04-001048GM Collier County vs. City Of Naples And Department Of Community Affairs Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Tuesday, May 24, 2005.

Summary: Adjoining local government failed to prove that the City`s plan amendment would cause "substantial impacts" on the County`s need for infrastructure and thus lacked standing to file a petition. JURISDICTION RETAINED FOR ATTORNEY`S FEES.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COLLIER COUNTY, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1048GM

)

DEPARTMENT OF COMMUNITY )

AFFAIRS and CITY OF NAPLES, )

)

Respondents. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, this matter was hea rd before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on June 9 and 10,

2004, in Naples, Florida.

APPEARANCES

For Petitioner: Jacqueline W. Hubbard, Esquire

Marjorie M. St udent, Esquire

Office of the County Attorney

3301 Tamiami Trail East, Eighth Floor

Naples, Florida 34112 - 4902

Martha Harrell Chumbler, Esquire

C arlton Fields, P.A.

Post Office Drawer 190

Tallahassee, Florida 32302 - 0190

For Respondent: Robert G. Menzies, Esquire

(County) James D. Fox, Esquire

Roetzel & Andress, P .A.

850 Park Shore Drive, Suite 300

Naples, Florida 34103 - 3587

For Respondent: Shaw P. Stiller, Esquire

(Department) Department of Community Affairs

2555 Shumard Oak Boul evard

Tallahassee, Florida 32399 - 2100

STATEMENT OF THE ISSUE

The issue is whether the City of Naples' plan amendment

adopted by Ordinance No. 03 - 10305 on December 17, 2003, is not in

compliance for the reasons alleged in Collier Co unty's Petition

for Administrative Hearing (Petition).

PRELIMINARY STATEMENT

This matter began on December 17, 2003, when Respondent,

City of Naples (City), adopted Ordinance No. 03 - 10305, which

added a new Policy 1 - 10 in the Transportation Element of the

City's Comprehensive Plan (Plan). The new amendment restricts

construction of vehicle road overpasses or flyovers in the City.

On February 13, 2004, Respondent, Department of Community

Affairs (Department), published its Notice of Intent To Find the

Cit y of Naples Comprehensive Plan Amendment In Compliance

(Notice). On March 5, 2004, Petitioner, Collier County (County),

filed its Petition with the Department alleging that the

amendment was not in compliance on the grounds that the amendment

was not supp orted by adequate data and analyses, that the

amendment was inconsistent with other provisions in the Plan, and

that the amendment violated Section 163.3177(4)(a), Florida

Statutes (2003). 1 The Petition was forwarded to the Division of

Administrative Hea rings on March 25, 2004, with a request that an

administrative law judge conduct a hearing.

By Notice of Hearing dated April 2, 2004, a final hearing

was scheduled on June 9 and 10, 2004, in Naples, Florida. Prior

to the final hearing, numerous procedur al and discovery issues

arose, and their disposition is found in the Orders resolving

those disputes or in the Transcript of the final hearing.

At the final hearing, the County presented the testimony of

David E. Crawford, a planner with the Southwest Fl orida Regional

Planning Council (Council); Norman Feder, County Transportation

Administrator; Dan Trescott, a planner with the Council; Donald

L. Scott, County Director of Transportation - Planning and accepted

as an expert; Peter Van Arsdale, a former membe r of the City

Council and Metropolitan Planning Commission (MPO) and accepted

as an expert; Gregg Strakalusa, County Director of Engineering

and Construction Management; David Muntean, Jr., a professional

engineer and accepted as an expert; Patricia S. Cam pbell, a

senior transportation planner and accepted as an expert; and W.

