06-003946GM Highlands Homeowners` Association vs. City Of Winter Springs And Department Of Community Affairs Status: Closed DOAH Final Order on Wednesday, August 15, 2007.

Summary: The map change to the future land use map is found to be in compliance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HIGHLANDS HOMEOWNERS' )

ASSOCIATION, INC., )

)

Petitioner, )

)

vs. ) Case No. 06 - 3946GM

)

DEPARTMENT OF COMMUNITY )

AFFAIRS and CITY OF WINTER )

SPRINGS, )

)

Respondents, )

)

and )

)

KEEWIN REAL PROPERTY COMPANY, )

INC., )

)

Intervenor. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on November 29,

2006, in Winter Springs, Florida.

APPEARANCES

For Petitioner: Russell E. Klemm, Esquire

Clayton & McCulloh

1065 Maitland Center Commons Boulevard

Maitland, Fl orida 32751 - 7437

For Respondent: Leslie E. Bryson, Esquire

(Department) Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

For Respondent: Debra S. Babb - Nutcher, Esquire

(City) Brown, Garganese, Weiss & D'Agresta, P.A.

Post Office Box 2873

Orlando, Florida 32802 - 2873

For Intervenor: M. Rebecca Furman, Esquire

Lowndes, Drosdick, Doster,

Kantor & Reed, P.A.

Post Office Box 2809

Orlando, Florida 32802 - 2809

STATEMENT OF THE ISSUE

The issue is whether the City of Winter Springs' (City's)

pl an amendment adopted by Ordinance No. 2005 - 29 on June 12,

2006, is in compliance.

PRELIMINARY STATEMENT

This matter began on June 12, 2006, when the City adopted a

large scale plan amendment (Ordinance No. 2005 - 29), which

changed the land use designation o n the Future Land Use Map

(FLUM) of the City's Comprehensive Plan (Plan) on seven parcels

of property totaling 47.27 acres from Industrial to Medium

Density Residential (MDR). The property is subject to a

purchase contract by Intervenor, Keewin Real Prope rty Company,

Inc. (Keewin or Intervenor).

On September 25, 2006, Petitioner, Highlands Homeowners'

Association, Inc. (Association), which comprises more than 1,300

living units, filed with Respondent, Department of Community

Affairs (Department), an Amende d Petition for Administrative

Hearing (Amended Petition) challenging the plan amendment on

several grounds. (Apparently, an initial petition had been

previously filed by the Association and dismissed by the

Department with leave to make an amended filing. ) The Amended

Petition was referred by the Department to the Division of

Administrative Hearings on October 11, 2006, with a request that

the matter be assigned to an administrative law judge and be set

for hearing. On October 23, 2006, Keewin was author ized to

intervene in this case.

By Notice of Hearing dated October 23, 2006, a final

hearing was scheduled on February 20 and 21, 2006, in Winter

Springs, Florida. On October 31, 2006, Intervenor filed a

Motion for Expedited Hearing under Section 163.3189 (3), Florida

Statutes (2006). 1 Over Petitioner's objection, the final hearing

was rescheduled to November 29 and 30, 2006, at the same

location.

Just prior to the final hearing, the City filed a Motion in

Limine, Motion to Quash Subpoena, and Motion to Strike Expert

Testimony Regarding Traffic. The first two Motions were later

withdrawn, while the latter Motion was denied at the hearing.

On November 28, 2006, Intervenor filed a Motion for Sanctions,

Fees and Costs under Sections 120.569(2), 120.595, an d

163.3184(12), Florida Statutes. On the same day, and pursuant

to the same statutes, the City also filed a Motion for Sanctions

Against Petitioner. Those filings are addressed in a later

portion of this Recommended Order.

At the final hearing, Petitioner presented the testimony of

Harry A. Burns, Jr., a professional engineer who has been

accepted as an expert 2 ; Paige N. Hinton, President and member of

the Association's Board of Directors; Bonnie J. Whiddon, a

licensed comm unity association manager and Association employee;

and Helga R. Schwarz, Secretary and member of the Association's

Board of Directors. Also, it offered Petitioner's Exhibits 1 - 3,

14, 16 - 21, 25, and 26, which were received in evidence.

Respondents and In tervenor jointly presented the testimony of

Tracey L. Crowe, a planning consultant and accepted as an

expert. The City presented the testimony of Brian Fields, City

Engineer and accepted as an expert. The Department presented

the testimony of Scott Roger s, a Principal Planner and accepted

as an expert. Respondents and Intervenor jointly offered

Respondents' Exhibits 1 - 4 and 6 - 25, which were received in

evidence. Finally, the parties offered Joint Exhibits 1 - 6,

which were received in evidence.

A Transcr ipt of the hearing was filed on December 5, 2006.

