09-002080GM Richard A. Burgess vs. Department Of Community Affairs And City Of Edgewater Status: Closed Recommended Order on Tuesday, July 27, 2010.

Summary: Petitioner failed to prove that the comprehensive amendments adopted by the City of Edgewater were not in compliance based on lack of need, formatting errors, multiple planning horizons, and other claimed inconsistencies.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD A. BURGESS, )

)

Petitioner, )

)

vs. )

)

DEPARTMENT OF COMMUNITY AFFAIRS )

AND CITY OF EDGEWATER, ) Case No. 09-2080GM

)

Respondents, )

)

and )

)

HAMMOCK CREEK GREEN, LLC, )

)

Intervenor. )

)

RECOMMENDED ORDER

The final hearing in the this case was held on May 17 and

18, 2010, in Edgewater, Florida, before Bram D. E. Canter,

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Ross S. Burnaman, Esquire

1018 Holland Drive

Tallahassee, Florida 32301

For the City of Edgewater:

Carolyn Ansay, Esquire

Doran, Wolfe et al

444 Seabreeze Boulevard, Suite 800

Daytona Beach, Florida 32115-4508

For the Department of Community Affairs:

Matthew G. Davis, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

For Hammock Creek Green, LLC:

Karen A. Brodeen, Esquire

Fowler, White, Boggs

Post Office Box 11240

Tallahassee, Florida 32302-3240

Ted Brown, Esquire

Baker & Hostetler, LLP

Sun Trust Center, Suite 2300

200 South Orange Avenue

Orlando, Florida 32802

STATEMENT OF THE ISSUES

The issues to be determined in this case are whether the

amendments to the City of Edgewater’s Comprehensive Plan,

adopted by Ordinance No. 2008-O-10, and revised in part by the

remedial amendments in Ordinance Number 2010-O-01 (“Plan

Section 163.3184(1)(b), Florida Statutes (2009). 1/

PRELIMINARY STATEMENT

On February 2, 2009, the City of Edgewater created the

Restoration Sustainable Community Development District through a

text amendment to the Future Land Use Element (FLUE) and an

amendment of the Future Land Use Map (FLUM). Following its

review of the adopted amendments, the Department of Community

Affairs (Department) issued a Statement of Intent, finding the

amendments not “in compliance,” and filed a petition for hearing

with the Division of Administrative Hearings on April 20, 2009.

Thereafter, the City, the Department, and Intervenor Hammock

Creek Green, LLC (Hammock Creek), entered into a stipulated

settlement agreement resolving all of their disputed issues.

The City adopted a remedial amendment pursuant to the settlement

agreement and on March 18, 2010, the Department issued its

Cumulative Notice of Intent to find the Plan Amendments “in

compliance.” The case proceeded with the parties re-aligned.

Petitioner presented the testimony of Bill Greiff; James

Cromer, accepted as an expert in Geographic Information Systems;

Richard Burgess; Ashley Porter, accepted as an expert in land

planning; Bonnie Wenzel; Darren Lear, accepted as an expert in

land planning; and Charles Gauthier, accepted as an expert in

land planning. Petitioner’s Exhibit Nos. 1 through 9, 14, 15,

19, 23, 26 through 28, 30, 33, 35, 37 through 39, 45, 46, 50, 59

through 61, 72, and 75 were admitted into evidence.

Petitioner’s Exhibit No. 20 was placed in the record as a

proffer only.

Hammock Creek presented the testimony of Don Mears,

principal of Hammock Creek. The City presented the testimony of

Ken Metcalf, accepted as an expert in land planning.

City/Intervenor Exhibits 26 and 39 were admitted into evidence.

The Department presented the testimony of Ashley Porter and

Charles Gauthier. Department Exhibit Nos. 6 and 7 were admitted

into evidence. Joint Exhibits 1 through 4 were also admitted

into evidence.

The four-volume Transcript of the final 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 Department is the state land planning agency and is

statutorily charged with the duty to review comprehensive plan

amendments and to determine whether amendments are “in

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

Florida Statutes.

2. The City is a municipality in Volusia County and has

adopted a comprehensive plan that it amends from time to time

pursuant to Chapter 163, Part II, Florida Statutes.

3. Hammock Creek is a Delaware limited liability company

registered with the State of Florida. It owns the property that

is the subject of the Plan Amendments. Through its

representatives, Hammock Creek submitted comments to the

Edgewater City Council at the transmittal and adoption hearings

for the Plan Amendments.