Stanley Litsinger, County Comprehensive Planning Director and

accepted as an expert. Also, it offered County Exhibits 1, 2, 6 -

8, 11 - 17, 20, 28, and 44 - 54. All were received except E xhibits

13 and 44, on which a ruling was reserved. Exhibits 13 and 44

are hereby received in evidence. Exhibits 45 - 49 are the

depositions of Bernard Piawah, Charles Gauthier, Ron Lee, Ron

Wallace, and George Archibald, respectively. The City presented

t he testimony of Laura K. Spurgeon, a Planner II, and George

Archibald, Public Works Engineering Manager and accepted as an

expert. Also, it offered City Exhibits 1a and b, 2a - w, 3, 4, and

6 - 13. All were received in evidence except Exhibits 5, 11, and

12, on which a ruling was reserved. Those Exhibits are received

in evidence. The Department's two witnesses, Bernard Piawah and

Charles Gauthier, appeared by deposition (County Exhibits 45 and

46). On July 23, 2004, the undersigned granted an unopposed

req uest by the County that City Exhibit 14 (the deposition of Ron

Lee) and County Exhibit 55 (an updated version of a consultant's

report) be admitted into evidence.

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

June 24, 2004. By agreement of the parties, the time for filing

proposed findings of fact and conclusions of law was extended to

August 2, 2004. The same were timely filed, and they have been

considered in the preparation of this Recommended Order. (On

August 9, 2004, the City filed a Not ice of Scrivener's Errors in

Proposed Findings of Fact and Conclusions of Law.) Finally, on

August 5, 2004, the County filed a Motion to Strike the City of

Naples' Proposed Recommended Order or Alternatively to Strike

Portions of the Proposed Recommended Order (Motion). Responses

in opposition to the Motion were filed by the City and Department

on August 12, 2004. The Motion is hereby denied.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

A. Backgroun d

1. In 2003, the City began the planning process to adopt an

amendment to its Plan which would restrict, but not prohibit, the

construction of traffic overpasses or flyovers within the City.

Under the process in place for adopting amendments, a City

pla nner initially drafts a proposed amendment; the draft

amendment is presented in the form of a recommendation to the

City Planning Advisory Board (Board); and the Board then forwards

a recommendation to the City Council for a final decision.

2. On July 2 , 2003, the City staff submitted a Report to

the Board recommending that a new Policy 1 - 10 be added to the

Plan's Transportation Element, which read as follows:

Due to impacts on traffic and aesthetics, the

City shall not permit construction of road

overpa sses or flyovers in favor of

alternative planning solutions that will

improve the long - term traffic circulation

patterns in the City.

3. On July 9, 2003, the Board considered the Report and

recommended that the language in the amendment be slightly

amend ed by adding the word "vehicle" before the word "road" to

clarify the kind of overpass addressed by the amendment. The

Board then submitted a recommendation to the City Council that it

adopt the following amendment:

Due to impacts on traffic and aesthetic s, the

City shall not permit construction of vehicle

road overpasses or flyovers in favor of

alternative planning solutions that will

improve the long - term traffic circulation

patterns in the City.

4. On October 8, 2003, the proposed amendment was

transm itted to the Department for its preliminary review. After

reviewing the proposal, on December 12, 2003, the Department

issued a two - page letter which served as its Objections,

Recommendations, and Comments (ORC) Report. In the ORC, the

Department offered three comments regarding the proposed

amendment: that the City had not "defined the circumstances

under which an overpass or flyover would be allowed by the City";

that "issues of this nature are best addressed through the use of

existing intergovernment al coordination"; and that the City was

encouraged to resolve this matter through the MPO and other

intergovernmental coordination avenues available to the City and

County. However, there were no objections to the language in the

amendment. (A comment in the ORC is advisory in nature, while an

objection represents an assertion by the Department that there

are inconsistencies in the proposed amendment.)

5. On November 17 and 21, 2004, the Council submitted

letters to the City indicating that it "had no ad verse comments"

to the amendment. After the City adopted the amendment, though,

the Council decided to revise its recommendation to the

Department and suggested that the amendment be slightly modified

by adding language requiring the City to consider alte rnative

planning solutions "in a timely manner." However, the Council

supports the overall substance of the amendment.

