07-002239GM Carol Runyan, Elizabeth Hawkes, Heidi Sumner, Lance And Mary Lubin, Dennis Jones, Mary Jones, Joseph Baker, Greg Stanek, Patricia Walton, Marguerite Wood, Donald Mosher, Roberta Mosher, Dorthy Buckshorn, Herman Wells, Geri Wells, Edith Jane Moore, Et Al. vs. Department Of Community Affairs Status: Closed Recommended Order on Friday, October 5, 2007.

Summary: Petitioners did not prove beyond fair debate that the City future land use map was internally inconsistent or not based on data and analysis.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAROL RUNYAN, ELIZABETH )

STEPHENS HAWKES, HEIDI )

SUMNER, LANCE LUBIN, MARY )

LUBIN, DENNIS JONES, MARY )

JONES, JOSEPH BAKER, GREG )

STANEK, PATRICIA WALTON, )

MARGUERITE WOOD, DONALD )

MOSHER, ROBERTA MOSHER, )

DO R O THY BUCKSHORN, HERMAN )

WELLS, GERI WELLS, EDITH JANE )

MOORE, BYRON BRASWELL, GLORIA )

BRASWELL, PAUL GRAY, TIM )

WEIGANDT, DIANE WEIGANDT, )

MAYBELLE ADAMS, CATHERINE )

BATMAN, MICHAEL NAZZARENO, )

CHRIS LAUBER, CAROL LACHANCE, )

JAMES LANDAY, and EAGLE CREST )

CIVIC AS SOCIATION, INC., A )

FLORIDA NOT - FOR - PROFIT )

CORPORATION , )

)

Petitioners, ) Case No. 07 - 2239GM

)

vs. )

)

DEPARTMENT OF COMMUNITY )

AFFAIRS, )

)

Respondent, )

)

and )

)

CITY OF ST. PETERSBURG and )

SEMBLER FLORIDA, INC., )

)

Intervenors.

RECOMMENDED ORDER

A final administrative hearing was held in this case on

August 8 and 9, 2007, in St. Petersburg , Florida, before J.

Lawrence Johnston, Administrative Law Judge ("ALJ") , Division

of Administrative Hearings (“ DOAH ”).

APPEARANCES

For Petitioners: Charles W. Gerdes, Esq uire

Keane, Reese, Vesely & Gerdes, P.A.

770 Second Avenue South

St. Petersburg, FL 33701 - 4006

F or Respondent Department of Community Affairs:

Leslie E. Bryson, Esq uire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, FL 32399 - 2100

For Intervenor City of St. Petersburg:

Milton A. Galbraith, Jr., Esq u ire

City of St. Petersburg

One Fourth Street, North Tenth Floor

St. Petersburg, FL 33701 - 3804

For I ntervenor Sembler Florida, Inc.:

Charles M. Harris, Esq uire

Stephen C. Chumbris, Esq uire

Trenam Kemk er

200 Central Avenue, Suite 1600

St. Petersburg, FL 33701

STATEMENT OF THE ISSUE

The issue in this case is whether Ordinance 679 - L of the

City of St. Petersburg ("City"), which amend ed the Future Land

Use Map ( “ FLUM ”) of the City's Com prehensive Plan on certain

property generally located at the northeast corner of 9 th

Avenue North and 66 th Street North within the boundaries of

the City ( the " Subject Property ") from Institutional to

Residential Office Retail (R / O / R) land use on 2.98 acre s,

Residential Office General (R / OG) on 2.98 acres , and

Residential Urban (RU) on 12.02 acres (the “Plan Amendment”),

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

Florida Statutes, i notwithstanding Petitioners' contentions

that the Plan Amendme nt is internally inconsistent and not

based on data and analysis .

PRELIMINARY STATEMENT

On April 16, 2007, the Department published its Notice of

Intent (“NOI” ) to f ind the City ’s Plan Amendment “i n

c ompliance ."

