02-003090GM Emerald Lake Residents` Association, Inc. vs. Collier County And Department Of Community Affairs Status: Closed Recommended Order on Monday, February 10, 2003.

Summary: Petitioner did not prove that Collier County approval of plan amendment which created new subdistrict for a 23-acre parcel was not subject to fair debate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMERALD LAKES RESIDENTS' )

ASSOCIATION, INC., )

)

Petitioner, )

)

vs. ) Case No. 02 - 3090GM

)

COLLIER COUNTY and DEPARTMENT )

OF COMMUNITY AFFAIRS, )

)

Respondents, )

)

and )

)

BUCKLEY ENTERPRISES, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Notice was given and on November 14, 2002, a final

hearing was held in this case. Pursuant to the authority set

forth in Sections 120.569, 120.57(1), and 1 63.3184(9)(a),

Florida Statutes, the final hearing was conducted by Charles

A. Stampelos, Administrative Law Judge, in Collier County,

Florida.

APPEARANCES

For Petitioner Emerald Lakes Residents' Association,

Inc.:

David W. Rynders, Esquire

2375 9th Stree t, North, Suite 308

Naples, Florida 34103 - 4439

For Respondent Department of Community Affairs:

Shaw P. Stiller, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

For Respondent Collier County:

Jennifer Be lpedio, Esquire

Assistant County Attorney

3301 East Tamiami Trail, Eighth Floor

Naples, Florida 34112

For Intervenor Buckley Enterprises, Inc.:

Richard D. Yovanovich, Esquire

Goodlette, Coleman & Johnson, P.A.

4001 Tamiami Trail North, Suite 300

Naples, Florida 34103

STATEMENT OF THE ISSUE

Whether the amendments to the Future Land Use Map (FLUM)

and text of the Future Land Use Element (FLUE) of the Collier

County Comprehensive Plan adopted by Ordinance No. 02 - 24 on

May 14, 2002, which, among other pla n amendments, created the

"Buckley Mixed Use Subdistrict" and applied it to one parcel

within Collier County, are "in compliance" as that term is

defined in Section 163.3184(1)(b), Florida Statutes. (All

references to Florida Statutes are to the 2001 vers ion unless

otherwise indicated.)

PRELIMINARY STATEMENT

On May 14, 2002, Collier County adopted Ordinance No. 02 -

24. This Ordinance contains several amendments, in addition to

the "Buckley Mixed Use Subdistrict," to the Collier County

Comprehensive Plan (P lan). Several text amendments contained

within the Ordinance created the "Buckley Mixed Use

Subdistrict." An Amendment to the FLUM designated

approximately 23 acres within Collier County as the site of

the "Buckley Mixed Use Subdistrict," and changed the land use

designation from "Urban Residential Subdistrict" to "Buckley

Mixed Use Subdistrict." The Amendment also amends portions of

the text of the Plan to establish densities, intensities, and

development parameters for the "Buckley Mixed Use

Subdistrict ."

The Department of Community Affairs (Department) reviewed

all of the Amendments adopted by Ordinance No. 02 - 24,

including those which created the "Buckley Mixed Use

Subdistrict," and caused to be published a Notice of Intent to

find the Amendments "in compliance." This Notice was

published on July 9, 2002, in the Naples Daily News .

On July 30, 2002, Emerald Lakes Residents Association,

Inc. (Emerald Lakes) filed with the Department a Petition for

Administrative Hearing regarding this Notice of Intent. In

August 2002, Buckley Enterprises, Inc. (Buckley) requested and

was granted leave to intervene in this case in support of the

Department and Collier County. Prior to the final hearing,

the parties filed a Prehearing Stipulation. A final hearing

was c onducted on November 14, 2002.

At the final hearing, Emerald Lakes called two witnesses

in its case - in - chief: Claire Goff, President, Emerald Lake

Residents' Association, Inc.; and David Depew, A.I.C.P.

Emerald Lakes called Donald Wayne Arnold, A.I.C.P., as its

sole rebuttal witness. Emerald Lakes offered Exhibits 1, 2a -

2e, 15 - 17, 19, 24 - 25, and 29 - 30, which were accepted into

evidence. Emerald Lakes proffered Exhibit 12.

At the final hearing, Buckley called the following

witnesses: Amy Taylor, Planner , Collier County School Board;

Stan Litsinger, Collier County Comprehensive Planning Manager;

Reed Jarvi, P.E.; and Donald Wayne Arnold, A.I.C.P. Buckley

offered Exhibits 1 - 7, 9 - 13, and 15 - 16, which were accepted

into evidence.

At the final hearing, the D epartment and Collier County

called no witnesses and offered no exhibits for admission into

the record.

The transcripts of the final hearing were filed

January 2, 2003. The parties agreed that all proposed

recommended orders would be filed not later than 20 days

following the filing of the transcript, i.e. , January 22,

2003. Emerald Lakes requested and was granted an unopposed

extension of time to file a proposed recommended order to and

including January 30, 2003. The Department filed a Proposed

Re commended Order, joined in by Collier County and Buckley.

Emerald Lakes filed a proposed recommended order on

February 5, 2003.

FINDINGS OF FACT

The Parties

1. "Emerald Lakes of Naples" is a residential

development in Collier County consisting of 147 single - family

homes and 378 multi - family condominiums on 148.27 acres.