6. On December 17, 2003, the City approved the amendment

without further changes. The amendment was then forwarded to the

Department f or its compliance determination. On February 13,

2004, the Department published its Notice determining that the

amendment was in compliance.

7. Since 1989, and at a cost of several million dollars,

the County has been involved in the planning process f or

infrastructure needed to alleviate traffic demands at or near the

intersection of Golden Gate Parkway and Airport - Pulling Road.

One quadrant of the intersection lies within the City; the

remaining portion of the intersection lies within the County.

Du ring this process, and based on recommendations by outside

consultants, the County determined that a vehicle overpass (known

as the Golden Gate Overpass) would be the most effective traffic

planning solution.

8. Alleging that the new amendment was desig ned solely for

the purpose of prohibiting the construction of that overpass, on

March 5, 2004, the County filed its Petition challenging the new

amendment. As set forth in the parties' Joint Pre - Hearing

Stipulations, the County raises three broad grounds for finding

the amendment not in compliance: that the amendment is not based

on the best available data and analyses, as required by Florida

Administrative Code Rule 9J - 5.005(2); that the amendment is

inconsistent with other provisions within the Plan; an d that the

amendment lacks coordination with the County's Plan, in violation

of Section 163.3177(4), Florida Statutes. The undersigned has

rejected as untimely a contention raised for the first time by

the County in its Proposed Recommended Order that the amendment

is vague and lacks meaningful and predictable standards. 2

Finally, because the Department and the City both contest the

standing of the County to bring this action, that issue must also

be resolved.

B. Standing

9. To demonstrate standing, the County, as an adjoining

local government, must prove that the plan amendment "will

produce substantial impacts on the increased need for publicly

funded infrastructure or substantial impacts on areas designated

for protection or special treatment within [ its] jurisdiction."

§ 163.3184(1)(a), Fla. Stat. Therefore, the County must prove

that the plan amendment prohibits the construction of the Golden

Gate Overpass and that this prohibition will result in the

substantial adverse impacts described in the sta tute.

10. On its face, the amendment restricts, but does not

prohibit, the construction of vehicle overpasses within the City.

That is, the amendment merely states a preference on the part of

the City for "alternative planning solutions" before a vehic le

overpass may be permitted. This general expression of policy

preferences cannot be read as a blanket prohibition on

overpasses, or a specific direction to deny any request by the

County that the overpass be constructed.

11. If the amendment is found to be in compliance, the

precise manner in which it will be implemented is unknown. These

details, however, are not the subject of this dispute. In any

event, until the City actually implements the amendment and makes

a decision that another alternative planning solution exists,

there can be no "substantial impacts on the increased need for

publicly funded infrastructure or substantial impacts on areas

designated for protection or special treatment," as required by

the statute.

12. In support of its s tanding claim, the County argues

that if the amendment is found to be in compliance, the City may

implement the amendment in an arbitrary manner. Assuming this to

be a legitimate concern, there can still be no "substantial

impacts" until a decision is mad e by the City.

13. The County also points out that in a meeting of the

City Council on April 21, 2004, or four months after the

amendment was adopted, the City determined that the amendment

applies to the Golden Gate Overpass, and that as of that date,

the County had still not "satisfied the requirement" that it

explore alternative planning solutions. The City did not vote,

however, to prohibit the overpass. That post - adoption

determination by the City in no way alters the finding that the

amendment wi ll not produce substantial impacts on the increased

need for publicly - funded infrastructure. As noted above, these

impacts, if any, will not occur until the amendment is

implemented in a manner adverse to the County's interests.

14. Accordingly, the evid ence supports a finding that the

County is not an affected person and lacks standing to file this

challenge. 3 Although this ruling is dispositive of the case, for

the purpose of rendering a complete Recommended Order, the

County's compliance contentions w ill be addressed below.

C. The Plan Amendment

15. The goal of the Transportation Element of the Plan is

as follows:

Provide an efficient, balanced, attractive,

and safe multimodal system of transportation

facilities in accordance with recognized

safety s tandards, various land use demands

and environmental considerations unique to

the City of Naples.

