09-003408GM Tierra Verde Community Association, Inc., Maura J. Kiefer, And Michael Mauro vs. City Of St. Petersburg, Florida Status: Closed Recommended Order on Wednesday, June 30, 2010.

Summary: The City's amendment to its future land use plan is not "in compliance" due to its adverse effect on hurricane evacuation times and incompatbility with adjacent land uses.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TIERRA VERDE COMMUNITY )

ASSOCIATION, INC., MAURA J. )

KIEFER, and MICHAEL MAURO, )

)

Petitioners, )

)

vs. ) Case No. 09-3408GM

)

CITY OF ST. PETERSBURG, )

FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on March 23 through

25, 2010, in St. Petersburg, Flo rida, before Bram D. E. Canter, an

Administrative Law Judge of the Division of Administrative Hearings

(“DOAH”).

APPEARANCES

For Petitioners: Thomas W. Reese, Esquire

2951 61st Avenue South

St. Petersburg, Florida 33712-4539

John R. Thomas, Esquire

233 Third Street North, Suite 101

St. Petersburg, Florida 33701-3818

For Respondent: Jeanne Hoffmann, Esquire

Kimberly Jackson, Esquire

Post Office Box 2842

St. Petersburg, Florida 33731

STATEMENT OF THE ISSUE

The issue to be determined in this case is whether the City

of St. Petersburg’s amendment to its Comprehensive Plan, adopted

as that term is defined in Section 163.3184(1)(b), Florida

Statutes (2009). 1/

PRELIMINARY STATEMENT

On May 21, 2009, the City of St. Petersburg (City) adopted

the Plan Amendment, which amends the Future Land Use Map (FLUM)

of the City’s Comprehensive Plan to assign future land use

designations to 18.25 acres that were annexed from Pinellas

County into the City in 2008 (the subject properties). This

proceeding is governed by the special procedures established in

Section 163.32465, Florida Statutes, which provide for reduced

state oversight of local comprehensive planning in urban areas.

No Statement of Intent was issued by the Department of Community

Affairs (Department) regarding the Plan Amendment. Petitioners

filed their petition to challenge the Plan Amendment on June 22,

2009.

At the final hearing, Joint Exhibits 1 through 4 were

admitted into evidence. Petitioners presented the testimony of

Gordon Beardslee, Pinellas County General Planning

Administrator; Paul Murray; Maura Kiefer; Michael Mauro; Marina

Pennington; Sally Bishop, Director of Pinellas County Department

of Emergency Management; and George Deakin. Petitioners'

Exhibits 21, 48, 50, 56, 59, 60, 61, 62, 72, 73, 82, 84 and 96

were admitted into evidence. The City presented the testimony

of Richard MacAulay, Manager for the City's Planning and

Economic Development Department; Thomas Whalen, Planner III for

the City's Transportation and Parking Department; David Healey,

Executive Director of the Pinellas Planning Council; and Dr.

Bernard Piawah, Regional Planning Administrator for the

Department. The City's Exhibit Nos. 3, 15, 16, 33, 34, 36, 55

and 62(f) were admitted into evidence.

The three-volume Transcript of the hearing was 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. The City is a Florida municipality and has adopted a

comprehensive plan that it amends from time to time pursuant to

Chapter 163, Part II, Florida Statutes.

2. Petitioner Mauro is a resident of the City. Petitioners

Kiefer and Mauro operate businesses in the City. These

individuals provided timely comments to the City on the Plan

Amendment.

3. Petitioner Tierra Verde Community Association (TVCA)

holds easements on the subject properties for access and

maintenance of landscaping and lighting. On this basis, TVCA

asserts that it owns property within the City.

4. The subject properties are within the boundaries of TVCA

and subject to covenants and restrictions adopted by TVCA. The

owners of the subject properties are obligated to pay

assessments imposed by TVCA for the services and functions

provided by TVCA. On this basis, TVCA claims to operate a

business within the City.

5. TVCA made timely comments on the Plan Amendment.

The Plan Amendment and Subject Properties

6. The City followed the alternative state review process

established in Section 163.32465, Florida Statutes. In

accordance with Section 163.32465(4)(a), the City transmitted

the Plan Amendment and appropriate supporting data and analysis

to the Department, the County, Tampa Bay Regional Planning

Council, and other appropriate agencies.

7. The Plan Amendment amends the FLUM to apply future land

use designations to 18.25 acres on a barrier island in Boca

Ciega Bay known as Tierra Verde.