4. Petitioner Richard Burgess resides in the City, owns

real property in the City, and operates a business in the City.

5. At the public hearings on the original amendment package

adopted by Ordinance No. 2008-O-10, Petitioner made comments on

behalf of Edgewater Citizens Alliance for Responsible

Development, Inc. (ECARD), as its vice-president. ECARD was an

intervenor in this proceeding, but voluntarily dismissed its

petition before the final hearing.

6. Petitioner submitted written comments on his own behalf

at the adoption hearing for the remedial amendments adopted by

Ordinance No. 2010-O-01.

The Plan Amendments

7. The Plan Amendments create a new land use category, the

Restoration Sustainable Community Development District

Sub-Element of the FLUE:

The Restoration SCD is the result of a

conscious planning approach based on the most

current New Urbanist research and advanced

practices. The compact development pattern

is designed to and shall provide for a

diverse community with distinct place types

and multiple experiences that are appealing

to residents, employees, and visitors. It

shall provide for walkability, a broad range

of inclusive household demographics, the

ability to connect the community directly to

a natural experience, transit ready design,

and a high level of environmental stewardship

and planning.

* * *

In order to facilitate this vision, the City

shall recognize that density is important to

the restoration SCD outcome, but no more

important than the mixing of uses, the

development of a diverse population through

the provision of housing choice and

employment centers, the connection of streets

and the design of structures and spaces on a

human scale.

8. The Restoration SCD land use category applies to 5,187

acres of land on the west side of Interstate 95 that are owned by

Hammock Creek. The Restoration SCD site is not currently being

used, but in the past was used for silviculture.

9. The Restoration SCD site was annexed into the City in

2005, but is being assigned a future land use designation for the

first time. The Volusia County land use categories for the

property are Environmental Systems Corridor, which allows a

maximum residential density of one unit per 25 acres, and

Forestry Resource, which allows a maximum residential density of

one unit per 20 acres, or up to one unit per five acres with

clustering.

10. The Restoration SCD Sub-Element includes the

Restoration SCD Conservation/Development Areas Map, which divides

the site into three areas: Conservation, SCD

Conservation/Restoration, and SCD Community Development. The SCD

Community Development area is also referred to as the “Build

Envelope” because it is the only area where development can

occur.

11. The Build Envelope is approximately 25 percent of the

total land area. At least 50 percent of the Restoration SCD site

is required to be permanently protected open space.

12. The SCD District is integrally related to a Development

of Regional Impact (DRI) proposed for the lands that are the

subject of the Plan Amendments.

13. The Resolution SCD includes several of the development

controls listed in Florida Administrative Code Rule 9J-

5.006(5)(j) which discourage urban sprawl, including: open space

requirements; clustering; the establishment of minimum

development density and intensity; phasing of urban land use

types, densities, and intensities; traditional neighborhood

development form; buffering; planned unit development

requirements; restriction of the expansion of the urban area; and

jobs-to-housing balance requirements.

14. Edgewater is a relatively old Florida City that was

developed with strip commercial along the highway and other

development forms that were typical before the enactment of

Chapter 163 and the requirement for comprehensive planning. The

Restoration SCD introduces modern development principles and

forms.

15. Within each element of the City’s Comprehensive Plan,

there are data and analysis summaries. There is also a separate

section entitled “Population Projections.” The Plan Amendments

revise or add information to some of these data and analysis

summaries.

16. The Plan Amendments also include some “housekeeping”

changes that delete obsolete portions of the Comprehensive Plan

and extend several planning horizons in the plan from 2010 to

2020.

Mixed Uses

17. Petitioner contends that the Restoration SCD lacks

adequate policies to implement the types of land uses allowed,

the percentage distribution among the mixed uses, or other

objective measurement, and the density or intensity of each use

as required by Rule 9J-5.006(4)(c).

18. Restoration SCD is the future land use designation for

the entire site. Policy 3.1.1 describes seven subcategories of

uses within Restoration SCD: Residential, Mixed-Use Town Center,

Work Place, Transit-Ready Corridor, Utility Infrastructure Site,

Schools, and Open Space.

19. Various policies of the Restoration SCD Sub-Element

establish minimum and maximum percentages for the subcategories

of uses. Table I-4 in the Plan Amendments shows the various

land uses, their densities and intensities, and their acreages.