16. Under the goal, the Plan contains eight adopted

objectives. Objective 1 reads as follows:

Protect the character of existing and future

residential neig hborhoods by maintaining the

integrity of the City's identified collector

and arterial circulation plan and, where

possible, manage traffic flow to protect the

residential neighborhoods.

17. Prior to the enactment of the amendment, the Plan

contained nin e adopted policies to implement this objective.

These policies further Objective 1 by requiring that the City

ensure the protection of neighborhoods when assessing

transportation improvements. For example, street improvements

should be evaluated to "prot ect residential neighborhoods"

(Policy 1 - 1); the City shall "require landscape buffers between

residential neighborhoods and arterials" (Policy 1 - 2); and the

City should enhance flow on major roads to divert traffic from

"neighborhood collectors and local streets" (Policy 1 - 4).

18. The amendment adds a tenth policy under Objective 1 to

read as follows:

Due to impacts on traffic and aesthetics, the

City shall not permit construction of vehicle

road overpasses or flyovers in favor of

alternative planning sol utions that will

improve the long - term traffic circulation

patterns in the City.

19. The new policy is intended to apply to road

improvements throughout the City, and not just the Golden Gate

Overpass, and would require that "feasible alternative plannin g

solutions" be explored before a vehicle road overpass is

permitted. The policy is not intended to act as an absolute

prohibition on overpasses in general or any one specific

overpass, but only "restricts construction of vehicle road

overpasses . . . in the City" if other alternative planning

solutions exist. By requiring this type of analysis, the City

can further Objective 1 by "protect[ing] residential

neighborhoods."

20. Golden Gate Parkway is an east - west arterial roadway

that traverses both the City and the County. The County is

responsible for maintaining and improving the entire length of

Golden Gate Parkway, including that portion lying within the

City. Airport - Pulling Road is a north - south thoroughfare that

traverses both the City and the C ounty. The two roads intersect

around two miles north of the Naples Municipal Airport in the

northeastern corner of the City. Three of the four quadrants of

the intersection are within the County, while the fourth is

within the City.

D. Data and Analy sis

21. In the context of the requirement that plan amendments

be supported by data and analyses requirement, there are two

types of amendments: mandatory and aspirational. A mandatory

amendment is one that is required by Chapter 163, Florida

Statutes, or Florida Administrative Code Chapter 9J - 5.

Conversely, an aspirational or qualitative amendment is not

required by statute or rule. The most common example of an

aspirational amendment is one which prohibits skyscrapers or

imposes a height restriction on structures within the boundaries

of a local government.

22. The County contends that the plan amendment is not

supported by data and analyses, as required by Florida

Administrative Code Rule 9J - 5.005(2). That rule requires that

all policies "shall b e based upon relevant and appropriate data

and the analyses applicable to each element."

23. When the amendment package was transmitted to the

Department on October 8, 2003, it contained no supporting data

and analyses. The City's submission, however, was consistent

with the Department's long - standing view, supported by the

evidence here, that if an amendment is aspirational in nature, it

does not require supporting data and analyses. This is because

an aspirational amendment is merely a policy choice by a local

government which has a limited or cosmetic effect. Or as stated

by Department witness Gauthier, Policy 1 - 10 is "conditional in

nature . . . and it would rely on . . . some subsequent analysis

and decision - making [by the City]." In other words , "the

scenarios and what direction the policy take will really depend

on activities and assessments by the City, which happen later."

Therefore, it requires little, if any, data and analyses.

24. Here, the restriction on overpasses is an aspirational

a mendment, and it represents a policy choice on the part of the

City that expresses disfavor for overpasses and flyovers and a

preference for at - grade improvements. The amendment does not

excuse the City from complying with any of the substantive

planning requirements imposed by Chapter 163, Florida Statutes,

or Florida Administrative Code Chapter 9J - 5. The only change

accomplished by the amendment is to favor at - grade improvements

as the primary way to address level of service standards and

access points and other substantive planning requirements. It

also represents the City's primary choice when planning for

transportation needs with other regional and state entities.

