5205 Babcock Street, Northeast

Palm Bay, Florida 32905

For Respondent Department of Community Affairs:

Colin M. Roopnarine, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

For Respondent City of Rockledge:

Joseph E. Miniclier, Esquire

City of Rockledge

1970 Michigan Avenue, Building E

Cocoa, Flor ida 32922

For Intervenor Fountain Development, L.L.P.:

Michael S. Minot, Esquire

319 Riveredge Boulevard, Suite 218

Cocoa, Florida 32922

STATEMENT OF THE ISSUE

The general issue for determination in this administrative

proceeding is whether Ordinanc e No. 1266 - 2002, adopting

Amendment 02 - 1 (Plan Amendment) to the City of Rockledge's

Comprehensive Plan, is not "in compliance" within the meaning of

Section 163.3184(1)(b), Florida Statutes, as alleged in the

Petition for Administrative Hearing, as amende d.

PRELIMINARY STATEMENT

On February 6, 2002, the City of Rockledge (City) adopted

Amendment 02 - 1 by Ordinance No. 1266 - 2002, which amended the

City's Comprehensive Plan. The Plan Amendment consists of a

Future Land Use Map (FLUM) redesignation of appro ximately 9.16

acres from Planning District 8 to Planning District 5. The Plan

Amendment also amends the City's FLUE, Appendix A, Planning

District Guidelines, adding subparagraph 5.A. to the text of

Planning District 5. (The City has eight existing plann ing

districts with "Guidelines" which appear in Appendix A to the

Future Land Use Element (FLUE, Chapter 1.)

The Plan Amendment was forwarded to the Department of

Community Affairs (Department) and, on March 29, 2002, the

Department published a Notice of I ntent, finding the Plan

Amendment "in compliance."

On April 18, 2002, Petitioners, Shelly W. Sutterfield,

William E. Sutterfield, Becky Kosher, and James Kosher

(Petitioners) filed a Petition for Administrative Hearing

(Petition) with the Department to ch allenge the Plan Amendment

pursuant to Section 163.3184, Florida Statutes. (The Petition

includes Petitioners' letter of April 18, 2002, to the

Department adding paragraph e., an additional statement of

ultimate fact.)

On April 23, 2002, the Department referred the Petition to

the Division of Administrative Hearings (Division) for the

assignment of an administrative law judge.

On April 26, 2002, the City filed a Notice of Demand for

Expedited Hearing pursuant to Section 163.3189(3)(a), Florida

Statutes.

On April 26, 2002, the Department filed a Motion to Strike

the Petition. The Department moved to strike from the Petition

all references to zonings, rezonings, spot - zoning, spot planning

districts, development order, and proposed development. The

Depar tment also requested Petitioners to elaborate on their

allegation on page 4, paragraph 5, of the Petition that "[t]he

City failed to provide proper notice as required by law."

The City adopted the Department's Motion to Strike.

On April 29, 2002, Inter venor, Fountain Development, L.L.P.

(Fountain), filed a Petition for Leave to Intervene in this

administrative proceeding, which was granted. Fountain also

filed a Notice of Demand for Expedited Hearing.

On May 3, 2002, the parties participated in a pre - hearing

conference by telephone. The parties agreed to have the matter

set for final hearing for May 29 - 30, 2002, and, accordingly, an

Amended Notice of Hearing was entered on May 6, 2002, advising

of the date, time, and location of the final hearing.

On May 8, 2002, Petitioners filed a response to the Motions

to Strike.

On May 15, 2002, the undersigned considered oral argument

on the Motions to Strike and the Response and granted the

Motions to Strike, concluding that

[c]onsideration of these concepts are outside

the scope of this proceeding. However, this

ruling is without prejudice to Petitioners

being afforded the opportunity to argue

whether case law interpreting these concepts

should have a bearing on the determination of

whether the proposed Pla n Amendment is "in

compliance" pursuant to the applicable

provisions of Chapter 163, Florida Statutes,

and Rule 9J - 5, Florida Administrative Code.

Further, this ruling does not preclude

Petitioners from offering relevant and

material "data" which was in e xistence at the

time the City approved the Plan Amendment.

Also, this ruling does not prohibit

Petitioners from offering relevant and

material evidence regarding historical facts

related to other related actions taken by the

City.

Order May 15, 2002 (c itation omitted). The undersigned deferred

ruling regarding whether the "notice" issues raised in the

Petition should be considered in this proceeding. The "notice"

issues have been considered and decided adversely to

Petitioners. See Conclusions of Law 100 - 104. Petitioners were

also authorized to file an amended petition on or before May 20,

2002.

On May 20, 2002, Petitioners filed an Amendment to Petition

Regarding Textural Amendment.

On May 27, 2002, Petitioners filed a Motion to Amend their

Petiti on to include reference to Rule 9J - 11, Florida

Administrative Code. A hearing on the Motion to Amend was held

at the outset of the final hearing on this matter. After

hearing argument, the Motion to Amend regarding the requested

addition of Rule 9J - 11, F lorida Administrative Code, was denied.

On May 28, 2002, the Department filed a Pre - Hearing

Stipulation, which was later joined by the City.

During the final hearing, Petitioners called the following

witnesses: Donald Robert Griffin, the City's Direct or of

Planning and Grants; Roger A. Wilburn, one of the Department's

community program administrators and planning experts; Shelly W.

Sutterfield and Becky Kosher, original Petitioners; and Henry P.

Iler, a qualified expert in land use planning and compreh ensive

planning. Petitioners' Exhibits 1 through 12 were admitted into

evidence.

The Department called Roger A. Wilburn, who was qualified

as an expert in comprehensive planning and land use planning.

The Department's Exhibits 1 through 10 were admitted into

evidence.

The City called the following witnesses: Betsi B. Moist,

City Clerk; Rochelle W. Lawandales, A.I.C.P., of Lawandales

Planning Affiliates, who was qualified as an expert in land use

planning and comprehensive planning; and James P. McKnight, City

Manager. The City's Exhibits 1 (composite of photographs)

through 4 were admitted into evidence.

There were also four joint exhibits 1 through 4 admitted

into evidence.

Fountain cross - examined witnesses, but called no witnesses

and offered no ex hibits.

After the evidence was received, the parties agreed to

submit their proposed recommended orders and memoranda of law

30 days after the transcript of hearing was filed with the

Division. The five - volume transcript of the final hearing was

filed wit h the Division on June 24, 2002. Petitioners submitted

a Proposed Recommended Order, a Memorandum of Law, and a Motion

for Reconsideration, requesting that the undersigned permit

Petitioners to submit a supplemental proposed recommended order

addressing t he concepts of spot zoning and spot planning as they

may relate to the facts of this case. The Motion was granted in

part and Petitioners were permitted to and did file a

supplemental proposed recommended order on August 5, 2002.

Respondents and Fountain were permitted to file supplemental

proposed recommended orders and responses.

The Department filed a Proposed Recommended Order and a

Supplement to Proposed Recommended Order.