20. The Restoration SCD land use designation has an

overall residential density cap of 8,500 residential units and a

non-residential intensity cap of 3,300,000 square feet.

21. Policy 7.1.1 ensures a continuing balance of

residential and non-residential development by tying the number

of residential building permits that can be issued to the square

footage of non-residential development that has been

constructed. For example, residential units cannot exceed 1,500

until 180,000 square feet of non-residential uses have been

constructed.

Format

22. Petitioner contends that the Plan Amendments are not

consistent with the format requirements of Rule 9J-5.005(1)

because the sources, dates, and other information associated with

tables, figures, and other materials included in the Plan

Amendments are not identified.

23. Exhibit A to the new Restoration SCD Sub-Element does

not show a source, preparation date or name of the preparer.

24. FLUE Table I-3 shows a source and name of the preparer,

but not a preparation date.

25. FLUE Table I-4 shows a source, a preparation date, and

name of the preparer.

26. Within the Population Projections section of the

Comprehensive Plan, Table P-1 shows a source, but not a

preparation date or name of the preparer. Table P-2, Figures P-1

and P-2, and Tables P-3 through P-5 do not show sources,

preparation dates, or names of the preparers. Tables P-6 and P-7

show sources and names of the preparers, but no preparation

dates. Table P-9 does not show a source, preparation date, or

name of the preparer.

27. Within the Housing Element, Tables III-13 through III-

15 and Tables III-17 through III-20 show sources and names of the

preparers, but no preparation dates.

28. The tables and figures that Petitioner objects to are

included in the Comprehensive Plan as supporting data and

analysis. They are not parts of goals, objectives, or policies.

29. Rule 9J-5.005(2)(e) requires that maps include major

natural and man-made geographic features and city and county

boundaries. The Resolution SCD Conservation/Development Areas

Map does not show geographic features or government boundaries.

30. There are other maps in the FLUE that show natural and

man-made geographic features and city and county boundaries.

31. Policies 1.1.1 and 3.1.1 refer to Map “H”, which is

part of the DRI Development Order. Petitioner objects to the

omission of Map “H” from the Comprehensive Plan.

32. The Director of the Department’s Division of Community

Planning stated that it is not the practice of the Department to

treat a format error or omission as requiring a determination

that a plan amendment is not in compliance.

Adoption by Reference

33. Petitioner contends that the Plan Amendments adopt

regulations and other materials by reference, but not in

accordance with Rule 9J-5.005(2)(g), which requires that the

reference “identify the title and author of the document and

indicate clearly what provisions and edition of the document is

being adopted.” Petitioner asserts that the following provisions

include inadequate adoptions by reference: Policy 1.1.1, Policy

3.1.1, Objective 4.1, Policy 4.1.3, Policy 4.1.7, Policy 4.1.11,

Goal 5, Policy 6.1.1, Policy 8.1.4, Policy 9.1.1, Policy 10.1.1,

Policy 11.1.1, Policy 11.1.4, and Policy 12.1.6.

34. Policies 1.1.1 and 3.1.1, Objective 4.1, and Policies

4.1, 4.1.3, 4.1.7, and 4.1.11 refer to state, regional, and

federal laws or regulatory programs, but they do not purport to

adopt these laws and programs by reference. The purpose of these

provisions is not for the City to apply or have any role in the

regulatory process or decision-making associated with the

referenced laws and programs.

35. The wording of these provisions is consistent with the

City’s assertion that its intent is merely to provide notice of

related permitting programs with which the developer will have to

comply.

36. Goal 5 refers to New Urbanism and other land use design

principles as described in the literature of the Congress of New

Urbanism, the Urban Land Institute and similar organizations, but

the goal does not purport to adopt this literature by reference.

The goal states that design policies will be adopted by the City

in the future. No specific design principles are adopted, by

reference or otherwise, in Goal 5.

37. Policy 6.1.1 refers to affordable housing and defines

the term as a percentage of Volusia County’s Average Median

Income. The policy does not purport to adopt any materials by

reference.

38. Policies 8.1.4 and 11.1.1 refer to design principles

which are to be adopted in the future. The policy does not

purport to adopt this literature by reference. No specific

design principles are adopted, by reference or otherwise, in

Policies 8.1.4 or 11.1.1.

39. Policy 9.1.1 addresses school concurrency and refers to

a Capacity Enhancement Agreement (“CEA”) entered into by the

City, the developer, and the Volusia County School Board to

ensure that schools are timely planned and constructed to serve

the student population. The policy does not purport to adopt the

CEA by reference. Petitioner did not show that the CEA is not

self-executing.