Proposed Findings of Fact and Conclusions of Law were due no

later than December 15, 2006, and were timely filed by

Respondents and Intervenor on December 14, 2006. Papers styled

"Final Order" and "Petiti oner's Written Closing Argument" were

filed by Petitioner on December 18, 2006. (These filings were

served by mail on December 14, 2006.) All filings have been

considered by the undersigned in the preparation of this

Recommended Order. On December 18, 2 006, the City filed a

Motion to Strike Proposed Final Order and Written Closing

Argument. Also, on December 22, 2006, Intervenor filed a Motion

to Strike Petitioner's Proposed Final Order. Although

Petitioner's filings were one business day late and are not in

the format generally used in administrative proceedings, the

Motions are denied.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

A. The Parties

1. The City was incorporated in 1959 and is located just

inside Seminole County in a highly developed area surrounded by

the City of Oviedo to its east, the City of Casselberry to the

south, the City of Longwood to the west, Lake Jesup to the

north, and the City of Orlando a few miles to the southwest.

The City adopted the amendment in question.

2. The Department is the state land planning agency

charged with the responsibility for reviewing plan amendments of

local governments, such as the City.

3. Keewin is a Florida corporation and has a contract to

pu rchase the property that is the subject of the challenged plan

amendment. It offered comments in support of the plan amendment

during the adoption process.

4. The Association is a Florida Homeowners Association

operating as a not - for - profit corporation under Section 720.301,

Florida Statutes. It currently comprises approximately 1,378

residential units on 550 acres within the City, including

single - family attached and detached dwellings, apartments, and

condominiums. The Association is made up of nine teen separate

subassociations of residents; however, the Association serves as

the "master association." One of the subassociations (Greens

Point) lies "a stone's throw" to the east from the subject

property, while the others lie further east, separated f rom the

subject property by another residential subdivision known as

Wildwood (which is not a part of the Association). Wildwood has

a MDR land use category, which is the same land use being sought

for the Keewin property. Besides five miles of nature tr ails,

the Association also owns and maintains five parks, a tennis

facility, a pool, and a clubhouse. A representative of the

Association offered comments, recommendations, or objections to

the City during the adoption of the amendment. As a property

own er within the City who submitted objections to the plan

amendment during its adoption process, the Association meets the

definition of an affected person under Section 163.3184(1)(a),

Florida Statutes, and accordingly has standing. As discussed

below, how ever, the City and Intervenor (but not the Department)

argue that the Association still lacks standing because its

Board of Directors never authorized the filing of the initial

Petition in this matter.

B. Background

5. In 2005 the City began considerati on of an application

by Keewin (on behalf of the current owner, Dittmer Properties,

Inc.) to change the land use on the 47.7 - acre tract of property.

The land use change was also accompanied by a proposed change in

the zoning of the property; however, that matter is not of

concern here.

6. The amendment was initially considered and approved by

the City Commission at a meeting conducted on February 13, 2006.

An amendment transmittal package was then sent to the Department

for its review. After the Departm ent issued an Objections,

Recommendations, and Comments Report (ORC Report) on April 20,

2006, which noted four specific objections to the map change,

the City provided further information to the Department to

resolve these concerns. On June 12, 2006, the City voted to

adopt Ordinance No. 2005 - 29, which approved the map change in

issue.

7. On August 4, 2006, the Department published in the

Seminole County Edition of the Orlando Sentinel its Notice of

Intent to Find the City of Winter Springs Comprehensi ve Plan

Amendment in Compliance.

8. Sometime in September 2006, the Association filed its

initial Petition for a hearing to contest the plan amendment.

The Petition was apparently dismissed without prejudice by the

Department, with leave to file an ame nded petition. On

September 25, 2006, the Association filed its Amended Petition

raising the following objections: the new land use would be

incompatible with the surrounding land uses; the land use change

"further erodes" the City's ability to meet the requirements in

its Plan for industrial uses; the amendment will have a

"negative overcrowding impact on schools, particularly Highlands

Elementary"; the amendment will cause overcrowding of the nearby

roadways; the amendment will negatively impact the Cit y's level

of service standards for recreational facilities; and the

amendment conflicts with various provisions within Florida

Administrative Code Rule Chapter 9J - 5 and Section 163.3177,

Florida Statutes.

C. Authorization by the Board of Directors

9. Ci ting various provisions within the Articles of

Incorporation and the By - Laws, and the sometimes conflicting

testimony of two members of the Association's Board of

Directors, the City and Intervenor have argued extensively in

their Joint Proposed Recommende d Order that the Association's

Board of Directors did not formally authorize its outside

counsel to file the initial Petition in this matter. They point

out that under the By - Laws, in order for the Board of Directors

to initiate a legal action, as it did here, prior to the filing

of a petition, it must have either had a vote of the majority of

the Directors at a meeting at which a quorum was present or

consent in writing by all members of the Board of Directors.

See Art. VI, §§ 6.5 and 6.8, By - Laws. T hey further contend that

the president of the Board of Directors, Paige N. Hinton, had no

authority, as she assumed she did here, to advise another member

of the Board of Directors, Helga R. Schwarz, that Ms. Schwarz

could authorize outside counsel to file a petition with the

Department.

10. The affairs of the Association are managed by a Board

of Directors made up of seven members. See Art. V, § 5.1, By -

Laws. When this matter arose, Ms. Hinton served as president of

the Board of Directors while Ms. Sch warz served as its secretary

and a member. Both testified at the final hearing.

