09-001231GM Pacetta, Llc; Mar-Tim, Inc.; And Down The Hatch, Inc. vs. Town Of Ponce Inlet Status: Closed Recommended Order on Tuesday, March 20, 2012.

Summary: Petitioners failed to prove beyond fair debate that the challenged plan amendments are not in compliance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PACETTA, LLC; MAR - TIM, INC.; )

AND DOWN THE HATCH, INC., )

)

Petitioners, )

)

vs. ) Case No. 09 - 1231GM

)

TOWN OF PONCE INLET, )

)

Respondent. )

_________________________________)

PACETTA, LLC; MAR - TIM, INC.; )

AND DOWN THE HATCH, INC., )

)

Petitioners, )

)

vs. ) Case N o . 11 - 2247GM

)

TOWN OF PONCE INLET, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

The final hearing in t his case was held on January 31 -

February 1, 2012, in Ponce Inlet, Florida, before Bram D. E.

Canter, Administrative Law Judge of the Division of

Administrative Hearings ( " DOAH " ).

APPEARANCES

For Petitioners: Michael J. Woods, Esquire

Robert T. Bowling, Esquire

Michael O. Sznapstajler, E squire

Cobb & Cole, P.A.

351 East New York Avenue, S uite 200

Deland, Florida 32724 - 5509

For Respondent: Clifford B. Shepard, Esquire

Virginia Cassady, Esquire

Shepard, Smith, and Cassady, P.A

2300 Maitland Center Parkway, S uit e 100

Maitland, Florida 32751

STATEMENT OF THE ISSUE S

The issue s to be determi ned in this case are whether the

amendments to the Town of Ponce Inlet Comprehensive Plan adopted

by Ordinances 2008 - 01 (2008 Amendment) and 2010 - 09 (2010

Amendment) are " in compliance " as that term is defined in

section 163.3184(1)(b), Florida Statutes (2011) . 1/

PRELIMINARY STATEMENT

In March 2008, the Town of Ponce Inlet proposed amendments

to all elements of its Comprehensive Plan . O n November 18,

2008, the Town adopted the 2008 Amendment. On February 13,

2009, the Department of Community Affairs issued its Notice of

Intent to find the 2008 Amendment in compliance.

Petitioners filed a p etition to challenge the Department ' s

determina tion, and the matter became DOAH Case No. 09 - 1231GM.

The case was abated several times while the parties were engaged

in related litigation in circuit court . O n March 18, 2010, the

court invalidated one of the policies in the 2008 Amendment.

On October 12, 2009, jurisdiction was partially

relinquish ed from DOAH to the Department for portions of the

2 008 Amendment that were not being challenged.

O n October 21, 2010 , the Town adopted Ordinance 2010 - 09 ,

which adopted a new policy to replace the one that had been

invalidated by the circuit court. On February 28, 2011 , the

Department issued its Notice of Intent to find the 2010

Amendment in compliance.

Petitioners filed a p etition to challenge the 2010

Amendment, which became DOAH Case No. 11 - 2247GM. DOAH Case No.

09 - 1231GM and DOAH Case No. 11 - 2247GM were then consolidated.

While the cases were pending, the Legislature enacted

chapter 2011 - 139, Laws of Florida , which made significan t

changes to chapter 163, Florida Statutes. An Order was issued

informing the parties t hat chapter 2011 - 139 would a ppl y to the

consolidated cases.

Based on provisions of the new law, t he Department moved to

be dismiss ed as a party . In August 2011, it was d ismiss ed.

Effective October 1, 2011, the Department of Economic

Opportunity became the successor to the Department of Community

Affairs .

On January 4, 2012, the undersigned issued an Order that

dismissed the petitions and granted leave for P etitioners to

file a consolidated amended petition that conformed with c hapter

163 , as amended. On January 13, 2012, P etitioners filed a

Consolidated Amended Petition for Formal Administrative Hearing.

T he Town fil ed a notice for an expedited hearing pursuant

to section 163.3184(7) . T he final hearing was held within 30

days after receipt of the notice, as required by th e statute.