Emerald Lakes is an organization that represents all persons

who own property within the Emerald Lakes of Naples

development.

2. Emerald Lakes owns property within Collier County and

specifically owns and maintains the streets in Emerald Lakes,

including one street bordering the west property line of the

Buckley site. A representative of Emerald Lakes made oral

comments to the Collier County Board of County Commissioners

at the public meeting at which the disputed comprehensive plan

amendments were adopted.

3. Collier County is a political subdivision of the

State of Florida. Section 7.11, Florida Statutes. The County

is the local government that adopted the comprehensive plan

amend ment that is the subject of this proceeding.

4. The Department is the state land planning agency and

has the authority to administer and enforce the Local

Government Comprehensive Planning and Land Development

Regulation Act, Chapter 163, Part II, Florida S tatutes.

5. Buckley is the owner of the approximately 23 - acre

parcel (Buckley site or parcel) that is the subject of the

challenged comprehensive plan amendments. (This parcel

consists of two contiguous tracts.) The location of this site

and surrounding d evelopment are discussed herein. See

Findings of Fact 34 - 45. Buckley submitted comments to Collier

County regarding the disputed comprehensive plan amendments

between the time they were transmitted to the Department for

the issuance of an Objections, Rec ommendations, and Comments

Report, and the time the County adopted the Amendments.

The Amendments

6. In April 2001, Buckley submitted to Collier County an

"Application for a Request to Amend the Collier County Growth

Management Plan." This Application re quested two types of

amendments to the Collier County Growth Management Plan

(collectively "Buckley Amendments"). The first of the

requested amendments would add to the text of the FLUE a

section for the "Buckley Mixed Use Subdistrict" (Buckley Text

Amend ment), within the "Urban Mixed - Use District." This

Subdistrict is a new land use category that would allow for

"limited small - scale retail, office and residential uses while

requiring that the project result in a true mixed - use

development." This Subdist rict is added as a separate

Subdistrict within the "Urban - Mixed Use District" in the FLUE.

The second requested amendment would redesignate

approximately 23 acres from "Urban - Mixed Use District/Urban

Residential Subdistrict" to "Buckley Mixed Use Subdistr ict" on

the Collier County FLUM (Buckley Map Amendment). (The "Urban

Residential Subdistrict" is also within the "Urban Mixed Use

District.")

7. Under the current land use designation and without

the Buckley Amendments, three dwelling units per acre may be

permitted on the Buckley site. (The site has a base density

of four dwelling units per acre, reduced by one because the

site is located within the Traffic Congestion Area.) In

addition, the site could be eligible for an additional eight

dwelling units pe r acre under the Affordable Housing provision

of the Density Rating System, more fully discussed herein at

Findings of Fact 21 - 27. The Buckley site is currently zoned

Agricultural and being utilized as a commercial plant nursery.

8. The purpose and descrip tion of the Buckley Amendments

is as follows:

The intent of this amendment is to develop

a small - scale mixed use development that

encourages the principals [sic] of

Traditional Neighborhood Districts at a

small scale developing residential, retail

and offi ce on one site. The amendment

establishes a mixed use, site specific

subdistrict that creates a pedestrian

friendly environment for small size retail

and office uses with a residential

component developed on one site. The

amendment proposes to cap retail uses at

3250 square feet per acre and office uses

at 4250 square feet per acre while ensuring

mixed use development by requiring that a

minimum of [40%] of the commercial [square

footage] have a residential component

within the same building. A minimum of 25%

of the maximum residential density would

have to be constructed prior to the

development of 40,000 square feet of

commercial space (86 dwelling units at 15

units per acre density). The entire site is

22.84 acres. If built out to maximum

capacity the project site could be

developed with 74,230 square feet of

retail; 97,070 square feet of office; and

343 residential units.

The proposed amendment permits C - 1, C - 2 and

C - 3 [commercial] uses, limits drive - thru

establishments to banks with no more than 3

la nes and does not allow gasoline service

stations. The proposed project also

provides for architectural design standards

beyond the County's current standards. All

four sides of the building must be finished

in a common architectural theme. Primary

acces s to the buildings will be from the

interior of the site and buildings fronting

Airport Road will provide a secondary

access facing the street.

9. Additionally, pedestrian connections are encouraged

to all perimeter properties; no building footprint will e xceed

15,000 square feet; a 20 - foot wide Type D landscape buffer is

required along Airport - Pulling Road and a 20 - foot wide Type C

landscape buffer is required along all other perimeter

property lines. Parking areas must be screened from Airport -

Pulling Ro ad and from any properties adjacent to the Buckley

Subdistrict.

10. Currently, the County's FLUE provides that "[t]he

URBAN Future Land Use Designation shall include Future Land

Use Districts and Subdistricts" for ten subdistricts within

the "Urban - Mixed Distr ict. The Buckley Mixed Use Subdistrict

is added to this list. Another text change recognizes that

commercial uses would now be authorized, subject to the

criteria identified in the Urban - Mixed Use District, in the

Buckley Mixed Use Subdistrict.

11. The FLU E text also provides that "[t]he Mixed - Use

Activity Center concept is designed to concentrate almost all

new commercial zoning in locations where traffic impacts can

readily be accommodated, to avoid strip and disorganized

patterns of commercial developmen t, and to create focal points

within the community." The text change allows "some

commercial development" outside the Mixed Use Activity Centers

in the Buckley Mixed Use Subdistrict.

