11-000009GM Katie Pierola And Greg Geraldson vs. Manatee County And Department Of Community Affairs Status: Closed Recommended Order on Wednesday, April 13, 2011.

Summary: Map change not to increase density in compliance because property located within CCHA and CEA and property would be subject to coastal flooding.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KATIE PIEROLA AND GREG )

GERALDSON, )

)

Petitioner s, )

)

vs. ) Case No. 11 - 0009 GM

)

MANATEE COUNTY AND DEPARTMENT )

OF COMMUNITY AFFAIRS, )

)

Respondent s , )

)

and )

)

ROBINSON FARMS, INC., AND BOCHI )

PROPERTIES, LL C , )

)

Intervenors. )

______________________________ _ )

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, D . R. Alexander, on February 14, 2011,

in Bradenton, Florida.

APPEARANCES

For Petitioner s : Thomas W. Reese , Esquire

2951 61st Avenue South

St. Petersburg, Florida 33712 - 4539

For Respondent: James A. Minix, Esquire

(County) Sarah A. Schenk, Esquire

Office of the Manatee County Attorney

Post Office Box 1000

Bradenton, Florida 34206 - 1000

For Respondent : David L. Jordan, Esquire

(Department) Department of Community Affairs

2555 Shumard Oak Boulevard

Tal lahassee, Florida 32399 - 2100

For Intervenors: Edward Vogler, II, Esquire

Vogler Ashton, PLLC

2411 - A Manatee Avenue West

Bradenton, Florida 34205 - 4948

Will iam C. Robinson, Jr., Esquire

Blalock Walters P.A.

802 11th Street West

Bradenton, Florida 34205 - 7734

STATEMENT OF THE ISSUE

The issue is whether the plan amendment adopted by Manatee

County (County) by Ordinance No. 10 - 02 on October 12, 2010, is

in compliance.

PRELIMINARY STATEMENT

Ordinance No. 10 - 02 changed the Future Land Use Map (FLUM)

designation for a 28 - acre tract of property from Residential 1

(RES - 1) to Residential 3 (RES - 3). The property is owned by

Intervenor s , Robinson Farms, Inc. , and Bochi Properties, LLC.

On December 3, 2010 , t he Department of Community Affairs

(Department) found the amendment to be in compliance , and notice

of this action was published on December 6, 2 010 .

On December 27, 2010, Petitioners, Katie Pierola,

Len Sirotzki, and Greg Geraldson, filed a petition for

evidentiary administrative hearing with the Department

contesting the proposed land use change. (Mr. Sirotzki later

filed a notice of voluntary d ismissal.) The matter was referred

by the Department to the Division of Administrative Hearings on

January 4, 2011, with a request that an administrative law judge

be assigned to conduct a formal hearing. By Order dated

January 13, 2011, Intervenors were authorized to intervene in

support of the challenged amendment. After obtaining counsel,

Petitioners were a uthorized to file an amended petition for

hearing on January 24, 2011 .

By Notice of Hearing dated January 12, 2011, a final

hearing was scheduled on February 14 and 15, 2011, in Bradenton,

Florida.

Separate pre - hearing stipulation s w ere filed by Petitioners

and jointly by Respondents and Intervenors on February 9, 2011.

At final hearing, Petitioner s presented the testimony of

John Osborne, Direct or of the County Planning Department and

accepted as an expert; Betti C. Johnson, Emergency Management

Planner with the Tampa Bay Regional Planning Council (TBRPC) ;

and Laurie Feagans, County Emergency Management Chief . Also,

they offered Petitioners ' Exh ibits 1 - 1 0 , which were received in

evidence. I ntervenors presented the testimony of John Osborne;

Elizabeth Benac, a certified planner with Wilson - Miller Stan te c

and accepted as an expert; and John A. Neal, president of

John Neal Homes , who will be the ho me builder if the new land

use is approved . Also, they offered Intervenors ' Exhibits A - G,

which were received in evidence. The County and Department did

not present any witnesses. However, Respondents and Intervenors

jointly offered their Joint Exhibits 1 - 23, which were received

in evidence.

The T ranscript of the hearing was filed on March 3 , 20 11 .

P roposed f indings of f act and c onclusions of l aw w ere filed by

Petitioners and jointly by Respondents and Intervenors on

April 4 , 2011, and they have bee n considered in the preparation

of this Recommended Order.