The City also filed a Proposed Recommended Order, adopting

the Department's Proposed Recommended Order, and a Memorandum of

Law, and also filed a Supplement to Proposed Recommended Order.

The Department adopted the City's Memorandum of Law. Fountain

adopted the Department's and City's post - hearing submittals.

All of the partie s' post - hearing submittals have been

considered in preparing this Recommended Order.

FINDINGS OF FACT

The Parties

1. Petitioners, Shelly W. Sutterfield, William E.

Sutterfield, Becky Kosher, and James Kosher, are residents of

the City, who reside within Pine Cove Subdivision, which is east

of Fountain's property. This subdivision is located in the

City's Planning District 8.

2. Ms. Sutterfield stated that Petitioners want "to

maintain the integrity of [their] planning district as low and

medium - density in [ their] neighborhood." Ms. Sutterfield also

believed that the Plan Amendment "will add a high - density

residential close to -- in close proximity to [their]

neighborhood" and that "it will set a precedent for others to do

the same thing." Ms. Kosher agreed .

3. Petitioners appeared at most, if not all, of the local

government public hearings held regarding consideration of the

Plan Amendment leading up to and including the adoption of

Ordinance No. 1266 - 2002 by the City. Petitioners opposed the

Plan Amendment during each hearing. See also Findings of

Fact 35 - 40.

4. The Department is the state land planning agency

responsible for reviewing local government comprehensive plans

and plan amendments pursuant to Chapter 163, Part II, Florida

Statutes (Act). This inclu des review of the proposed Plan

Amendment adopted by the City, and a determination of whether

the proposed Plan Amendment is "in compliance" with the Act. In

this case, the Department reviewed the Plan Amendment submitted

by the City and determined that i t was "in compliance" with the

Act.

5. The City is the oldest incorporated municipality in

Brevard County. The City is located on the shoreline of the

Indian River Lagoon south of the City of Cocoa and north of Palm

Shores and Melbourne. The City is approxi mately 10 square miles

with a population of 20,174 as of 2000.

6. The City is primarily a residential community, although

it has some light, clean industry as well as a variety of

commercial centers and institutional facilities, including a

hospital, four p ublic and three private schools, and churches of

various denominations.

7. The City has adopted a Comprehensive Plan and a FLUM,

which was amended last on July 19, 2000, excluding the Plan

Amendment at issue in this case.

8. The City is divided into eight planni ng districts as

reflected on the City's FLUM and in the text to the FLUE,

Chapter 1, Appendix A, Planning District Guidelines, of the

Comprehensive Plan.

9. On May 19, 1999, the City adopted its Evaluation and

Appraisal Report (EAR) - based amendments to its Comprehensive

Plan pursuant to Ordinance No. 1182 - 99.

10. Fountain is incorporated under the laws of the State

of Florida and owns all the property (located within the City of

Rockledge) that is the subject of the Plan Amendment.

The Plan Amendment

11. On o r about August 23, 2001, Fountain submitted an

application to the City, requesting the Plan Amendment at issue

in this proceeding. First, Fountain requested a change to the

City's FLUM, removing their property from Planning District 8,

and placing it in P lanning District 5. The property consists of

approximately 9.163 acres (site or subject property) and is

located adjacent to the intersection of Huntington Lane, to the

east, and Eyster Boulevard, to the north. The property has pine

trees and open grass areas. The subject property has no

significant historical value and no environmental concerns have

been raised. See Findings of Fact 50 - 68 for a more complete

description of the subject property in relation to existing,

surrounding land uses.

12. As noted in Fountain's application:

The applicant is proposing to build a high -

rise apartment complex and needs additional

density to meet the scale of economy for the

project. The applicant also believes that

with the FPL substation directly to the

south and the property to the west being a

large multi - family apartment project and the

property to the north allowing

manufacturing[,] [i]t would make more sense

for the property to be in Planning District

5, instead of Planning District 8. The

property to the east a llows a mixture of

low - density residential and single - family

residential.

13. In its application, Fountain claimed that the maximum

allowed development under the existing designation in the FLUM

for the property site is 96 residential dwelling units.

Petitio ners dispute this number and claim that the error is

material.

14. If the Plan Amendment is approved, the maximum

allowable development under the proposed designation for the

site is 118 dwelling units, i.e. , 9.163 acres times a proposed

maximum density of 13 dwelling units per acre. There is no

dispute regarding this number. To this end, Fountain indicated

that it "is willing to enter into a binding development

agreement during the rezoning phase with the City to ensure

adequate buffering to adjoining proper ties, where needed, as

well as eliminate the possibility of the property to be used for

commercial or manufacturing purposes." Fountain submitted a

draft agreement to the City. However, no agreement has been

signed by Fountain or the City.

15. The subject pr operty (without the Plan Amendment) is

located in the northwest quadrant of Planning District 8.

Planning District 5 is located immediately north of the subject

property (across the street), and north of Eyster Boulevard,

which runs east and west.

16. Plann ing District 5 is located on the FLUM as a mixed -

use planning district.

17. The subject property, and the property to the west,

south and east, are located in Planning District 8, which is

designated as medium density residential on the FLUM.

18. As defined in the City's Comprehensive Plan, "[m]edium

density residential land uses shall be at a density greater than

three (3) dwelling units per acre and not exceeding fourteen

(14) dwelling units per acre."

19. As provided in the Comprehensive Plan "Guidelines" for

Planning District 5, the density for Planning District 5 for a

new residential development "is limited to a maximum of fourteen

(14.0) dwelling units per acre. . . ." With respect to Planning

District 8, the "Guidelines" provide that the

[m]aximum densi ty allowed shall not exceed

five (5) dwelling units per acre, current

multi - family zoning districts shall be

limited to existing densities. Any proposed

zoning district changes shall be limited to

a maximum of five (5) dwelling units per

acre. Undevelope d areas west of Fiske

Boulevard will be encouraged to be developed

with a maximum of three (3) dwelling units

per acre in order to protect the natural

character of the land.

20. In addition to requesting a change in the FLUM

designation for the site, from Pla nning District 8 to Planning

District 5, Fountain also proposed, and the City ultimately

adopted, a textural Plan Amendment to the Planning District 5

"Guidelines," including paragraph 5.A., which provides:

Those areas located on the west side of

Huntingto n Lane and south of Eyster

Boulevard and north of the Florida Power and

Light sub - station, may develop residential

at a maximum of thirteen (13.0) dwelling

units per acre (appropriate zoning districts

include R2A, R3, TH). No principal

structure shall be constructed within 225

feet of the right - of - way of Huntington to a

distance of 425 feet from the south boundary

of the described property, and not closer

than 50 feet to Huntington Lane beyond the

425 feet. Other conditions include the

submittal of a bind ing site plan, building

height limited to a maximum of 38 feet;

deceleration lane to any point of ingress

and egress, traffic calming techniques will

be used at entrances, and sidewalk along

Huntington Lane for the entire length of the

property.

