08-004772GM Dr. William C. Pyle vs. City Of St. Pete Beach Status: Closed Recommended Order on Monday, May 4, 2009.

Summary: Plan amendments to create new land use category and related text amendments found to be in compliance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. WILLIAM C. PYLE, )

)

Petitioner, )

)

vs. ) Case No. 08-4772GM

)

CITY OF ST. PETE BEACH, )

)

Respondent, )

)

and )

)

SAVE OUR LITTLE VILLAGE, INC., )

LORRAINE HUHN, and DEBORAH )

NICKLAUS, )

)

Intervenors. )

_______________________________ )

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 February 10

and 11, 2009, in St. Pete Beach, Florida.

APPEARANCES

For Petitioner: Ross Stafford Burnaman, Esquire

1018 Holland Drive

Tallahasssee, Florida 32301-4508

For Respondent: Suzanne Van Wyk, Esquire

Bryant Miller Olive, P.A.

101 North Monroe Street, Suite 900

Tallahassee, Florida 32301-1546

For Intervenors: Robert K. Lincoln, Esquire

Icard, Merrill, Cullis, Timm,

Furen & Ginsburg, P.A.

2033 Main Street, Suite 600

Sarasota, Florida 34237-6093

STATEMENT OF THE ISSUE

The issue is whether the plan amendments adopted by the

City of St. Pete Beach (City) by Ordinance No. 2008-15 on

August 26, 2008, are in compliance.

PRELIMINARY STATEMENT

As described in the transmittal package, City Ordinance No.

2008-15 adopted plan amendments which amended the Future Land

Use Element (FLUE) and Future Land Use Map (FLUM) of the City's

Comprehensive Plan (Plan) to include a new Community

Redevelopment District on Eighth Avenue; amended two parcels

comprising 0.607 acres from Residential Low Medium to

Residential High with Resort Facilities Overlay; and amended the

FLUE and Housing Element (HE) to include new Community

Development Districts along Gulf Boulevard and the Downtown

area. The amendments were adopted under the Alternative Review

Process Pilot Program (Pilot Program), which is codified in

Section 163.32456, Florida Statutes. 1

On September 24, 2008, Petitioner, Dr. William C. Pyle, a

resident and owner of property within the City, filed with the

Division of Administrative Hearings his Petition for

Administrative Hearing (Petition) in which he contended the

amendments are not in compliance for numerous procedural and

substantive reasons. A Motion for Stay or Abatement accompanied

the filing, but that request was later denied by Order dated

December 1, 2008.

On October 15, 2008, Intervenors, Save Our Little Village,

Inc. (SOLV), Lorraine Huhn, and Deborah Nicklaus, filed their

Petition to Intervene in support of the challenged amendments.

Although opposed by Petitioner, intervention was granted by

Order dated November 17, 2008.

On December 24, 2008, the City filed a Demand for

Expeditious Resolution under Section 163.3189(3)(a), Florida

Statutes. By agreement of the parties, the matter was then

scheduled for final hearing on February 10 and 11, 2009, in St.

Pete Beach, Florida.

On January 16, 2009, Intervenors filed an Amended Motion to

Strike Claims from the Petition (Amended Motion). By Order

dated January 30, 2009, the Amended Motion was granted in part

and paragraphs 4, 8, 32, 34, 35, and 43 were stricken as being

immaterial. The stricken paragraphs essentially alleged that

the amendments were not in compliance because after the

amendments were adopted by the City, it failed to send the

Department of Community Affairs (Department) a complete

transmittal package, including all of the data and analyses that

support the amendments. The bases for that ruling are found in

the Order.

In support of their respective positions on the Amended

Motion to Strike, Petitioner and Intervenors requested that

numerous matters be officially recognized. No objections to

these requests were lodged, and they were granted by Order dated

January 30, 2009. 2

A Pre-Hearing Stipulation was filed by the parties on

February 6, 2009. At final hearing, Petitioner testified on his

own behalf and presented the testimony of D. Sullins Stuart,

III, a land use planner and accepted as an expert, and Karl E.

Holley, Director of the City's Community Development Department.

By agreement of the parties, Petitioner submitted as his Exhibit

32 the deposition testimony of Michael McDaniel, Chief of the

Department's Office of Comprehensive Planning. Also, he offered

Petitioner's Exhibits 1-5, 8, 9, 12, 13, 15, 17, 19, 21-26, 30,

31, and 33. All were received except Exhibit 22, on which a

ruling was reserved, and Exhibit 25. The objection to Exhibit

22, which is a guide for forecasting population growth published

by the Department in 1986, is sustained. The City presented the

testimony of Karl E. Holley, Director of the Community

Development Department and accepted as an expert. Also, it

offered Respondent's Exhibits 1, 3, 7, 8, 16-21, 24, and 33,

which were received in evidence. Intervenors presented the

testimony of Deborah L. Nicklaus, a local resident and part

owner of the 377-unit Sirata Hotel located in the City. Also,

they offered Intervenors' Exhibits 4, 5, and 8-12, which were

received in evidence. The parties offered Joint Exhibits 1-8,

which were received in evidence. Finally, on March 27, 2009,

Petitioner filed his Third Request for Official Recognition,

while the City filed a second Request for Official Recognition

on March 27, 2009. An objection to the City's request was filed

by Petitioner on April 6, 2009. Both requests are hereby

granted. 3

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

March 19, 2009. By agreement of the parties, Proposed

Recommended Orders were filed on April 2, 2008, and they have

been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

A. The Parties

1. The City is a municipality in southwestern Pinellas

County. Following an Evaluation and Appraisal Report (EAR)

process, the City adopted its current Plan in 1998 (also known

as the 2010 Plan), which has been found to be in compliance.