8. Tierra Verde consists predominantly of single-family and

multi-family residential developments. Most of the multi-family

developments, comprising condominiums and townhomes, are located

along the North-South Pinellas Bayway, which is State Road 679.

9. The subject properties include 13 parcels with multiple

owners. Madonna Boulevard bisects the subject properties.

Existing development on the subject properties include the

Tierra Verde Marina, the Tierra Verde Marina High and Dry (an

upland boat storage facility), a yacht broker, a beauty parlor,

a post office, a bait shop, a hardware store, a convenience

store with gas dispensers, a dental office, a dry cleaner, a

real estate office, a medical office, and a resort/timeshare

building (no longer in use).

10. To the north of the subject properties are single-

family residences and Boca Ciega Bay; to the south are multi-

family residences; to the east are the Pinellas Bayway and

multi-family residences; and to the west are single-family

residences.

11. The subject properties were located in unincorporated

Pinellas County until the City annexed the properties in

November 2008. The properties remain subject to the Pinellas

County Comprehensive Plan until the City amends its own

Comprehensive Plan to include the properties. See § 171.062(2),

Fla. Stat.

12. Currently, there are two Pinellas County land use

designations on the subject properties: 17.28 acres are

designated Commercial General (CG) and five vacant lots on 0.97

acres are designated as Residential Low (RL).

13. The Plan Amendment would assign the same labels to the

subject properties: CG for the 17.28 acres and RL for the five

vacant lots. The City's RL designation is essentially the same

as the County’s RL designation, but the City’s CG designation

differs from the County’s CG designation.

14. The City’s CG designation allows a potential maximum of

414,000 square feet of commercial uses on the 17.28 acres

designated CG.

15. The City's CG designation allows for 24 residential

units per acre. The Plan Amendment would allow 415 new dwelling

units on the CG lands. The City estimated that the 415 dwelling

units would be occupied by 639 persons.

16. The City has a workforce housing ordinance that allows

residential density to be increased another six units per acre

for qualifying developments. If the potential maximum number of

workforce housing units were added, 518 residential units could

be developed on the lands designated CG.

17. The City CG designation allows for up to 40 rooms per

acre of transient (hotel) units, for a total of 691 hotel units.

18. The Pinellas County Comprehensive Plan establishes

special overlay policies and criteria for Tierra Verde. The

Tierra Verde overlay requires development to be compatible with

existing structural bulk and height, requires commercial uses to

serve the island’s residents, and restricts single-family

development to 35 feet in height and multi-family development to

five stories.

19. The City does not propose to adopt an overlay or

comparable policies and criteria as part of the Plan Amendment.

The Tierra Verde Community Overlay policies and criteria would

no longer apply to the subject properties.

Hurricane Evacuation and Shelter Capacity

20. Section 163.3178(2)(h), Florida Statutes, and Florida

Administrative Code Rule 9J-5.012(2)(e) require each coastal

management element to designate the coastal high-hazard area

(CHHA). Section 163.3178(2)(h) defines the CHHA as "the area

below the elevation of the category 1 storm surge line as

established by a Sea, Lake and Overland Surges from Hurricanes

(SLOSH) computerized storm surge model."

21. The subject properties are not located in the CHHA.

22. Pinellas County uses a broader planning concept than

the CHHA, called the Coastal Storm Area (CSA). The CSA

encompasses all lands on barrier islands, all areas isolated by

the CHHA, and all properties in a FEMA Velocity Zone.

23. The subject properties are currently within the

County’s CSA. However, the Plan Amendment would terminate the

applicability of the CSA to the subject properties.

24. Petitioners characterize the CSA as the “best available

data regarding coastal storm protection.” Presumably, that

characterization is intended to invoke the requirement of

Florida Administrative Code Rule 9J-5.005(2)(c) that plan

amendments must be based on the best available data. However,

the CSA, to the extent that it is data, is only the best

available data regarding the geographic area affected by coastal

storms based on a methodology used by the Tampa Bay Regional

Planning Council. In the same way, the CHHA is the best

available data on the geographic area affected by coastal storms

utilizing the SLOSH model. As stated in the Conclusions of Law,

the choice between the two zones remains a matter of legislative

policy.