40. Policy 10.1.1 refers to “green” development practices

that meet the certification programs of the United States Green

Building Coalition or the Florida Green Building Code, which will

be incorporated into the DRI Development Order. The policy does

not purport to adopt these certification programs by reference.

No specific green design practices are adopted, by reference or

otherwise, in Policy 10.1.1.

41. Policy 11.1.4 refers to vehicle trips as calculated by

the Institute of Transportation Engineers Trip Generation Manual.

This is the standard manual used by all traffic engineers. The

policy does not purport to adopt the manual by reference.

Planning Timeframes

42. Petitioner contends that the Plan Amendments cause the

Comprehensive Plan to be internally inconsistent because there

are different planning horizons in the Plan. The Plan Amendments

extend several planning horizons to 2020, but the planning

horizon in the Recreation and Open Space Element remains 2010,

the water supply work plan has a planning horizon of 2018, and

the Public School Facilities Element has a planning horizon of

2025.

43. Petitioner did not identify an adverse effect created

by the different planning horizons.

44. The City is currently preparing its Evaluation and

Appraisal Report (EAR)-based amendments. The EAR process is

statutorily mandated, periodic review and update of the entire

Comprehensive Plan. It is the logical process for reviewing and

revising planning horizons in the plan.

Conservation Element and Housing Element Data

45. Petitioner contends that the support documentation that

is included as part of the Conservation Element is not the best

available data. However, Petitioner did not produce better data,

except for the Florida Fish and Wildlife Conservation

Commission’s more recent listed species rules, or show how better

data do not support the Plan Amendments.

46. Similarly, Petitioner contends that some of the support

documentation that is included as part of the Housing Element is

not the best available data. Petitioner did not produce better

data or show how better data do not support the Plan Amendments.

Need

47. Petitioner contends that the best available data do not

show a need for the residential and nonresidential land uses

allowed by the Plan Amendments.

48. The Population Projections section in the Comprehensive

shows a projected City population of 34,481 by 2020. The

Department determined that the 2020 population forecast was

reasonable.

49. It is not the practice of the Department to require

local governments to update their population projections every

time an amendment is adopted.

50. The 2020 population projection is derived from

forecasts of the University of Florida’s Bureau of Business and

Economic Research BEBR. BEBR forecasts county populations, from

which city population projections must be extrapolated. BEBR

frequently under-forecasts population growth for cities. BEBR

forecasts do not account for localized factors that can change

the attractiveness of a particular area to prospective new

residents and, therefore, stimulate population growth.

51. Applying an “allocation factor,” the Department

determined that the number of residential units allowed by the

Plan Amendments was reasonably in line with the 2020 forecast.

An allocation factor is a multiplier applied to account for

factors that prevent the full or efficient use of densities

allowed by a FLUM.

52. In addition, population projections are not the sole

consideration in determining the need for a plan amendment. In

the case of the Restoration SCD, higher densities and intensities

are necessary as a part of the intended development form. Higher

densities and intensities are also necessary to achieve the

objectives of Section 163.3177, Florida Statutes, including the

encouragement of transit-oriented and energy-efficient

communities.

53. A need analysis for non-residential land uses in the

Resolution SCD was not conducted by the City because the non-

residential uses are intended to serve and be integrated with the

residential uses, and are required to be developed in pace with

the residential development. The Department found this approach

acceptable.

CONCLUSIONS OF LAW

Standing

54. For standing to challenge a plan amendment, a

challenger must be an “affected person,” which is defined in

Section 163.3184(1)(a), Florida Statutes, as a person who

resides, owns property, or owns or operates a business within the

local government whose comprehensive plan amendment is

challenged, and who submitted comments, recommendations, or

objections to the local government during the period of time

beginning with the transmittal hearing and ending with

amendment’s adoption.

55. The City and Hammock Creek assert that Petitioner has

standing to challenge the remedial amendments adopted by

Ordinance No. 2010-O-01, but not the original amendments adopted

by Ordinance No. 2008-O-10 because Petitioner’s comments on the

latter were made as vice-president of ECARD. However,

Petitioner’s comments to the City Council for ECARD were made on

behalf of all of the individual members of ECARD, including

Petitioner himself. The intent of Chapter 163 to limit standing

to persons who participated in the local government proceedings

on a plan amendment is satisfied. Petitioner has standing as an

affected person to challenge the Plan Amendments.