11. When the plan amendment was first being processed and

considered by the City in its early stages, a number of

Association residents approached members of the Board of

Dir ectors and voiced their concerns with the proposal. Based

upon those concerns, the Board of Directors held a special

meeting on January 13, 2006, to discuss the issue. All seven

directors were present at the meeting. A copy of the minutes of

that meetin g has been received in evidence as Respondents'

Exhibit 3.

12. The minutes are normally prepared by Bonnie J.

Whidden, a full - time employee who serves as property manager,

and "are not required to be detailed." After preparation by

Ms. Whidden, the mi nutes are then reviewed at the following

month's meeting and approved for form. There is no indication

in the record that the Board of Director's outside counsel

attended the meeting in question. The minutes reflect that the

following action was taken at that meeting:

The Board discussed the implications facing

The Highlands if the Dittmer parcel were to

be rezoned from light industrial to medium

density residential as proposed by Keewin

Real Property. Discussion ensued on impacts

to The Highlands' recre ational amenities,

neighborhood roads, school capacities, and

other concerns. The Board agreed that the

proposed change in zoning was not in the

best interest of The Highlands.

The Board agreed to hold a community town

hall meeting on the Keewin Lar ge Scale Plan

Amendment for The Highlands' residents in

order to provide residents with information

and to seek their input and feedback prior

to the public hearing.

The Board discussed committing funds for

Clayton & McCulloh's legal services to

represent The Highlands' interests on this

issue. A motion was made to empower

Ms. Schwarz to work with Clayton & McCulloh

on this matter and to represent the

Association at any city meeting related to

the Dittmer rezoning. The motion was

seconded and passed unanimously. Discussion

ensued regarding having Clayton & McCulloh

represent the Association at the city's

public hearing on February 13, 2006.

Ms. Schwarz would discuss the matter with

counsel and apprise Ms. Hinton.

13. Although the minutes refe r primarily to the

Association's opposition to the rezoning of the property, it is

fair to infer that the Board of Directors was opposed to both

the rezoning of the property and a change in the land use on the

FLUM. According to Ms. Hinton, the Associatio n intended that

Ms. Schwarz act as the Board of Director's "primary point of

contact with Clayton & McCulloh [its outside counsel] should

[the Association] need to petition the [S]tate, and also to

speak on behalf of the Association at City [C]ommission me etings

for the City of Winter Springs." However, authorization to file

a petition with the Department was not discussed at the meeting

nor voted on. This is because it would have been premature to

do so at that point as the amendment had not yet even bee n

formally considered or adopted by the City.

14. As the minutes disclose, the Board of Directors

directed that Ms. Schwarz, a long - time resident and its

secretary, represent the Association "at all city meetings" and

to liason with its outside counsel. Acting on those

instructions, she attended the February 13, 2006, meeting of the

City Commission, when the Commission voted to transmit the

amendment package to the Department for its preliminary review,

and the meeting on June 12, 2006, when the map cha nge was

finally approved. (She also attended several meetings of the

City Planning and Zoning Board, which presumably considered the

zoning change.) At least twice, Ms. Schwarz presented oral

objections on behalf of the Association at City Commission

mee tings.

15. On an undisclosed date before the Association's

initial petition was filed, Ms. Hinton spoke with Ms. Schwarz

by telephone and advised Ms. Schwarz that pursuant to the

Board's decision on January 13, 2006, Ms. Schwarz should

instruct its outsi de counsel to file a petition challenging the

new amendment. This information was given to outside counsel,

who presumably filed the initial Petition, which was later

amended on September 25, 2006.

16. After the January 13 meeting, the Board of Directors

was given a number of "updates" concerning the status of the

plan amendment throughout the adoption and Department review

process, including advice that a petition had been filed by

outside counsel with the Department. However, no other formal

action was taken by the Board concerning this matter before the

initial petition was filed in September 2006.

17. On advice of outside counsel, on November 16, 2006, a

special closed meeting of the Board of Directors was called by

Ms. Hinton to discuss "pending l egal matters," including

ratification of the Petition that had previously been filed.

One reason for calling this meeting was the fact that the issue

of whether the Board of Directors had authorized the petition to

be filed had just arisen during the cour se of discovery for the

hearing. A copy of those minutes is not of record since they

were not reviewed and approved until the Board of Directors held

its December 2006 meeting. Although the record is somewhat

confusing (due to conflicting testimony) as t o what action was

taken at the meeting, it is clear that the Board of Directors

(of whom six were present) orally ratified the filing of the

Petition by "unanimous consensus."

D. The Amendment

18. The amendment consists only of a change in the FLUM on

th e subject property from Industrial to MDR. There are no

accompanying changes to the text of the Plan.

19. The property is currently vacant, but carries an

Industrial land use and PUD zoning. The land uses surrounding

the subject property are industria l to the north (across Shepard

Road), medium density residential (including multi - family units)

to the east, industrial and low density residential to the

south, and predominately industrial and commercial to the west.

There are "public lands" on the sout heast side of the property.

20. Less than one thousand feet west of the subject

property and running in a north - south direction is U.S. Highway

17 - 92, a major arterial roadway maintained by the State. (Just

across that road is the City of Longwood.) She pard Road, a two -

lane collector road which runs in an east - west direction,

adjoins the northern boundary of the subject property and part

of the Association and eventually exits to the west into U.S.