25. The subject properties are located in a hurricane

Evacuation Zone A. Therefore, the properties are also located

in the “hurricane vulnerability zone,” which is defined in

Florida Administrative Code Rule 9J-5.003(57), as all lands that

must be evacuated in the event of a 100-year storm or Category 3

hurricane (Evacuation Zones A, B, and C).

26. The only evacuation route for the residents of Tierra

Verde is via a causeway and two-lane drawbridge to Isla del Sol.

Residents evacuating Tierra Verde would have to cross two more

bridges before reaching the mainland. Their out-of-county

evacuation route includes four areas that are within the CHHA

and could be flooded in a Category 1 hurricane.

27. Low-lying barrier islands are difficult places to

evacuate in the event of a coastal storm.

28. The City did not evaluate, in conjunction with the Plan

Amendment, the effect that re-development of the 17.28 acres of

CG lands for the maximum allowable residences or hotel units

would have on hurricane evacuation and shelter capacity. The

City asserts that, because the subject properties were not in

the CHHA, such an evaluation was unnecessary.

29. Policy CM13.11 establishes a 16-hour out-of-county

hurricane evacuation clearance time for a Category 5 storm

event. Clearance time is the time required to clear the roadway

of all vehicles evacuating in response to a hurricane.

30. Clearance times for Pinellas County do not meet the 16-

hour out-of-county evacuation standard.

31. The Tampa Bay Region Hurricane Evacuation Study 2006

estimates that current clearance times in Pinellas County for a

Category 5 storm are 23 to 28 hours for in-county to shelter

evacuation and 46 to 55 hours for out-of-county evacuation.

32. The clearance times for the Tampa Bay area are the

highest for any area of Florida and the coastal United States.

33. If the subject properties were developed with the

maximum residential units or maximum hotel units allowed by the

Plan Amendment, it is likely that the evacuation clearance times

would be increased (worsened).

34. The County reports that it currently has sufficient

shelter capacity for evacuation levels A though C. However,

this determination of sufficiency is based on an allowance of

only 10 square feet per person in the shelters. Most local

governments and emergency planners use the American Red Cross

standard for shelter space of 20 square feet per person.

35. Even using 10 square feet per person, Pinellas County

has a deficit of shelter space for Category 4 and 5 hurricanes.

Using 20 square feet per person, Pinellas County has a deficit

of shelter space for Category 2 and larger hurricanes.

36. The City points out that, because the subject

properties are in Evacuation Zone A, residents and hotel

residents on the subject properties would be the first ordered

to evacuate during a hurricane. This fact does not change the

likely adverse effect of the Plan Amendment on evacuation times

and shelter capacity for City and County residents.

37. Although some recent post-hurricane studies found that

fewer people use the emergency shelters than was predicted,

emergency planners in the region believe that there is

inadequate shelter capacity for large hurricanes.

Residential and Commercial Need

38. The City did not perform a population-based “needs

analysis” for the Plan Amendment. The City stated that it does

not use population projections to determine the need for

residential density increases because the City is essentially

“built out.”

39. The City did not perform a commercial needs analysis

for the 17.28 acres of CG created by the Plan Amendment, because

the property is already designated and developed for commercial

uses.

Roadway Capacity

40. A 2008 level of service (LOS) report for the Pinellas

Bayway indicates that the LOS was “C” from Madonna Boulevard on

Tierra Verde to the drawbridge and Isla del Sol. The adopted

standard for this road segment is LOS “D.” To degrade the LOS

below the adopted standard would require the addition of 892

vehicle trips.

41. The maximum potential vehicle trips that would be

generated from the subject properties would be from its

development exclusively for commercial uses; 1,220 peak hour

trips, or 1,397 trips if a commercial bonus is applied. 3/

However, the City determined that development of the property

was not likely to generate the maximum potential vehicle trips,

but would, instead, generate approximately 800 trips.

42. The City used the 100th highest hour (k-100) of yearly

traffic in estimating the impact of the potential traffic from

the subject properties. Use of the k-100 peak hour analysis is

part of the usual method for analyzing roadway level of service.

43. Petitioners contend that the City should have used the

“design level” peak hour factor, which is the 30th highest hour

(k-30). The k-30 peak hour was used by the Florida Department

of Transportation (FDOT) in its recent study associated with the

drawbridge. Using k-30, FDOT assigned an LOS of “F” for the

intersection of Madonna Boulevard and the Pinellas Bayway and

for the drawbridge.