Given the nature of the amendment, there is no need for

"appropriate and relevant dat a and analysis" within the meaning

of the rule.

25. Notwithstanding the fact that no data and analyses were

required, at the time the amendment was adopted, the City had

numerous traffic studies indicating that there are often

alternatives to overpasses. 4 Information was also available

which indicated that overpasses can have negative aesthetic

impacts on neighborhoods; that overpasses can cause traffic

impacts by moving congestion from one intersection to another;

and that improvements which improve long - term vehicle flow in the

City will also impact the County. Besides the foregoing data,

the City had received citizens' concerns about the traffic

impacts of intersections and their desire to seek alternatives to

overpasses before authorizing one to be bu ilt. Assuming arguendo

that data are required to support an aspirational amendment, it

is at least fairly debatable that the amendment is supported by

adequate data and analyses.

E. Consistency With Other Plan Provisions

26. The County next contends th at the amendment is

inconsistent with portions of the Vision 2005 Work Plan (Vision

2005); certain introductory language in the Future Land Use

Element (FLUE); Objective 6 and Policies 2 - 1, 5 - 4, and 8 - 1 of the

Transportation Element; Policies 4 - 5 and 5 - 8 o f the Capital

Improvements Element; the Transportation Element Support

Document; and the Goal, Objective 1, and Policies 1 - 2 and 1 - 6 of

the Intergovernmental Coordination Element. All of the cited

provisions generally relate to the City's responsibility t o

provide a safe and efficient transportation system, or they

encourage the City to cooperate with the County and other

entities in the planning process. For the following reasons, it

is at least fairly debatable that Policy 1 - 10 does not conflict

with th e above - cited portions of the Plan.

a. Vision 2005 Work Plan

27. Vision 2005 (which was adopted in 1998) is a part of

the Plan which identifies "desired future conditions through

vision statements," and a "series of action plans [eleven

strategies] to ca rry out this vision." The County contends that

the amendment conflicts with Goal 3 and Objective 3 - 6 of Vision

2005. The cited goal provides that the "City should enhance its

cooperative relationship with the County," while Objective 3 - 6

states that one of the City's objectives is to have "positive

opportunities for the County to enhance its motivation to

cooperate with the City."

28. The County has failed to show that Policy 1 - 10

conflicts with the goal or objective in any respect. Therefore,

the Cou nty's contention is found to be without merit.

b. Future Land Use Element

29. The County next contends that the amendment conflicts

with certain language found in the Introduction portion of the

FLUE. The precatory portion of the FLUE describes the general

purposes of the FLUE, the principal implementation mechanisms,

and the broad functions of the goals, objectives, and policies

contained therein. There are, however, no goals, objectives, or

policies within the Introduction itself.

30. The Coun ty asserts that the amendment conflicts with

that part of the Introduction which states that the goals,

objectives, and policies within the FLUE should provide guidance

for future growth and redevelopment based on the Vision 2005

strategy to "strengthen Ci ty and County cooperative planning

programs." Assuming that consistency with this language is

required under Section 163.3184(1)(b), Florida Statutes, there is

nothing in Policy 1 - 10 that conflicts with this vision.

c. Transportation Element

31. The Cou nty also contends that the amendment conflicts

with Objective 6 and Policies 2 - 1 and 5 - 4 of this element.

Objective 6 requires that the City "[a]ssure intergovernmental

consistency by an annual review of plans and programs with

Collier County . . . ." No thing in Policy 1 - 10 interferes with

this objective.

32. Policy 2 - 1 requires that, "based on a system wide

study," the City "develop an efficient transportation network

that encourages the diversion of traffic from local streets to

collectors and arterial s." Because Policy 1 - 10 will require

system - wide studies to determine whether overpasses, or some

other alternative, are the appropriate choice, the amendment is

consistent with Policy 2 - 1.