On May 2, 2007, the Petitioners filed wi th the Department

of Community Affairs (“Department”) a Petition for

Administrative Hearing ("Petition") contending that the Plan

Amendment is not "in compliance . "

On May 18, 2007, the Department referred the Petition to

the DOAH , and the City filed its M otion to Intervene. On May

21, 2007, Sembler Florida, Inc. (“Sembler” ) filed its Motion

to Intervene . On May 22, 2007, both interventions were

granted.

On July 24, 2007, a Voluntary Dismissal was filed by some

of the original Petitioners -- Elizabeth St ephens Hawkes, Joseph

Baker, Greg Stanek, Patricia Walton, Edith Jane Moore, and

Michelle Nazzareno. A subsequent Voluntary Dismissal was

filed on July 26, 2007, by more of the original Petitioners --

Donald Mosher, Roberta Mosher, Herman Wells, and Geri We lls.

On July 26, 2007, the remaining Petitioners filed an

Unopposed Motion for Leave to Amend their Petition, which was

granted on August 6, 2007. On August 2, 2007, the parties

filed their Joint Pre - Hearing Stipulation.

The final hearing was held on Au gust 8 and 9, 2007, at

the Judicial Building in St. Petersburg, Florida.

After opening statements, Petitioners called the

following witnesses: Rick MacAulay, the City’s Acting Manager

of Urban Design , who was a Planner III when the Plan

Amendments were co nsidered by the City; John Hixenbaugh, the

former City Zoning Official; David Sobush, a former employee

in the City’s Economic Development Department; Julie Weston,

the City Director of Development Services; David Goodwin, City

Economic Development Directo r; and Brenda Winningham, the

Department 's Regional Planning Administrator , who was

qualified as an ex pert in comprehensive planning. In

addition, Pet itioners’ Exhibits A through H , J, K, and M

through T were received in evidence .

In its case - in - chief, Sembler called the following

witnesses: Craig Sher, Chief Executive Officer of Sembler

Florida, Inc.; and Sue Murphy, who was qualified as an expert

in land use planning. In addition, Sembler’s Exhibit A was

received in evidence .

The City and Department cross - examined Petitioners'

witnesses and, without objection, extend ed their cross -

examination of the witnesses they would have called in their

cases - in - chief beyond the scope of direct examination. No

other witnesses were called. In addition, t he Depart ment’s

Exhibits A through E were received in evidence. ii

A fter presentation of evidence, Petitioners requested a

transcript of the final hearing, and the parties were given

ten days from the filing of the T ranscript in which to file

proposed recommende d orders (PROs). The Transcript was filed

in tw o volumes on August 29, 2007. Notices of corrections of

e rrors in the Transcript were filed on September 6 and 21 ,

2007. The parties timely filed PROs, which have been duly

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

A. Parties

1. Each Petitioner submitted oral and /or written

comments, recommendations and/or objections to the City

regarding the disputed land use amendments that are the

subject of th is case between the day o f the t ransmittal

h earing (July 18, 2006) and the day of the a doption hearing

(February 15, 2007).

2. Each individual Petitioner owns and/or resides o n

property within the boundarie s of the City.

3. The Eagle Crest Civic Association, Inc., f/k/a Ea gle

Crest Neighborhood Association, Inc., is a Florida not - for -

profit corporation conducting business within the boundaries

of the City.

4. The Eagle Crest Civic Association, Inc., collects

dues from membership, conducts monthly business and

informationa l meetings at the St. Petersburg College Gibbs

Campus Library in the City, and advocates interests on behalf

of its membership before the St. Petersburg Council of

Neighborhood Associations and various City and County

governmental boards, commissions and c ouncils.

5. The Department is the state land planning agency that

is statutorily charged with the duty of reviewing

comprehensive plans and their amendments, and determining

whether a plan or amendment is “in compliance,” as that term

i s defined in S ecti on 163.3184(1)(b), Florida Statutes.