44. Petitioners failed to prove that k-30 is the

appropriate measure to evaluate the potential roadway impacts of

the Plan Amendment, or that it is the “best available existing

data” for analyzing the Plan Amendment. 4/

45. The concurrency management system for roadways requires

land development to be “concurrent” with roadway capacity, and

prohibits the issuance of building permits that would cause the

adopted LOS standards on affected roadway segments to be

violated. See § 163.3180(1)(c), Fla. Stat. Comprehensive plan

amendments do not have to be “concurrent” with roadway capacity.

Internal Consistency

46. Petitioners claim that the Plan Amendment would make

the FLUM inconsistent with a number of provisions of the City’s

Comprehensive Plan, identified below.

Policy LU2.4

47. Policy LU2.4 of the Future Land Use Element (FLUE)

states that the City may permit higher intensity uses outside of

“activity centers” only where available infrastructure exists

and surrounding uses are compatible. The City’s Comprehensive

Plan designates four “activity Centers” in the City. The

subject properties are not within an activity center.

48. What “higher intensity uses” means in this context was

not explained by the parties, but there did not appear to be a

dispute that the Plan Amendment would create “higher intensity

uses.”

49. The preponderance of the record evidence shows that

City utilities and other public services are adequate to serve

the subject properties. Petitioners’ arguments regarding the

current absence of public transit service to Tierra Verde does

not represent a deficiency, because there are currently no City

residents on Tierra Verde.

50. The term “compatibility” is defined in the General

Introduction to the City’s Comprehensive Plan to have the

following meaning:

Not having significant adverse impact. With

limited variation from adjacent uses in net

density, in type of use of structures

(unless highly complimentary) and with

limited variation in visual impact on

adjacent land uses. In the instance of

certain adjacent or proximate uses,

compatibility may be achieved through the

use of mitigative measures.

51. The term “compatibility” is also defined in Florida

Administrative Code Rule 9J-5.003(23):

“Compatibility” means a condition in which

land uses or conditions can coexist in

relative proximity to each other in a stable

fashion over time such that no use or

condition is unduly negatively impacted

directly or indirectly by another use or

condition.

52. Petitioners contend that the “surrounding uses” on

Tierra Verde are not compatible with the uses allowed under the

Plan Amendment. The City responds that compatibility cannot be

determined until a future development proposal is submitted for

the subject properties.

53. A compatibility analysis is required for this “in

compliance” determination for the Plan Amendment. Although a

compatibility analysis for a comprehensive plan amendment is a

more “macro” or general evaluation than at the time of a

specific development application, the issue is not one that can

be put off until the City reviews a development proposal for the

subject properties.

54. Using the City’s own definition of compatibility as

“limited variation” from adjacent uses in net density and type

use, it is found that, if the subject properties were developed

to attain the maximum residential units or maximum hotel units,

it would not be a “limited variation” from adjacent densities

and use types. Therefore, these scenarios allowed by the Plan

Amendment are not compatible with adjacent land uses. To find

otherwise would render the term “limited variation” in the

City’s definition of compatibility meaningless.

55. A mix of general commercial uses has existed for years

on the subject properties and Petitioners failed to prove that

the commercial uses allowed by the Plan Amendment are

incompatible with surrounding uses.

Policy LU3.8

56. Policy LU3.8 requires that the City 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.”

57. Petitioners presented no evidence to show that the City

has failed to adopt land development regulations to address

potential incompatible uses, noise, traffic and other

intrusions.

Policy LU3.11

58. FLUE Policy LU3.11 requires that residential uses

greater than 7.5 units per acre be located along designated

major transportation corridors and in close proximity to

activity centers where compatible.

59. The City’s Comprehensive Plan does not define “major

transportation corridors,” but it defines “Major Street” to

include minor arterials. The Pinellas Bayway (SR 679) is

designated a minor arterial. The City contends that the

Pinellas Bayway on Tierra Verde qualifies as a major

transportation corridor.

60. However, it was not disputed that the subject

properties are not “in close proximity” to one of the four

activity centers in the City. The City did not explain how the

Plan Amendment is consistent with Policy LU3.11, except to state

that the City could possibly designate the subject properties as

a new activity center in the future.

Policy LU3.17

61. Policy LU3.17 states that the City has an adequate

supply of commercial land to meet existing and future needs and

provides that 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.

62. Petitioners point out that the Plan Amendment would

represent an increase in the allowable commercial intensity,

compared to the Pinellas County Comprehensive Plan, but that

fact is not relevant to whether the Plan Amendment is consistent

with other provisions of the City’s Comprehensive Plan.