At the final hearing, Petitioners presented the testimony

of Joe Nolin, Tracy Crowe, and Aref Joulani . P etitioners '

Exhibits 1 - 6 , 8 - 10, 12 - 13, 17, 21, 23 - 2 7 , 29, 37 - 38 , 40 - 45 , and

47 were admitted into evidence. T he Town presented the

testimony of Tracy Crowe, Aref Joulani, Georgia Zern, and

Charles Gauthier . Respondent ' s Exhibits 1 - 6, 9 - 19, 21, 24 - 25,

27 - 32, 34 - 36, 38 - 41, 49 - 51, 55, 59, 62 - 63, 67, 79, 87, 90, and

96 were adm itted into evidence.

The three - volume Transcript of the final hearing was

prepared and filed with DOAH. The parties filed proposed

recommended orders that were carefully considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

The Parties

1. Petitioner, Pacetta, LLC , is a Florida limited

liability company that owns real property in Ponce Inlet.

2. Petitioner, Mar - Tim, Inc. , is a Florida corporation

that owns real property in Ponce Inlet.

3. Petitioner, Down the Hatch, Inc. , is a Florida

corporation that owns real property in Ponce Inlet.

4. Petitioner, Pacetta, LLC, controls and manages Mar - Tim

and Down the Hatch.

5 . Petitioners ' real property in the Town is directly

affected by the challenged p lan a mendments.

6 . Petitio ners s ubmitted objections to the Town during the

period of time beginning with the transmittal hearing and ending

with the adoption of the challenged amendments .

7 . The Town of Ponce Inlet is a municipality in Volusia

County that adopted a comprehensive plan in 1990 ("Town Plan"),

which it amend s from time to time pursuant to c hapter 163 ,

Florida Statutes .

Petitioners' Property

8 . Petitioners ' property is located on the north cut of

the Ponce d e L eon Inlet. The current uses on the property

include a restaurant, a marina and boat repair yard with a

marine travel lift , and vacant lands.

9 . A n old cemetery is located on a portion of Petitioners'

property.

10 . A shell midden ( ancient refuse pile) is located on a

portion of P etitioners' property.

1 1 . Petitioners' property has single family residences on

three sides.

1 2 . A significant tree canopy is adjacent to P etitioners'

property and large oak trees are on the property.

1 3 . A historic cemetery known as P acetti Cemetery is near

Petitioners' property.

1 4 . Several historic buildings are located near

P etitioners' property . A museum and exhibit building are

located nearby on Beach Street.

1 5 . Beach Street and Sailfish Drive are the main roads to

access the Petitioners ' propert y . These two roads have been

designated by the Town as Scenic Roads .

1 6 . Petitioners' property comprises approximately 15

acres. About 2.4 acres are zoned for multifamily development.

The remaining acreage is zoned Riverfront Commercial . There is

also a special Riverfront Overlay District ("ROD") that covers

Petitioners ' property .

Background

1 7 . There are at least three areas in the Town designated

Riverfront Commercial . The Riverfront Commercial land use

category permits wet boat storage, dry boat storage, boat sales

and services, fishing charter boat dockage, fishing and boat

equipment and supplies, seafood markets, restaurants, boatels,

and boat construction and repairs.

1 8 . There is only one area in the Town designated ROD.

In the ROD, land uses are more restricted. Dry boat storage

facilities are allowed by s pecial exception in Riverfront

Commercial, but not within the ROD.

1 9 . The Town created the Riverfront Commercial District

and the R OD in its Land Use and Development C ode in 2004 , but

these land use categories were not identified in the Town Plan

at that time .

20 . After the designation of the ROD in 2004, Petitioners

began to acquire several parcels of land located within the ROD.

T he Town continued to engage its cit izens in a visioning process

for the T own's waterfront, which lead to the 2008 Amendment. As

originally proposed , the 2008 Amendment allowed upland boat

storage in the ROD under certain conditions in Future land Use

Element (" FLUE ") Policy 4.1.5.

2 1 . A citizens group obtained a sufficient number of

signatures to place on the general election ballot a charter

amendment to prohibit dry boat storage facilities in the ROD.