12. The Density Rating System (System) under the FLUE is

amended to provide that "[t]he Buckley Mixed - Use Subdistrict

is subject to the Density Rating System, except for the

densities established by this subdistrict for multi - family

dwelling units." See Findings of Fact 21 - 27, for a more

detailed analysis of the System.

13. On April 1 8, 2002, the Collier County Planning

Commission, by a five to two vote, recommended approval of the

Buckley Amendments with two changes, i.e. , that the Amendments

be subject to the Density Rating System, except for density,

see Findings of Fact 12 and 22, and that the development on

the site be in the form of a Planned Unit Development.

14. On May 14, 2002, the Collier County Board of County

Commissioners adopted the Buckley Amendments by Ordinance No.

02 - 24. It appears the vote was four to one. Buckley Exh ibit

10 at 181.

15. The Department timely caused to be published on

July 9, 2002, in the Naples Daily News , a Notice of Intent to

find the Buckley Amendments "in compliance."

16. On or about July 30, 2002, Emerald Lakes filed a

Petition for Administrative Hearin g regarding the Department's

Notice of Intent. While Emerald Lakes raised numerous grounds

on which the Buckley Amendments are alleged to be not "in

compliance," Emerald Lakes' counsel represented in his opening

statement that the issues had been narrowed to four. These

issues, as well as the issues of "internal consistency" raised

by Emerald Lakes' expert witness at the final hearing, are

addressed below.

Public Notice 1

17. Emerald Lakes offered into evidence a number of

notices Collier County published to advertise public meetings

regarding the Buckley Amendments. There was no testimony

during the final hearing regarding these notices. 2 Three of

the notices (Emerald Lakes' Exhibits 2a - 2c) offer a map of

what purports to be Collier County. With the aid of a

magnifying glass, Airport (Pulling) Road, Pine Ridge Road, and

U.S. Highway 41 (Tamiami Trail) are identified. It does not

appear that the Buckley site is identified on the maps nor

specifically mentioned in the notices, although the Buckley

Amendments were approved in Ordinance No. 02 - 24 with other

plan amendments.

18. Emerald Lakes became aware of the Buckley Amendments

in April 2002, and thereafter took an active role regarding

this matter.

19. Forest Wainscott, Emerald Lakes' vice - president,

attended the hearing at which the Collier County Board of

County Commissioners adopted the Buckley Amendments (Ordinance

No. 02 - 24), and voiced to the Commissioners Emerald Lakes'

concerns about the Buckley Amendments. After hearing these

concerns, the Commission vote d to adopt the Buckley

Amendments.

20. Emerald Lakes did not prove any prejudice arising

from the lack of the placement of the Buckley site on the

notice maps.

Density Rating System

21. The Collier County Comprehensive Plan's FLUE

contains a Density Rating Syst em. The System "is only

applicable to areas designated Urban [or] Urban – Mixed Use

District" and "only applies to residential units." For these

lands, the System establishes a general base density of four

dwelling units per acre. The System specifies ho w the base

level of density may be adjusted. There are six criteria

which allow consideration of an increase in density and one

criterion which may be considered to adjust the density

downward. For example, if a project is within the Traffic

Congestion A rea, as Buckley is, 1 dwelling unit per acre would

be subtracted. Here, the Buckley has a base density of four

dwelling units per acre and would have a net density of three

units per acre. See Finding of Fact 7.

22. The text amendments to the FLUE provide th at the

Buckley Subdistrict is subject to the System, "except for the

densities established by this subdistrict for multi - family

dwelling units."

23. As noted, the System allows the base density to be

decreased to an unspecified low, and increased to 16 units p er

acre, with an even greater potential if a "transfer of

development rights" is employed.

24. The Buckley Map Amendment would change the

designation of the subject parcel from "Urban Residential

Subdistrict" to "Buckley Mixed Use Subdistrict," and assign a

m aximum density of 15 dwelling units per acre to the parcel.

By the text change noted in Finding of Fact 22, the

"densities" for the parcel would no longer qualify for the

System. The increased density is not achieved by an

application of the System, but is a result of the Buckley

Amendments.

25. Emerald Lakes argued that the parcel does not

qualify for a density increase under the System, and,

therefore, should not have been eligible for an increase under

a separate comprehensive plan amendment. Stated other wise, to

the extent the Amendments authorize a maximum residential

density of 15 units per acre, the Amendments are inconsistent

with the System, and hence the Plan. This argument assumes

that the System establishes the sole manner in which a parcel

desig nated "Urban – Mixed Use" in Collier County may enjoy

increased density, and also that these parcels are not

eligible for FLUM amendments.

26. Neither the Collier County Comprehensive Plan nor

pertinent State law contains these blanket restrictions. A

parcel de signated "Urban – Mixed Use" is not prohibited from

seeking a comprehensive plan amendment that would increase

allowable density. Such an amendment, just as all

comprehensive plan amendments, would have to be internally

consistent with the Collier County Co mprehensive Plan, would

have to be supported by data and analysis, and would have to

comply with the other applicable requirements in order to be

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

Statutes.

27. In sum, there is no requirement for th e Buckley

Amendments to demonstrate compliance with the Density Rating

System or prove a special justification for seeking a density

increase in light of the System.