6. The City is a municipality and political subdivision

of the S tate of Florida and has adopted a comprehensive plan

that it amends from time to time pursuant to Section

163.3167(1)(b), Florida Statutes.

7 . Sembler is a Florida corporation headquartered and

conduc ting business in the City; by virtue of a contract for

the purchase of the property that is the subject of this

dispute, Sembler is an equitable owner of the property that is

affected by the challenged FLUM Amendment in this case.

B. Background

8 . The Subject P roperty has been owned by the Catholic

Diocese of St. Petersburg since 1952.

9 . Notre Dame High School , a Catholic girls - only high

school, was constructed on the Subject Property in the early

1960’ s.

10. In 1977, Notre Dame High School merged with Bishop

Barry High School (a Catholic boy s - only high school to the

east of the Subject Property) and the improvements on the

Subject Property were used for various Catholic diocesan

offices and other ad ministrative purposes.

1 1 . Notre Dame High S chool was eventually demolished,

and the only improvements remaining on the S ubject P roperty

are a former field house used for storage purposes and a

former convent used for a multi - purpose building. The Subj ect

Property is otherwise currently completely vacant.

12 . Since 1977 the Subject Property has had a FLUM

designation of Institutional.

13. I n January of 2006, Sembler applied to the City for

a change in the FLUM designation on the Subject Property fro m

Institutional to Commercial General for an approximately 13.25

acre portion of the Subject Property fronting predominately

along the west side 66 th Street North between 9 th Avenue North

and 13 th Avenue North.

14. On March 7, 2006, Sembler requested a deferral of

its pending application to consider a modification of the

development plan to less intensive commercial uses. The

deferral was granted by the City Planning Commission.

15. On March 29, 2006, Sembler submitted a new

application, abandoning t he prior request to change the FLUM

designation for the approximately 13.25 - acre portion from

Institutional to Commercial General.

16. The new application (March 29, 2006) by Sembler

requested a change to the Future Land Use designation for an

approximat e 6.19 - acre portion of the Subject Property from its

existing Institutional designation to Residential Office

Retail ("R/O/R") . This new application was assigned City File

Number PC - 700 (“PC - 700”).

17. The intention of the PC - 700 application was to

deve lop multifamily residential units on approximately 11.8

acres of the Subject Property and to develop neighborhood

commerci al uses on the approximate 6.19 - acre portion of the

Subject Property.

18. T he PC - 700 application included a Development

Agreement pr oposed by Sembler which, among other things,

limited the actual commercial development of the 6.19 acre

portion to 26,000 square feet of space, and required that a

quarter, or 25 percent , of that space be developed under the

zoning regulations for Resident ial Office General ("R/OG") ,

instead of R/O/R.

19. On May 2, 2006, the City’s Planning Commission (the

“LPA”) conducted a public hearing to consider the PC - 700

Application, and voted 6 - 2 to recommend approval of the PC - 700

application to the St. Peter sburg City Council (the “City

Council”).

20. On July 18, 2006, the City Council conducted a

public hearing for the First Reading of the PC - 700

application, and unanimously adopted a resolution approving

the transmittal of a proposed ordinance adopting PC - 700 to the

Department, among others, for review and comment pursuant to

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

Administrative Code.

21. On September 29, 2006, the Department published its

Objections, Recommendations and Comments (“ORC”) Report on the

Plan Amendment contained in PC - 700 . T he Department raised no

objections to the proposed Plan Amendment.

22. Sometime between September 29, 2006, and December

14, 2006, Sembler modified its application PC - 700. The

modified application w as intended to address some of the

concerns raised by neighborhood associations representing

citizens who owned property and resided in areas adjacent to

the Subject Property. The modified PC - 700 application

requested a FLUM amendment for 2.98 acres of th e Subject

Property to be changed from Institutional to R / O / R, for 2.98

acres of the Subject Property to be changed from Institutional

to R / OG, and for 12.02 acres of the Subject Property to be

changed from Institutional to RU (“PC - 700 Modified”). The PC -

7 00 Modified application also included a proposed Development

Agreement which, among other things, limited the actual

development of the R / O / R acreage to a maximum of 13,000 sq uare

f ee t, and limited the total combined development of the R / O / R

and ROG acreag e to 26,000 square feet.