63. Petitioners’ arguments that the City did not

demonstrate the need for commercial uses on the 17.28 acres

designated CG by the Plan Amendment fail, because the properties

are already designated and developed for commercial uses, and

any expansion of the existing commercial square footage on the

subject properties would qualify as infilling an existing

commercial area.

Objective LU4

64. FLUE Objective LU4 is to provide the land to

accommodate the various development types necessary to support

future growth. Objective LU4 includes statements that no

additional “residential acreages” are needed to accommodate

forecasted future populations and no additional commercial

acreage is required to serve the City’s future needs.

65. The Plan Amendments would add 17.28 acres of potential

residential development. Objective LU4 states that there is no

need for this additional residential acreage.

66. The City asserts that it has no other future land use

categories that would be more appropriate for the 17.28 acres

than CG. The City asserts, in essence, that it has no choice

but to allow for the potential addition of hundreds of new

residents or over a thousand new hotel units.

67. It is not unreasonable for the City to assign a

commercial designation to annexed lands which are already

developed for general commercial uses. When Objective LU4 is

read together with Policy LU3.17, which allows for commercial

infill, an inconsistency with the Plan Amendment with regard to

commercial uses is not apparent.

68. FLUE Objective LU4 also states that mixed-use

developments are encouraged in appropriate locations to foster a

land use pattern that results in “fewer and shorter automobile

trips and vibrant walkable communities.” The CG designation

would allow for a wide mix of uses. Petitioners did not show

that the subject properties could not be developed in a manner

that fosters fewer and shorter automobile trips and a walkable

community.

Objective LU12

69. Objective LU12 states that the City shall “strive to

maintain and enhance the vitality of neighborhoods through

programs and projects developed and implemented in partnership

with CONA, FICO and neighborhood associations.”

70. No evidence was presented by Petitioners to show that

there are existing programs or projects developed by the City

and TVCA with which the Plan Amendment is inconsistent, or that

the Plan Amendment would prevent future programs and projects.

Objective CM13

71. Objective CM13 requires the City to cooperate with

state, regional and county agencies to maintain or reduce

hurricane evacuation times.

72. The effect of the Plan Amendment on hurricane

evacuation times was not evaluated before the adoption of the

Plan Amendment. The City did not engage in meaningful

cooperation with state, regional and county agencies to maintain

or reduce hurricane evacuation times. If the subject properties

were developed at the maximum potential residential density or

maximum potential hotel density allowed by the Plan Amendment,

hurricane evacuation times would likely increase.

73. The Tampa Bay Regional Planning Council commented that

public shelter capacity and evacuation clearance times should

have been addressed in conjunction with the Plan Amendment. 2/

Pinellas County objected to the Plan Amendment, based on its

belief that the Plan Amendment would increase hurricane

evacuation times and that there is insufficient shelter

capacity. FDOT commented on the Plan Amendment, stating that

the addition of permanent residents was “ill-advised” based on

the vulnerability of the subject properties to storm surge.

74. The City states that it will consider hurricane

evacuation times during the review of development site plans.

While consideration of hurricane evacuation issues is

appropriate at the site plan review stage, the City must also

consider hurricane evacuation issues when it adopts a plan

amendment that affects land within the hurricane vulnerability

zone.

Policy CM13.11

75. Policy CM13.11 establishes a 16-hour out-of-county

hurricane evacuation clearance time for a Category 5 storm

event. The City does not meet its 16-hour standard, but

contends that, because the subject properties are not in the

CHHA, the 16-hour evacuation time does not apply.

76. Clearance times are not defined by, or solely affected

by, the number of persons that reside in the CHHA. Clearance

times are based on the number of persons evacuating and

certainly include the first people to be evacuated -- the people

in Evacuation Zone A. The subject properties are within

Evacuation Zone A. Similarly, emergency shelter capacity is not

based solely on the number of persons evacuating from the CHHA.

Objective T12

77. Objective T12 of the Transportation Element states

that the City shall provide equitable transportation service to

all residents and accommodate special transportation needs.

Petitioners claim that the Plan Amendment is inconsistent with

this objective because there is no existing transportation

service to the subject properties. As stated above, the lack of

existing service is not a deficiency because there are no City

residents on Tierra Verde.