21. Paragraph 5.A. was adopted as a site - specific addition

within the Planning District 5 "Guidelines." Petitioners claim

that this provision, when read with other provisions discussed

in Planning District 5, allows Fountain to develop authorized

land uses on the subj ect property, other than the development of

only residential dwelling units. When read in its entirety, and

based on the weight of the evidence, the text Plan Amendment

authorizes only residential dwelling units and no other land

use. The inclusion of on ly residential zoning districts and the

clear language that the property may be developed "at a maximum

of thirteen (13.0) dwelling units per acre" bolster this

finding.

22. Further, it is not uncommon for local governments to

include various restrictions, suc h as maximum height

restrictions and setback requirements, in plan amendments.

These restrictions are not considered land development

regulations within the context of the Comprehensive Plan.

Rather, they are plan policies which define the parameters for

future development within the planning districts, including

Planning District 5.

23. There is a body of "land development regulations"

which are intended to implement comprehensive plans and are

subject to independent scrutiny. See , e.g. , Section 163.3202,

F lorida Statutes. However, the restrictions noted in the Plan

Amendment are not land development regulations within the

context of this "in compliance" review proceeding.

24. Donald Robert Griffin of the City prepared a report

consisting of two pages. Prior t o preparing the report, Mr.

Griffin reviewed the properties surrounding the subject property

and also analyzed the potential impacts of the Plan Amendment on

roads, sewer, and water, for example. In analyzing paragraph

5.A., City staff also considered in part setbacks and reducing

the zoning on the site to ensure compatibility. The staff

report includes input from City department heads, the City

Manager, and other staff. Staff recommended approval.

25. Staff indicated that the change in the residential

lan d use classification for the approximate 9.163 acres would be

consistent with the City's allocation percentages in its

Comprehensive Plan. (The "need" for this Plan Amendment is not

at issue in this proceeding.) Staff further noted:

It would be staff's opinion that if the

Brevard County enclave: (east of Fiske

Blvd.; north of Howard Blvd. and south of

Eyster Blvd.) was annexed into the city it

would probably be put into Planning District

5, since it has a combination of mixed land

uses. In addition, tho se properties

immediately to the west of the subject

property are identified as Woodhaven

Apartments (799 Eyster Blvd.) a multi - family

complex and the BCARC Group Home (951 Eyster

Blvd.) a multi - family complex. Immediately

to the south of the subject prop erty is an

FPL electrical substation. Immediately east

of the subject property is Huntington Lane,

a 50 - foot road right - of - way, and property

zoned either R - 2A or R - 2 on the east side of

Huntington Lane. Immediately to the north

of the subject property is Eyster Boulevard,

a 100 - foot - right - of - way and vacant M - 1

industrial property. At the eastern

terminus of Howard Boulevard, Florida Power

and Light has a 100 - foot wide easement,

where power lines are currently in place.

The easement limits the additional expansion

of buildings into this 100 - foot area. The

property on the east end of Pine Cove, has a

mixture residential and commercial uses

adjacent to it, as part of Planning District

5.

If this Comprehensive Plan Amendment is

approved to allow the propo sed change into

Planning District 5, staff would recommend

that when the property goes for rezoning,

based on compatibility and consistency

issues, that only residential land uses be

allowed on the 9.163 acres. In addition, if

the Amendment is approved, i t should be

suggested to the City Council that the area

between Howard Boulevard and FPL Easement to

the South; Fiske Boulevard to the west;

Huntington Lane to the East; be incorporated

into Planning District 5 at a future date.

The Applicant does not hav e control over any

other property beyond the 9.163 acres, noted

in the application.

26. Fountain's planner, Rochelle W. Lawandales, prepared a

planning report dated October 2001. This document was submitted

to the City for its consideration. This planning r eport

provides technical information to support the proposed textural

addition to the "Guidelines" (5.A.) for Planning District 5 and

change to the FLUM.

27. Ms. Lawandales describes the subject property,

including the existing density for the approximate 9. 163 acre

site, as follows: "Approximately 6 acres [of the 9.163 acres]

are zoned R - 3 with a density of 13 units per acre. The

remaining approximate 3 acres are designated as R - 2 and R - 2A.

R - 2A is medium density multi - family district allowing up to 8

uni ts per acre and the R - 2 allows up to 5 units per acre."

(emphasis added.) (In 2001, the City approved a rezoning

request for the six - acre parcel, changing the zoning from R - 2A

to R - 3. According to the Comprehensive Plan, an R - 3 designation

authorizes a maximum density of 14 units per acre, not 13 . It

is uncertain why Ms. Lawandales used 13 units per acre.)

28. The multiplication of approximate 9.163 acres times

the noted (by Ms. Lawandales) densities per acre, yields a

specific density of 96 residential u nits, which is the same

number used in item 19 of Fountain's application.

29. When this number (96) is subtracted from the maximum

allowable development under the proposed designation (Plan

Amendment) for the subject property, i.e. , 118 units (9.163 X

13), t he difference is 22, which purports to be the number of

additional units which would be authorized if the proposed Plan

Amendment is approved. Petitioners assert this number is

incorrect and the record supports Petitioners' position in part.

30. Prior to the EAR - based amendments to the City's

Comprehensive Plan adopted in 1999, it appears that the zoning

for the approximate north six acres of the subject property was

R - 2A, with a density of eight units per acre, which yields 48

units. The density for one acre was R - 2A, which yields an

additional eight units per acre. The remaining two acres were

assigned a designation of R - 2, which yields a density of five

units per acre, or ten total units per acre for the two acres.

When added together, the approximate 9.1 63 - acre parcel yields a

maximum allowable development for the subject property, pre - EAR -

based amendment , of 66 units per acre, not 96 units per acre.

This means that the maximum allowable additional development on

the subject property under the existing l and use designation,

within the Planning District 8 pre - EAR - based amendments is 52 ,

or 118 minus 66, not 22.

31. Petitioners claim that the post - EAR based amendment

zoning would allow five units per acre for the north six acres

or approximately 31 units. (P resumably, this is based on

Petitioners' contention that the density authorized for Planning

District 8 for "post - EAR based amendment zoning" is five

dwelling units per acre based on the following Planning District

8 statement regarding density: "Maximum d ensity allowed shall

not exceed five (5) dwelling units per acre, current multi -

family zoning districts shall be limited to existing

densities.") The zoning for the remaining three acres remained

the same, which yields 18 units, for a total of 49 units, w hich

would be allowed on the subject property without the Plan

Amendment. According to Petitioners, this means that the Plan

Amendment will authorize an additional 69 units, i.e. , 118 minus

49, not the 22 units disclosed by Fountain.

32. Fountain's representa tion that approval of the Plan

Amendment would yield only an additional 22 dwelling units on

the subject property was carried over to the Department's two

(2) staff analyses, which were prepared in response to the

proposed Plan Amendment. See Finding of F act 43.