33. Policy 5 - 4 provides that

[w]ith the cooperation of Collier C ounty's

Department of Transportation, [the City

shall] limit direct access onto Goodlette -

Frank Road from abutting properties by

requiring properties fronting other roadways

to use those for access where it is a safe

alternative to access on Goodlette - Fran k

Road.

34. This policy routes traffic from properties abutting

Goodlette - Frank Road onto other roads. Because the County has

failed to show any logical nexus between Policy 5 - 4 and Policy 1 -

10, it is found that Policy 5 - 4 has no application to this

con troversy.

35. Finally, Policy 8 - 1 requires that the City provide

support data and analyses to the MPO as necessary to assist in

the development of a public transportation system. Because this

policy deals with public or mass transportation such as buses,

and not vehicle transportation, Policy 8 - 1 has no application

here.

d. Transportation Element Support Document

36. The City next contends that the amendment conflicts

with certain language found in the Transportation Element Support

Document. That doc ument is attached to the Plan and is designed

to fulfill the Transportation Element data and analyses

requirements of Florida Administrative Code Rule 9J - 5.019. Among

other things, the lengthy analyses of the data contains language

stating that the inters ection for the Golden Gate Overpass is

"under Collier County's jurisdiction"; that there will be

"increased traffic" in the area of the overpass; that a new

interchange to be constructed at Interstate 75 and Golden Gate

Parkway (several miles east of the p roposed overpass) will

generate "heavy traffic"; and that the City "should enhance its

cooperative relationship with the County." Assuming that

consistency with a support document is required in a compliance

determination, the County has not demonstrated that Policy 1 - 10

conflicts with the cited language.

e. Capital Improvements Element

37. The County also contends that the amendment conflicts

with Policies 4 - 5 and 5 - 8 in the Capital Improvements Element of

the Plan. Policy 4 - 5 requires the City to

Re vise the Capital Improvements Program in

the future to include projects and programs

listed in the Comprehensive Plan which are in

addition to those needed to maintain level of

service standards or to correct deficiencies

if not correctly funded . (Emphasi s added).

38. The County contends that the amendment conflicts with

the underscored portion of the policy. However, this policy

simply requires revisions to the City's capital improvements

program to maintain level of service or to correct deficiencies.

There is nothing in Policy 1 - 10 that interferes with the ability

of the City to revise its program in the future to satisfy those

concerns.

39. Policy 5 - 8 generally requires that the City coordinate

its capital improvements program with all other agen cies that

provide public facilities to the City and that it participate in

the plans of any agency providing public facilities within the

City. However, Policy 1 - 10 does not prevent the City from

coordinating its projects with other state agencies, or pre vent

the City from participating in the plans of other agencies or

local governments that provide public facilities.

f. Intergovernmental Coordination Element

40. The County further contends that the amendment

conflicts with the Intergovernmental Coordin ation Element in

three respects. First, it argues that because the amendment is

inconsistent with the Collier County Plan, it is inconsistent

with Objective 1 of this element. That objective requires in

part that the City's Plan "should be consistent wit h the plans of

Collier County, the School Board, and other units of government

without regulatory authority over land use."

41. Nothing in Policy 1 - 10 prevents the development of

these mechanisms, nor does anything in the policy prevent

addressing how t he Plan impacts adjacent jurisdictions.

42. Policy 1 - 2 of the same element requires that the City

monitor the County's comprehensive planning efforts to ensure

coordination and reduce conflicts between the two local

governments. Nothing in Policy 1 - 10 i nterferes with those

monitoring requirements.

43. Policy 1 - 6 requires the development of joint planning

agreements and land use studies between the County and the City

to increase the consistency of land use within two miles of the

City/County line. Ag ain, nothing in the challenged policy

conflicts with this requirement.