23. On December 14, 2006, the City Council conducted its

First Reading of the PC - 700 Modified application, approving

the application and setting the Second Hearing for the

application for February 15, 2006.

24. On February 6, 2 006, the Pinellas County Commission,

meeting as the County Planning Authority (the “CPA”), held a

public hearing to consider the PC - 700 Modified application.

The CPA approved the PC - 700 Modified application.

25. On February 15, 2007, the City Council con ducted its

Second Reading public hearing of the PC - 700 Modified

application and voted to adopt Ordinance 679 - L , amend ing the

FLUM designation of t he Subject Property from Institutional to

R/O/R on 2.98 acres, R/OG on 2.98 acres , and RU on 12.02 acres

(the “Plan Amendment”) .

2 6. Petitioners do not challenge the FLUM amendment for

the RU portion of the Subject Property.

27. On February 23, 2007, the City transmitted the

adopted Ordinance 679 - L, together with staff reports from the

December 14, 2006, and February 15, 2007, public hearings and

certain other pertinent information , to the Department for its

review pursuant to Chapter 163, Florida Statutes, and Chapter

9J - 5, Florida Administrative Code.

28. On April 16, 2007, the Department published in t he

St. Petersburg Times n ewspaper its NOI to f ind the City ’s Plan

Amendment “i n c ompliance . ”

C. Petitioners' Challenge

29. The Petitioners assert that the FLUM amendment

adopted by the City in Ordinance 679 - L is not “in compliance”

pursuant to S ection 1 63.3184(1)(b), Florida Statutes , because:

( 1) th e FLUM amendment is not based on adequate data and

analysis as required by Section 163.3177(8), Florida Statutes ,

and Flori da Administrative Code Rule 9J - 5.005(2)(a) iii ; and (2)

the FLUM amendment is not inte rnally consistent with specific

objectives and policies of the City’s Plan as required by

Section 163.3177(2), Florida Statutes, and Rule 9J - 5.005(5)(a)

and (b) .

30. The Petitioners’ challenge is centered on three

specific objectives and policies containe d in the Future Land

Use Element ("FLUE") of the City’s Plan: Policy LU3.17,

Objective LU4(2) , and Objective LU18. iv The Petitioners

assert that the challenged Plan A mendment is inconsistent with

tho se objectives and policies and is not based on data and

analysis . The Department and the Intervenors assert that

those objectives and policies are not applicable , that the

Plan Amendment is not inconsistent with tho se objectives and

policies , and that the Plan Amendment is based on data and

analysis. The Int ervenors also assert that, even if the Plan

Amendment were inconsistent with those objectives and

policies, consistency with other goals, objectives, and

policies in the plan should be "balanced" against the

inconsistency and that the consistencies outweig h the

inconsistencies , so that the Plan Amendment still would be "in

compliance . " The Petitioners and the Department do not

subscribe to such a balancing of consistencies and

inconsistencies, citing Dept. of Community Affairs v. Lee

County and Leeward Yac ht Club, LLC , AC - 06 - 006, DOAH Case No.

06 - 0049GM, 2006 Fla. ENV LEXIS 158 (Admin. Comm'n Nov. 15,

2006).

D . Pertinent City Comprehensive Plan Provisions

31. The City's FLUE Policy LU3.17 states:

The City has an adequate supply of

commercial land use to meet existing and

future needs. Future expansion of

commercial uses shall be restricted to

infilling into existing commercial areas

and activity centers, except where a need

can be clearly identified.

32 . The City's FLUE Objective LU4 states in pertin ent

part :

The Future Land Use Plan and Map shall

provide for the future land use needs

identified in this Element:

* * *

2. Commercial – additional commercial

acreage is not required to serve the future

needs of St. Petersburg. An oversupply

exi sts based upon the standard of 1 acre of

commercial land for every 150 persons in

the community.