FINDINGS OF FACT

A . The P arties

1. The C ounty is a governmental entity and has the

responsibility of administering its Comprehensive Plan (Plan) .

It adopted the amendment being challenged.

2 . The Department is the state land planning agency

charged with the responsibility for reviewing plan amendments of

local governments, such as the C ounty .

3. The parties have stipulated that Petitioner s own real

property in the County in close proximity to the property whose

land use is being changed and that they submitted oral or

written comments to the County during the adoption process.

4. Intervenors own the subject property , which consists of

two adjoining parcels located northwest of Bradenton in an

unincorporated part of the County between 17th Avenue Northwest

and 9th Avenue Northwest , approximately 600 feet east of 99th

Street Northwest, and just south of the Manatee River. The site

is more commonly known as the Robinson Farms. The parties hav e

stipulated to the facts necessary to establish that I ntervenors

are affected persons.

B. Background

5. In 1981, t he County adopted its first comprehensive

plan , which assigned a land use on the subject property allowing

4.5 dwelling units per acre. In 1989, the County updated its

original plan and designated the property RES - 1, which allows a

density of one dwelling unit per acre. Th e RES - 1 land use has

remained in effect since that time. In 1997 a n application by

the prior owners to change the lan d use to RES - 3 was denied .

See Joint Ex . 8.

6. The northern part of the property is currently vacant ,

while the southern part is vacant except for an existing single -

family residence and barn. The land is used for agricultur al

purposes. It lies just west of, and adjacent to, several other

residential subdivisions. The property to the west of the site

has land uses of Agriculture, RES - 1, or Conservation.

C o mpatibility is not an issue in this case.

7 . On September 11, 2009, Interveno r s filed an app lication

with the County Planning Department seeking a change in the land

use of their approximate ly 49 - acre tract of property from RES - 1

to RES - 3. The proposed change would allow an increase in

density on the property from one to three dwelling units per

acre . The application was numbered PA - 10 - 02 and was assigned

Ordinance No. 10 - 02.

8 . A public hearing on the proposed change was conducted

by the County Planning Commission on March 11, 2010. By a 5 - 2

vote, that entity recommended that the amendment be forwarded to

the Board of County Commission ers (Board) for its consideration.

See Joint Ex. 10 , p. MC 001126.

9 . On March 16, 2010, the Board conducted a hearing on the

proposed amendment and voted 5 - 1 to transmit the amendment to

the Department , alon g with other 2010 Cycle 1 amendments . Id.

at p. MC 00 1120.

10 . Shortly after the amendment was transmitted to the

Department, the TB RPC completed its preliminary work on the

preparation of a new Storm Tide Atlas (Atlas) . The Atlas is a

multi - volume publ ic safety planning tool used to assist with

hurricane evacuation planning in a four - county region in the

Tampa Bay area, including Manatee County. Among other things,

i t reflects storm surge data ( i.e. , water heights) based upon

the Sea, Lake, and Overlan d Surges from Hurricanes (SLOSH) model

developed by the National Oceanic and Atmospheric Administration

National Weather Service. The information in the Atlas is vital

to public safety since it predicts storm surge heights during

hurricanes. Based on dat a from the SLOSH, the TBRPC prepares,

and includes in the Atlas, storm tide zone map s for the Tampa

Bay area , which depict the landward extent of anticipated storm

surge for each of the five categor ies of storm events . The

Atlas does not, however, depict the Coastal High Hazard Area

(CHHA) or hurricane evacuation maps prepared by each local

government. 1

11. The data underlying the storm tide zone maps are used

by local government s to assist them in preparing the CHHA ,

Coastal Evacuation Area (CEA) , and Coastal Planning Area (CPA)

maps in their comprehensive plans. The CHHA and CEA maps

generally , but not always, encompass the same areas and for all

practical purposes are the same . This is because the Plan

definition of a CEA refers to the statute that defines the CHHA.

See Joint Ex. 1, Vol. 1, p. MC 0 0053. Also, Future Land Use

Element ( FLUE ) policy 2.2.2.4.1 defines the CEA in relevant part

as "the geographic area which lies within the evacuation area

for a Category 1 hurricane." Id. at p. 000140.

1 2. The CPA is defined as "[t]hose portions of Manatee

County which lie within the Hurricane Vulnerability Area

(evacuation levels A, B, and C), as periodically updated." Id.