33. Whether this revelation would have changed the City's,

or the Department's, decisions is unknown, although the City

Council and the Department were advised that the Plan Amendment

authorized a maximum of 118 units.

34. It is persuasive that the Departm ent, in assessing

whether the Plan Amendment is "in compliance," in part,

considered the total maximum theoretical density, or 118

residential dwelling units, which may be authorized by the Plan

Amendment on the subject property. Importantly, the maximum

density of the proposed land use is expressly stated in the

textural Plan Amendment, which was approved by the City, and

found to be "in compliance" by the Department.

Local Government Hearings Regarding the Plan Amendment

35. On September 17, 2001, the Citi zen's Advisory

Committee (Committee) met to consider the Plan Amendment. The

minutes reflect that the staff report mentioned in Finding of

Fact 25 was presented to the Committee; that the Committee had

several questions, which are noted in the minutes alo ng with the

responses; that Fountain gave a brief presentation using Ms.

Lawandales' planning document referred to herein; and that

several residents, including Ms. Kosher and Ms. Sutterfield,

spoke in opposition. A motion to approve the request failed by

a vote of four to two.

36. On October 2, 2001, the Planning Commission

(Commission) met to consider the proposed Plan Amendment.

Fountain presented its position. (The Commission is the land

planning agency for the City.) Ms. Lawandales also gave a

present ation on behalf of Fountain. Several persons who are

identified as having Cocoa and Rockledge addresses, appeared

before the Commission. While some persons from Cocoa and

Rockledge favored the proposal, the majority of the persons with

Rockledge addresse s opposed the project. Mr. McKnight, the City

Manager, stated that the hearing before the Commission "did not

require advertisement in the newspaper, as previously done;

therefore, this too, was not an issue of concern, but that the

property had been post ed and all property owners within 500 feet

were mailed a notice." Ms. Kosher and Ms. Sutterfield opposed

the Plan Amendment. The Commission unanimously approved the

Plan Amendment.

37. On October 17, 2001, the City Council conducted a

public hearing "to cons ider the request for Comprehensive Plan

Amendment and cause the scheduling of a Transmittal Hearing."

Ms. Kosher, Ms. Sutterfield and others opposed the Plan

Amendment. Others supported the request. In response to

concerns raised by Ms. Sutterfield rega rding advertisements for

this meeting and the Planning Commission meeting on October 2,

City Manager McKnight responded that a newspaper advertisement

is not required until the Transmittal Hearing. By unanimous

vote, a motion to authorize a public hearing before the

Commission on November 6, 2001, and a transmittal hearing before

the City Council on November 7, 2001, was passed.

38. On November 1, 2001, the City had published a "Notice

of Change of Land Use" in "Florida Today," a newspaper of

general circulati on, published in Brevard County. This "Notice"

advised the public of hearings to be held on November 6, 2001,

before the Planning Commission and on November 7, 2001, before

the City Council. Ms. Sutterfield received notice of the

transmittal hearings by U.S. Mail prior to the hearings. 1

39. On November 6, 2001, the Commission met once again to

consider the Plan Amendment. The minutes of this public hearing

reflect that "this was a transmittal public hearing." Local

residents, including Ms. Kosher and Ms. Sutterfield, voiced

their opposition to the Plan Amendment. The Commission voted in

favor of the Plan Amendment by a vote of six to one.

40. On November 7, 2001, the City Council met to consider

the Plan Amendment. This transmittal hearing was held six day s,

not seven days, after the notice was published. Once again Ms.

Kosher and Ms. Sutterfield opposed the Plan Amendment along with

two other persons giving a Rockledge address. By unanimous

vote, the City Council approved a motion to authorize

transmitta l of the Plan Amendment to the Department. This was

the first of two transmittal hearings conducted by the City.

The second was conducted on February 6, 2002, after timely

notice was advertised. On February 6, 2002, the City adopted

Ordinance No. 1266 - 2 002, incorporating the Plan Amendment.

Notice

41. The City did not comply with the seven - day advertising

requirement set forth in Section 163.3184(15)(b)1., Florida

Statutes. See Conclusions of Law 101 - 102. It is concluded,

however, that the "due public notice" procedures set forth in

the City's Land Development Code do not apply. See Conclusion

of Law 101. This is not fatal. Ms. Sutterfield and Ms. Kosher

attended the November 6 and 7, 2001, transmittal hearings, as

well as other hearings, both befor e and after these transmittal

hearings, furnishing the City with their comments and objections

at each hearing. Also, Ms. Sutterfield received notice of the

transmittal hearings by U.S. Mail prior to the hearings. Ms.

Kosher has been involved with this m atter since November of

1999. Petitioners have shown no prejudice arising out of the

City's non - compliance with the advertising/notice requirement

for the transmittal hearings.

The Department's Review of the Plan Amendment

42. On November 15, 2001, the Department received the

City's letter of transmittal with supporting documentation,

including the proposed Plan Amendment. By Memorandum dated

January 4, 2002, the Department "[s]taff has identified no

potential objections or comments with the proposed am endments."

With respect to the textural Plan Amendment to Planning District

Policy 5.A., the Department staff stated: "The addition of this

policy to Planning District 5 limits the potential growth of the

parcel to 13 dwelling units per acre from the 14 now allowed in

the Planning District. This is consistent with District 5 Mixed

Use and Medium Density Residential Land Uses. Additionally the

lower dwelling unit concentration in combination with the

specific building set back regulations will work to bu ffer

District 8 from the non - residential land uses in District 5."

43. With respect to moving the approximate 9.163 acres

subject property from Planning District 8 to Planning

District 5, the Department staff noted:

Moving the tract of land from Planning

Dis trict 8 to Planning District 5 will allow

for an additional 22 dwelling units to be

developed on the land. The applicant is

willing to enter into a binding development

agreement during the rezoning phase with the

City to ensure adequate buffering to

adjoi ning properties, as well as eliminating

the possibility of the property being used

for commercial or manufacturing purposes.

The analysis of existing public facilities

provided shows the infrastructure is

adequate to support the additional 22

dwelling u nits the proposed land use change

would allow. The site is not home to any

significant historic resources nor is it

home to any endangered, threatened or

species of special concern.

44. The Department did not receive any negative comments

from the Florida De partment of Transportation, the Florida

Department of State, the Florida Department of Environmental

Protection, or the East Central Florida Regional Planning

Council. The Department received several letters from citizens,

objecting to the proposed Plan A mendment and summarized them as

follows: "The residents state the high density residential

development would be incompatible with the existing low density

residential neighborhood. The residents opposing the amendment

state it is spot zoning and will set a negative precedent for

other developers. Several residents also mention the increase

in traffic and how this would impact the safety of school

children. The residents question the ability of the existing

infrastructure will [sic] be adequate to serve the increased

population. They also mention the insufficient notice given for

the LPA meeting."

45. On February 6, 2002, the City approved the Plan

Amendment during a public hearing and, thereafter, sent the

Department Ordinance No. 1266 - 2002, with supporti ng documents.