CONCLUSIONS OF LAW

78. To have standing to contest a comprehensive plan

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

defined in Section 163.3184(1)(a), Florida Statutes, as a person

owning property, residing, or owning or operating a business

within the boundaries of the local government, and who made

timely comments to the local government regarding the plan

amendment.

79. Petitioners Mauro and Kiefer are affected persons.

80. TVCA’s easements over the subject properties do not

establish its standing as an owner of land within the City.

Although an easement is an interest in real property, an

easement is not an estate in land. It is an incorporeal, non-

possessory interest in the use of someone else’s land for a

described purpose. See Sears, Roebuck and Co. v. Franchise

Finance Corporation of America , 711 So. 2d 1189, 1191 (Fla. 2d

DCA 1998). An easement is usually said to be “held,” rather

than “owned.”

81. There are no reported cases that have dealt with this

particular question, but it is concluded that TVCA, as an

easement holder, is not a property owner within the meaning of

Section 163.3184(1)(a), Florida Statutes.

82. The Administration Commission liberally interprets

“operating a business” for the purpose of standing as an

affected person. See Dept. of Comm. Affairs v. Miami-Dade

County , AC Case No. ACC-09-003 (Final Order July 30, 2009) (1000

Friends’ activities in Miami-Dade County to promote growth

management, affordable housing, and Everglades restoration were

sufficient to establish that 1000 Friends operates a business).

Therefore, it is concluded that TVCA’s powers and

responsibilities with respect to the easements, and their

imposition and collection of assessments on the subject

properties, are sufficient to establish that TVCA operates a

business within the City and, therefore, that TVCA is an

affected person.

83. The City’s determination that the Plan Amendment is “in

compliance” is presumed to be correct and shall be sustained

unless Petitioners have shown by a preponderance of the evidence

that the Plan Amendment is not in compliance. See

§ 163.32465(5)(d), Fla. Stat.

84. Section 163.3184(1)(b), Florida Statutes, defines the

term “in compliance:”

“In compliance” means consistent with the

requirements of §§ 163.3177, 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 for guiding development in

designated areas of critical state concern

and with part III of chapter 369, where

applicable.

85. Petitioners’ comparisons of the Plan Amendment to

existing Pinellas County Comprehensive Plan provisions are

misplaced because the question of whether the Plan Amendment is

in compliance is not answered by determining whether the Plan

Amendment enlarges or reduces the uses that are currently

allowed by the County on the subject properties. The Plan

Amendment must be judged on its own terms to determine whether

it is in compliance. On the other hand, the existing land uses

on the subject properties are relevant to this compliance

determination.

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

that a comprehensive plan amendment be supported by the best

available existing data and that the amendment react to the data

in an appropriate way and to the extent necessary.

87. Petitioners refer to the CSA as the “best available

data regarding protection of the coastal population.” However,

the labeling of the CSA as “data” does not change the fact that

the City has legislative discretion in its choice of planning

methods to protect its citizens against coastal storms.

Furthermore, designation and use of the CHHA is required by

Section 163.3178, Florida Statutes; use of the CSA is not.

88. Florida Administrative Code Rule 9J-5.012 requires that

coastal communities consider the hurricane vulnerability zone,

persons requiring evacuation, shelter capacity, and evacuation

times. Furthermore, the City’s own Coastal Management Element

recognizes that “population growth in the hurricane vulnerable

areas may result in longer evacuation times and an increased

need for shelter space.”

89. The location of the subject properties outside of the

CHHA does not mean that the City does not have to consider the

effect of the Plan Amendment on hurricane evacuation and shelter

issues. Evacuation and shelter issues reasonably apply to all

lands within the “hurricane vulnerability zone.”

90. The City contends that it has no control over shelter

capacity or the roadways that form the hurricane evacuation

route for the residents of Tierra Verde. The City’s lack of

control over these factors does not eliminate the City’s duty to

react appropriately to the existing circumstances that affect

the safety and welfare of its citizens.

91. Petitioners proved by a preponderance of the evidence

that, in adopting the Plan Amendment, the City did not react

appropriately to the best available existing data regarding the

vulnerability of its citizens to hurricanes and the potential

adverse effects of the Plan Amendment on hurricane clearance

times and shelter capacity. Therefore the Plan Amendment is

inconsistent with Florida Administrative Code 9J-5.005(2).

92. The best existing available data and the more

persuasive evidence in the record support Petitioners’ claim

that it is not sound planning to allow over 600 new residents or

over a thousand new transient (hotel) residents on Tierra Verde.