Highway 17 - 92 at a major intersection with a traffic sig nal.

E. Petitioner's Objections

21. Petitioner has challenged the amendment based on

compatibility, need, schools, roads, recreational facilities,

and alleged violations of various provisions of Florida

Administrative Code Rule Chapter 9J - 5 and Chapter 163, Part II,

Florida Statutes. There are no challenges to the amendments

based upon internal inconsistency with the City's plan,

inconsistency with the East Central Florida Planning Council's

Strategic Regional Policy Plan, or inconsistency with the Sta te

Comprehensive Plan.

a. Compatibility.

22. The Amended Petition contains allegations that the MDR

designation is incompatible with surrounding land uses, and, in

particular, with the Association property that is located to the

east of the subject prope rty that is designated as MDR on the

FLUM.

23. The ORC Report raised an objection regarding land use

compatibility of the amendment with the industrial land use

designation to the west. The concern was that the amendment was

not supported by data and a nalysis demonstrating that the

amendment was compatible with the industrial use.

24. In response to the objection, the City set forth Plan

provisions that require buffering and also provided a

Development Agreement in which the developer agreed to buil d a

buffer between the amendment site and the industrial properties

to the west. By doing so, the City adequately responded to the

objection by indicating that the subject property would contain

a buffer to address the potential compatibility concerns wit h

the adjoining industrial property.

25. The MDR designation on the subject property provides a

transition from the commercial and industrial uses fronting U.S.

Highway 17 - 92 and is compatible with the MDR to the east. Thus,

the MDR use on the subject property is appropriate as a

transitional use between the residential to the east and the

industrial and commercial properties to the west that front U.S.

Highway 17 - 92.

26. Based on the evidence, it is fairly debatable that the

MDR land use is compatib le with the industrial use to the west

and the MDR to the east.

b. Need for Industrial Lands

27. The Amended Petition alleges that the change from

Industrial to MDR "further erodes" the ability of the City to

meet requirements in its plan for industrial uses.

28. There is no Plan policy that calls for a certain

number of acres of industrial property. Rather, the Plan

contains an analysis of the existing industrial acreage and a

projection for future acres. Looking only at the industrial

land use category, the City has 170 acres, and the plan

amendment reduces that number by 47 acres or approximately

twenty - eight percent. However, industrial is allowed in other

future land use c ategories besides the industrial category.

29. Moreover, the industrial land use designation has been

on the property since at least 1991, but has remained vacant.

Thus, the appropriateness of the industrial designation at this

location did not come t o fruition.

30. By contrast, the City's analysis indicated a need for

approximately 328 additional acres of MDR land. The FLUM change

on the Keewin property furthers the need for that land use.

Also, as found above, the subject property is an appropr iate

location for the MDR because it serves as a transition, and the

property had remained vacant under the industrial future land

use designation since 1991.

c. Coordination With Schools

31. The Association has also contended that the amendment

"will have a negative overcrowding impact on schools,

particularly Highlands Elementary," which lies just north of

Shepard Road and serves the Association residents.

32. Unless elected by local option, local governments are

not required to have a school facili ties element in their

comprehensive plans at this time, are not required to have a

level of service (LOS) standard in their plan for school

facilities, and are not required to implement school

concurrency. The City has not elected the local option of

scho ol concurrency.

33. At this time, the Department requires only

coordination of the plan amendment with the Seminole County

School Board (School Board) so that the School Board and the

City have a general understanding of the potential implications

of th e plan amendment.

34. The ORC Report contained an objection regarding

coordination of the amendment with the School Board. In

response to the objection, the City indicated that it provided

notice of the amendment to the School Board and an additional

o pportunity for School Board comment. The City also provided an

analysis from the School Board indicating that the amendment

would generate only 76 students.

35. Additionally, in the Development Agreement between the

City and the Developer, the Develop er agreed to pay $1,235.00

for each residential unit to the School Board in addition to the

school impact fees required for each residential unit. The

Agreement for this mitigation represents an additional step

toward helping to address what is the unders tanding of the

impact on schools and is a further indication of coordination

between the land use and school planning.

36. The Department does not currently have a standard to

use to measure the adequacy of the dollar amount since school

concurrency is not required at this time. Therefore, the City

has not established LOS standards.

37. Given these considerations, it is fairly debatable

that the City has demonstrated adequate coordination with the

School Board regarding school facilities.

d. Impact on Transportation

38. The Association further contends that the LOS on

public streets serving the Association's members and serving

property owned by the Association will deteriorate. It also

contends that traffic flowing from the subject property will

overcrowd and/or negatively impact the Association.

39. In support of these contentions, the Association

presented the testimony of Harry A. Burns, Jr., a professional

engineer, regarding potential traffic impacts based upon his

revi ew of the Plan and transportation element. According to the

Plan, the segment of U.S. Highway 17 - 92 north of Shepard Road is

currently operating at LOS F, which is below the adopted LOS

standard. As noted earlier, U.S. Highway 17 - 92 is a major

arterial v ery close to the subject property. Although the Plan

indicates that U.S. Highway 17 - 92 is slated for a six - lane

project by 2010, the Plan also indicates that it is anticipated

the LOS will still remain at F.