Therefore, when the T own a dopted the 2008 Amendment, it changed

FLUE Policy 4.1. 5 to prohibit dry boat storage facilities.

2 2 . Petitioners challenged the charter amendment in

circuit court and the court determined that t he charter

amendment was invalid. The court also invalidated FLUE Policy

4.1.5, determining that the policy was o nly adopted to conform

to the charter amendment. The circuit court decision was

affirmed on appeal. Town of Ponce Inlet v. Pacetta, LLC , 63 So.

3d 840 (Fla. 5th DCA 2011).

2 3 . Petitioners also asked the circuit court to invalidate

the ROD provisions of the Land Use and Development Code, but the

circuit court declined to rule on their validity.

2 4 . Following the court's invalidation of FLUE Policy

4.1.5, t he Town adopt ed the 2010 Amendment, which creates a new

Policy 4.1.5 . T he new policy also prohibi ts dry boat storage

facilities in the ROD.

Petitioners ' Objections

2 5 . Petitioners ' overarching objection to the p lan

a mendments is that they prohibit Petitioners from building a dry

boat storage facility . Petitioners claim the prohibition i s

inconsistent with other policies of the Town Plan and is not

supported by data and analysis .

2 6 . The term "d ry boat storage facility " is not defined in

the Town Plan . T he Volusia County Manatee Protection Plan

("MPP") , which is adopted by reference in C oastal Management

Element (" CME ") Ob jective 1.6 , defines dry boat storage facility

as " an upland structure used for storing watercraft. "

2 7 . Petitioners already store some boats on trailers or

boat stands on the upland while they are being repair ed or

refurbished in the boatyard . The Town interprets the Town Plan

to allow this type of upland storage in the R OD, citing FLUE

Policy 4.1.4 of the 2008 Plan Amendment which explains that dry

boat storage means "multiple level boat racks" in "fully

enclosed b uildings" and not the "[l]imited storage of boats on

trailers or boat stands" in conjunction with boatyard

operations.

FLUE Policy 4.1.5

2 8 . Petitioners' objections to FLUE Policy 4.1.5, which

was adopted in the 2010 Amendment, are addressed first because

the associated issues affect the other policies that have been

challenged. F LUE Polic y 4. 1 . 5 states :

The Town shall maintain a zoning ove rlay

district over those Riverfront Commercial

and High Density Multi - family Residential

lands west of Sailfish Drive, south of

Bounty Lane and north of the most southerly

portion of Sailfish Drive to promote the

water - oriented character of the River and

c ompatibility with adjacent residential

properties, to ensure protection of view

corridors of the River and the tree canopy

in the Front Street Area, and to preserve

the historic setting and unique character of

this area, including, but not limited to,

the scenic roads of Beach Street and

Sailfish Drive. Dry boat storage facilities

shall be prohibited within this overlay

district.

29 . Petitioners argue that the prohibition against dry

boat storage facilities in Policy 4.1.5 conflicts with the MPP

adopted by reference in the Town Plan because the MPP expresses

a preference for dry slips over wet slips.

3 0 . The MPP includes a Boat Facility Siting Plan , which

contains requirements that must be met for new or expanded

marin a facilities . The Plan requires the Town to plac e a

priority on the development of boat slip capacity at or south of

Ponce d e L eon Inlet , to encourag e m arinas to include both wet

slips and dry slip s , and to " u tilize dry storage to the fullest

extent possible in addition to wet slips . "

3 1 . The Boat Facility Siting Plan includes best management

practices ("BMPs") . One of these BMPs is "Use of upland dry

storage shall take precedence over the creation of new wet

slips. "

3 2 . The prohibition against dry boat storage facilities in

the ROD w ill likely reduce the number of boats launched in the

ROD because fewer boats can be accomodated in wetslips than in

upland dry boat storage facilities. 2/ This proposition was not

rebutted by Petitioners.

3 3 . A major o bjective of the MPP is to reduce manatee

injuries and deaths due to collisions with boats . The fewer

boats, the fewer potential collisions with manatees. Therefore,

the effect of the prohibition against dry boat storage

facilities in the R OD is consistent with the o bjective s of the

MPP.

3 4 . D ry boat storage facilities are allowed elsewhere in

the Town .