56. Hammock Creek is an affected person with standing to

intervene in this proceeding.

Standard and Burden of Proof

57. Pursuant to Chapter 163.3184, Florida Statutes, the

Department is to determine whether comprehensive plan amendments

are “in compliance.” The term “in compliance ” is defined in

Section 163.3184(1)(b), Florida Statutes:

In compliance” means consistent with the

requirements of ss. 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.

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

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

Stat.

59. The Department found the Plan Amendments to be “in

compliance.” Therefore, pursuant to Section 163.3184(9)(a),

Florida Statutes, the plan amendment “shall be determined to be

in compliance if the local government’s determination of

compliance is fairly debatable.”

60. The term “fairly debatable” is not defined in Chapter

163, Part II, Florida Statutes. The Florida Supreme Court in

Martin County v. Yusem , 690 So. 2d 1288 (Fla. 1997), held 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.

Mixed Uses

61. Section 163.3177(6)(a), Florida Statutes, provides that

"[t]he future land use plan may designate areas for future

planned development use involving combinations of types of uses

for which special regulations may be necessary to ensure

development in accord with the principles and standards of the

comprehensive plan and this act."

62. Rule 9J-5.006(4)(c) encourages mixed uses and, when

they are used, requires these categories to be implemented

through policies for the percentage distribution among the

various uses or other objective measurement, and the density or

intensity of each use.

63. Petitioner apparently objects to the flexibility that

the Plan Amendments provide through the use of minimum and

maximum densities and intensities. The Department does not

interpret Section 163.3177(6)(a) or Rule 9J-5.006(4)(c) to

prohibit this kind of flexibility, and the Department’s

interpretation is a reasonable one.

64. Petitioner failed to prove that the Plan Amendments do

not adequately identify or regulate the distribution of mixed

uses allowed in the Restoration SCD as required by Section

163.3177(6)(a) and Rule 9J-5.006(4)(c).

Format

65. Rule 9J-5.005(1)(d) states that “The comprehensive plan

format shall include,” among other things:

6. Titles and sources for all tables, maps,

and figures;

7. A preparation date; and

8. Name of the preparer.

66. Petitioner assumes that tables, maps, and figures

also a preparation date and name of the preparer. No evidence

was presented to show that the practice of the Department is to

require tables, maps, and figures to include more than titles and

sources. The plain language of the rule does not require tables,

maps, and figures to include preparation dates and names of the

preparers.

67. Support documents do not have to be adopted in a

comprehensive plan. See Fla. Admin. Code R. 9J-5.005(1)(c).

Whether adopted in a plan or not, data and data summaries are not

subject to compliance review. See § 163.3177(10)(e), Fla. Stat.

68. The practice of the Department to treat format errors

as not requiring a “not in compliance” determination is based on

a reasonable interpretation and application of the relevant law.

Adoption by Reference

69. Rule 9J-5.005(2)(g) provides in part:

A local government may include, as part of

its adopted plan, documents adopted by

reference but not incorporated verbatim into

the plan. The adoption by reference must

identify the title and author of the

document and indicate clearly what

provisions and edition of the document is

being adopted.

70. The references in the Plan Amendments of which

Petitioner complains do not adopt materials by reference and,

therefore, are not inconsistent with Rule 9J-5.005(2)(g).

Planning Timeframes

71. Subsection 163.3177(2), Florida Statutes, requires the

elements of a comprehensive plan to be internally consistent.

Plan amendments must preserve the internal consistency of the

plan. See § 163.3187(2), Fla. Stat. The requirement for

internal consistency is repeated in Florida Administrative Code

Rule 9J-5.005(5)(a).

72. Section 163.3177(5)(a), Florida Statutes, requires a

comprehensive plan to include at least two planning periods, one

covering at least the first five-year period after the plan’s

adoption and one covering at least a ten-year period. There is

no express requirement in Chapter 163 or Rule Chapter 9J-5 that a

comprehensive plan maintain uniform planning timeframes.

73. Petitioner’s claim that the use of different planning

timeframes in different elements of the Comprehensive Plan causes

the plan to be internally inconsistent requires more than merely

pointing out that different timeframes are being used.

Petitioner failed to prove that an adverse effect is caused by

the use of different planning timeframes in the City’s

Comprehensive Plan.