See also Fla. Admin. Code R. 9J - 5.003( 5 7). Based on SLOSH data

in the Atlas , h urricane evacuation maps (showing evacuation

levels A, B, and C) are prepared by the County's Emergency

Management Division (Division) to depict the geographic areas

impacted by the five categories of hurricanes, with Evacuation

Zone A being the area first evacuated during a category 1

hurricane. Based upon the 2009 SLOSH data, in late 2009, the

Division prepared "carefully defined" Evacuation Zone maps , last

updated in 2003, and presented them to the Board in April 2010.

However, neither the existing CPA map (based on evacuation

levels A, B, and C) nor the CEA map (based on the Zone A map )

has been updated through the plan amendment process. Even so,

the Division's latest Zone A map , given to the County planning

staff in April 2010, represents a reasonab l y accurate depiction

of the geographic boundar ies of the CEA and evacuation level A

of the CPA , based upon the latest and best available data at

that time .

1 3 . The Atlas is updated from time to time , in this case

because a new SLOSH model was developed i n 2009 . According to a

TBRPC planner , t he last SLOSH model for the Tampa Bay Area was

developed around 1990. Like the CPA, t he Plan requires that the

County also update the CHHA and CEA maps "on a periodic basis."

However, new information provided by th e TBRPC is not

automatically incorporated into the County's Plan. Rather, a ny

changes in the maps must go through the large - scale amendment

process so that members of the public, and affected landowners,

have an opportunity to provide input before adoptio n . According

to the County Planning Director, the new map s should be adopted

in 2011 Cycle I or II. See Joint Ex. 10 , p. MC 001065.

However, in preparation for adoption hearings in June and

October 2010 concerning this amendment, the staff prepared

"pro posed" CHHA and CEA maps based upon the new data provided by

the TBRPC and Division , which are a reasonably accurate

depiction of the geographic boundaries of th ose areas.

1 4 . The new Atlas was not adopted by the T B RPC until

August 10, 2010 ; it was form ally presented to the public at a

meeting on August 26 , 2010 . However , t he underlying data w ere

given to the County and other local governments at a meeting in

April 2010. At that time, the staff knew that new evacuation

maps were being developed, but di d not know the precise impact

these changes would have on Petitioners' property .

15. Based upon proposed maps prepared by staff, which in

turn are based on information in the new Atlas, except for 4.68

acres in the northeastern portion of the site, th e re mainder of

Petitioners' property would be within the predicted storm surge

for a category 1 storm event ( the CHHA ) , while the entire site

would be within the Evacuation A and evacuation level A areas of

the CEA and the CPA . See Joint Ex. 9 ; Petitioners' E x. 10 .

1 6 . On May 21, 2010, the Department submitted its

Objections, Recommendations, and Comments (ORC) report to the

County . See Petitioners ' Ex . 4 ; Joint Ex . 4 . The ORC noted

that 21.4 acres of the site were within the CHHA and would

result in an i ncrease of 43 dwelling units in the CHHA . This

observation was made using the current CHHA map i n the Plan ,

rather than a revised CHHA not yet adopted by the County . The

ORC noted that this increase in density would be inconsistent

with Florida Administr ative Code Rule 9J - 5.012(3)(b)6. , which

requires that the Plan "direct population concentrations away

from known or predicted [CHHAs]," and internally inconsistent

with Coastal Element Objective 4.3.1 , which requires that the

County "[d]irect population co ncentrations away from the Coastal

Evacuation Area (CEA) . " The ORC also stated that the County had

failed to demonstrate that the adopted hurricane evacuation time

of 16 hours for a category storm 5 could be maintained. It

recommended that the amendment not be adopted, or that the

change in land use be restricted to that portion of the site

outside the CHHA. Id. at p. 5.

1 7 . The TBRPC also reviewed the amendment and found it to

be consistent with its Strategic Regional Policy Plan. See

Joint Ex. 4. Although the TBRPC staff report was prepared on

April 13, 2010, and considered at a meeting on May 10, 2010, it

did not make reference to the data being used in the new Atlas

but rather relied upon the current CHHA in the Plan. Id.