Need

28. The term "need" as used in growth management refers

to the amount of land required t o accommodate anticipated

growth. Section 163.3177(6)(a), Florida Statutes. Local

governments are required to analyze by acreage how much land

within each land use category 3 they need to accommodate

projected growth through the planning timeframe, and th en base

their comprehensive plan on this estimate. Rule 9J -

5.006(2)(c), Florida Administrative Code.

29. Collier County addressed the "need" issue for the

Buckley Amendments in an October 8, 2001, staff memorandum to

the Collier County Planning Commission. T his memorandum notes

that there is an excess allocation of approximately 298 acres

of commercially zoned land in the "North Naples Planning

Community." 4 There is no competent record evidence to

contradict this conclusion about the numerical allocation of

commercial.

30. There is, however, competent evidence that tempers

the importance to be assigned to this numerical allocation.

With its plan amendment application as revised and updated,

Buckley provided Collier County with a discussion of a study

prepared by Appraisal Research Corporation of Naples which, as

characterized by the applicant, stated in part:

While the areas east [sic] and South Naples

have and [sic] excess of retail space

available, the balance of the

unincorporated portion of the county shows

a vacancy rate of less than 3%, well below

the state and national averages. The area

of North Naples, which is the subject of

this amendment, has an incredibly low

vacancy rate in local centers of 1.18%.

While additional commercial space is being

construc ted countywide, it is of the same

power type centers that continues to keep

small retailers and service related

businesses paying power center prices that

cost as much as $26.50 per square feet.

Barbershops, salons, dry cleaners and the

like are forced to absorb these high - priced

rents with little of [sic] options.

According to the report, the demand for

retail space is strong even considering

existing and future construction of new

centers.

Further, the staff memorandum provides a "commercial demand

ana lysis" which concluded:

While, based on the 1998 Commercial

Inventory, there is sufficient commercial

acreage in the North Naples Planning

Community to exceed the County's projected

demand up to the year 2005, this project

would be one of the first of its kind to be

developed in the County. A mix of uses to

include a substantial residential component

could set an example for development and

redevelopment of this type, at a smaller

scale, that provides opportunities for

residents to live, work and shop with in the

same development and limit, to some degree,

the impact on the existing roadway system.

In light of the conditions of development contained in the

Buckley Text Amendment, the subject parcel will serve this

need. (Some of the conditions have been dis cussed. See

Findings of Fact 8 - 9.)

31. In or around May 2001, the Board of County

Commissioners of Collier County adopted, by resolution, "The

Community Character Plan for Collier County, Florida." This

Plan made recommendations and, in part, "encouraged a mixed -

use development." According to Amy Taylor, A.I.C.P, currently

a long - range planner with the Collier County public school

system, and formerly employed by the Collier County Planning

Services Department for over six years and who reviewed the

Buckle y Amendments in this capacity, the County's mixed - use

activity centers were not working because "they were not truly

mixed - use. They were high - intensity, large - scale retail

limited - office, in -- in large centers, and because they were

not mixed - use in -- in te rms of having a residential

development, they were not functioning as -- they had been

intended." The Buckley Amendments propose a different use

than the existing mixed - use activity centers and the type of

development which has occurred. In fact, the Buckl ey

Subdistrict is not a mixed - use activity center because it does

not rise to the level of intensity and size of these centers.

Also, unlike the mixed - use activity centers in Collier

County, the Buckley Subdistrict involves a residential

component.

32. The Co unty Commissioners directed staff to develop

comprehensive plan amendments to implement the Community

Character Plan. As a private plan amendment request, Ms.

Taylor reviewed the Buckley Amendments and determined that

they were consistent with the objecti ves and recommendations

in the Community Character Plan, in part, because the

Amendments "provide an opportunity also for internal capture

and pedestrian interconnectivity."

33. There is no persuasive evidence that would support a

finding that any numerical ov er - allocation of commercial will

exacerbate urban sprawl in the North Naples Planning Community

or Collier County in general.

Compatibility

34. Emerald Lakes also contended that the Buckley

Amendments will allow development that is incompatible with

the adj acent Emerald Lakes of Naples development in violation

of State law and Objective 5 and Policy 5.4 of the Collier

County Comprehensive Plan's Future Land Use Element. 5

Contrary to this contention, the limited type of mixed - use

development mandated by the Buckley Amendments is consistent

with surrounding uses, is compatible with Emerald Lakes, and

is at least the subject of fair debate. 6

35. The Buckley site proposed for re - designation is

approximately 23 acres and located west and adjacent to

Airport - Pulling Road, and specifically at approximately the

northwest corner of Orange Blossom Drive and Airport Pulling

Road, and south of the intersection of Airport Pulling Road

and Vanderbilt Beach Road, which approximates the northern

boundary. The Buckley site is currently operated as a

commercial plant nursery.

36. The Airport - Pulling Road corridor between Pine Ridge

Road and Vanderbilt Road is anchored by two Activity Centers,

one with approximately 143 acres permitted for 910,000 square

feet of commercial and 450 ho tel rooms, and the other with

347.50 acres permitted for 1,556,000 square feet of

commercial. (Activity Centers allow up to 11 dwelling units

per acre, but only on separate tracts for commercial.)