Notice of this public hearing was published in the January 24,

2002, edition of The Reporter, published weekly in Brevard

County, and a newspaper of general circulation.

46. On March 11, 2002, the Department staff conducted a

review of the Plan Amendment in order to prepare its notice of

intent. The staff analysis reflects no comments or objections

from the Department with respect to the Plan Amendment.

47. On March 29, 2002, the Department had published

"notice of its intent to find the Amendment s to the

Comprehensive Plan for the City of Rockledge adopted by

Ordinance No. 1266 - 2002 on February 6, 2002, IN COMPLIANCE,

pursuant to Sections 163.3184, 163.3187 and 163.3189, F.S."

48. Thereafter, Petitioners filed a timely challenge to

the Department's No tice of Intent.

Petitioners' Challenges

49. Petitioners contend that the Plan Amendment is not "in

compliance," as defined in Chapter 163, Part II, Florida

Statutes, because the Plan Amendment is not supported by

adequate data and analysis; is not compa tible with surrounding

land uses; and is inconsistent with the City's Comprehensive

Plan. Petitioners also argue that the Plan Amendment approves

spot zoning or spot planning. Petitioners further contend that

the City did not comply with statutory and Ci ty notice

requirements prior to its transmittal hearing and, as a result,

that the Plan Amendment is void ab initio .

Data and Analysis

Description of the Subject Property and Surrounding Area

50. Fountain's property, approximately 9.163 acres, is

rec tangular in shape and is bounded on the north by, and

directly abuts, Eyster Boulevard. This site is located in the

geographic center of the City.

51. Eyster Boulevard, abutting and to the north of the

site and between Fiske Boulevard and Murrell Road, is a t wo - lane

urban collector road (between Fiske Boulevard and Murrell Road),

with a right - of - way width of 100 feet, and with a current Level

of Service (LOS) of C, with a minimum acceptable LOS of E.

(There are no traffic/transportation - related issues raised in

this proceeding. Also, there is no evidence that the Plan

Amendment will cause any reduction or deficiencies in the LOS

for utilities.)

52. Across Eyster Boulevard to the north of the site and

extending west from Huntington Lane in Planning District 5, are

industrial uses, mobile homes, apartment complexes, some

commercial uses and Kennedy Middle School.

53. The subject property is bounded on the west by an

existing two - story, multi - family development, developed to eight

units per acre, known as Woodhaven Apart ments. The development

of these apartments pre - dates the adopted EAR - based amendments.

The apartments are located in Planning District 8, and will

continue to be located in Planning District 8 if the Plan

Amendment is approved.

54. The Brevard County Associa tion for Retarded Persons

(BCARC), located west of Woodhaven, is a group home multi - family

complex also located in Planning District 8, which has been

developed at more than 25 units per acre. Development of this

facility pre - dates the EAR - based amendment s.

55. A Brevard County enclave, consisting of a wide variety

of uses, including commercial and manufacturing, is located east

along Eyster Boulevard and west to Fiske Boulevard, and west of

the BCARC. This enclave does not have a land use designation on

the FLUM (nor is it within Planning District 8) because it is

outside the jurisdiction of the City. (Objective 8.2 of the

Comprehensive Plan states in part: "Any proposed development

will be evaluated for its impact on adjacent local

governments. . . .")

56. The subject property is also bounded on the south by a

Florida Power and Light (FPL) substation, within planning

District 8, which has a R - 2 zoning classification, five units

per acre. There is a 100 - foot FPL easement which runs east and

west, directly south of the substation. This substation was in

existence at the time of the adoption of the EAR - based

amendments. Also, church property is located south of the 100

foot easement.

57. The subject property is bounded on the east by, and

directly abuts, Huntington L ane. Huntington Lane runs

perpendicular north and south of Eyster Boulevard. Huntington

Lane, south of Eyster Boulevard, which abuts the subject

property, apparently carries no designation in the City's

Comprehensive Plan, and is considered to be a local two - lane

road. (Huntington Lane north of Eyster Boulevard is designated

by the City in its Comprehensive Plan as a local road.) The

right - of - way width for Huntington Lane adjacent to and east of

the subject property is 50 feet.

58. Immediately east of the site and adjacent to the

Huntington Lane right - of - way, is vacant property of an

approximate depth of 175 feet. This vacant land runs south to

north and then east, abutting Eyster Boulevard to the south.

For the most part, this vacant land has a density under the

Comprehensive Plan of R - 2A, which authorizes a density of eight

units per acre. There is also vacant land to the east of the

site and abutting the Huntington Lane right - of - way, which is due

south of the rectangular vacant land, which has a densi ty of R -

2, which permits five units per acre. The single - family

subdivision (Pine Cove) is located to the east of the vacant

land which abuts Huntington Lane. Petitioners reside in this

single - family subdivision. (The maximum potential density for

the s ubdivision allowed multi - family residential units, with

eight units per acre. However, the developer opted to build

single - family residential homes instead.)

59. The predominant land use character of Planning

District 8 is single - family residential. This inc ludes the

subdivision where Petitioners reside.

60. The subject property has approximately 900 feet of

frontage on Huntington Lane.

61. The subject property is approximately 1,500 to 2,000

feet east of Fiske Boulevard, which is a roadway designated in

the City's Comprehensive Plan as a four - lane divided minor

arterial. (It is contemplated that Eyster will ultimately have

five lanes. There are also existing intersection improvements

at the corner of Huntington and Eyster.)

62. The subject property is approximately one mile west of

Murrell Road, which is a roadway designated in the City's

Comprehensive Plan as a four - lane divided minor arterial. Both

Fiske Boulevard and Murrell Road have a center turn lane with no

islands.

63. Prior to the proposed Plan Amendment, all the property

within the City located south of and along Eyster Boulevard,

between Fiske Boulevard and Murrell Road, was included in

Planning District 8, except for the several parcels (referred to

in this proceeding as "incursions") east of the subdivision ,

abutting Murrell Road. Also, prior to the proposed Plan

Amendment, all of the property within the City located north of

and along Eyster Boulevard, between Fiske Boulevard and Murrell

Road, was included in Planning District 5.

64. The incursions along Mur rell Road are authorized by

the City in its Comprehensive Plan. The incursions are

contiguous to the residential dwellings and not separated by a

50 foot road right - of - way, as in the case of Huntington lane.

However, these incursions are approximately on e mile from the

subject property and Petitioners' residences.

65. These incursion areas along Murrell Road allow for

Planning District 5 and Planning District 6 land uses pursuant

to specific textural provisions set forth in the Comprehensive

Plan for each of these planning districts. These textural

provisions restrict Planning District 5 and Planning District 6

incursions in that area to a maximum depth of 630 feet west of

Murrell Road, as well as provide other limitations on the types

and intensities of deve lopment. (According to the Comprehensive

Plan, the first 300 feet of the 630 feet can be developed at 14

units per acre, and the next 330 feet at eight units per acre.