* * *

4. Mixed Use – development s are encouraged

in appropriate locations to foster a land

use pattern that results in fewer and

shorter automobile t rips and vibrant

walkable communities.

33 . The City's FLUE Objective LU18 states:

Commercial development along the City’s

major corridors shall be limited to

infilling and redevelopment of existing

commercially designated frontages.

34 . Section 1.2.2 o f the General Introduction to the

City’s Plan describes the format of the elements of the Plan

and includes the following pertinent sub - headings and

language:

1.2.2.3 Goals, Objectives, and Policies

The Goals, Objectives, and Policies have

been devel oped in response to and in

accordance with the needs and directions of

growth and determined levels of service

requirements as identified within the

Inventory and Analysis which can be found

in the accompanying 1989 Technical Support

Documents [TSDs] and t he 1996 Evaluation

and Appraisal Report [EAR] .

All objectives are designed to identify the

measurable achievements necessary to

support the related goal. In those cases,

where the Objective is not specific and/or

measurable, but rather, the actual

spec ificity and measurability is found in

the sup porting policy(ies), the policy( ies)

shall be used for the purposes of

monitoring and evaluation.

The policies are intended to act as

implementation mechanisms identifying

programs and procedures to be used t o

accomplish the related objective.

This Comprehensive Plan is intended to be

utilized as a document in its entirety. It

shall hereby be established that no single

goal, objective or policy or minor group of

goals, objectives or policies, be

interpreted in isolation of the entire

plan.

1.2.2.5 Status and Use of the TSD and the

EAR

. . . . The 1989 TSD and the 1996 EAR are

hereby referenced and established as the

supporting data and analysis for this

Comprehensive Plan.

The TSD and the EAR may be used to assist

in the interpretation of this comprehensive

plan and to aid in the review of proposed

changes to this plan. It should be updated

as necessary to maintain the usability of

the data and analysis as an interpretive

and advisory aid.

* * *

1.3.1.2 Competing Policies

Where two or more policies are competing

when applied to a particular set of factual

circumstances, such conflict shall be

resolved first by administrative

interpretation of the Comprehensive plan

policies. The obj ective of any such

interpretation shall be to obtain a result

which maximizes the degree of consistency

between the proposed development or public

sector activity and this Comprehensive Plan

considered as a whole.

35 . The City’s P lan also includes the fo llowing

pertinent definitions in Section 1.7:

Commercial Uses - Activities within land

areas which are predominately connected

with the sale, rental, and distribution of

products, or performance of services.

* * *

Mixed Use - A site that has a combination

of different land uses, such as

residential, office and retail.

36 . In addition, Policy LU3.1(B) of the City’s FLUE

defines "Commercial and Mixed Use Categories" to include:

1. Residential/Office General (R/OG) -

a llowing mixed use office, office park and

medium density residential up to a floor

area ratio of 0.5 and a net residential

density of 15 dwelling units per acre.

. . .

2. Commercial General (CG) - a llowing the

full range of commercial uses including

retail, office, and service uses up to a

floor area ratio of 0.55. . . .

3. Retail /Office/Residential (R/O/R) -

a llowing mixed use retail, office, service,

and medium density residential uses

generally up to a floor are ratio of 0.4

and a net residential density of 15

dwelling u nits per acre. . . .

37 . Finally, FLUE Policy LU3.1(D) defines "Public/Semi -

Public Categories" to include:

2. Institutional (I) - Limited to

designation of federal, state and local

public buildings and grounds, cemeteries,

hospitals, churches, and rel igious

institutions and educational uses.

Residential uses having a density not to

exceed 12.5 dwelling units per acre, are

also allowed. Residential equivalency uses

are not to exceed 3 beds per dwelling unit.