74. The City’s determination that the Plan Amendments are

internally consistent is fairly debatable.

Data and Analysis

75. Section 163.3177(10)(e), Florida Statutes, requires

plan amendments to be based upon “appropriate” data. Florida

Administrative Code Rule 9J-5.005(2)(a) requires all amendments

to be based on relevant and appropriate data and analysis.

76. Petitioner argues that the Plan Amendments must be

supported by the data and analysis submitted to the Department of

Community Affairs. Petitioner’s argument is based on his

interpretation of the transmittal requirements set forth in Rule

Chapter 9J-11, which is contrary to the Department’s

interpretation of these requirements. Rule 9J-5.005(2)(c) states

that a plan amendment must be based on data available “at the

time of the adoption” of the plan amendment. It does not impose

the additional limitation that all the supporting data must have

been in the transmittal package(s) sent to the Department.

Furthermore, it is well-established that the analysis of data may

be conducted up to the time of the final administrative hearing.

See Zemel v. Lee County , Case No. 90-7793 (Dep’t of Comty.

Affairs June 22, 1991) aff’d , 642 So. 2d 1367 (Fla. 1st DCA

1994).

77. Petitioner contends that the inclusion within the Plan

Amendments of data that are not the best available data is a

violation of the requirement of Rule 9J-5.005(2)(c) that a plan

amendment be based on the best available data. That contention

is misplaced, because whether a plan amendment is based on the

best available data and whether a plan amendment publishes the

best available data are two different matters. If a plan

amendment is based on the best available data, the fact that

other data are published in the comprehensive plan is not a

violation of Rule 9J-5.005(2)(c).

78. Furthermore, as stated above, data and data summaries

in a comprehensive plan are not subject to compliance review.

See § 163.3177(10)(e), Fla. Stat.

79. Petitioner’s use of more recent population projections

to attack the Plan Amendments conflicts with Florida

Administrative Code Rule 9J-5.005(5)(a), which requires that,

where data such as population projections are relevant to several

elements, the same data shall be used. The most recent

population projections are not the “best” available data if use

of the data would cause internal inconsistency.

80. Comprehensive planning involves more than matching

residential densities with population projections. It also seeks

to achieve high-quality communities, economic vitality, efficient

provision of public services, and other important objectives.

See § 163.3177, Fla. Stat. Unless a comprehensive plan makes

population projections the sole criterion for allowing an

increase in residential or non-residential uses, 2/ other factors

may be considered in determining the need for a particular plan

amendment. These Plan Amendments are needed to serve the

projected population of Edgewater and the other objectives

identified in Section 163.3177, Florida Statutes.

81. Petitioner failed to prove beyond fair debate that the

Plan Amendments are not based on relevant and appropriate data,

including data and analysis regarding need.

82. In summary, Petitioner failed to prove beyond fair

debate that the Plan Amendments are not in compliance.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Community Affairs enter a

Final Order finding that the amendments to the City of

Edgewater’s Comprehensive Plan, adopted by Ordinance No. 2008-O-

10 and revised by Ordinance Number 2010-O-01, are “in

compliance.”

DONE AND ENTERED this 27th day of July, 2010, 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

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of July, 2010.

ENDNOTES

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

codification unless otherwise stated.

2/ See Woods v. Marion County , Case No. 08-1576GM (Admin.

Comm’n Sept. 17, 2009); Dep’t of Comty. Affairs v. Miami-Dade

County , Case No. 08-3614GM (Admin. Comm’n Jul. 30, 2009). These

cases involved comprehensive plans that imposed a specific

method or formula for determining need.

COPIES FURNISHED :

Matthew G. Davis, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

Carolyn Ansay, Esquire

Doran, Wolfe, Ansay & Kundid

444 Seabreeze Boulevard, Suite 800

Post Office Drawer 15110

Daytona Beach, Florida 32115

Ted Brown, Esquire

Baker & Hostetler, LLP

Sun Trust Center, Suite 2300

200 South Orange Avenue

Orlando, Florida 32802

Ross S. Burnaman, Esquire

1018 Holland Drive

Tallahassee, Florida 32301-4508

Karen A. Brodeen, Esquire

Linda Loomis Shelley, Esquire

Fowler White Boggs, P.A.

101 North Monroe Street, Suite 1090

Post Office Box 11240

Tallahassee, Florida 32302-1240

Shaw Stiller, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399-2160

Thomas G. Pelham, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399-2100

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.