1 8 . Following the Cou nty's receipt of the ORC, Intervenors

revised their application by removing the 21 acres within the

CHHA and reducing from 49 to 28 the number of acres being

changed to RES - 3. This would allow a maximum of 105 dwelling

units on the 28 acres (as opposed to 147 units if the land use

was changed on the entire tract ) .

1 9 . Notwithstanding this revision , and the fact that new

map s had not yet been adopted in the Plan, the County staff

report dated June 17, 2010, "took [a] more conservative approach

than DCA" and recommended denial of the application on the

ground s the new Atlas data showed "the entire proposed site

within the [CHHA]," the new mapping information constituted the

best available data, and the application should be re - evaluated

in light of the new data. See Intervenors ' Ex . D. Except for

this, the staff concluded that the amendment met all other

criteria.

20 . On June 17, 2010, the Board conducted a public hearing

on the revised application and due to a 3 - 3 vote, the

application was deemed deni ed. See Joint Ex . 10 , p. MC 001104 .

However, the Board voted to continue its deliberation s at

another hearing on June 21, 2010, when all seven Commissioners

would be present to vote. Id. Because only six Commissioners

were present at th e June 21, 2010 , meeting , the original 3 - 3

vote was allowed to stand. Id. at p. MC 001095.

2 1 . Pursuant to section 163.3181(4), In tervenors requested

a mediation conference in which the County , Intervenors , and two

members of neighboring subdivisions participated. That process

culminated in an agreement for the applicants to submit

additional data and analysis in support of the amendment and for

the County to have another public hearing to consider the

application. See Joint Ex . 1 9 . Additional information

supporting t he amendment was submitted by the applicants on

September 3, 2010. See Joint Ex. 1 3. On September 14, 2010,

the Board approved the mediation agreement and scheduled a

hearing to consider the matter on October 12, 2010 , along with

the 2010 C ycle 2 amendme nts which by then were awaiting

approval . See Joint Ex. 10, p. MC 001073.

2 2 . At the October 12 , 2010, meeting, the staff continued

to recommend that the Board deny the amendment based upon the

new Atlas data and the staff's proposed CHHA and CEA maps , w hich

s how that only 4.68 acres of the site are outside the CHHA,

while the en tire site is within the CEA ( Hurrican e Evacuation

A ). See Petitioners' Ex. 7. By a 4 - 3 vote, the Board initially

denied the appl ication. See Joint Ex . 10 , p. MC 001067. Later

in the meeting, after one Board member changed her position on

the theory that the new Atlas data should not be considered , the

Board voted to reconsider its earlier decision, and by a 4 - 3

vote , approved the map change . Id. at pp. MC 001071 - 10 72.

2 3 . One of the Cycle 2 amendments considered at the

October 12, 2010, meeting was CPA 10 - 18, also known as the

McClure amendment, which sought a change in the land use on the

McClure property from RES - 1 to RES - 3. In its ORC dated

September 10, 2010, which was di rected to that amendment (and

other Cycle 2 amendments), the Department noted that a part of

the site appeared to be in the CHHA and recommended that the

"County should evaluate whether the subject site is within the

CHHA based on the latest, best availabl e data and analysis used

in the Storm Tide Atlas for Manatee County released by the

[TBRPC] on August 26, 2010." Petitioners' Ex. 5, ORC, p. 5.

The ORC further recommended that if "a part of the site is

within the CHHA, based on the most recent storm tid e atlas

information, the amendment should not result in any increase in

density in that area in order to ensure that population

concentrations be directed away from the CHHA." Id. The record

is silent as to why the Department opted to use the later data

on that amendment , but not amendment 10 - 02 . In any event,

f ollowing the issuance of the ORC , the County staff evaluated

the amendment using the latest TBRPC data, and by a 4 - 3 vote,

the Board adopted the McClure amendment. See Joint Ex. 10, p.

MC 00 1069. However, t he final version of th e McClure amendment

is unknown.

2 4 . The Robinson Farms amendment adoption package was

transmitted to the Department for its review. On December 3,

2010, the Department notified the County of its Notice of Intent

to find the amendment in compliance. The Notice of Intent was

advertised in the Bradenton Herald on December 6, 2010.

According to Department counsel, t he Department's finding was

based on two considerations: the applicant s had revised their

application as reco mmended by the ORC; and the County should

continue to rely on the existing CHHA map until a new map is

adopted in the next major plan amendment cycle.