Non - residential uses permitted in the land

development regulations are not to exceed a

floor area ratio of 0.55.

E . Consistency with Commercial Use Restrictions

38 . The Petitioners proved beyond fair debate that t he

Plan Amendment at issue increases " the supply of commercial

land use to meet ex isting and future needs. " FLUE Policy

LU3.17. This is clear not only from the potential for

commercial use in the mixed use R/O/R and R/OG future land use

categories , but also from the City's inclusion of nine - tenths

of the former 's and one - tenth of the latter's acreage in the

inventory of commercial land use for purposes of determining

the "supply of commercial land use to meet existing and future

needs" in FLUE Policy LU3.17 and the ratio described in FLUE

Objective LU4.2 . The question is whether the r estrictions on

commercial future land use s reflec ted in those Plan provisions

apply to the mixed use categories of R/O/R and R/OG.

39 . Prior to adoption, t he City's staff reports stated

that the commercial restrictions do apply , and that the Plan

Amend ment at issue was inconsistent with those restrictions ,

but that the Plan Amendment was consistent with several other

Plan provisions and "on balance, consistent with the goals,

objectives and policies of the Compreh ensive Plan." However,

in this de novo proceeding, the staff reports are not

controlling on the applicability of the commercial

restrictions and the consistency of the FLUM amendments at

issue with those restrictions. In the first place, in light

of the contrary testimony of staff during the f inal hearing,

the intent of staff in using the language in the reports is

fairly debatable. Second, after the staff reports were

prepared, significant testimony on need and demand for

commercial land use at the particular location of the FLUM

amendments a t issue was presented during the final public

hearing on the PC - 700 Modified application on February 15,

2007, which could have changed staff's mind on at least some

of the issues. Finally, the extent to which the City Council

may have relied on the staff reports in determining that the

Plan Amendment was "in compliance" is not clear from the

evidence and is fairly debatable.

40 . The City now take s the position , along with the

Department, that the restrictions on commercial future land

use in FLUE Polic y LU3.17 and Objective LU4.2 do not apply to

R/O/R and R/OG because they are mixed use future land use

categories, not commercial future land use categories. In

support of this position, they point out that Objective LU4

treats "Mixed Use" and "Commercial " " future land use needs"

differently and applies the restriction only to "Com mercial"

"future land use needs," while encouraging mixed use

developments in appropriate locations . Several of the

specific Plan provisions cited in the staff reports as being

consistent with the Plan Amendment addressed the

appropriateness of a mixed use development at the proposed

location, including: FLUE Policy LU3.18, which states that

"retail and office activities shall be located, designed and

regulated so as to benefit from the access afforded by major

streets without impairing the efficiency of operation of these

streets or lowering the LOS [level of service] below adopted

standards, and with proper facilities for pedestrian

convenience and safety"; FLUE Policy LU3.4, w hich states that

"[t]he Land Use Plan shall provide for compatible land use

transition through an orderly land use arrangement, proper

buffering, and the use of physical and natural separators";

FLUE Policy LU3.6, which states that "[l]and use planning

dec isions shall weigh heavily the established character of

predominately developed areas where changes of use or

intensity of development are contemplated"; FLUE Policy LU3.8,

which seeks to "protect existing and future residential uses

from incompatible uses , noise, traffic and other intrusions

that detract from the long term desirability of an area

through appropriate land development regulations"; and FLUE

Policy LU3.5, which states that "[t]he tax base will be

maintained and improved by encouraging the app ropriate use of

properties based on their locational characteristics and the

goals, objectives and policies within this Comprehensive

Plan." There also was considerable testimony at the hearing

concerning the appropriateness of a mixed use development at

the proposed location . v

41 . Petitioners also contend that the Plan Amendment is

inconsistent with FLUE Objective LU18 concerning commercial

development along major corridors. In favor of Petitioners'

position, 66th Street North, where the Subject Prope rty is

located, is a major north - south corridor in the City.