40. Mr. Burns opined that Shepard Road and Sheoah

Boulevard, a minor two - lane collector road which winds through

the Association in a north - south direction, will be "impacted"

by the MDR land use designation. He concluded that a traffic

study should be done for Sheoah Boulevard because it is a

col lector road and is in the amendment's impact area. Although

he testified that Shepard road would be impacted, he had no

information indicating that Shepard Road would be negatively

impacted. Also, he did not know whether the plan amendment

would result i n a reduction in the operating LOS for Shepard

Road and Sheoah Boulevard.

41. Petitioner's expert also opined that traffic generated

by a change in the land use would have a different trip

distribution than traffic generated by industrial. He testified

that, from a traffic circulation standpoint, it was likely that

residential traffic would be more willing to travel east through

the Association than would industrial traffic because the

industrial traffic would prefer to access the nearby U.S.

Highway 17 - 92 to the immediate west. He further opined that

there were not "attractors" for industrial traffic to travel

east through the Association. He admitted, however, that the

City's Town Center as well as the Greenway toll road (State Road

417) were located to the east of the subject property.

42. Although the expert believed that the trip generation

characteristics of an industrial land use would be different

than those for a residential land use, he agreed that he would

need to model the trip distributi on to accurately determine

where the traffic would go. The witness had not done that prior

to the hearing.

43. Data and analysis relative to traffic impacts were

submitted to the Department by the City and the Florida

Department of Transportation (FDOT ). Based upon its review of

the plan amendment, on March 22, 2006, FDOT provided a letter to

the Department in which it determined that an Industrial land

use would generate 7,176 average daily trips (ADT) and 1,308 PM

(afternoon) peak hour trips. On the other hand, a MDR

designation would generate only 3,936 ADT and 394 PM peak hour

trips, resulting in a decrease of 3,240 average daily trips.

This is a substantial reduction. All experts in this case

agreed with the FDOT's assessment.

44. FDOT further concluded that because the "amendment

would result in a decrease in daily trips . . . FDOT has no

comments on this amendment." The letter did not raise any

concerns regarding impacts to U.S. Highway 17 - 92, a state road

under its jurisdiction.

45. The Ci ty Engineer and the City's expert planner

established that a further traffic study or analysis at this

stage was unnecessary because the land use change resulted in a

substantial decrease in trips. In addition, the Department's

planner opined that reducin g the trip generation potential from

the amendment parcel is a strategy to reduce the potential

traffic on the road network that, in combination with other

actions, can have a significant effect on helping improve the

coordination between land use and tran sportation relative to the

operating LOS on the roadways. Due to the specific nature and

context of this particular amendment, he also agreed that no

further general planning or transportation analysis was

warranted at this stage. In fact, the reduction helps the Plan

better coordinate land use and transportation in terms of the

potential trips that might occur on the road system.

46. Coordination of land use and transportation facilities

was appropriately addressed at the plan amendment stage through

the significant reduction in trip generation potential on the

property.

47. Finally, although Petitioner's expert pointed out that

the City's Plan indicates that even with scheduled improvements

the segment of U.S. Highway 17 - 92 north of Shepard Road will

have deficiencies by the year 2010, he could not say that the

amendment would cause LOS deficiencies on that road or indicate

with any degree of precision the effect the amendment would have

on the LOS. As noted above, he did not perform a traffic

an alysis of the amendment.

48. Given these considerations, it is found that

Petitioner did not demonstrate beyond fair debate that the

amendment will result in LOS deficiencies on U.S. Highway 17 - 92,

Shepard Road, or Sheoah Boulevard. Further, it failed to prove

beyond fair debate that the amendment is not in compliance with

respect to transportation issues.

e. Open Space and Recreational Land and Facilities

49. Contrary to the Association's assertion, the plan

amendment will not impact or adversely a ffect the City's LOS

standards for recreational facilities. There have been

increased recreational facilities in the City since the Plan was

written, which has increased the LOS that is available, and

there is no LOS deficiency for parks through the year 2010.

Indeed, the LOS will be met even if park lands are not built on

the subject property.

50. The Development Agreement between Keewin and the City

requires Keewin to include park lands on the subject property.

The A greement specifically provides a paragraph on "Parks and

Recreation" which includes the following language in paragraph

4:

In accordance with Winter Springs Code

Section 20 - 354 and other applicable

provisions of the City’s Comprehensive Plan

and Code, the Developer agrees to dedicate

an appropriate amount of land as a park for

the residents of the Project. Such park

shall have recreational facilities built in

accordance with the standards of the

National Recreational Association. In

addition, such park sh all be protected

through deed restrictions . . . which shall

ensure the preservation of its intended use,

the payment of future taxes, and the

maintenance of the park and facilities for a

safe, healthy and attractive living

environment. The park shall be included in

the phasing plan, if any, and shall be

constructed and fully improved by Developer

at an equivalent or greater rate than the

construction of the residential structures

for which it serves.

51. Therefore, the subject property will provide its own

park and recreation area on - site. There is sufficient land on

the site to accommodate on - site park facilities based on the

residential densities that might be allowed on the subject

property. The Department established that the land use is being

adeq uately coordinated with recreational facilities. There is

appropriate coordination between the land use and recreational

facilities, and the residents of the subject property would not

have to make use of any other city park facilities.