3 5 . T he design standards and BMPs in the MPP are described

as permitting requirements, not as zoning or land use

restrictions. The MPP does not state that all of its design

standards and BMPs must be reflected in every permit issued by

the Town, County, or Sta te. It does not require, for example,

that every marina must have more dry slips than wet slips.

3 6 . The MPP acknowledges that marina sites must conform to

local land use and zoning regulations that affect the

construction of new wet and dry slips. Und er the Policy 4.1.5,

utilizing dry storage to the fullest extent possible in the ROD

means allowing upland storage of boats on trailers and boat

stands in conjunction with boatyard operations.

37 . Petitioners also contend that Policy 4.1.5 is not

support ed by relevant and appropriate data and an analysis by

the Town. The prohibition against dry boat storage facilities

in the ROD is supported by data and analysis that shows that the

noise, fumes, traffic, scale, and appearance of dry boat storage

faciliti es is in compatibl e with residential uses and with

scenic, historic, and natural resources nearby. Petitioners

showed that some of the same incompatibility factors exist in

other Riverfront Commercial areas, but the factors are not as

numerous and pronounced as they are in the ROD.

FLUE Policy 1.2.2(g)

3 8 . Petitioners challenge F LUE Polic y 1.2.2(g) , which

limits the f loor a rea for buildings within the Riverfront

Commercial District (including the ROD) to 5,000 square feet .

Petitioners argue that this limit is in conflict with CME Policy

1.6.6, which requires the Town to adopt and maintain a boat slip

allocation program pursuant to which the Town made an a llocat ion

of 213 dry slips to P etitioners' propert y .

39 . A s discussed in the Conc lusions of Law, this argument

cannot be raised in this proceeding because the 5,000 square -

foot limit was already in the Town Plan before the 2008

Amendment.

40 . Petitioners argue that the floor area limit is subject

to compliance review in this proceeding because its effect has

been substantially altered by new provisions in the 2008

Amendment. The 2008 Amendment added a floor area ratio (gross

floor area of buildings divided by upland lot area ) limit of 35

percent for Riverfront Commercial , and an increase in floor area

up to 10,000 square feet is made possible in a new Planned

Waterfront Development District . However, these and other

changes in the 2008 Amendment do not alter the fundamental

effect of the existing floor area limit.

41 . T he T own has adopted a boat slip allocation program as

required by CME Policy 1.6.6. The allocation of 213 dry slips

to Petitioners ' property is not required by Policy 1.6.6 or by

any other policy in the Town Plan. Petitioners cannot base a

claim of internal inconsistency on matters that are external to

the Town Plan. 3 /

42 . Even if the floor area limit in FLUE Policy 1.1.1(g)

is subject to compliance review, it is not inconsistent with the

MPP for the same reasons that the prohibition of dry boat

storage facilities in FLUE Policy 1.4.5 is not inconsistent with

the MPP.

FLU E Policy 4.2.4

43 . Policy 4.2.4 of the 2008 Amendment states that, in

developing design standards for a new Planned Waterfront

Deve lopment District, limited exceptions might be allowed to the

floor area limit of 5,000 square feet, up to 10,000 square feet,

but this exception will not apply to dry boat storage

facilities. No Planned Waterfront Development District has yet

been created in the Town.

44 . Despite Petitioners' objection to the 5,000 square -

foot floor area limit generally applicable in Riverfront

Commercial, Petitioners argue that the re is no data and analysis

to support the Town's allow ance for an increase in the floor

area limit to 10,000 square feet in a Planned Waterfront

Development District .

45 . The knowledge of what a 5,000 square foot or a 10,000

square foot building looks like is all the data needed to set a

limit based on scale.

CME Pol icy 1.6.6

46 . CME Polic y 1.6.6 of the 2008 Amendment states:

The Town shall maintain and enforce its boat

slip allocation program. This program shall

provide for equitable allocations of new wet

and dry slips. Upland slips may be

permitted unde r this allocation program if

they can meet the requirements of the

Comprehensive Town and the Town Codes.