However, the Department and the Intervenors argue that the

objective does not apply because the policies under it only

specify 4th Street and Central Avenue and do not mention 66th

Street.

42 . Taking all of the evidence and the City's Plan into

consideration, including Sections 1.2. 2.3, 1 .2.2.5 , and

1.3.1.2 of the General In troduction, it is found that

Petitioners did not prove beyond fair debate that FLUE Policy

LU3.17, Objective LU4.2 , or O bjective LU18 apply to the FLUM

amendments at issue; even if th ose Plan provisions applied,

Petitioners did not prove beyond fair debate that the FLUM

amendments at issue do not constitute "infilling into existing

commercial areas " or "infilling . . . of e xisting commercially

designated frontages," or that "a need can [not] be clearly

identified." vi All but one witness testified that, if those

Plan provisions applied, the FLUM amendments would constitute

commercial infill under the pertinent Plan provisions; the

lone dissenter was using what he called a "narrow definition"

of infill and agreed that the FLUM amendments would constitute

commercial infill using the broader definition held by the

majority view. There also was ample evidence that there was a

clea rly identified need for the FLUM amendments at issue,

especially when considered along with the unchallenged RU FLUM

amendment.

43 . Based on the foregoing findings on internal

consistency, which is the context of Petitioners' data and

analysis argument, Petitioners also did not prove beyond fair

debate that the Plan Amendment was not based on data and

analysis.

CONCLUSIONS OF LAW

4 4 . Section 162.3184(9), Florida Statutes, provides that

when the Department has given notice of intent to find a

comprehen sive plan amendment to be “in compliance , ” those

provisions “shall be determined to be in compliance if the

local government’s decision is fairly debatable.” Since the

Department gave such notice as to the Plan Amendment at issue

in this case, Petitioners bear the burden of proving beyond

fair debate that the Plan Amendment is not “in compliance . ”

See Young v. Department of Community Affairs , 625 So. 2d 831,

833 - 835 (Fla. 1993).

45 . In recognition of the local nature of legislative

land use decisions, t he Florida Supreme Court has held that an

amendment subject to the “fairly debatable” standard must be

upheld “if reasonable persons could differ as to its

propriety.” Martin County v. Yusem , 690 So. 2d 1288, 1295

(Fla. 1997). See also B & H Travel Corp. v. Department of

Community Affairs , 602 So. 2d 1362 (Fla. 1 st DCA 1992) , appeal

dismissed and rev. denied , 613 So. 2d 1 (Fla. 1992). In

effect, the “fairly debatable” standard defers not only to the

City’s determination, but also the Department’s determi nation

that the Plan Amendment is “in compliance.”

46 . Section 163.3184(1)(b), Florida Statutes , defines

“in compliance” as:

Consistent with the requirements of ss.

163.3177, 163.31776 when a local government

adopts an educational facilities element,

163. 3178, 163.3180, 163.3191, and 163.3245,

with the state comprehensive plan, with the

appropriate strategic regional policy plan,

and with chapter 9J - 5, Florida

Administrative Code, where such rule is not

inconsistent with this part and with the

principles f or guiding development in

designated areas of critical state concern

and with part III of chapter 369, where

applicable.

Out of these compliance criteria, only Section 163.3177,

Florida Statutes, and Florida Administrative Code Rule Chapter

9J - 5 are perti nent to this case.

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

t he several elements of a comprehensive plan must be

coordinated and consistent. Any amendment to the FLUM must be

internally consistent with the other elements of the

comprehens ive plan. See Coastal Development of North Fla.,

Inc. v. City of Jacksonville , 788 So. 2d 204, 208 (Fla. 2001).

48 . As found, Petitioners failed to prove to the

exclusion of fair debate that the Plan Amendment is

inconsistent or not coordinated with th e several elements of

the City’s Plan.