37. The Naples Walk Shopping Center, which is part of

the V ineyards development of regional impact, is located on

the northeast corner of Airport - Pulling Road and Vanderbilt

Beach Road. Lakeside of Naples, a residential community, is

across Airport - Pulling Road from the Buckley site.

38. Orange Blossom Mixed Use Subd istrict (Orange

Blossom) is located south of Lakeside of Naples, also on the

east side of Airport - Pulling Road. County staff analyzed

Orange Blossom. The Buckley Subdistrict "is similar to and

patterned after" Orange Blossom. Orange Blossom is 14.43

acr es and 8.41 acres less than the Buckley site, "but allows

1860 more square feet of commercial than does that proposed

for the Buckley Mixed Use Subdistrict at 22.84 acres," i.e. ,

173,160 versus 171,300 total maximum commercial square feet.

Orange Blossom allows four dwelling units per acre versus 15

dwelling units per acre for the Buckley site. However, as

noted by County staff, "[r]esidential density is higher for

[Buckley] and, as proposed and designed, the commercial

located on the [Buckley] site would more likely capture a

significantly higher proportion of its business from residents

on site than if the density was lower."

39. In relative proximity to the Buckley site are

commercial developments such as the Ritz - Carlton Golf Lodge,

the Tiberon Golf Club, an Eckerd Drug Store, a Walgreens Drug

Store, a "Picture Warehouse" under construction, and offices

known as "The Galleria Shops." Claire Goff testified that

Emerald Lakes is "[a]lmost totally surrounded by" commercial

development and that existing adjacent commercial development

is compatible with the Emerald Lakes development.

40. To the immediate east of the Buckley site is

Airport - Pulling Road, which is currently being widened to six

lanes and runs north/south. To the south of the parcel is the

re cently - completed North Regional Collier County Public

Library. To the immediate north of the parcel is the Brighton

Gardens Assisted Living Facility, located on five acres, with

a density of approximately 22 dwelling units per acre.

41. The Emerald Lakes of Naples development, including

single - family homes, lies to the immediate west of the Buckley

parcel and are located around an approximately 47 - acre lake.

The multi - family component of this development lies to the

north and surrounds a smaller lake, approx imately 15 acres.

Marker Lake Villas, a residential project, is located to the

north. Venetian Plaza, a 90,000 square foot office community,

is under construction and located immediately east of Marker

Lake Villas and abuts the northern boundary of Emera ld Lakes.

Overall, that portion of Emerald Lakes that immediately

adjoins the subject parcel on the west, consists of a gross

density of approximately three and one - half dwelling units per

acre.

42. Emerald Lakes alleged that the 15 dwelling units per

acre and the commercial and office development allowed under

the Buckley Amendments are not compatible with these adjacent

homes. This allegation is not supported in the record.

43. As noted, Emerald Lakes is not exclusively single -

family. To the north of the abov e - mentioned single - family

homes within Emerald Lakes are multi - family condominiums. See

Finding of Fact 41. These multi - family units surround a

smaller lake. When this lake area is included with land

actually developed with the condominiums, the gross

r esidential density is approximately five units per acre.

However, if the lake area is excluded and net residential

density is calculated only on the land on which the

condominiums are developed, this multi - family component of

Emerald Lakes is approximatel y 15 dwelling units per acre.

This multi - family portion of Emerald Lakes is within 100 feet

of the single - family homes.

44. The single - family homes surrounding the larger lake

within Emerald Lakes are separated from the Buckley parcel by

setbacks, a road, an d a 20 - foot required buffer, such that the

distance from these homes to development on the Buckley parcel

will range from approximately 85 feet to 125 feet from the

property line.

45. Based on these factors, the development allowed by

the Buckley Amendments wo uld be compatible with surrounding

land uses and development, including Emerald Lakes. It is at

least the subject of fair debate.

Internal Consistency

46. Emerald Lakes further alleged that the Buckley

Amendments are internally inconsistent with various provi sions

of the Collier County Comprehensive Plan. Each provision is

addressed below. Additionally, several consistency issues are

discussed in previous findings relating to the System and

compatibility.

47. Policy 5.5 of the Collier County Comprehensive

Plan's FLUE directs that the County shall "[e]ncourage the use

of existing land zoned for urban intensity uses before

permitting development of other areas." Emerald Lakes

contended that the Buckley Amendments are inconsistent with

this Policy because they are allegedly increasing the

"inventory . . . of commercial square footage" before other

areas are fully developed.

48. However, the second sentence of Policy 5.5 provides:

"This [encouraging the use of existing urban zoned land]

shall occur by planning for the expansion of County owned and

operated public facilities and services to existing zoned land

before servicing other areas." Emerald Lakes offered no

evidence that the Buckley Amendments required the County to

provide unplanned services to inappropriately zoned or rezoned

land.

49. The record evidence persuasively demonstrates that

the impacts of potential development under the Buckley

Amendments (and without regard to actual site plans which are

not the subject of this proceeding) are within the planned and

ad opted levels of service for all publicly owned and operated

facilities and services, including but not limited to,

traffic. (With the six - laning of Airport - Pulling Road, a

level of service of C is reasonably expected.)

50. Policy 5.7 provides that the County shall

"[e]ncourage the recognition of identifiable communities

within the urbanized area of western Collier County." This

Policy further provides that the "[p]resentation of economic

and demographic data shall be based on Planning Communities

and commonly recognized neighborhoods."