Upland/dry slips development shall be

balanced against other community policies,

including neighborhood compatibility and

visual impacts. Dry slips shall not take

precedence over wet slips based solely on

environmental concerns.

47 . Petitioners contend that Policy 1.6.6 conflicts with

the building size limitations in F LUE Policies 1.2.2(g) and

4.2.4 and with the prohibition against dry boat storage

facilities in FLUE Policy 4.1.5 because the size limit s and

prohi bition do not allow for the balancing called for in Policy

1.6.6.

48 . Petitioners are interpreting the policy more literally

than the Town. Things are not going to be place d on scales and

made to balance in the middle . The Town interprets the policy

to direct the Town to consider c ompeting policies according to

their relative importance. In Riverfront Commercial areas other

than the ROD, there can be combinations of wet an d dry slips,

including dry boat storage facilities, but the floor area limit

of 5,000 square feet is a "community policy" that will also

apply to affect the outcome of the balancing. In the ROD, the

prohibition against dry boat storage facilities is anoth er

community policy that must be applied.

49 . The Town has established a community policy to

prohibit dry boat storage facilities in the ROD because the Town

has determined that such facilities do not harmonize with nearby

residential uses and scenic, hi storic , and natural resources.

Data and analysis support this determination.

50 . Although Petitioners got a Town witness to testify

that a prohibition does not allow for balancing, the record

shows that the Town gives no weight to the desirability of dry

boat storage facilities in the ROD and some weight to the

desirability of wet s lips, so that the scales always tip in

favor of wet slips and for boats on trailers or boat stands in a

boatyard.

51 . Petitioners contend that the statement in FLUE Policy

1.6.6 that "D ry slips shall not take precedence over wet slips

based solely on environmental concerns," is directly in conflict

with the MPP, because the MPP states a preference for dry slips

based specifically on environmental concerns (manatees).

However, the meanin g of the policy statement is that

environmental concerns, alone, will not determine how many dry

slips are allowed. Other concerns will be taken int o account in

determining how many dry slips are allowed. That is not

in consistent with the MPP.

Recreatio nal and Working Waterfronts

52 . Petitioners contend that the floor area limit in FLUE

Policy 1.2.2(g) , the prohibition against dry boat storage

facilities in FLUE Policy 4.1 .5, and the floor area limit for

dry storage facilities in FLUE Policy 4.2.4 are inconsistent

with section 163.3177(6)(a)3.c . , which requires a FLUE to

include criteria to "[e]ncourage preservation of recreational

and commercial working waterfronts for water - dependent uses in

coastal communities."

53 . The term " recreational and commercial working

waterfronts, " is defined in section 342.201(2) (b) :

"Recreational and commercial working

waterfront" means parcel or parcels of real

property that provide access for water -

dependent commercial activities or provide

access to the public to the navigable waters

of the state. Recreational and commercial

working waterfronts require direct access to

or a location on, over, or adjacent to a

navigable body of water. The term includes

water - dependent facilities that are open to

the public and of fer public access by

vessels to the waters of the state or that

are support facilities for recreational,

commercial, research, or governmental

vessels. These facilities include docks,

wharfs, lifts, wet and dry marinas, boat

ramps, boat hauling and repair facilities,

commercial fishing facilities, boat

construction facilities, and other support

structures over the water.

54 . T here is no current use of Petitioners' property that

is prohibited by the challenged amendments. In other words,

Petitioners' w orking waterfront is preserved.

55 . To the extent section 163.3177(6) (a)3.c . should be

interpreted more broadly to encourage not only preservation, but

also economic vitality through further development and

redevelopment of waterfronts, the Town has adopted FLUE criteria

to encourage their development and redevelopment.

56 . The floor area limit and the prohibition against dry

boat storage facilities in the ROD do not prevent Petitioners

from further developing their working waterfront to ad d or

expand uses.

Evaluation and Appraisal

57 . Petitioners challenge FLUE Policies 1.2.2(g) and 4.2.4

and C ME Policy 1.6.6 as constituting a fail ure of the Town to

update its plan to address t he changes needed as identified in

the Town ' s E valuation and Assessment Report ("EAR") .

58. Petitioners failed to prove that the Town did not make

the changes identified in the EAR.