Also, "[r]esidential uses may be allowed to locate on the west

side of Murrell Road to a depth of six hundred thirty (630)

feet. Commercial uses may also be allowed to a depth of three

hundred (300) feet.")

66. The provisions for Planning District 6 incursions west

of Murrell Road, as to densities and depth of development, are

the same as thos e recited for Planning District 5 incursions on

the west side of Murrell Road. The Planning District 5 and

Planning District 6 incursions along Murrell Road predate the

EAR - based amendments.

67. Other than the incursions along Murrell Road, there

have been no incursions of Planning District 5 into Planning

District 8 until the Plan Amendment.

68. The existing provisions covering Planning Districts 5

and 8 were the result of EAR - based amendments to the City's

Comprehensive Plan adopted by the City in mid - 1999. P lanning

District 8 was created by splitting the area from a then larger

existing planning district. 2

The City's Comprehensive Plan Planning Districts

69. In its Comprehensive Plan, the City created eight

planning districts. The boundaries and policies in the planning

districts are fluid. Planning District 8, in which the subject

property was located prior to the proposed Plan Amendment, is

designated as the Central Rockledge Area. The "Area Objective"

of this planning district is

[t]o maintain and impr ove this area as a low

and medium density residential area and

insure that future development will not

substantially alter or depreciate the

existing character of the area.

This planning district also authorizes, in part, the following

types of land uses :

1. Development within the district will be

limited primarily to single - family detached

dwellings and directly related land uses

such as parks, schools, utilities, streets

and other such activities whose primary

purpose is to serve residents of the

distr ict. . . .

2. Limited commercial, professional, and

multi - family residential uses will be

considered in appropriate locations based on

severe compatibility and consistency tests.

After due consideration by the city other

zoning district [sic] shall be limited to

existing use which range from R2A, R - 3, TH,

P1, C1, to C2, which may be changed and

approved only if consistent with, and

compatible to the intent or [sic] criteria

of this district.

70. The maximum density allowed in Planning District 8

"shall not exceed five (5) dwelling units per acre, current

multi - family zoning districts shall be limited to existing

densities. Any proposed zoning district changes shall be

limited to a maximum of five (5) dwelling units per acre.

Undeveloped areas west of Fiske Boulevard will be encouraged to

be developed with a maximum of three (3) dwelling units per acre

in order to protect the natural character of the land."

71. Planning District 5 is designated as the Barton

Boulevard Area. The "Area Objective" for this plann ing district

is

[t]o guide development in this area toward

the establishment of a mixed - use area

consisting of highly intensive mixed uses

while maintaining compatibility with

regional thoroughfares, local roads,

municipal systems, and adjacent land uses.

In part, "[d]evelopment in this district wall be limited to

retail trade, business and professional offices, multiple family

attached dwellings, public and semi - public service, . . . and

other such activities that are compatible with and support the

int ent of this district."

72. The density of new residential development in the

Planning District 5 "is limited to a maximum of fourteen (14.0)

dwelling units per acre. . . ." "Compatibility" is discussed in

the Planning District 5 "Guidelines" as follows:

7. U rban design guidelines shall be

developed which address appropriate scale,

materials, building orientation, signing,

landscaping, detailing, and other physical

features within the district.

8. Adherence to the design guidelines shall

be required to insur e orderly development of

the area and compatibility of uses within and

adjacent to the district.

9. Adequate vegetation, constructed buffers

(fences, walls, berms, etc.) and/or open

space will be used between different land

uses.

Compatibility, Suitability, and Urban Infill

73. The Plan Amendment proposes the development of a

maximum of 118 residential units, with a maximum density of 13

units per acre for the 9.163 acres. The site and the

surrounding property to the east, south, and west are desig nated

as "medium density residential" land uses on the FLUM.

According to the Comprehensive Plan, a low density residential

land use is restricted to a "density not exceeding three (3)

dwelling units per acre." A medium density residential land use

would include "a density greater than three (3) dwelling units

per acre and not exceeding fourteen (14) dwelling units per

acre." The site (as proposed) and the surrounding property are

within the parameters of these measuring sticks, with the site

(as propose d) at the upper end and the apartments (to the west)

and the subdivision (to the east), as developed, at the lower

end of the density spectrum. Yet both areas are within the

medium density residential definition.

74. In reviewing the Plan Amendment, the Dep artment

considered whether the uses proposed in the Plan Amendment in

Planning District 5 were compatible with surrounding property,

including the subdivision east of the site. In support, Mr.

Wilburn testified in part: "We look at the surrounding area

ba sed on internal compatibility or compatibility in [sic] any

other internal policies they may have as far as the movement or

restriction of a planning district."

75. Whether a proposed land use is compatible with

surrounding land uses is a question of degree, rather than black

and white. To this end, the Department examines what the

comprehensive plan allows from a standpoint of maximum proposed

density. On the other hand, the Department does not ignore the

reality as to actual build - out on surrounding prope rty.

76. Consistency with the authorized land uses in Planning

District 5 was also considered. As noted by Mr. Wilburn, "in

this case Planning District 5 allows residential, industrial,

commercial. Commercial or heavy industrial might be

inconsistent next to residential, but as part of the plan

amendment, they have limited it strictly to residential."

However, the Department did not review the Plan Amendments for

consistency with the Goals, Objectives, and Policies for

Planning District 8 because the City is proposing to change the

boundaries and make - up of Planning District 5, not Planning

District 8.

77. Here, as noted above, the issue of whether the

proposed development as contemplated by the Plan Amendment is

"compatible" with the surrounding property is la rgely a question

of degree. For example, a nine - story high - rise, with 50 units

per acre, next to a single - family residential area would most

likely present compatibility problems. In this vein, Henry B.

Iler, Petitioners' expert planner, opined that the proposed (by

the Plan Amendment) three - story multi - family housing project

would not be compatible with the single - family subdivision to

the east of the site. Mr. Iler believes that going from five or

eight units per acre to 13 units per acre takes the pro posed

development out of the existing character of the subdivision.

Stated otherwise, Mr. Iler believes that with a density of eight

units per acre, the land could be developed with single - family

homes and "a few simple townhouses," whereas, with 13 units per

acre, the land use would "move into the apartment/attached -

housing product." For Mr. Iler, it is the latter described

development which makes the proposed development "out of

character" with the existing subdivision. The Department's

expert planner, Mr. Roger Wilburn, and other experts, opined to

the contrary. For Mr. Wilburn, compatibility is one of degree.

78. In light of the nature of the surrounding property,

and given the restrictions in the Plan Amendment, e.g. ,

transition buffers (distance requir ements in paragraph 5.A. and

other provisions set forth in the Planning District 5

"Guidelines," and the restriction to residential use only, it is

at least fairly debatable that the Plan Amendment, authorizing

the development of the 9.163 acres as residen tial, with a

maximum density of 13 units per acre, is "compatible" with the

surrounding property and is not otherwise inconsistent with the

Comprehensive Plan.