51. Emerald Lakes contended that the Buckley Amendments

are inconsistent with this Policy because there was an

insufficient submission of economic and demographic data.

52. To the contrary, the Buckley Amendments are

supported with e xtensive data regarding the North Naples

Planning Community. Emerald Lakes did not present any

persuasive data to prove otherwise.

53. Emerald Lakes further asserted that the Buckley

Amendments are inconsistent with the County Plan's criteria

which govern the location of "Mixed Use Activity Centers."

The plain language of the Buckley Amendments, as buttressed by

the testimony of Collier County's comprehensive plan manager,

William Litsinger, A.I.C.P., demonstrated that the Amendments

do not seek a "Mixed Use Activity Center" designation and the

criteria for that designation are, accordingly, inapplicable.

See Finding of Fact 31.

54. Emerald Lakes also strongly suggests that if Orange

Blossom can operate as a mixed use subdistrict with a maximum

of four dwelling units per acre and with a mix of commercial,

so can Buckley and, therefore, there is no justification from

departing from the Density Rating System and authorizing plan

amendments which propose development similar to the Buckley

Amendments.

55. The County was presented with data and analysis

which discussed various scenarios and configurations of mixed

use development.

56. As noted above, some of the similarities and

distinguishing features of Orange Blossom were considered.

See Finding of Fact 38.

57. As part of t heir "findings and conclusions," County

planning staff noted in a memorandum ( see Finding of Fact 29)

to the Collier County Planning Commission: "Opportunities

with adjacent residential will be one of the major

difficulties of new small - scale mixed use de velopment in

Collier County. The potential for increased internal capture

by allowing higher densities on site will partially mitigate

this issue. Market conditions and/or increased traffic

congestion on major roadways may provide incentives for

existing neighborhoods to seek interconnections in the

future." As further noted by County staff: "This project

would be one of the first of its kind to be developed in the

County. A mix of uses to include a substantial residential

component could set an exampl e for development and

redevelopment of this type, at a smaller scale, that provides

opportunities for residents to live, work and shop within the

same development and limit, to some degree, the impact on the

existing roadway."

58. Whether the Buckley Amendme nts are consistent with

the County’s Comprehensive Plan is at least fairly debatable.

CONCLUSIONS OF LAW

Jurisdiction

59. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding.

Sections 120.569, 120.57(1), and 1 63.3184(9)(a), Florida

Statutes.

The Parties

60. The Department is the state land planning agency and

has authority to administer and enforce the Local Government

Comprehensive Planning and Land Development Regulation Act,

Chapter 163, Part II, Florida Statute s.

61. Among the responsibilities of the Department under

the Act is the duty to review plan amendments submitted by

local governments and to determine if the plan amendments are

in compliance with the Act.

62. Emerald Lakes and Buckley are "affected person[s]"

wi thin the definition set forth in Section 163.3184(1)(a),

Florida Statutes, and have standing in this proceeding.

Burden of Proof

63. Section 163.3184(9)(a), Florida Statutes, imposes

the burden of proof on the person challenging a large scale

plan amendment that has been determined by the Department to

be "in compliance."

64. "In compliance" means consistent with the

requirements of Sections 163.3177, 163.3178, 163.3180, and

163.3191, Florida Statutes, the State Comprehensive Plan, the

Regional Policy Plan, and R ule 9J - 5, Florida Administrative

Code. Section 163.3184(1)(a), Florida Statutes.

65. Because the Department issued a Notice of Intent to

find the Buckley Amendments "in compliance," the Amendments

shall be determined to be "in compliance" if the local

governm ent's determination of compliance is "fairly debatable"

as set forth in Section 163.3184(9)(a), Florida Statutes.

Emerald Lakes bears the burden of demonstrating beyond fair

debate that the Buckley Amendments are not "in compliance."

66. The phrase "fairly de batable" is not defined in

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

Administrative Code. The Supreme Court of Florida has opined,

however, that the fairly debatable standard under Chapter 163

is the same as the common law "fairly debatable" sta ndard

applicable to decisions of local governments 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 approv al of a planning action if reasonable persons

could differ as to its propriety." Quoting from City of Miami

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

stated further: "An ordinance may be said to be fairly

debatable when for any reason i t is open to dispute or

controversy on grounds that make sense or point to a logical

deduction that in no way involves its constitutional

validity." 690 So. 2d at 1295.

Public Notice

67. Emerald Lakes alleged that the County failed to give

proper public notic e of the Buckley Amendments in violation of

Section 163.3184(15)(c), Florida Statutes (2001), and that the

Amendments should be deemed to be not "in compliance" on this

basis. See Endnote 1.

68. The definition of "in compliance" has been

exclusively defined b y the Legislature. See Section

163.3184(1)(b), Florida Statutes. The provision upon which

Emerald Lakes' argument rests - – Section 163.3184(15)(c) – - is

not in this definition. Thus, the Department would seem to

lack any authority to enter a final order determining the

Buckley Amendments are not "in compliance" on this basis.