2 5 . At the adoption hearing, the Board also considered

data that show that between now and the year 201 5, t here will be

no hurricane shelter deficit in the County. In addition, i f the

land use on 28 acres is changed, the plan amendment will only

result in an increase of 56 units over what could be built under

the existing RES - 1 land use . There was no evid ence that 56

addition al units, occupied by 129 persons ( at 2.30 persons per

household unit ) , would adversely impact the hurricane evacuation

clearance times for that area of the County or affect public

shelter demand. Finally, the area in which the site i s located,

Subarea 11, is projected to increase by 10,000 persons between

2015 and 2035. The staff report reflects that the amendment

will not affect the overall population projections or housing

needs for the subarea.

2 6 . The site is located within th e Urban Core Area.

Policy 2.1.1.3 of the FLUE encourages residential density

increases (or infill development) within that area in order to

avoid urban sprawl.

2 7 . Finally, the entire area west of 75th Street, West,

and north of Manatee Avenue West (in which the subject site is

located) consists of 1,927 acres. Since 2006, 580 acres in that

area have been changed from RES - 1 to Agriculture and

Conservation , thus reducing the amount of land available for 580

dwelling units.

C. Petitioners' Objections

2 8 . Petitioners contend generally that the amendment does

not react in an appropriate and proper manner to the latest and

best available data and analysis because it allows an increase

in residential density on land within the CHHA, CEA, and CPA;

that the re are no data and analysis of need for additional

residential development on the property; that the amendment

contravenes r ule 9J - 5.012(2)(e) because there is no inventory

and analysis of the projected maximum population density

designated on the current FLUM within the Hurricane

Vulnerability Zone ; that the amendment fails to restrict

development in evacuation zone A to protect human life and avoid

public expenditures , as intended by section 163.3178(1); and

that the amendment is internally inconsistent w ith FLUE policy

2.2.2.4.5 and Coastal Element polic ies 4.3.1 and 4.3.1.1 , which

require that the County prohibit increases in allowable

residential density on sites within the CEA and direct

population concentrations away from the CEA and CHHA . Thes e

alle gations generally , but in greater detail, track the

objections raised in the ORC and the County's staff report.

29. A plan amendment must be based on relevant and

appropriate data. "To be based on data means to react to it in

an appropriate way and to th e extent necessary indicated by the

data available on that particular subject at the time of the

adoption of the . . . plan amendment at issue." Fla. Admin.

Code R. 9J - 5.005(2)(a). As noted above, new and more accurate

storm surge data w ere in existence and available to the County

before the amendment was adopted in October 2010 . Due to major

improvements in technology since the last SLOSH model was

prepared, the 2009 model has higher resolution basin data and

grid configurations, which means that the pr edicted storm surge

data are far more accurate than data in earlier models. Thus,

the new TBRPC data and staff - proposed maps were the best

available data on storm surge and coastal flooding at the

adoption hearing. While the County and Intervenors are co rrect

that there is no automatic incorporation of TBRPC data into the

Plan, when more current and reliable data on the subject are in

existence and readily accessible, as they were here, they should

be used to evaluate proposed land use changes which would

increase density in areas subject to coastal flooding. T he

Board reacted to th e data in an inappropriate manner by assuming

that only 21 acres of the property was in the CHHA and that none

was located in the CEA . This reaction is not supported by the

da ta . Therefore, the plan amendment is not based upon relevant

and appropriate data and analysis as required by r ule 9J -

5.00 5(2) . Paradoxically, at the same meeting when the vote on

Amendment 10 - 0 2 was taken, the Board evaluated the FLUM map

change for the McClure property using the latest TBRPC data.

30. All of the Robinson Farms property lies within the

predicted CEA. Policy 2.2.2.4.5(a) of the FLUE applies to all

development activity within the CEA Overlay District, which is

an overlay based upon the CEA boundaries. It "[p]rohibit[s] any

amendment in the [FLUM] which would result in an increase in

allowable residential density on sites within the [CEA]." It is

beyond fair debate that the plan amendment is internally

inconsistent with this policy sin ce the amendment would result

in allowable residential density on a site within the CEA.

3 1 . Except for 4.68 acres, the entire site lies within the

predicted CHHA , while the entire site is within evacuation level

A of the CPA . Coastal Element policy 4. 3.1 requires in part

that the County "[l]imit development type, density and intensity

within the [CPA] ." It is beyond fair debate that t he amendment

is internally inconsistent with th is policy since it does not

limit development type and density within th e CPA .