52. Petitioner acknowledges that the Developer's Agreement

indicates that the Developer will provide for a park; however,

Petitioner still complains that there is not enough detail about

the parks to be provided on - site. However, there is no

requirement at this stage of the process that such a degree of

specificity for parks be provided.

53. The evidence supports a finding that a change to MDR

is compatible with adjacent land uses and will have no impact on

private parks and recreation areas on adjacent lands. There is

insufficient evidence to support a finding that the plan

amendment will impact the Association. Indeed, the subject

property will have two City parks that service the area and a

315 - acre county - owned community park facility less than a mile

from the su bject property.

f. Consistency With Rule and Statutory Provisions

54. The Amended Petition alleges that the amendment is

inconsistent with various provisions of Florida Administrative

Code Rule Chapter 9J - 5 and Chapter 163, Florida Statutes.

However, Petitioner did not present any testimony addressing any

of the rule or statutory provisions. Conversely, the evidence

presented by Respondents and Intervenor demonstrates that the

amendment is consistent with these provisions. Accordingly, it

is found th at the amendment is not inconsistent with Florida

Administrative Code Rules 9J - 5.006(3)(b)1., 9J - 5.006(2)(a), 9J -

5.006(3)(c)2. and 3., 9J - 5.016(1)(a) and (b), 9J - 5.016(2)(b),

9J - 5.016(3)(b)1. and 5., 9J - 5.016(3)(c)5., 9J - 5.0055(2)(a), and

9J - 5.0055(3)(b) a nd (d), and Section 163.3177(3), (6)(a) and

(e), Florida Statutes, as alleged in the Amended Petition.

g. Trespass and Vandalism Concerns

55. Finally, Petitioner has alleged that residential

development of the subject property will increase the

unauthori zed use of its private recreational facilities and

amenities, as well as increase vandalism to its personal

property by non - residents. However, allegations regarding

potential trespass and unauthorized use of recreational

facilities on nearby lands is not a compliance issue under

Chapter 163, Florida Statutes.

F. Issues Under Section 120.595(1), Florida Statutes

56. In its Amended Petition filed on September 25, 2006,

the Association raised five grounds for determining the plan

amendment to be not in com pliance: increased traffic that would

impact the Association's members; school overcrowding, and

particularly the elementary school just north of Shepard Road;

inadequate open space and recreation land and facilities,

including unauthorized use of Associa tion facilities, as a

result of the new development's residents and children; reduced

industrial zoning; and inconsistencies with various provisions

within Florida Administrative Code Rule Chapter 9J - 5 and Chapter

163, Florida Statutes. There is no eviden ce that the

Association has ever participated in a prior proceeding

involving the City or Keewin and the same project.

57. The Association representative, Ms. Schwarz,

acknowledged that before the Amended Petition was filed, the

Association did not consul t with any experts regarding the

issues raised in that filing. According to Ms. Schwarz, the

allegations represented concerns expressed by various members of

the Association to the Board of Directors. Most of these

concerns are specifically reflected in the minutes of the

meeting held on January 13, 2006. However, the Association did

consult with outside counsel in drafting the issues in the

Petition. This is evidenced by the fact that at least three of

the concerns in the Amended Petition (traffic, sch ool

overcrowding, and inadequate open space and recreational

facilities) were previously discussed in detail in a letter from

outside counsel to the City on February 7, 2006, or just before

the City Commission initially met to consider the amendment.

58. Although the case was originally scheduled to be heard

in February 2007, on October 31, 2006, Intervenor filed its

demand for an expeditious hearing under Section 163.3189(3),

Florida Statutes. Accordingly, by Order dated November 1, 2006,

this case was rescheduled to be heard on November 29, 2006,

under the mandatory fast track timelines in that statute.

Because of this short timeframe, Association counsel represented

during a status conference on November 10, 2006, that he was

experiencing difficulty in interviewing and hiring outside

experts on such short notice, particularly with the intervening

Thanksgiving holidays. This was confirmed by Ms. Hinton at

final hearing, who represented that if the hearing had been held

in February 2007, the Associatio n had planned on hiring a number

of experts. Even so, on short notice, the Association was able

to engage the services of a professional engineer who offered

expert testimony on the traffic issue. The remainder of its

evidence was presented through lay w itnesses, by cross -

examination of the other parties' experts, and by documentation.

No direct evidence was affirmatively presented on the issue of

whether the plan amendment was in conflict with various

provisions of Department rules or Florida Statutes. As to all

other issues, even though the Association did not prevail on any

of its claims, it did present some evidence, albeit minimal in

some respects, in support of its position.

59. There is no evidence, direct or circumstantial, to

support a finding that the Association's primary motive in

filing its Petition was to simply harass the City or developer,

delay the project (which will be built on the property after the

land use change is approved and building permits obtained), or

needlessly increase the cost of litigation for those parties.

CONCLUSIONS OF LAW

60. 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 Statutes.