93. The elements of a comprehensive plan must be

coordinated and consistent. § 163.3177(2), Fla. Stat. An

amendment to a FLUM must be consistent with the other elements

of the comprehensive plan. See Coastal Development of North

Florida v. City of Jacksonville , 788 So. 2d 204, 208 (Fla.

2001).

94. Petitioners proved by a preponderance of the evidence

that the Plan Amendment causes the City’s Comprehensive Plan to

be internally inconsistent. The Plan Amendment was shown to be

inconsistent with:

(1) FLUE Policy LU2.4, because the Plan Amendment allows

for higher intensity uses outside an activity center that would

be incompatible with surrounding uses;

(2) FLUE Policy LU3.11, because the Plan Amendment allows

for high residential densities that are not in close proximity

to an activity center;

(3) Objective CM13 of the Coastal Management Element

because the City did not cooperate with state, regional, and

county agencies to maintain or reduce hurricane evacuation

times; and

(4) Policy CM13.11 of the Coastal Management Element

because the Plan Amendment would adversely effect evacuation

times.

95. Petitioners failed to prove that the City did not

conduct an appropriate analysis of need for the Plan Amendment.

The lack of need for additional residential and commercial uses

in the City is stated in the Comprehensive Plan itself. In

addition, with respect to commercial uses, the City is not

required to show a need for general commercial uses of the 17.28

acres because the property is already developed for general

commercial uses. The City failed to react appropriately to the

data that showed that there was no need for additional

residential uses.

96. The City stated that the CG designation is the most

appropriate designation for land that is already developed with

general commercial uses, and that its has no better future land

use designation to assign to the subject properties. However,

the City is not without the a means to deal with situations

where one or more aspects of a future land use designation would

be problematic. It is a common technique in comprehensive

planning to place restrictions of FLUM amendments so that

particular land uses, densities, or intensities that would

otherwise be allowed under a future land use designation, are

prohibited or restricted on the affected lands. See , e.g. ,

Patricia Curry v. Palm Beach County , DOAH Case No. 09-1204GM,

Final Order DCA09-GM-371 (November 24, 2009); Leseman Family

Land Partnership v. Clay County , DOAH Case No. 07-5775GM, Final

Order No. DCA08-GM-320 (October 17, 2008); Dept. of Comm.

Affairs v. St. Joe Co. , DOAH Case No. 06-0881GM, Final Order No.

DCA07-GM-040 (April 3, 2007).

96. In summary, Petitioners proved by a preponderance of

the evidence that the Plan Amendment is not “in compliance.”

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Administration Commission enter a

final order determining that the City of St. Petersburg plan

amendment adopted by Ordinance No. 2009-689-L is not “in

compliance."

DONE AND ENTERED this 30th day of June, 2010, in

Tallahassee, Leon County, Florida.

BRAM D. E. CANTER

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 30th day of July, 2010.

ENDNOTES

1/ All references to the Florida Statutes are to the 2009

codification.

2/ The Council nevertheless found the Plan Amendment to be

consistent with the Strategic Regional Policy Plan and

recommended approval of the Plan Amendment.

3/ The number of vehicle trips generated by the existing

commercial activities is not in the record.

4/ No evidence was presented to show that peak hours from

normal traffic patterns (whether K-30 or k-100) are used to

predict the traffic that can be expected during a hurricane

evacuation.

COPIES FURNISHED :

Thomas W. Reese, Esquire

2951 61st Avenue South

St. Petersburg, Florida 33712-4539

John R. Thomas, Esquire

Thomas & Associates, P.A.

233 Third Street North, Suite 101

St. Petersburg, Florida 33701-3818

Shaw P. Stiller, General Counsel

Department of Community Affairs

2555 Shumard Oak Blvd.

Tallahassee, Florida 32399

Jeanne Elizabeth Hoffmann, Esquire

City of St. Petersburg

Legal Department

Post Office Box 2842

St. Petersburg, Florida 33731

Kimberly G. Jackson, Esquire

Post Office Box 2842

St. Petersburg, Florida 33731

Barbara Leighty, Clerk

Transportation and Economic

Development Policy Unit

The Capitol, Room 1801

Tallahassee, Florida 32399-0001

Robert Wheeler, General Counsel

Office of the Governor

The Capitol, Suite 209

Tallahassee, Florida 32399-0001

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.