Since 2007, municipalities within Pinellas County have

participated in the Pilot Program for adoption of comprehensive

plan amendments. The statutory process is described in

Section 163.32465, Florida Statutes. Under the Pilot Program,

municipalities have "reduced state oversight of local

comprehensive planning," and plan amendments may be enacted in

"an alternative, expedited plan amendment adoption and review

process." Id. Although the City must send a transmittal

package to the Department (and other designated agencies and

entities) for its preliminary review, the Department does not

issue an Objections, Recommendations, and Comments Report or a

notice of intent. Instead, the Department "may provide comments

regarding the amendment or amendments to the local government."

Id. It may also initiate an administrative proceeding to

challenge whether such amendments are in compliance, but it

chose not to do so here. The amendments in dispute were adopted

under the Pilot Program.

2. Petitioner is a resident of, and owns property in, the

City, and he submitted oral and written comments and objections

concerning the proposed amendments. As such, he is an affected

person and has standing to participate in this proceeding.

3. The parties have stipulated that Lorraine Huhn and

Deborah Nicklaus reside and own property within the City, and

that both individuals submitted comments to the City during the

transmittal public hearing on June 16, 2008, and/or the adoption

public hearing on August 26, 2008. Therefore, they are affected

persons and have standing to participate.

4. According to the parties' Pre-Hearing Stipulation, SOLV

is a Florida non-profit corporation with a principal address of

6370 Gulf Boulevard, St. Pete Beach, Florida. The parties have

also stipulated that SOLV operates a business within the City.

Whether it submitted comments to the City between the

transmittal hearing on June 24, 2008, and the adoption hearing

on August 26, 2008, is in dispute. SOLV's President, Lorraine

Huhn, presented comments at the City's adoption hearing on

August 26, 2008. See Petitioner's Exhibit 15, pages 63-64.

During her brief oral presentation to the City Commission in

support of the amendments, she did not state that she was

speaking on behalf of SOLV, and at no time did she refer to that

organization. However, on August 2, 2008, Ms. Huhn sent an

email on behalf of SOLV to the City Clerk, which arguably can be

interpreted as written support for the Ordinance being

challenged. See Intervenors' Exhibit 9. Also, an email

authored by the City Manager on August 1, 2008, indicates that

SOLV representatives met with City representatives on July 31,

2008, to discuss the proposed amendments. See Intervenors'

Exhibit 10. Since these written and oral comments were

submitted between the transmittal and adoption hearings, SOLV

meets the definition of an affected person and has standing to

participate in this proceeding.

B. Background

5. By way of background, the City was initially

incorporated in 1957 as St. Petersburg Beach by consolidating

the towns of Pass-a-Grille, Don CeSar, Belle Vista, St.

Petersburg Beach, and certain unincorporated areas of Pinellas

County. It occupies a six-mile long barrier island (known as

Long Key), which lies between the Gulf of Mexico and Boca Ciega

Bay, with a maximum width of three-quarters of a mile and an

area of approximately 2.25 square miles or 1,286.14 acres. The

name was shortened to St. Pete Beach in 1994 to lessen the

confusion with the City of St. Petersburg, which lies to the

east. The City has about 4.5 miles of beaches and is very

densely populated. Most of the City has been developed with

only 13.40 acres, or around one percent of the land, vacant and

undeveloped. The entire City is within the flood plain, and

much of the City is within the Coastal High Hazard Area (CHHA).

The current population is around 10,000.

6. To place the current dispute in proper perspective, a

history of events that began in 2002 is necessary. With the

assistance of a consulting firm, beginning in April 2002 the

City initiated redevelopment planning efforts for various areas

within the City including Corey Avenue/Blind Pass Road, Pass-a-

Grille, Gulf Boulevard, and residential neighborhoods. The

intention of this effort was to define the starting point for

subsequent master planning efforts by the City. A Final Report

(also known as the Visioning Statement or Plan) was issued by

the consulting firm in July 2002. See Respondent's Exhibit 1.

This was followed by a master planning process by another

consulting firm, which was intended, among other things, to

develop a strategy for dealing with the redevelopment of older

and outdated properties within the resort area of the City

(along the Gulf of Mexico), rather than having them converted

into residential condominiums because of existing regulatory

restrictions. The final Master Plan was presented to the City

Commission in August 2003. See Respondent's Exhibit 3.