61. Because the Association owns property within the City,

and through its representative (Ms. Schwarz) submitted oral

objections to the City prior to the adoption of the amendment,

the Association is an affected person and has standing to

participate in this action. See § 163.3184(1)(a), Fla. Stat.

Whether it correctly exercised its right to file a challenge to

the plan amendment is a separate issue.

62. While the Board of Directors did not formally vote on,

and authorize, the filing of a petition with th e Department at

its January 13, 2006 meeting, it continued to receive periodic

updates throughout the ensuing months regarding the status of

the plan amendment, including the fact that a petition was later

filed by its outside counsel. Under Article IV, p aragraph l of

the Articles of Incorporation, the Board of Directors may

"exercise any and all powers, rights and privileges which a

corporation organized under the Corporations Not For Profit Law

of the State of Florida by law may now or hereafter have or

exercise." See also Art. V, § 5.6, By - Laws ("In addition to the

powers and authorities expressly conferred upon it by these By -

Laws, the Board of Directors may exercise all powers of the

corp oration and do all such lawful acts and things as are not by

law or by the Declaration of Covenants, Conditions and

Restrictions or by Articles of Incorporation or by these By - Laws

directed or required to be exercised or done by the Members of

this Corpora tion"); § 720.303(1), Fla. Stat. ("the association

may institute . . . actions or hearings in its name on behalf of

all members concerning matters of common interest to the members

. . ."). Thus, the Board of Directors clearly had the authority

to init iate this matter. Even if it failed to authorize the

filing of a petition at the January 13 meeting, this action was

subject to later ratification. See , e.g. , Hillsboro Light

Towers, Inc. et al. v. Sherrill et al. , 474 So. 2d 1219, 1221

(Fla. 4th DCA 198 5)(where original action could have been

authorized by board of directors, it "was an act subject to

[later] ratification"). In a special meeting conducted on

November 16, 2006, the Board of Directors unanimously ratified

the filing of the petition. By r atifying this prior act, the

Board of Directors formally authorized the initiation of this

matter. See , e.g. , Wimbledon Townhouse Condominium I

Association, Inc. v. Wolfson et al. , 510 So. 2d 1106, 1108 (Fla.

4th DCA 1987)("a board of directors of a condo minium association

may ratify its prior acts"). Therefore, the filing of the

Petition was not an ultra vires action, as claimed by the City

and Intervenor.

63. Once the Department renders a notice of intent to find

a plan amendment in compliance, as it d id here, that plan

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

government's determination of compliance is fairly debatable."

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

burden of proving beyond fair debate that the c hallenged plan

amendment is not in compliance. This means that "if reasonable

persons could differ as to its propriety," a plan amendment must

be upheld. Martin County v. Yusem , 690 So. 2d 1288, 1295 (Fla.

1997). Or, as another court has stated, where t here is

"evidence in support of both sides of a comprehensive plan

amendment, it is difficult to determine that the County's

decision was anything but 'fairly debatable.'" Martin County v.

Section 28 Partnership, Ltd. , 772 So. 2d 616, 621 (Fla. 4th DCA

20 00).

64. For the reasons given in the Findings of Fact,

Petitioner has failed to establish beyond fair debate that the

amendment is incompatible with the surrounding land uses; that

the amendment was not coordinated with school facilities; that

the amend ment is not in compliance with respect to planning for

recreational facilities; that the amendment is not in compliance

with respect to transportation issues; or that the amendment is

inconsistent with any provision within Florida Administrative

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

Therefore, the amendment is in compliance.

65. Finally, both the City and Intervenor have filed

Motions requesting that sanctions and/or attorney's fees and

costs be assessed against the Association on the ground the

Petition was filed for a frivolous or improper purpose within

the meaning of Sections 120.569(2)(e), 120.595(1), and

163.3184(12), Florida Statutes. Jurisdiction will be reserved

to determine the request under Section 120.569(2)(e), Florida

Sta tutes, because administrative law judges have jurisdiction to

enter the final order under that statute. See , e.g. , Procacci

Commercial Realty, Inc. v. Department of Health and

Rehabilitative Services , 690 So. 2d 603, 606 (Fla. 1st DCA

1997). Likewise, ev en though no cases have specifically

decided the issue, it follows that an administrative law judge

has similar jurisdiction to enter a final order under

Section 163.3184(12), Florida Statutes. This is because

Section 163.3184(12), Florida Statu tes, tracks almost verbatim

the language in Section 120.569(2)(e), Florida Statutes. On the

other hand, the procedures, and to some extent, substantive law,

are different under Section 120.595(1), Florida Statutes. That

statute specifically provides that where "the administrative law

judge determines that a party participated in this proceeding

for an improper purpose, the recommended order shall so

designate and shall determine the award of costs and attorney's

fees." See § 120.595(1)(d), Fla. Stat. Th erefore, disposition

of that issue is appropriate in the Recommended Order.

66. Section 120.595(1)(b) and (c), Florida Statutes,

provides as follows:

(b) The final order in a proceeding

pursuant to s. 120.57(1) shall award

reasonable costs and a reason able attorney's

fee to the prevailing party only where the

nonprevailing adverse party has been

determined by the administrative law judge

to have participated in the proceeding for

an improper purpose.

(c) In proceedings pursuant to s.