79. It is also at least fairly debatable that the Plan

Amendment is "suitable" to the area. (For example, there are no

environmental, topographical, or soil factors at issue which

might make the land unsuitable for its intended use.) The

subject property may also be considered urban infill as it is in

the middle of an urban area, served by existing u rban services.

The Plan Amendment seeks approval of residential development

which is functionally related to surrounding property and is

creating a compact development.

CONCLUSIONS OF LAW

Jurisdiction

80. The Division of Administrative Hearings has

juris diction to conduct a hearing on the subject matter of this

proceeding. Sections 120.569, 120.57(1), and 163.3184(9),

Florida Statutes.

Standing

81. Petitioners and Fountain are "affected persons," as

defined in Section 163.3184, Florida Statutes, and hav e standing

in this proceeding.

Burden of Proof

82. The burden of proof, absent a statutory directive to

the contrary, is on the party asserting the affirmative of the

issue of the proceeding. Young v. Department of Community

Affairs , 625 So. 2d 831 (Fla. 1993).

83. Section 163.3184(9)(a), Florida Statutes, imposes the

burden of proof on the person, here Petitioners, challenging a

plan amendment that has been determined by the Department to be

"in compliance."

84. "In compliance" means consistent with the requirem ents

of Sections 163.3177, 163.3178, 163.3180, 163.3191, and

163.3245, Florida Statutes, the state comprehensive plan, the

appropriate strategic regional policy plan, and Chapter 9J - 5,

Florida Administrative Code. Section 163.3184(1)(b), Florida

Statutes.

85. Because the Department initially issued a Notice of

Intent to find the Plan Amendment, adopted by Ordinance No.

1266 - 2002, "in compliance," the Plan Amendment shall be

determined to be "in compliance" if the City's determination of

compliance is "fairly d ebatable." Section 163.3184(9)(a),

Florida Statutes. Petitioners have the burden of demonstrating

beyond fair debate that the Plan Amendment is not "in

compliance."

86. The term "fairly debatable" is not defined in

Chapter 163, Florida Statutes, or Chapter 9 J - 5, Florida

Administrative Code. The Supreme Court of Florida has opined,

however, that the fairly debatable standard under Chapter 163,

Florida Statutes, is the same as the common law "fairly

debatable" standard applicable to decisions of local governme nts

acting in a legislative capacity. In Martin County v. Yusem ,

690 So. 2d 1288, 1295 (Fla. 1997), the Court opined: "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." Id. at 1295

(citation omitted). Quoting from City of Miami Beach v.

Lachman , 71 So. 2d 148, 152 (Fla. 1953), the Court stated

further: "[A]n ordinance may be said to be fairly debatable

when for any reason it is open t o dispute or controversy on

grounds that make sense or point to a logical deduction that in

no way involves its constitutional validity."

Martin County v. Yusem , 690 So. 2d at 1295. Nevertheless,

"local government action still must be in accord with the

p rocedures required by Chapter 163, Part II, Florida Statutes,

and local ordinances." Id. (citation omitted).

87. Petitioners are bound by the allegations in their

Petition as to the alleged deficiencies in the Plan Amendments.

Sections 120.569 and 120.57(1), Florida Statutes; Heartland

Environmental Council, Inc. v. Department of Community Affairs ,

Case No. 94 - 2095GM, 1996 WL 1059751, at *18 (Fla. Div. Admin.

Hrgs. Nov. 16, 1996).

Data and Analysis

88. Petitioners contend that the Plan Amendment is not

based u pon relevant and appropriate data and analysis.

89. Any amendment to a Comprehensive Plan must be based

upon appropriate data. Such data need not be original data, and

local governments are permitted to utilize original data as long

as appropriate methodologi es are used for data collection.

Section 163.3177(8) and (10)(e), Florida Statutes.

90. Rule 9J - 5.005(2)(a), Florida Administrative Code,

requires that, in order for a plan provision to be "based" upon

relevant and appropriate "data," the local government mus t

"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"

"collecte d and applied in a professionally acceptable manner."

Rule 9J - 5.005(2)(a) - (c), Florida Administrative Code.

91. However, the data and analysis which may support a

plan amendment are not limited to those identified or actually

relied upon by a local government . All data available to a

local government in existence at the time of the adoption of the

plan amendment may be relied upon to support an amendment in a

de novo proceeding. Zemel v. Lee County, et al. , 15 F.A.L.R.

2735 (DCA June 22, 1993), aff'd , 642 So . 2d 1367 (Fla. 1st DCA

1994). See also The Sierra Club, et al. v. St. John County, et

al. , Case Nos. 01 - 1851 and 01 - 1852GM (Final Order July 30,

2002)("The ALJ need not determine whether the [local government]

or the Department were aware of the data, or performed the

analysis, at any prior point in time." (citation omitted)).

Analysis which may support a plan amendment, however, need not

be in existence at the time of the adoption of a plan amendment.

See Zemel , supra . Data which existed at the time o f the

adoption of a plan amendment may be subject to new or even

first - time analysis at the time of an administrative hearing

challenging a plan amendment. Id.

92. The data and analysis which supports the Plan

Amendment is largely recounted in Findings of Fac t 25 through

68. In the past, the City has changed or redrawn several

boundaries and planning districts. Apparently, the City has

felt that these efforts, e.g. , boundary changes resulting in a

move from Planning District 6 to 5, offer the City more

flexi bility for new development and business, while maintaining

the character of various areas.

93. Petitioners' expert offered an analysis of the

adequacy of the data and analysis and concluded that the data

and analysis was insufficient in light of the issues r aised by

Petitioners, including issues of "compatibility" and

"consistency." But there are credible expert opinions which

differed with this conclusion and which are supported by

credible evidence.

94. Petitioners did not prove, beyond fair debate, that

the data and analysis to support the Plan Amendment, was not the

best available, professionally acceptable, relevant and

appropriate data and analysis in existence at the time of the

adoption of the Plan Amendment.

Compatibility

95. "'Compatibility' means a condition in which land uses

or conditions can coexist in relative proximity to each other in

a stable fashion over time such that no use or condition is

unduly negatively impacted directly or indirectly by another use

or condition." Rule 9J - 5.003(23), Fl orida Administrative Code.

96. The subject property is designated as medium density

residential on the FLUM, as are the surrounding areas, including

the subdivision to the east of the site, which is predominantly

single - family residential. It is understandabl e that

Petitioners, residing in the nearby subdivision, do not want a

three - story apartment complex in their neighborhood. While the

density and intensity of the proposed land use as described in

the Plan Amendment exceed that of the subdivision and the

a djacent property to the west and south, the Plan Amendment is

arguably compatible as defined by rule and as discussed by some

of the credible experts. The textural additions to the FLUE

Planning District 5 "Guidelines," paragraph 5.A., which place

conditi ons on the development of the subject property, arguably

ensure that the subject property will be developed in a manner

that is compatible with surrounding properties. The

transitioning of densities supports this conclusion.