7. In response to the Master Plan, on June 28, 2005, the

City enacted Ordinance 2004-24, known as the City's Community

Redevelopment Plan (Redevelopment Plan), which implemented many

of the recommendations in the Master Plan. See Respondent's

Exhibit 8. Among other things, the Redevelopment Plan created a

new land use category, the Community Redevelopment District,

which included two sub-districts, the Gulf Boulevard

Redevelopment District, depicted on Map 10 of Exhibit 8, and the

Downtown Redevelopment District, depicted on Map 11 of the same

exhibit. The amendment was intended to establish standards for

redevelopment in the so-called "resort" area of the City, which

runs north-south along Gulf Boulevard adjacent to the beach on

the western side of Long Key, while the same thing was intended

for the core downtown area. Although Petitioner is correct that

Ordinance No. 2008-15 differs from Ordinance No. 2004-24 in some

respects, there are many similarities between the two, including

the creation of the two Redevelopment Districts, additional

character districts within the two main Districts, and the maps

of the Districts. Also, both Ordinances have many of the same

Goals, Objectives, and Policies, and both include unnumbered

narrative text setting out allowable uses as density and

intensity standards.

8. On August 19, 2005, Petitioner and a non-profit

association filed a challenge to Ordinance No. 2004-24 under

Section 163.3184, Florida Statutes. See Citizens for

Responsible Growth and William C. Pyle v. Department of

Community Affairs and City of St. Pete Beach , DOAH Case No. 05-

3159GM. The challengers later voluntarily dismissed their

petition, the case was closed on October 17, 2005, and the

Department found the amendments to be in compliance. Under the

City's Charter, however, citizens may petition to require

reconsideration by the City Commission of any adopted ordinance

and, if the City Commission fails to repeal an ordinance so

reconsidered, to approve or reject it at a City election. See

Petitioner's Exhibit 26; § 7.02, City Charter. (Ten percent of

the qualified registered voters in the City must sign a petition

in order to have an ordinance placed on the ballot for approval

or disapproval.) Petitioners in DOAH Case No. 05-3159GM were

instrumental, at least in part, in securing the necessary number

of voters to sign a petition, and a majority of the registered

voters in the City later voted to repeal the Ordinance in 2006.

Pursuant to that vote, the City Commission repealed Ordinance

No. 2004-24 and it never took effect.

9. In 2008, six ordinances (Ordinance Nos. 2008-09 through

2008-14) were proposed as citizen initiatives. After the City

refused to act on the six initiatives, SOLV and others filed

suit against City officials seeking a vote on the six

ordinances. See Save Our Little Village, Inc., et al. v.

Commissioner Linda Chaney, et al. , Case No. 08-2408-CI-8 (6th

Circuit, Pinellas County). On March 31, 2008, the City adopted

Resolution 2008-09 approving a Settlement Agreement in the law

suit. See Joint Exhibit 1, Appendix C. The Settlement

Agreement required the City to transmit and adopt the Ordinance

being challenged here subject to various conditions and

limitations, if the voters approved Ordinance No. 2008-10, which

was a Petition by SOVL proposing an ordinance to amend the

Countywide Future Land Use Plan. (The City is required by the

Countywide Plan Rules to transmit the countywide plan map

amendment to the Pinellas County Planning Council for its review

in order to adopt the City plan amendment. This process is

described in Petitioner's Exhibit 33.) Notably, the City's

staff did not prepare the text or the accompanying supporting

data for Ordinance No. 2008-15; rather, the text and all

supporting data were prepared by SOLV. The voters approved

Ordinance No. 2008-10 on June 3, 2008, which provided for the

review and approval of the amendments being challenged here.

10. Pursuant to the results of the referendum, on June 16,

2008, the City approved Ordinance Nos. 2008-15, 2008-24, and

2008-25. Only the first Ordinance is in issue here; the other

two are not contested. As required by Section 163.32465(4)(a),

Florida Statutes, the amendments were then transmitted to the

Department, Department of Environmental Protection, Department

of Education, Department of State, Department of Transportation

District Seven, Tampa Bay Regional Planning Council, Southwest

Florida Water Management District, and Pinellas County Planning

Department for their review and comment, if any. Comments on

the amendments were offered by the Department on August 1, 2008,

and by the Department of Transportation, Department of

Education, and Tampa Bay Regional Planning Council.

11. On August 26, 2008, the City adopted Ordinance No.

2008-15. Petitioner's challenge was then timely filed with the

Division of Administrative Hearings on September 24, 2008. See

§ 163.32465(6)(a), Fla. Stat. ("[a]ny 'affected person' as

defined in s. 163.3184(1)(a) may file a petition with the

Division of Administrative Hearings . . . within 30 days after

the local government adopts the amendment").

C. The Ordinance

12. Ordinance No. 2008-15 establishes a new land use

category, the Community Redevelopment District, which includes

the Downtown and Gulf Boulevard Redevelopment Districts

comprised of eleven character districts, and implements that

change by amending the FLUM and certain text provisions within

the FLUE and HE. The two new Districts comprise approximately

twenty percent of the total land area of the City, or around

248.25 acres. The amendments are found in Attachment A,

consisting of 115 pages, which is attached to the Ordinance.

Attachment A includes six maps found on page 40 (Map 1 -

Community Redevelopment Districts Location); page 41 (Map 2 -

Gulf Boulevard Redevelopment Character Districts); page 42 (Map

3 - Downtown Community Redevelopment District 1); page 110 (Map

10 - Future Land Use Map - Gulf Boulevard Redevelopment

District, Proposed Future Land Use); page 111 (Map 11 - Future

Land Use Map - Downtown Redevelopment District, Proposed Future

Land Use); and page 112 (Map 12 - Coastal High Hazard Area -

Storm Surge for Category 1 (2007), St. Pete Beach, FL). Pages 1

through 6 are introductory material outlining the need for

redevelopment. Pages 7 through 112 pertain to the Future Land

Use Element, while pages 113 through 115 relate to the Housing

Element. Because SOLV (rather than the City) prepared

Attachment A, this is probably the reason why some parts of the

lengthy Attachment A have been drafted in narrative style.