32. Coastal Element policy 4.3.1 requires that the County

"direct population and development to areas outside the [CHHA]

to mitigate the potential negative impacts of natural hazards in

this area." Also, Coastal Element policy 4.3.1.1 requires t hat

the County direct population concentrations away from the CEA.

Although not relied upon by Petitioners, but cited in the ORC,

these two policies track rule 9J - 5.012(3)(b)6., which requires

that the local government "[d]irect population concentrations

away from known or predicted coastal high - hazard areas." Here,

the plan amendment would allow a n increase of 56 dwelling units

in the CHHA and CEA that would b e occupied by 129 additional

residents. Whether these increases in population and

development t rigger rule 9J - 5.012(3)(b)6. , or bring into play

the two policies in the Coastal Element , was not fully addressed

by the parties. However, t he Department's ORC indicate s that if

43 dwelling units are added to the CHHA , these provisions would

be applicable . See Petitioners' Ex. 4, ORC, p. 5. Because the

CHHA and CEA are designed to minimize development in areas

subject to coastal flooding in order to protect lives and

property, thus implicating vital safety concerns, the proposed

increase in development ( 56 additional units) and population

(129 persons) within the CHHA and CEA is the type of development

and population concentration contemplated by the rule and

policies. Because the amendment fails to follow the dictates of

those provisions, it is beyond f air debate that the amendment is

internally inconsistent with the se two policies. ( Had rule 9J -

5.012(3)(b)6. been relied upon by Petitioners, a finding of

inconsistency with the rule would also be appropriate. )

3 3. The County's policy is to encourage i nfill development

within the Urban Core Area so as to avoid urban sprawl . See

FLUE policy 2.1.1.3. The subject property lies within the Urban

Core Area. The proponents of the plan amendment contend that

when th is policy is weighed against the conflictin g policies

directing population concentrations away from the CHHA and CEA,

the County has the flexibility to consider the Plan as a whole

and approve an increase in density in the RES - 1 and RES - 3 areas

located in the Urban Core Area, even if that property lies

within the CHHA or CEA. See Joint Ex. 1, Vol. I, § C.2.1.2, pp.

MC 000018 - 000019. Given the significant risk to life and

property that arises during natural disasters such as

hurricanes, however, the infill policy should not trump

conflicting Plan p rovisions that limit development and

population in th e se high - risk areas.

3 4. Petitioners also contend that the plan amendment is

inconsistent with rule 9J - 5.012(2)(e), which requires that the

County make an inventory and analysis of the projected maxim um

population density on the current FLUM within the Hurricane

Vulnerability Zone s of the County. The Atlas contains an

inventory and analysis of population in the County by evacuation

level for the years 2010 and 2015. See Joint Ex. 3, Exec.

Summary, p. 9. No evidence was submitted to show that this

information in the Atlas is inaccurate or otherwise fails to

satisfy the purpose of the rule , simply because it was prepared

by the TBRPC, rather than the County . It is fairly debatable

that the plan amendm ent is consistent with the rule.

35. Petitioners also assert that the plan amendment

violates section 163.3178(1) because it increases residential

density within the CHHA and Hurricane Vulnerability Zone, a

result which does not protect human life and co astal resources,

or limit public expenditures in areas subject to destruction by

natural disaster. Subsection (1) expresses the legislative

intent of the entire statute. It is doubtful that an expression

of intent, as opposed to specific requirements in other portions

of the statute, would serve as a basis to find an amendment not

in compliance. In any event, there is insufficient evidence to

support a finding that it is beyond fair debate that the

proposed development would "damage or destroy coastal

re sources." A lso, the property is within the Urban Core Area,

which is already served by existing infrastructure. If further

infrastructure is needed for development purposes, Intervenors '

planner represented at hearing that the owners would be

responsible for those costs. It is fairly debatable that the

plan amendment is consistent with the statute.