Summary

59 . Petitioners failed to prove beyond fair debate that

the 2008 Amendment or the 2010 Amendment create internal

inconsistency in the Town Plan.

60 . Petitioners failed to prove that the 2008 Ame ndment or

the 2010 Amendment is not supported by relevant data and

analysis.

6 1 . Petitioners failed to prove beyond fair debate that

the 2008 Ame ndment or the 2010 Amendment is not in compliance.

CONCLUSIONS OF LAW

Standing

6 2 . To have standing to challenge a comprehensive plan

amendment, a person must be an "affected person," which is

defined as a person owning property, residing, or owning or

operating a business within the boundaries of the local

government, and who made ti mely comments to the local government

regarding the amendment. See § 163.3184(1)(a), Fla. Stat.

6 3 . Petitioners have standing as affected persons.

The Ultimate Issue

6 4 . A person challenging a plan amendment must show that

it is not " in compliance" as that term is defined in section

163.3184(1) (b):

"In compliance" means consistent with the

requirements of ss. 163.3177, 163.3178,

163.3180, 163.3191, 163.3245, and 163.3248,

with the appropriate strategic regional

policy plan, and with the principles fo r

guiding development in designated areas of

critical state concern and with part III of

chapter 369, where applicable.

6 5 . A compliance determination is not a determination of

whether a comprehensive amendment is the best approach available

to a local government for achieving its purposes.

6 6 . In a compliance determination, the motives of the

local government are not relevant.

67 . Petitioners ca nnot challenge the 5,000 square - foot

floor area for buildings in the Riverfront Commercial land use

catego ry in existing FLUE Policy 1.2.2 because that limit was

part of a plan amendment adopted by the Town in 2004 . See

§ 163. 3184(5)(a), Fla. Stat. ( A petition challenging a plan

amendment must be filed within 30 days after the adoption of the

amendment .) Petitioners may be correct in stating that it is

possible for a plan amendment to alter the effect of an existing

policy in a manner that causes the existing policy to be subject

to a new compliance determination. However, the 2008 Amendment

did not chan ge the floor area limit in FLUE Policy 1.2.2 to such

an extent that it must be treated as a new provision of the Town

Plan.

The Burden and Standard of Proof

68 . As the challengers, Petitioners have the burden of

proof. See Young v. Dep 't of Cm ty . Affairs , 625 So. 2d 831,

834 - 835 (Fla. 1993).

69 . The Town's determination that the 2008 Amendment and

the 2010 Amendment are "in compliance" is presumed to be correct

and shall be sustained if the Town' s determination of compliance

is fairly debatable. See § 163.3184(5)(c), Fla. Stat.

70 . The term "fairly debatable" is not defined in chapter

163. The Florida Supreme Court held in Martin County v. Yusem ,

690 So . 2d. 1288 (Fla. 1997) that "[t]he fairly debatable

standard is a highly deferential standard requiring approval of

a planning action if reasonable persons could differ as to its

propriety." Id. at 1295.

71 . The fairly debatable standard's deference to the local

government's determination of compliance means that the local

government's interpretation of a challenged amendment or

comprehensive plan provision will be used to evaluate the

amendment, as long as it is a reasonable interpretation.

72 . The Town's interpretations of relevant objectives and

policies of the Town Plan are reasonable interpretations.

73 . The standard of proof to establish a finding of fact

is preponderance of the evidence. See § 120.57(1)(j), Fla.

Stat.

Internal Consistency

74 . Section 163.3177(2) requires the elements of a

comprehensive plan to be internally consistent. A plan

amendment creates an internal inconsistency when it conflicts

with an existing provision of the comprehensive plan.

75 . Petitioners failed to pro ve beyond fair debate that

the Plan Amendments are inconsistent with any goal, objective,

or policy of the Town Plan.

Data and Analysis

76 . Section 163.3177(1)(f) requires that all plan

amendments be based on relevant and appropriate data and an

analys is by the local government. The statute explains:

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 a t

issue.