13. Besides Attachment A, support documentation for the

amendments is attached to the Ordinance and includes the legal

notices published in a local newspaper; Citizen Courtesy

Information Lists; Commission and Planning Board Agendas;

excerpts from Division 31 of the City's Land Development Code;

copies of various Ordinances; and a 127-page Special Area Plan

submitted to the Pinellas Planning Council and Countywide

Planning Authority in support of the amendment that was

necessary in order for the City to adopt the Ordinance. In

addition, the data and analyses used for the adoption of

Ordinance No. 2004-24 were relied upon to support the

amendments, including the Visioning Plan and the Master Plan.

D. Petitioner's Objections

14. In paragraphs 9 through 25 of his Petition, which are

in the section entitled "Disputed Issues of Material Fact And/or

Mixed Disputes [sic] Issues of Fact and Law," Dr. Pyle contends

that the amendments adopted by the Ordinance are not in

compliance for numerous reasons. The parties' Pre-Hearing

Stipulation also states that "the Disputed Issues of Material

Fact and/or Mixed Questions of Fact or Law set forth in the

Petition for Administrative Hearing in this matter remain

disputed issues for the purposes of the final hearing." In his

Proposed Recommended Order, however, Petitioner states in a more

concise fashion that the amendments are not in compliance

because they:

are not clearly based upon appropriate data,

including data required for the FLUE; [are

not] based upon and supported by an

appropriate analysis of the best available

data; did not demonstrate "need"; [are]

inconsistent with the State Comprehensive

Plan; [are] not "financially feasible"; [do]

not meet format requirements; [do] not

contain two planning periods; establish a

mixed-use FLUM designation of CRD [Community

Redevelopment District] that [does] not meet

the statutory and rule requirements; [are]

internally inconsistent; and [do] not meet

the minimum procedural and notice

requirements.

These objections will be considered below, although not in the

order listed above.

a. Procedural Irregularities

15. Petitioner contends that the City failed to follow

certain notice requirements and therefore he was unduly

prejudiced by these irregularities. Specifically, he claims

that the notices published by the City in the St. Petersburg

Times on June 8 and August 20, 2008, did not advise the public

of all amendments, particularly one relating to the Resort

Facilities Overlay District; did not include a map showing areas

subject to the FLUM amendments in relation to major streets; did

not advise that the City was amending the coastal construction

control line (CCCL) definition in the Preservation land use

category; and the actual changes being made "did not comport

with the title of the adopted Ordinance." Copies of the

published notices, albeit in very small and sometimes illegible

print, are found in Joint Exhibit 2.

16. Assuming all of these notice deficiencies are true,

Petitioner did not establish that he was prejudiced by any

irregularities. Besides being intimately involved in this

controversy since its inception in 2002, the evidence shows that

he attended both the transmittal and adoption hearings of

Ordinance No. 2008-15; that he addressed the City Commission at

both meetings; that he was provided copies of all pertinent

documents; that through counsel he filed a Petition requesting a

formal evidentiary hearing, which raises a litany of compliance

issues; that he was allowed to conduct discovery; and that he

was given an opportunity to fully litigate each issue in his

Petition. The contention that he was prejudiced by procedural

irregularities is hereby rejected.

b. Planning Time Frames

17. Petitioner alleges that the Plan, as amended, does not

set forth either a short-term planning time frame for the five-

year period following adoption, or a long-term planning

timeframe for at least a ten-year period following adoption. He

contends that this is inconsistent with Florida Administrative

Code Rule 9J-5.005(4), which requires that "[e]ach local

government comprehensive plan shall include at least two

planning periods: one for at least the first five year period

subsequent to the plan's adoption and one for at least an

overall 10-year period." See also § 163.3177(3)(a)5., Fla.

Stat.

18. The existing Plan includes at least two planning

periods, a Capital Improvements Plan (CIP) covering the first

five years after the adoption of the Plan in 1998, and the

School Board's Five-Year Work Program for fiscal year 2007-08

through 2011-2012. Although the CIP was first adopted in 1998,

the statutory deadline for all local governments to transmit an

updated CIP was December 1, 2008, or after the amendment was

adopted. Also, the existing Plan utilized a population estimate

from the Bureau of Economic and Business Research (BEBR) to

project population for the City for the upcoming ten-year

period.

19. Besides the above time frames, the new amendment

contains two other planning time frames for implementation of

the redevelopment incentives in the Plan. First, it contains a

Residential Unit Reserve section for the new District, holding

specific numbers of residential units in reserve in three of the

character districts (Downtown Core Residential District,

Commercial Corridor Blind Pass Road District, and Commercial

Corridor Gulf Boulevard District) for the first five years after

adoption of the plan amendments. See Joint Exhibit 2, pages

106-107. This allows the City to evaluate the effectiveness of

the redevelopment incentives in the amendment without releasing

all residential density otherwise authorized. Second, the

amendment contains a General Residential Unit Density Pool

Reserve of 195 residential units in the Large Resort District

which cannot be released in the first ten years after adoption

of the amendment. See Joint Exhibit 2, page 108. Like the

other provision, this planning tool allows the City to

reevaluate the effectiveness of the redevelopment incentives in

the amendment prior to authorizing additional density.