F. Lack of Intergovernmental Coordination

44. Finally, the County contends that because Policy 1 - 10

"is incompatible with the overpass designated in the Collier

County Growth Manageme nt Plan, the 1989 interlocal agreement,

[and] the Grey Oaks PUD, DRI, and DO," it violates Section

163.31771(4)(a), Florida Statutes. That statute essentially

requires that there be "coordination" between the City's Plan and

the comprehensive plan of the County (and other adjoining local

governments, if any).

45. The City provided a copy of the amendment to the County

and received no objections. Moreover, nothing in Policy 1 - 10

changes either the objectives of the City to coordinate its Plan

or the poli cies that define the relationship of the Plan to the

plans of other local governments. While the City and the County

may disagree over whether an overpass should be built, there is

no evidence that Policy 1 - 10 affects the intergovernmental

relations struc tures established by the two comprehensive plans.

Stated differently, Policy 1 - 10 does not alter or remove

objectives and policies in the Plan regarding coordination with

the comprehensive plans of adjoining governments, nor does it

conflict with the Coun ty's Plan, the MPO, or interlocal

agreements of adjoining governments.

46. In the same vein, the County argues that the City

cannot express a preference for at - grade improvements without

violating intergovernmental coordination because the overpass is

in the MPO and the County's Plan. The inclusion of a project in

the MPO and County's Plan, however, does not compel the City to

accede to the project or risk inconsistency with the

intergovernmental coordination provisions of its own Plan. See

Department of Community Affairs et al. v. City of Fort Myers ,

Case No. 89 - 2159GM, 1992 WL 880106 at *31 (DOAH Jan. 7, 1992,

Admin. Comm. April 8, 1992).

G. Other Contentions

47. All other contentions raised by the County not

discussed herein or in the Endnotes have been considered and

rejected as being without merit.

CONCLUSIONS OF LAW

48. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569, 120.57(1), and 163.3184(9), Florida

Statute s.

49. To prove standing as an adjoining local government, the

County must demonstrate that "the plan amendment will produce

substantial impacts on the increased need for publicly funded

infrastructure or substantial impacts on areas designated for

prot ection or special treatment within their jurisdiction." 5

§ 163.3184(1)(a), Fla. Stat. Because the amendment does not

prohibit the construction of the Golden Gate Overpass, but merely

states a preference on the part of the City for "alternative

plannin g solutions" before a vehicle overpass can be built, the

substantial impacts contemplated by the statute cannot occur

until the amendment is implemented. Therefore, the County lacks

standing to file this action. 6

50. Under the statutory scheme in place, if a plan

amendment has been found to be in compliance by the Department,

as it was here, an affected person must prove beyond fair debate

that the amendment is not in compliance. § 163.3184(9), Fla.

Stat. This means that "if reasonable persons could dif fer as to

its propriety," a plan amendment must be upheld. Martin County

v. Yusem , 690 So. 2d 1288, 1295 (Fla. 1997). See also Martin

County v. Section 28 Partnership, Ltd. , 772 So. 2d 616, 621 (Fla.

4th DCA 2000)(where there is "evidence in support of b oth sides

of a comprehensive plan amendment, it is difficult to determine

that the County's decision is anything but 'fairly debatable'").

51. "'In compliance' means consistent with the requirements

of ss. 163.3177, 163.31776, . . . 163.3178, 163.3180, 16 3.3191,

and 163.3245, with the state comprehensive plan, with the

appropriate strategic regional policy plan, and with chapter 9J -

5, Florida Administrative Code . . . ." § 163.3184(1)(b), Fla.

Stat.

52. For the reasons previously found, the more persua sive

evidence supports a conclusion that the County has failed to

prove beyond fair debate that the plan amendment is not in

compliance. Because the County's determination of compliance is

fairly debatable, it is concluded that the plan amendment is in

co mpliance. § 163.3184(9)(a), Fla. Stat.

53. Finally, in its Proposed Recommended Order, the City

has requested sanctions under Section 163.3184(12), Florida

Statutes, on the ground that the County filed its Petition

without making "reasonable inquiry," as required by the statute.