69. The underpinning for consideration of several public

participation/notice issues in prior compliance proceedings

seems to have hinged on repealed rules, Rule 9J - 5.005(8)(a) -

(i). For example, Rule 9J - 5.005(8)(c) formerly stated in

relevant part: "The comprehensive plan, element or amendment

shall be considered and adopted in accordance with the

procedures relating to public participation adopted by the

governing body and the local pl anning agency pursuant to

Section 163.3181, Florida Statutes, and Rule 9J - 5.004 of this

chapter." Also, former Rule 9J - 5.005(8)(e) provided in

relevant part: "The comprehensive plan, elements and

amendments shall be adopted by ordinance and only after th e

public hearings required by Paragraph 163.3184(15)(b), Florida

Statutes, have been conducted after the notices required by

Paragraphs 163.3184(15)(b) and (c), Florida Statutes. Upon

adoption the local government shall transmit to the Department

a copy o f the ordinance and the required notices." However,

these subsections were repealed in 2001. See Volume 26,

Number 42, Oct. 20, 2000, at 4838, Florida Administrative

Weekly ; Volume 27, Number 8, Feb. 23, 2001, at 975, Florida

Administrative Weekly . These subsections were relied on in

pre - 2001 orders as the legal predicates for consideration of

several public participation/notice issues in compliance cases

because consistency with Rule 9J - 5 is required. See , e.g. ,

Robert J. Starr et al., v. Department of Community Affairs, et

al. , Case Nos. 98 - 0449GM, 98 - 0701GM, 98 - 0702GM, and 98 - 1634GM,

2000 WL 248379, * 49 (DOAH Feb. 11, 2000; DCA May 16, 2000);

Minette Benson, et al. v. City of Miami Beach, et al. , Case

No. 89 - 6804GM, 1990 WL 749702, * 2 (DOAH Sept. 24, 1990; DCA

Nov. 12, 1990), rev'd , 591 So. 2d 942 (Fla. 3d DCA 1991).

70. Arguments regarding public participation/notice

matters have been considered in comprehensive plan

administrative proceedings seemingly for the reason stated

above. These cases have held that a procedural shortcoming

may be the basis for finding a comprehensive plan amendment

not "in compliance" only if the protesting party shows both a

procedural flaw and resulting prejudice. See Sutterfield, et

al., v. Department of Community Affairs, et al. , Case No. 02 -

1630GM, 2002 WL 31125197, * 19 - 20 (DOAH Sept. 16, 2002, at 44 -

47; DCA Nov. 14, 2002), and cases cited therein. But see

Benson v. City of Miami Beach, Department of Community

Affairs , 591 So. 2d 942 (Fla. 3d DCA 1991)(no consideration o f

prejudice in opinion where published notice of public hearing

did not meet statutory requirement for county - wide notice).

71. Assuming for the sake of argument that the notice

issue can be decided at this time, which is doubtful, the

location maps in the pub lic notices do not clearly indicate

the Buckley site. Notwithstanding, Emerald Lakes did not

prove any resulting prejudice. Accordingly, Emerald Lakes did

not prove beyond fair debate that the County's adoption of the

Buckley Amendments was not "in compl iance."

Density Rating System

72. Section 163.3177(2), Florida Statutes, requires that

the several elements of a local government comprehensive plan

be consistent.

73. For the reasons set forth above in Findings of Fact

21 - 27, Emerald Lakes did not prove beyond f air debate that the

Amendments are internally inconsistent with the Density Rating

System.

Need

74. Section 163.3177(6)(a), Florida Statutes, requires

that a local government allocate land uses within its

comprehensive plan based upon anticipated growth.

75. Base d on the land uses currently allocated in the

Collier County Comprehensive Plan and data regarding

anticipated growth, County staff concluded that the North

Naples Planning Community - – which includes the subject parcel

- – is numerically over - allocated for commercial by

approximately 298 acres. See Finding of Fact 29. There being

no competent evidence to refute this conclusion, it is

accepted.

76. A numerical land use over - allocation does not

mandate that every future plan amendment be found not "in

complianc e" on that basis. See The Sierra Club, et al. v. St.

Johns County, et al. , Case Nos. 01 - 1851GM and 01 - 1852GM, 2002

WL 1592234 (DOAH May 20, 2002; DCA July 30, 2002). If a

jurisdiction is over - allocated for a particular land use, the

local government in i ts adoption and the Department in its

review must exercise heightened caution and employ a more

rigorous standard to ensure that further plan amendments that

would expand the inventory of that use do not exacerbate urban

sprawl or other inefficient land us e patterns. Id.

77. Accepting that the subject parcel is in an area with

a numerical over - allocation of commercial land use 7 and

applying this more exacting review, the record does not

support the conclusion that the Buckley Amendments exacerbate

urban sprawl or otherwise promote an inefficient use of land.

The location of the subject parcel and the development

restrictions within the Buckley Text Amendment should ensure

the opposite; that is, the efficient use of land in a manner

that combats urban sprawl.

78. For these reasons, Emerald Lakes did not prove

beyond fair debate that the Buckley Amendments are not "in

compliance."

Compatibility

79. Emerald Lakes alleged that the Buckley Amendments

will allow development that is incompatible with Emerald

Lakes. In this proceeding, "'[c]ompatibility' 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 u se or condition." Rule 9J -

5.003(23), Florida Administrative Code.

80. For the reasons set forth above in Findings of Fact

34 - 45, Emerald Lakes did not prove beyond fair debate that the

Buckley Amendments are incompatible with adjacent and

surrounding land use s. Compare with Sutterfield , supra . 8

Internal Consistency

81. Section 163.3177(2), Florida Statutes, requires that

the several elements of a local government comprehensive plan

be consistent. See also Rule 9J - 5.005(5), Florida

Administrative Code.