Petitioner's own planner agreed that these time frames were part

of the planning period for the proposed amendment. While

Petitioner contends that the time periods are "minimum waiting

periods not tied to any fixed time frame," it is reasonable to

infer from the evidence that they will become operative once the

Ordinance is implemented.

20. The preponderance of the evidence shows that the Plan,

as amended, complies with the requirement for two planning time

frames and is not inconsistent with either the rule or statute.

c. Mixed-Use Categories

21. Florida Administrative Code Rule 9J-5.006(4)(c)

encourages mixed use categories of land and provides that if

they are used, "policies for the implementation of such mixed

uses shall be included in the comprehensive plan, including the

types of land uses allowed, the percentage distribution among

the mix of uses, or other objective measurement, and the density

and intensity of each use." Petitioner contends that FLUE

Policy 2.1.1 establishes a new mixed use district (the Community

Redevelopment District) but the Plan, as amended, does not

contain the requirements set forth in the rule.

22. The Community Redevelopment District is a mixed use

land use category, as is each of the character districts

included within the two sub-districts. The Plan identifies four

character districts within the Gulf Boulevard Redevelopment

District (Large Resort, Boutique Hotel/Condo, Activity Center,

and Bayou Residential) and seven character districts within the

Downtown Redevelopment District (Town Center Core, Town Center

Corey Circle, Town Center Coquina West, Downtown Core

Residential, Upham Beach Village, Commercial Corridor Blind Pass

Road, and Commercial Corridor Gulf Boulevard).

23. FLUE Policy 2.1.1 incorporates the development

standards found in the "Community Redevelopment District"

section of the FLUE for the two larger sub-districts and eleven

smaller character districts. Therefore, it provides the

policies required for the implementation of the new land use

category. These policies govern the distribution, location, and

extent of uses and densities and intensities of uses within the

sub-districts. They also establish the boundaries, uses,

densities, and intensities of use for the eleven character

districts.

24. The types of land uses allowed in each character

district are clearly listed in a section of the text amendment

corresponding to each character district titled "Permitted Uses

and Standards." See Joint Exhibit 2, Attachment A, pages 75,

79, 82, 84, 91, 93, 98, 100, 102, and 105. For example, in the

Large Resort District, primary uses are hotel, motel, resort

condominium, and medium density multi-family residential. Id.

at page 75.

25. The density and intensity standards for each type of

use allowed within each character district are also listed in

the same sections of the Attachment. For example, the maximum

density of residential development in the Boutique Hotel/Condo

District is eighteen units per acre. Id. at page 75. Finally,

the policies for each character district provide objective

criteria governing the actual mix of uses permitted on any

redevelopment site within the Community Redevelopment District.

26. The location of each allowable use will be distributed

throughout each district. For example, the Downtown

Redevelopment District creates a traditional downtown core area

with traditional downtown core services surrounded by

residential neighborhoods buffered from commercial intrusion.

See Joint Exhibit 2, Attachment A, page 36. On the other hand,

the Gulf Boulevard Redevelopment District is a core resort and

shopping destination for residents and visitors. Id. The

Community Redevelopment District does not use a percentage

distribution among the mix of uses since the City is essentially

built out and already has a mix of uses within the newly-created

districts. Therefore, the plan amendment accomplishes a

distribution of mix of land through location of uses in multi-

story buildings, rather than a percentage distribution of mix.

By doing so, it satisfies the requirement of the rule. See ,

e.g. , The University Park Neighborhood Association, Inc. v.

Department of Community Affairs, et al. , DOAH Case No. 92-

0691GM, 1993 Fla. ENV LEXIS 19 (DOAH Nov. 2, 1992, DCA Feb. 24,

2003).

27. Therefore, it is found that Petitioner failed to

demonstrate by a preponderance of the evidence that the

amendment is inconsistent with the rule.

d. Preservation District

28. The plan amendment is based upon the City's Visioning

Plan and Master Plan. See Respondent's Exhibits 1 and 3.

Neither document contains any recommendation that the City's

Preservation Land Use District be revised in any way.

29. In the existing 2010 Plan, the Preservation District

is defined in FLUE Policy 1.1.1 as those beaches seaward of the

CCCL, Fuller Island, and other environmentally significant

natural resource areas. No development is allowed in the

Preservation District except dune walkovers. Ordinance No.

2008-15 renumbers Policy 1.1.1 as 2.1.1 and makes a one-word

change (underscored below) in the definition of the Preservation

District so that it now reads as follows:

Preservation (P), applied to the beaches

seaward of the Florida Coastal Construction

Control Line, Fuller Island and other

environmentally significant natural resource

areas; such designated areas shall not be

developed except to provide beach access

dune walkovers from adjacent developed

properties under the provisions of the

City's Beach Management Regulations.