77 . The data which may be relied upon in this proceeding

is not limited to the data identified or used by the local

government. All data available to the local government and in

existence at the time of adoption of the Plan Amendments may be

p resented. See Zemel v. Lee Cnty. , Case. No. 90 - 7793GM, 1993

Fla. ENV Lexis 77 (Fla. DOAH Dec 16, 1992), adopted , (Fla. DCA

June 22, 1993), affÓd , 642 So. 2d 1367 (Fla. 1st DCA 1994).

78 . Relevant analyses of data need not have been in

existence at the time of adoption of a plan amendment. Data

existing at the time of adoption may be analyzed through the

time of the administrative hearing. Id.

79 . D ata supporting an amendment must be taken from

professionally accepted sources. See § 163.3177(1)(f)2., Fla.

Stat. However, local governments are not required to collect

o riginal data. Id.

80 . The methodology used in data collection must be

professionally acceptable, but the question o f whether one

professionally acceptable methodology is better than another

cannot be evaluated. Id.

81. Some matters of policy are not subject to numeric

computation. See Indian Trail Improvement Dist. v . Dep't of

Cmty. Affairs , 946 So. 2d 640 , 642 (Fl a. 4th DCA 2007).

82 . Petitioners failed to prove that the Plan Amendments

are not based on relevant and appropriate data and an analysis

by the Town .

Recreational and Working Waterfronts

83 . Section 163.3177(6)(a)3.c . requires a FLUE to include

criteria to "[e]ncourage preservation of recreational and

commercial working waterfronts for water - dependent uses in

coastal communities." However, the statute does not suggest

that a local government would be in violation if a ny restriction

is placed on one or more of the many uses listed in the

definition of "recreational and commercial working waterfront"

in section 342. 201 ( 2 ) (b) . The restrictions established in the

challenged amendments do not prevent the Town from achiev in g the

purposes of the statute.

8 4 . Petitioners failed to prove that the 2008 Amendment or

the 2010 Amendment is inconsistent with section

163.3177(6)(a)3.c.

E valuation and Appraisal

8 5 . A local government is required by section 163.3191(2)

to submit plan amendments "necessary to reflect changes in state

requirements" identified in the evaluation and appraisal of its

comprehensive plan.

8 6 . Petitioners failed to prove that the EAR - based 2008

Amendment failed to satisfy this statutory requirement.

Su mmary

87 . In summary, Petitioners failed to prove beyond fair

debate that the 2008 Amendment and the 2010 Amendment are not in

compliance.

RECOMMENDATION

Based on foregoing Findings of Fact and Conclusions of Law,

it is

RECOMMENDED that the Department of Economic Opportunity

enter a final order determining that the plan a mendments adopted

by Town Ordinance s 2008 - 01 and 2010 - 09 are in compliance.

DONE AND ENTERED this 20th day of March , 2012 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of March , 2012 .

ENDNOTES

1/ All references to the Florida Statutes are to the 2011

codification.

2/ The relative number of boats associated with wet slips versus

dry boat storage facilities is not addressed in the MPP. The

MPP addresses wet slips versus dry slips. A d ry slip is defined

in the MPP as a "space designed for the storage of single

watercraft i n an upland location."

3/ If the Town makes an allocation of slips that is

inconsistent with a policy in the Town Plan, it is the validity

of the allocation that is called into question, not the validity

of the policy.

C OPIES FURNISHED :

Virginia Cassa dy, Esquire

Clifford B. Shepard, Esquire

Shepard, Smith and Cassady, P.A.

2300 Maitland Center Parkway, Suite 100

Maitland, Florida 32751 - 5647

Michael J. Woods, Esquire

Robert T. Bowling, Esquire

Michael O. Sznapstajler, Esquire

Cobb, Cole, P. A.

351 East New York Avenue

Suite 200

Deland, Florida 32724 - 5509

Cynthia R. Lore n zo, Interim Executive Director

Department of Economic Opportunity

107 East Madison Street

Caldwell Building

Tallahassee, Florida 32399 - 4128

Rosa McNaughton, Interim General Counsel

Department of Economic Opportunity

107 East Madison Street

Caldwell Building

Tallahassee, Florida 32399 - 4128

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 this Recommended Order should be filed with the agency that

will issue the Final Order in this case.