120.57(1), and up on motion, the

administrative law judge shall determine

whether any party participated in the

proceeding for an improper purpose as

defined by this subsection. In making such

determination, the administrative law judge

shall consider whether the nonprevai ling

adverse party has participated in two or

more other such proceedings involving the

same prevailing party and the same project

as an adverse party and in which such two or

more proceedings the nonprevailing adverse

party did not establish either the fa ctual

or legal merits of its position, and shall

consider whether the factual or legal

position asserted in the instant proceeding

would have been cognizable in the previous

proceedings. In such event, it shall be

rebuttably presumed that the nonprevailin g

adverse party participated in the pending

proceeding for an improper purpose.

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

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

issue in the proceeding. Young et al. v. Department o f

Community Affairs et al. , 625 So. 2d 831, 833 (Fla. 1993).

Thus, the City and Keewin must carry the burden of first

demonstrating that the Association was a "nonprevailing adverse

party," then of demonstrating that the Association participated

in the pr oceeding for an "improper purpose." The City and

Keewin must make these demonstrations by a preponderance of the

evidence.

68. Under Section 120.595(1)(e)3., Florida Statutes, the

Association is a nonprevailing adverse party if it "failed to

have substan tially changed the outcome of the proposed or final

agency action" regarding the plan amendment. Because the

Association failed to change the outcome of this case in any

respect, it is a nonprevailing adverse party.

69. Notwithstanding the above, the e vidence failed to

establish that the Association participated in this proceeding

for an improper purpose. (The rebuttable presumption of

improper purpose set forth in Subsection 120.595(1)(c), Florida

Statutes, has not been triggered because the Associati on has not

participated in "two or more other such proceedings involving

the same prevailing party and the same project as an adverse

party.")

70. The term "improper purpose" is defined as

"participation in a proceeding pursuant to s. 120.57(1)

primaril y to harass or to cause unnecessary delay or for

frivolous purpose or to needlessly increase the cost of

litigation, licensing, or securing the approval of an activity."

§ 120.595(1)(e)1., Fla. Stat.

71. Case law holds that an objective standard is used to

determine improper purpose for the purpose of imposing sanctions

on a party or attorney under Section 120.569(2), Florida

Statutes, and predecessor statutes. See , e.g. , Friends of

Nassau County, Inc. et al. v. Nassau County et al. , 752 So. 2d

42, 50 - 51 (Fla. 1st DCA 2000). While no case has explicitly

extended the objective standard to Section 120.595(1), Florida

Statutes, there appears to be no reason why it cannot be used to

determine whether the Association's participation in this

proceeding was for an improper purpose. See , e.g. , Palm Beach

Polo Holdings, Inc. et al. v. Acme Improvement District et al. ,

DOAH Case No. 03 - 2469 (DOAH Mar. 25, 2004, SFWMD May 14,

2004)(holding that in the absence of any contrary ruling, the

objective standard should be applied to claims arising under

Section 120.595(1), Florida Statutes).

72. Applying this objective standard to the case at hand,

an "improper purpose" cannot be found against the Association

under Section 120.595(1), Florida Statutes. The Association

presented testimony and evidence on four of the five issues

raised in its Amended Petition, including some expert testimony,

although such evidence was inadequate and insufficient under

applicable statutes and rules. Given the totality of the

circumstance s, including the fact that the matter was handled on

a "fast track" basis, it was not proven that the Association's

participation in this proceeding was for an improper purpose,

that is, primarily to harass or to cause unnecessary delay or

for frivolous pu rpose or to needlessly increase the cost of

litigation. The Motions are accordingly denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Community Affairs enter

a final order dete rmining that the plan amendment adopted by

Ordinance No. 2005 - 29 is in compliance. Jurisdiction is

retained to consider the City's Motion for Sanctions Against

Petitioner and Intervenor's Motion for Sanctions, Fees and Costs

filed under Sections 120.569(2 ) and 163.3184(12), Florida

Statutes, if renewed within 30 days after issuance of the final

order.

DONE AND ENTERED this 3rd day of January, 2007, in

Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division o f Administrative Hearings

this 3rd of January, 2007.

ENDNOTES

1/ All statutory references are to Florida Statutes (2006).

2/ Although Mr. Burns was not formally tendered as an expert

when he testified, this was unnecessary. See , e.g. , Chambliss v.

White Motor Corporation , 481 So. 2d 6, 8 (Fla. 1st DCA 1985).

COPIES FURNISHED:

Thaddeus Cohen, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

James Richmond, Interim General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

Russell E. Klemm, Esquire

Clayton & McCulloh

1065 Maitland Center Commons Boulevard

Maitland, Florida 32751 - 7437

Leslie E. Bryson, Esquire

Department of Communi ty Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399 - 2100

Debra S. Babb - Nutcher, Esquire

Brown, Barganese, Weiss & D'Agresta, P.A.

Post Office Box 2873

Orlando, Florida 32802 - 2873

M. Rebecca Furman, Esquire

Lowndes, Drosdick, Doster,

Kantor & Reed, P.A.

Post Office Box 2809

Orlando, Florida 32802 - 2809

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 ex ceptions to

this Recommended Order should be filed with the agency that will

render a final order in this matter.