30. Petitioner argues that the effect of this change is to

establish a new boundary line for the Preservation District

(further seaward in some instances) and to no longer use the

setback line previously used by the City, which was known as the

Coastal Construction and Excavation Setback Line. He further

contends that the City's setback line and the Florida (State)

CCCL encompass different areas along the beach. In some cases,

the City's setback line is more seaward than the State, and vice

versa.

31. Petitioner contends that the data and analysis for the

2010 Plan "implies" that the location of the Preservation land

use category should be based upon the more restrictive of the

City setback line or State CCCL, that is, whichever is less

seaward. It is fair to infer from the evidence that the

underlying reason for raising this claim is that an old

Travelodge motel sits just south and east of Petitioner's

condominium building and is scheduled to be redeveloped as a new

high-rise condominium. Petitioner is concerned that if the

State CCCL (rather than the City setback line) is used, it will

allow the new building to be constructed closer to the Gulf of

Mexico, presumably reducing his view and beach access.

32. The City's witness Holly established that the City

does not have a CCCL. Rather, it has an excavation and setback

line. He further established that the City has consistently

enforced the Preservation District geographically as the area

seaward of the State CCCL. Also, the City's land development

regulations implementing the existing Plan define the

Preservation District as the property seaward of the State CCCL.

The Countywide Plan also uses the State CCCL. The amendment is

clarifying in nature and is intended to make the text in the

City's Plan consistent with the Countywide Plan and existing

enforcement practices. As explained by Mr. Holly, the City's

setback line predates the establishment of the State CCCL, and

functions much in the same manner as the State CCCL "in that it

precludes structural development seaward of that line without

specific application for approval of variance for those

standards." See Transcript, page 415.

33. Petitioner has failed to establish by a preponderance

of the evidence that this clarifying change in the definition of

the Preservation District in FLUE Policy 2.1.1 is not supported

by adequate data and analysis.

e. Format of Plan Amendment

34. Petitioner next contends that the plan amendment is

inconsistent with Florida Administrative Code Rule 9J-5.005(1),

which contains general format requirements for comprehensive

plans. For example, he points out that there are lengthy

unnumbered narrative sections in Attachment A that apparently

supplement the numbered sections, that the references to the

land development regulations do not identify the specific land

development regulation adopted by reference, that the series of

maps are not labeled properly, and that the maps do not include

north-south arrows or a scale.

35. The amendment contains specific goals, objectives, and

policies for the Community Redevelopment District. See Joint

Exhibit 2, pages 43-48. It also contains goals, objectives, and

policies for the two redevelopment districts, numbered policies

for each character district, as well as unnumbered text setting

forth permitted uses and standards for each character district.

See Joint Exhibit 2, pages 67-70, 71-77, 78-80, 83-85, 86-90,

90-92, 92-94, 94-97, 97-98, 99-101, 101-103, and 104-106. The

deposition testimony of Michael McDaniel, Chief of the

Department's Office of Comprehensive Planning, established that

while they are not typically used, the narrative sections of

Attachment A are permissible to explain the goals, policies, and

objectives. He further stated that nothing in the governing

statutes or rules requires that all material adopted as part of

a plan be labeled as, or be in the form of, a goal, policy, or

objective, that many variations of format are found in plans

adopted by local governments throughout the State, and that the

Plan, as amended, is not inconsistent with any requirement. As

to the makeup of the maps, Mr. McDaniel stated that while the

Department prefers that maps be labeled as future land use maps,

and that they contain the detail suggested by Petitioner, a

failure to do so does not render the plan amendment not in

compliance. Finally, he stated that the Department staff had no

difficulty in understanding the maps or map series when they

were reviewed by the Department in July 2008. Notably, the

Department did not address any of these format issues when it

prepared comments to the proposed amendment on August 1, 2008.

36. Petitioner has failed to show by a preponderance of

the evidence that the plan amendment is inconsistent with the

requirements of Florida Administrative Code Rule 9J-5.005(1).

f. Data and Analyses

37. Petitioner alleges that the City failed to rely upon

the best available data sources to support the amendment, that a

proper analysis of the data was not made, and that the City did

not react to the data in an appropriate way, as required by

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

38. Petitioner presented no expert testimony or other

evidence supporting the claim that the plan amendment lacked

supporting data and analysis. Although he introduced into

evidence various documents on the theory that this information

constituted better data than that used by the City, the evidence

does not support this allegation.

39. For example, various documents concerning hurricane

evacuation times were submitted, including the Tampa Bay

Regional Hurricane Evacuation Study Update 2006, the Pinellas

County Local Mitigation Strategy (LMS), and the 2008 Statewide

Emergency Shelter Plan. See Petitioner's Exhibits 4, 16, and

17. Since the plan amendment does not increase density,

however, it does not conflict with established hurricane

evacuation times. Also, the City is not increasing population

to be evacuated to other zones; therefore, the Statewide

Emergency Shelter Plan is irrelevant. Finally, the amendment is

not contrary to any mitigation strategies in the LMS.

40. Population estimates for the year 2006 prepared by the

BEBR were introduced by Petitioner, presumably for the purpose

of showing that more current population data should have been

used, rather than the 2000 Census data relied upon by the City.

See Petitioner's Exhibit 21. However, there is no requirement

that the City update its population estimates and projections

each time it adopts an amendment. According to Mr. McDaniel,

this is normally done every seven years at the time of the EAR.