49 . The requirement for data and analysis in support of

comprehensive plan and plan amendments is set forth in Florida

Administrative Code Rule 9J - 5.005(2)(a) :

All goals, policies, standards, findings

and conclus ions within the comprehensive

plan and its support documents, and within

plan amendments and their support

documents, shall be based upon relevant and

appropriate data and analyses applicable to

each element. To be based on data means to

react to it in an appropriate way and to

the extent necessary indicated by the data

available on that particular subject at the

time of adoption of the plan or plan

amendment at issue.

50 . This rule requires only that data exist at the time

the plan amendment is adopted. It does not even require that

such data be submitted by the local government to the

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

question is not whether the local government submitted

sufficient data and analysis to the Department, but rath er

whether the data in existence at the time of adoption support

the plan amendment. If the data existed at the time of

adoption, analysis of that data may be made at the compliance

hearing. Zemel , et al., v. Lee County and Dept. of Community

Affairs , DO AH CASE NO. 90 - 7793GM , 1992 Fla. Div. Adm. Hear.

LEXIS 5927 , at *71 - 76 (DCA June 22, 1993), aff’d , 642 So. 2d

1367 (Fla. 1 st DCA 1994).

51 . As found, Petitioners failed to prove to the

exclusion of fair debate that the Plan Amendment is not based

on dat a and analysis .

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Department of Community Affairs

enter a final order determining that the City's Ordinance 679 -

L is "in compliance."

DONE AND EN TERED this 5th day of October, 2007, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Flori da 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 5th day of October, 2007.

ENDNOTES

i / Unless othe rwise indicated, all statutory citations are to

the 2007 codification of the Florida Statutes.

ii / The City's exhibits were noted on the record as being

received, but they duplicated other exhibits and, after an

off - the - record discussion of the duplicat ion, were withdrawn.

iii / Unless otherwise indicated, all rule citations are to the

current version of the Florida Administrative Code.

iv / In October 2006, the City adopted a new Chapter 2, the

Vision Element of its Comprehensive Plan, and changed the

numbers of the plan provisions previously numbered Chapter 2

and higher. For example, old Policy LU2.17 is now LU3.17; old

Objective LU3(2) is now LU4(2); old Objective LU17 is now

LU18. This Recommended Order uses the new numbering system

although some of the evidence in the record preceded the

adoption of the Vision Element and used the old numbers.

v / The Department's staff analysis of the Plan Amendment,

prepared at a time when only R/O/R and no R/OG was proposed,

stated under the topic "Need/In ternal Inconsistency":

The City's Comprehensive Plan restricts

expansion of commercial uses to infilling

of existing commercial areas except where a

need can be clearly identified. However,

the Residential Office Retail land use

category does not requi re that retail be

included as a use on a site with having the

designation. Thus, staff has identified no

potential objections related to this issue.

While this might sound like a failure to consider the maximum

development potential allowed by the P lan Amendment, it

actually appears to have been intended to distinguish mixed

use from purely commercial future land use categories.

vi / The Plan Amendment clearly is not "infilling into existing

commercial . . . activity centers" or "redevelopment of

e xisting commercially designated frontages."

COPIES FURNISHED :

Thomas Pelham, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard

Suite 100

Tallahassee, Florida 32399 - 2100

Shaw Stiller, General Counsel

Department of Community Affair s

2555 Shumard Oak Boulevard

Suite 325

Tallahassee, Florida 32399 - 2160

Leslie E. Bryson, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

Charles W. Gerdes, Esquire

Keane, Reese, Vesely & Gerdes, P.A.

7 70 Second Avenue South

St. Petersburg, Florida 33701 - 4006

Stephen C. Chumbris, Esquire

Trenam, Kemker, Scharf, Barkin

Frye, O'Neill & Mullis, P.A.

200 Central Avenue, Suite 1600

St. Petersburg, Florida 33701

Milton A. Galbraith, Esquire

City of St. P etersburg

One Fourth Street, North Tenth Floor

St. Petersburg, Florida 33701 - 3804

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any

exceptions to th is Recommended Order should be filed with the

agency that will issue the Final Order in this case.