More specifically, the City contends that there is ample evidence

in the record that the County should have known at the time of

the filing of its Petition, and certainly by the time discovery

was concluded, that it could not pre vail under the fairly

debatable standard. Because this issue must be disposed of by a

separate final order, jurisdiction is retained in this matter for

the limited purpose of determining (through an evidentiary

hearing, if necessary) whether sanctions are warranted, and if

so, the nature and amount of those sanctions. That determination

will be made after the Department enters its final order in this

matter.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED t hat the Department of Community Affairs enter a

final order determining that the plan amendment adopted by

Ordinance No. 03 - 2003 - 45 on December 17, 2003, is in compliance.

DONE AND ENTERED this 24th day of August, 2004, in

Tallahassee, Leon County, Florida .

DONALD R. ALEXANDER

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

w ww.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of August, 2004.

ENDNOTES

1/ All future references are to Florida Statutes (2003).

2/ In paragraph 40 of its Petition, the County does allege that

the amendment ". . . is too open ended and difficult to define

. . . ." but does so in the context of its broader allegation that

the amendment is not supported by adequate data and analyses.

Even if this allegation is sufficient to raise the issue, howeve r,

the assertion is found to be without merit.

3/ At best, the County has only demonstrated that the amendment

may cause a slight delay in the construction of the overpass,

assuming that an overpass represents the best planning solution.

This short dela y would probably occur when the City considers the

alternative planning solutions presented by the County. Because

the overpass has been in the planning stages since 1989, a delay

of a few months will not produce the "substantial impacts"

contemplated by the statute.

4/ While the County points out that all of its studies support

the construction of an overpass, the need for an overpass and the

need for adequate data and analyses are two separate issues.

Therefore, when the amendment was adopted, it was not necessary

for the City to analyze those studies to determine what was the

best long - term solution for traffic congestion.

5/ The County contends that the intersection has been called out

for special treatment and protection by virtue of Policy 6.5 of

the County's Transportation Element. However, Policy 6 - 5 merely

notes that the Golden Gate Overpass, the widening of Golden Gate

Parkway, and the new Interstate 75 interchange are in the MPO's

Long Range Plan and requires that the County ensure that "th e

three projects mentioned above will be fully coordinated in timing

and design." A general commitment to coordinate does not equate

to a designation of the area for "special protection or special

treatment." In any event, having an area designated for s pecial

treatment or protection does not automatically convey standing on

a local government unless the amendment will cause substantial

impacts on that area. Here, there are none.

6/ Even the County has expressed uncertainty about its standing.

For exa mple, in its Petition, the County has alleged that "the

City's amendment could have a substantial adverse impact on the

increased need for infrastructure that must be funded by Collier

County." (Emphasis added) In the Statement of the Issue portion

of it s Proposed Recommended Order, the County has defined the

issue in the case in the following manner: "Assuming the County

has standing to file the Petition, the issue, then, is whether

. . . Policy 1 - 10 . . . is in compliance." Finally, in the

Conclusi ons of Law portion of the same filing, the County contends

that if the amendment is implemented, "the amendment could be used

as a means to halt or frustrate the implementation of the County's

planned construction of an overpass and accordingly will

substa ntially impact the County's need for publicly funded

infrastructure." (Emphasis added).

COPIES FURNISHED:

Thaddeus Cohen, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399 - 2100

Jacqueline W. Hubbard, Esquire

Office of the County Attorney

3301 Tamiami Trail East, Eighth Floor

Naples, Florida 34112 - 4902

Martha Harrell Chumbler, Esquire

Carlton Fields, P.A.

Post Office Drawer 190

Tallahassee, Florida 32302 - 0190

Shaw P. Stiller, Esquire

Depart ment of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

Robert G. Menzies, Esquire

Roetzel & Andress, P.A.

850 Park Shore Drive, Suite 300

Naples, Florida 34103 - 3587

Heidi M. Hughes, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399 - 2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

this R ecommended Order should be filed with the agency that will

render a final order in this matter.