In any event, the BEBR estimates an increase in population in

the City of only 48 persons during the six-year period from 2000

to 2006 (from 10,002 to 10,050).

41. Petitioner also introduced a list of claims for flood

losses within the last ten years in the City for the purpose of

demonstrating that the City failed to consider the location of

these properties in adopting the amendment. However, the

evidence shows that redevelopment policies in the amendment

would bring existing older structures up to National Flood

Insurance Protection standards.

42. A list of Licensed Dwelling Units was also introduced

to show that the list relied upon by the City was incomplete and

failed to include a motel in close proximity to Petitioner's

condominium. Assuming that this is true, the error was minor

and did not affect the overall validity of the City's data.

43. The plan amendment is supported by the City's

visioning project, economic analysis, master planning project,

and evaluation of infrastructure capacity and availability of

services. It is also supported by data submitted by SOLV to the

County in support of the amendment to the Countywide Future Land

Use Plan, which includes the Special Area Plan. The more

persuasive evidence supports a finding that there is relevant

and appropriate data supporting the amendment, that the data was

properly analyzed, and that the City reacted in an appropriate

manner.

g. Internal Inconsistency

44. Petitioner further alleges that the plan amendment is

internally inconsistent with Intergovernmental Element Policy

1.5.3, which requires that the City coordinate with the Pinellas

County Emergency Management Department when adopting map

amendments resulting in an increase in population within the

CHHA.

45. Under the existing definition of the CHHA in the 2010

Plan, the entire City is within the CHHA. The amendment

implements a new definition, as required by Section 163.3178(2),

Florida Statutes, which removes some parts of the City from the

CHHA. Because the new amendment does not relate to either

hurricane shelters or evacuation routes, and does not increase

the residential density in the CHHA, compliance with the cited

policy was not required.

46. Petitioner further alleged that FLUE Policy 4.1.1 is

internally inconsistent with Goals 2 and 3 of the Conservation

and Coastal Element as well as the implementing objectives for

those Goals. However, no testimony or other credible evidence

was offered on this issue and the claim must fail.

47. The preponderance of the evidence supports a finding

that the Plan, as amended, in not internally inconsistent with

other Plan provisions.

h. Need

48. Petitioner contends that the City did not prepare an

analysis of need for future land uses authorized by the

Ordinance, that it did not prepare an updated existing land use

map series, that no tabular form of the approximate acreage and

general range of density and intensity of each existing land use

was prepared, and no population projections were presented, as

required by Florida Administrative Code Rule 9J-5.006(1)(a),

(b), (c), and (g). Therefore, he argues that the plan amendment

is not supported by a demonstration of need for the new land use

category to accommodate the anticipated growth.

49. The supporting documentation for the plan amendment

demonstrates the need for redevelopment of the City's lodging

establishments, the need for additional height for tourist

lodging uses in order to prevent conversion of those uses to

condominium uses, and the need for aesthetic and other design

changes to the City's building facades, streetscapes, and public

areas with the redevelopment area. See Joint Exhibit 2,

Attachment A, pages 1-3.

50. The plan amendment does not propose new density to

accommodate new populations. In fact, it reduces the overall

residential density in the City, and the total amount of

dwelling units, temporary lodging units, and non-residential

(commercial) floor area ratio will also be reduced.

51. Because the plan amendment does not increase the total

amount of development, but is simply a plan for redevelopment of

existing uses, there is no requirement that a need analysis be

prepared.

i. Financial Feasibility

52. Petitioner also contends that the Plan, as amended,

has not been shown to be financially feasible and does not

include an updated five-year CIP. See § 163.3177(3)(a)5., Fla.

Stat. ("the comprehensive plan shall contain a capital

improvements element [which] set[s] forth: . . . [a] schedule

of capital improvements . . . ").

53. The statutory requirement for a CIP applies to

projects necessary to ensure that adopted levels of service

(LOS) standards are achieved and maintained. It applies to all

public facilities and services for which an LOS standard is

adopted pursuant to Section 163.3180, Florida Statutes. This

was confirmed by the testimony of Mr. McDaniel.

54. The evidence shows that all relevant City

infrastructure facilities are operating at or above the adopted

LOS. Therefore, there are no deficiencies which need correction

in order to implement the redevelopment plan. As further

confirmed by Mr. McDaniel, if a plan has been found to be in

compliance, and the local government proposes changes that do

not create a need for capital improvements, the plan amendment

does not need to include an amendment to its CIP. In this case,

the amendment does not increase the total permissible amount of

residential density or non-residential use within the Community

Redevelopment District, and no additional infrastructure

capacity is needed.

55. Petitioner's expert identified certain infrastructure

projects for which he contended an updated CIP is needed, such

as sidewalks, street lighting, and bike lanes. While these

types of projects are all integral to the proposed redevelopment

plan, they are not subject to concurrency or the financial

feasibility standard. Even if they were, Petitioner's expert

agreed such improvements could be accomplished through private

investment when permits for projects are issued.

56. Because Petitioner failed to show that the plan

amendment would require the construction of any new or expanded

public facilities to provide additional capacity to serve the

development, his contention that the plan is not financially

feasible must necessarily fail.

j. Other Contentions

57. All other contentions not discussed herein have been

considered and rejected because no evidence on the issues was

presented or the more credible and persuasive evidence supports

a finding that the contentions are without merit.