36. Finally, Petitioners contend that there are no data

and analysis of need for additional increases in residential

density, as required by rule 9J - 5.006(2) (c)2. and 3. The two

sub paragraphs require that there be an analysis of the amount of

land needed to accommodate the projected population, including

"the estimated gross acreage needed by category," and "a

description of the methodology used." A revised analysis of

impact on population projections to meet housing needs was

incorporated into the staff report presented at the adoption

hearing in October 2010. See Joint Ex. 9, p. MC 00974. The

analysis generally reflected that based on land development

app rovals and development patterns within Subarea 11 (where the

subject property is located), the Subarea can easily accommodate

the estimated increase in population between the years 2015 and

2035 . Although the analysis is brief, it is sufficient to

support a finding that it is fairly debatable that the amendment

is consistent with rule 9J - 5.006(2) (c)2. and 3 .

CONCLUSIONS OF LAW

3 7 . In order to have standing to challenge a plan

amendment, a challenger must be an affected person as defined in

s ection 163.31 84(1)(a) . The parties have stipulated to the

facts necessary to establish that Petitioners and Intervenors

are affected persons .

3 8 . Once the Department renders a notice of intent to find

a plan amendment in compliance, as it did here, th at plan

provis ion "shall be determined to be in compliance if the local

government's determination of compliance is fairly debatable."

§ 163.3184(9)(a), Fla. Stat. Therefore, Petitioner s bear the

burden of proving beyond fair debate that the challenged plan

amendment is not in compliance. This means that "if reasonable

persons could differ as to its propriety," a plan amendment must

be upheld. Martin C n ty. v. Yusem , 690 So. 2d 1288, 1295 (Fla.

1997). Where there is "evidence in support of both sides of a

comprehensi ve plan amendment, it is difficult to determine that

the County's decision was anything but 'fairly debatable.'"

Martin C n ty. v. Section 28 Partnership, Ltd. , 772 So. 2d 616,

621 (Fla. 4th DCA 2000).

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

Pet itioner s have established beyond fair debate that the plan

amendment is not based on the latest and best available data and

analysis, as required by rule 9J - 5.005(2); and that the

amendment is internally inconsistent with FLUE policy

2.2.2.4.5 (a) and Coast al Element polic ies 4.3.1 and 4.3.1.1.

Therefore, the plan amendment adopted by Ordinance No . 10 - 02 on

October 12, 2010, is not in compliance.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Dep artment of Community Affairs enter

a Determination of Non - Compliance regarding Plan Amendment 10 - 02

adopted by Ordinance No. 10 - 02 on October 12, 2010 .

DONE AND ENTERED this 13th day of April , 20 11 , in

Tallahassee, Leon County, Florida.

S

D . R. ALEXANDER

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 H earings

this 13th day of A pril , 20 11 .

ENDNOTE

1/ In 2006, the Legislature amended section 163.3178 (2)(h) ,

Florida Statutes, by changing the definition of the CHHA from the

category 1 evacuation zone to the area defined by the Sea, Lake,

and Overland Su rges from Hurricanes (SLOSH) model to be inundated

from a category 1 hurricane. See also Fla. Admin. Code R. 9J -

5.003(17) , which defines CHHA . The new law also required that ,

no later than July 1, 2008, each local government in a coastal

zone amend its F LUM and coastal management element to include the

new definition of CHHA and to depict the CHHA on the FLUM. To

comply with the statute, effective October 10, 2008, the County

adopted a provision depicting the boundaries of the CHHA. See

Joint Ex. 1, Vol . II, p. MC 000383 . The Plan also defines the

CHHA, which mirrors the statutory definition, but also includes

"those portions of Manatee County located seaward of the 5 foot

Mean Sea Level topographic contour, including all areas of known

coastal flooding ." See Joint Ex. 1, Vol. I, p. MC 000053.

COPIES FURNISHED:

William A. B uzzett , Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

Deborah K . Kearney , General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

Thomas W. Reese , Esquire

2951 61st Avenue South

St. Petersburg, Florida 33712 - 4539

James A. Minix, Esquire

Chief Deputy County Attorney

Post Office Box 1000

Bradenton, Florida 34206 - 1000

Davi d L. Jordan , Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

Edward Vogler, II , Esquire

Vogler Ashton, LLLC

2411 - A Manatee Avenue West

Bradenton , Florida 34205 - 4948

James L. Robinson, Jr., Esquire

Blay lock Walters P.A.

802 11th Street West

Bradenton, Florida 34205 - 7734

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days of the date of this Recommended Order. Any exceptions to

this Recommended Or der should be filed with the agency that will

render a final order in this matter.