97. In sum, whether the Plan Ame ndment is compatible with

the surrounding land uses is at least the subject of fair

debate.

98. At Petitioners' request, the parties were permitted to

brief the applicability of spot planning and spot zoning

concepts in the proceedings. This is not a zoning case and the

undersigned is not persuaded that these concepts apply here.

Consistency

99. "The required elements and any optional elements shall

be consistent with each other." Rule 9J - 5.005(5), Florida

Administrative Code. Petitioners contend that t he Plan

Amendment is not "consistent" with the existing Comprehensive

Plan Planning District 8 "Guidelines." The Department gave a

reasonable explanation for assessing the consistency of the Plan

Amendment and the proposed land use, with the "Guidelines" set

forth in Planning District 5, the planning district to which the

subject property is being changed, rather than with Planning

District 8 "Guidelines."

Notice

100. Petitioners contend that the City's approval of the

Plan Amendment is void ab initio b ecause the City did not comply

with the advertising of notice provisions set forth in Section

163.3184(15)(b)1., Florida Statutes, which requires that a

public transmittal hearing be held by the local governing body

"on a weekday at least 7 days after the first advertisement is

published." (emphasis added.) Petitioners also contend that the

City did not comply with the City's "due public notice"

provisions in the City's Land Development Code, which require

the publication of two separate notices for the "p ublic

hearings" or "hearings with due public notice," which are

referenced in the Land Development Code.

101. Petitioners rely on several subsections of the City's

Land Development Code. In particular, Subsections 25 - 332(b) and

(c), require the Planning Commi ssion and the City Council to

hold public hearings after "due public notice," regarding

changes of zoning classifications . The Code's definition of

"due public notice", when used in connection with the phrase

"public hearing" or "hearings with due public notice," requires

publication of two notices of such hearing, 15 days and then

five days prior to the date of the hearing. However, when read

in pari materia , the publication requirement applies to requests

for zoning or rezoning and not to transmittal he arings for

consideration of comprehensive plan amendments. Although a

minimum requirement ( see Subsection 163.3181(1)), Subsection

163.3184(15)(b)1., Florida Statutes, is the specific statutory

provision dealing with the requirements for the publication o f

notice prior to the conduct of a local government transmittal

hearing. Therefore, this subsection applies in this proceeding;

not the Code provisions mentioned above.

102. The City did not comply with Subsection

163.3184(15)(b)1., Florida Statutes, because the November 7,

2001, City Council transmittal hearing was held six days after

the notice was published on November 1, 2001, not after the

required seven days. However, this procedural error is not

jurisdictional in nature, but rather is a matter to be

co nsidered in determining whether the Plan Amendment as a whole

is "in compliance." Caliente Partnership v. Johnston ,

604 So. 2d 886 (Fla. 2d DCA 1991)(45 - day time limit period for

publishing a notice of intent prescribed by subsection

163.3184(15)(b) found to be non - jurisdictional). See also

Edmond J. Gong and Dana L. Gong v. Department of Community

Affairs and City of Hialeah , Case No. 94 - 3506GM, 1994 WL 1027737

(Fla. Div. Admin. Hrgs. November 28, 1994), and cases cited

therein.

103. Contrary to Petitione rs' claim, notwithstanding the

City's non - compliance with Subsection 163.3184(15)(b)1., the

City's transmittal hearing and later adoption of Ordinance No.

1266 - 2002 are not necessarily void. Rather, Petitioners must

still demonstrate to the exclusion of f air debate that, when

viewing the unsatisfied criterion with the Plan Amendment as a

whole, that the Plan Amendment is not "in compliance." Id. At

the same time, when a person asserts that statutory notice

requirement has not been satisfied, he bears the burden of

showing prejudice occasioned by the procedural error, a task

made much more difficult when, as here, the Petitioners had

actual notice of the relevant hearings and participated

throughout the proceeding. Id. See also City of Jacksonville

v. Hu ffman , 764 So. 2d 695 (Fla. 1st DCA 2000)(waiver of

procedural error); Schumacher v. Town of Jupiter , 643 So. 2d 8

(Fla. 4th DCA 1994), rev . den ., 654 So. 2d 919 (Fla. 1995)(where

a person challenging statutory notice requirements read notice,

attended hea ring, and fully participated, he is estopped from

asserting a defect in the notice).

104. Petitioners had actual knowledge of the transmittal

hearings and attended and participated in the hearings. On this

record, the Petitioners have not been prejudiced by t he City's

conduct of the transmittal hearing without timely publication of

the required notice. Further, Petitioners did not prove that

the Plan Amendment is not "in compliance" based on Petitioners'

claim of improper notice. This is not to say that unde r other

circumstances, an interested person could not be prejudiced by

not receiving timely or appropriate notice of proposed decision

making by local government in the context of a plan amendment.

See generally Benson v. City of Miami Beach, Department o f

Community Affairs , 591 So. 2d 942 (Fla. 3d DCA 1991)(failure to

give notice by publication in an appropriate newspaper was

reversible error).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be issued concluding that

the Plan Amendment adopted by the City of Rockledge in Ordinance

No. 1266 - 2002 is "in compliance" as defined in Chapter 163, Part

II, Florida Statutes, and the rules promulgated thereunder.

DONE AND ENTERED this 16th day of September, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

CHARLES A. STAMPELOS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of September, 2002.

ENDNOTES

1 / Proposed Section 163.3184(15)(b), Flor ida Statutes, requires

the local governing body to hold at least two advertised public

hearings on the plan amendment. The first hearing is required

to be held "at the transmittal stage" and "shall be held on a

weekday at least 7 days after the day that t he first

advertisement is published." Subsection 163.3184(15)(b)1.,

Florida Statutes, (emphasis added). Nothing in these

subsections or in Chapter 163, Part II, Florida Statutes,

provide a remedy, or for that matter, a penalty if this

advertisement and n otice requirement is not complied with.

2 / Additional data and analysis includes the Comprehensive Plan,

EAR - based amendment, the City and Department staff reports, and

Ms. Lawandales' report, and the evidence adduced during the

hearing. However, only d ata in existence at the time of the

adoption of the Plan Amendment has been considered.

COPIES FURNISHED :

Joseph E. Miniclier, Esquire

City of Rockledge

1970 Michigan Avenue, Building E

Cocoa, Florida 32922

Colin M. Roopnarine, Esquire

Department of C ommunity Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

Michael S. Minot, Esquire

319 Riveredge Boulevard, Suite 218

Cocoa, Florida 32922

James P. Beadle, Esquire

Spira, Boyd, Beadle,

McGarrell & Marks, L.L.C.

5205 Babcock Street, Northeast

Palm Bay, Florida 32905

Steven L. Seibert, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399 - 2100

Cari L. Roth, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulev ard, Suite 325

Tallahassee, Florida 32399 - 2100

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 file d with the agency that

will issue the final order in this case.