CONCLUSIONS OF LAW

58. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569, 120.57(1), and 163.32465(6),

Florida Statutes.

59. Except for the Department, only affected persons, as

defined by Section 163.3184(1)(a), Florida Statutes, have

standing to challenge a Pilot Program amendment. See

§ 163.32456(6)(a), Fla. Stat. An intervenor must also be an

affected person in order to participate. The parties agree that

there are sufficient facts to establish that Petitioner,

Lorraine Huhn, and Deborah Nicklaus are affected persons. SOLV

contends that it has standing not only as an affected person,

but also because it satisfies the "assocational standing" test.

As previously found, the evidence establishes that SOLV has

standing to participate as an affected person. Because the

concept of associational standing does not apply in a compliance

case under Chapter 163, Florida Statutes, SOLV's contention that

it also has standing on that basis has been rejected.

60. A petition may be filed by an affected person under

Section 163.32456(6)(a), Florida Statutes, to determine whether

the plan amendment is in compliance as that term is defined in

Section 163.3184(1)(b), Florida Statutes. "The local

government's determination that the amendment is 'in compliance'

is presumed to be correct and shall be sustained unless it is

shown by a preponderance of the evidence that the amendment is

not 'in compliance'." See § 163.32465(6)(d), Fla. Stat. This

language is identical to the language used in small-scale

amendment cases. See § 163.3187(3)(a), Fla. Stat. Therefore,

challenges to compliance are evaluated under the preponderance

of the evidence standard rather than the typical fairly

debatable standard. Stated differently, the test is whether the

evidence supports or contradicts the determination of the City.

Denig v. Town of Pomona Park , DOAH Case No. 01-4845GM, 2002 Fla.

ENV LEXIS 220 at *4-5 (DOAH June 18, 2002, Admin. Comm. Oct. 23,

2002).

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

Petitioner has failed to establish by a preponderance of the

evidence that the amendments are not in compliance. Therefore,

the evidence supports the City's determination that the plan

amendments adopted by Ordinance No. 2008-15 on August 26, 2008,

are in compliance.

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 determining that the plan amendments adopted by

Ordinance No. 2008-15 are in compliance.

DONE AND ENTERED this 4th day of May, 2009, 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

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of May, 2009.

ENDNOTES

1/ All statutory references are to the 2008 version of the

Florida Statutes.

2/ The officially recognized matters include: Florida

Administrative Code Rule Chapter 9J-5; Ashley v. State,

Administration Commission , 976 So. 2d 1130 (Fla. 1st DCA 2007);

the Staff Analysis of HB7203 for Ch. 2007-204, Laws of Fla.;

Cochran v. City of Crestview, et al. , DOAH Case No. 07-5779GM,

2008 Fla. ENV LEXIS 73 (Admin. Comm. July 30, 2008), 2008 Fla.

ENV LEXIS 75 (DOAH April 21, 2008); the Staff Analysis of HB 7067

of Ch. 2006-1, Laws of Fla.; Benson v. City of Miami Beach , 591

So. 2d 942 (Fla. 3d DCA 1992); without more specificity, the

entire 2008 version of the Florida Statutes; Peck v. Palm Beach

County Board of County Commissioners , 442 So. 2d 1050 (Fla. 1st

DCA 1983); Kawasaki of Tampa, Inc. v. Calvin , 348 So. 2d 897

(Fla. 1st DCA 1977); McCulley Ford, Inc. v. Calvin , 308 So. 2d

189 (Fla. 1st DCA 1975); Current v. Town of Jupiter, et al. , DOAH

Case No. 03-0718GM, 2004 Fla. ENV LEXIS 209 (DCA April 4, 2004);

and Emerald Lakes Residents' Association, Inc. v. Collier County,

et al. , 2003 Fla. ENV LEXIS 57 (DCA May 8, 2003).

3/ The matters officially recognized pursuant to these two

requests are the Recommended and Final Orders entered in Woods

and Recio v. Marion County, et al. , DOAH Case No. 08-1576 (DOAH

Feb. 4, 2009, DCA Mar. 26, 2009), and Florida Wildlife

Federation, Inc., et al. v. Town of Marineland, et al. , DOAH Case

No. 05-4402GM, 2006 Fla. ENV LEXIS 70 (DOAH April 28, 2006), 2006

Fla. ENV LEXIS 77 (DCA June 9, 2006), and a Final Order entered

in Citizens for Responsible Growth, et al. v. Department of

Community Affairs, et al. , DOAH Case No. 05-3159GM (DCA Nov. 9,

2005).

COPIES FURNISHED:

Thomas G. Pelham, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

Shaw P. Stiller, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

Ross Stafford Burnaman, Esquire

1018 Holland Avenue

Tallahassee, Florida 32301-4508

Suzanne Van Wyk, Esquire

Bryant, Miller & Olive, P.A.

101 North Monroe Street, Suite 900

Tallahassee, Florida 32301-1546

Robert K. Lincoln, Esquire

Icard, Merrill, Cullis, Timm,

Furen & Ginsburg, P.A.

2033 Main Street, Suite 600

Sarasota, Florida 34237-6093

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 Recommended Order should be filed with the agency that will

render a final order in this matter.