82. Fo r the reasons set forth above in Findings of Fact

46 - 58, Emerald Lakes did not prove beyond fair debate that the

Buckley Amendments are inconsistent with the cited provisions

of the Collier County Comprehensive Plan.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that a final order be issued concluding that

the Buckley Amendments adopted by Collier County in Ordinance

No. 02 - 24 are "in compliance" as defined in Chapter 163, Part

II, Florida Statutes, and the rules promulgated thereunder.

DONE AND ENTERED this 10th day of February, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

CHARLES A. STAMPELOS

Administrative Law Judge

Division of Administrative Heari ngs

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 10th day of February, 2003.

ENDNOTES

1 / Emerald Lakes' Petition did not allege specific facts to

indicate that notice was deficient. However, Emerald Lakes

cited to Section 163.3184(15 )(c), Florida Statutes (2001),

"which requires special public hearing requirements for the

adoption of the plan amendment" at issue in this proceeding.

(This subsection now appears as Section 163.3184(15)(e),

Florida Statutes (2002).) Emerald Lakes also cited

generically to Chapter 9J - 5.

In the Prehearing Stipulation, Emerald Lakes suggested

that an issue of law which remained for determination was

"[w]hether the Amendment is consistent with Section

163.3184(1)(b) & (15)(c), Florida Statutes." In r esponse, the

other parties suggested this issue was irrelevant. During the

final hearing, counsel for Emerald Lakes suggested that the

issue of notice was sufficiently raised in the Petition as

noted above. Emerald Lakes also claimed during the final

heari ng that the County did not comply with the special

procedures set forth in Section 125.66, Florida Statutes,

because the notices did not reference the specific area

covered by the Plan Amendments in a map contained in the

notices. See Section 163.3184(15) (c), Florida Statutes

(2001); Section 125.66(4)(b)2., Florida Statutes. Later

during argument, counsel said he would not be addressing "much

of 125.66" during the hearing. Counsel also relied on Rule

9J - 5.004, Florida Administrative Code, which requires the

adoption of procedures "to provide for and encourage public

participation." The Department made an ore tenus motion to

exclude any evidence regarding notice, and ruling was

deferred. The motion to exclude is denied. The issue has

been considered her ein.

2 / However, during the May 14, 2002, adoption hearing before

the Collier County Commission, Mr. Weeks stated in part: "The

notice requirements for amendments is a quarter - page legal ad

in the paper, so certainly the individual residents in the

surro unding area have not been notified by the county. It's

not a requirement. Thank you." Buckley Exhibit 10 at 175.

3 / Land use categories include "residential uses, commercial

uses, industry, agriculture, recreation, conservation,

education, public buildi ngs and grounds, other public

facilities, and other categories of the public and private use

of land." Section 163.3177(6)(a), Florida Statutes.

4 / State law allows local governments to employ "area - based

allocations" in lieu of strict jurisdiction - wide allocations

for purposes of calculating land use needs. Section

163.3177(11)(b), Florida Statutes.

5 / Objective 5 mandates that "[i]n order to promote sound

planning, ensure compatibility of land uses and further the

implementation of the Future Land U se Element, the following

general land use policies shall be implemented upon the

adoption of the Growth Management Plan." Policy 5.4 provides

that "[n]ew developments shall be compatible with, and

complementary to, the surrounding land uses, subject to

m eeting the compatibility criteria of the Land Development

Code (Ordinance 91 - 102, adopted October 30, 1991, as

amended[)]."

6 / Donald Wayne Arnold, A.I.C.P., performed a compatibility

analysis for the Buckley Subdistrict.

7 / There is reason to doubt wh ether the Buckley Amendments

will appreciably exacerbate the projected excess inventory of

land designated for commercial use. Lot coverage for the

buildings on the site is capped at thirty - five percent (35%)

for the total project, which substantially lim its the amount

of commercial use that can be realized on the subject acreage.

Additionally, the Buckley Subdistrict allows fifteen

residential dwelling units per acre, which will consume some

undetermined portion of the project site with a non - commercial

use.

8 / Emerald Lakes also contended that the County's action

approval of the Buckley Amendments is spot zoning. However,

this is not a zoning case, and the issue is not decided. See

Town of Juno Beach v. McLeod , 832 So. 2d 864 (Fla. 4th DCA

2002), f or a discussion of spot zoning in relation to a zoning

case.

COPIES FURNISHED :

David W. Rynders, Esquire

2375 9th Street, North, Suite 308

Naples, Florida 34103 - 4439

Shaw P. Stiller, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

T allahassee, Florida 32399 - 2100

Jennifer Belpedio, Esquire

Assistant County Attorney

3301 East Tamiami Trail, Eighth Floor

Naples, Florida 34112

Richard D. Yovanovich, Esquire

Goodlette, Coleman & Johnson, P.A.

4001 Tamiami Trail North, Suite 300

Naples , Florida 34103

Colleen M. Castille, 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 Boulevard, Suite 325

Tal lahassee, Florida 32399 - 2100

NOTICE OF RIGHT TO FILE EXCEPTIONS

All parties have the right to submit written exception within

15 days from the date of this Recommended Order. Any

exceptions to this Recommended Order should be filed with the

agency tha t will issue the final order in this case.