12-001850GM Stephen Dibbs vs. Hillsborough County Status: Closed Recommended Order on Monday, April 22, 2013.

Summary: Amendments to a community plan in an optional element of comprehensive plan are in compliance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEPHEN DIBBS, )

)

Petitioner , )

)

vs. ) Case No. 1 2 - 1850 GM

)

HILLSBOROUGH COUNTY, )

)

Respondent . )

______________________________ _ )

RECOMMENDED ORDER

This matter was heard before the Division of Administrative

Hearings by it s assigned Administrative Law Judge, D . R.

Alexander, on February 14 and 15, 2013, in Tampa, Florida.

APPEARANCES

For Petitioner: Kristin M. Tolbert, Esquire

1910 East Palm Avenue, No. 8322

Tampa, Florida 33605 - 3819

For Respondent: Louis Whitehead, III, Esquire

Senior Assistant County Attorney

601 East Kennedy Boulevard, 27th Floor

Tampa , Florida 33602 - 4156

STATEMENT OF THE ISSUE

The issue is whether certain revisions to the Liveable

Communities and Transportation Elements of the Comprehensive

Plan (Plan) adopted by Hillsborough County (County) on May 17,

2012, are in compliance.

PRELIMINARY STATEMENT

P arts of t wo plan amendments are being challenged in this

proceeding. Plan Amendment No. 1 2 - 01 is an update of the

Keystone - Odessa Community Plan (KOCP), a part of the Livable

Communities Element. Plan Amendment No. 12 - 03 is an update of

the County's Right - of - Way Corridor Preservati on Plan ( Corridor

Preservation Plan ) , an appendix in the Transportation Element .

Petitioner, Stephen Dibbs, who owns property in the

Keystone - Odessa community area, filed with DOAH his Pe tition for

Administrative Hearing challenging both amended and non - am ended

parts of the KO C P and the deletion of one provision in the

Corridor Preservation Plan . However, allegations directed to

those parts of the KO C P not revised by P lan A mendment 12 - 01 were

stricken, and Petitioner was directed to file an amended

pleadin g. An Ame nded Petition for Administrative Hearing

(Amended Petition) was then filed challenging only revised

provisions . Because t he second pleading was never amended , and

the County did not consent to new issues being added just prior

to hearing, only t he allegations in that pleading are at issue .

At hearing , the undersigned granted the County 's Motion in

Limine to limit the introduction of evidence on provisions not

revised by the plan amendment s or on allegations not included in

the Amended Petition.

The parties filed separate Pre - Hearing Stipulation s . A t

the final hearing , Petitioner testified on his own behalf and

presented the following fact witnesses: Ken neth D. Roberts,

Ronald Andrew Haney, Dimitri Artzibushev, Obie Howard, and

David T. Potts , all residents of the Keystone - Odessa community

area . Expert testimony was presented by Debra A. Kennaugh, a

p rofessional engineer with Crossroads Engineering, Inc. ;

Dr. Donald Richardson, a biologist and owner of Ecological

Consultants, Inc.; Patric ia A. Ortiz, a certified planner with

Ortiz Planning Solutions, LLC ; Jeremy Couch, a professional

engineer with Tampa Civil Design ; J ames M. Hosler, a demographer

and economic planner ; Dr. Asim Khan, an economist ; and Steve

Allison, a certified planner. A lso, Petitioner's Exhibits 3 - 5,

7, 8, 11, 14 - 18, 23, 24, 31, 33, 34, 42, 45, 49, 51, 52, 5 5 - 64,

67, 69, 74, 77, 80, 129, and 142 were received in evidence. The

County presented the testimony of Melissa E. Zornitta, Assistant

Executive Director of the City - County Planning Commission

(Planning Commission) and accepted as an expert; and Pedro

Parra, Principal Planner of the Planning Co mmission and accepted

as an expert. Also, County Exhibits 1 - 6 were received in

evidence.

A Transcript of the hearing ( four volumes) has been

prepared. Proposed F indings of F act and C onclusions of L aw were

filed by the parties, and they have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

A . The P arties

1. The C ounty is a local government with in the meaning

of section 163.3164(29), Florida Statutes, and has the

responsibility of administering its Plan . It adopted the

challenged amendment s under the expedited state review process

codified in section 163.3184(3) .

2. Petitioner owns a vacant , undeveloped parcel in the

County , described as being between "320 and 360 acres " in size .

The parcel is located on Lutz Lake Fern Road just west of the

intersection of that roadway and the Suncoast Parkway in the

northeastern corner of the KO C P . Mr. Dib bs is concerned that

the amendments will prevent him from developing his property in

a meaningful way . During the amendment process, h e submitted

written and oral comments objecting to the two amendments.

B. The KO C P

3. The Livable Communities Element i s an optional element

in the Plan . Besides the KOCP, it contains 20 other community

plans, and the County is currently in the process of adopting

three others. The community plans were originally in the Future

Land Use Element (FLUE) but were moved to th e Livable

Communities Element in 2008 .

4. A community plan is comprised of a study area and

discusses the special and unique characteristics of the study

area, examines the issues and problems facing that area, and

provides strategies for solutions. In contrast to the Plan ,

which is more general in nature and provides broad planning

guidance on a countywide basis, the community plan is more

detailed in nature and is intended to provide specific

recommendations on issues in a particular area of the Count y.

5 . The original KOCP was adopted in 2001 and was found to

be in compliance by the then Department of Community Affairs.

The Plan requires that it be updated every ten years. The

current version consists of 11 pages of unnumbered narrative

text, div ided into 15 sections. At issue in this case are

certain revisions to the Rural Residential Community Character,

Commercial, and Transportation sections.

6 . The K O C P study area , comprising almost 23,000 acres, is

located in the northwest ern corner of t he County and is b ordered

on the west by Pinellas County, on the north by Pasco County, on

the east by Dale Mabry Highway, and on the south by Race Track

and Ehrlich Roads. Because a wellhead protection area occupies

a significant part of the KOCP, more t han half of the KOCP

cannot be developed, and only around 20 percent of the remaining

land is potentially available for development.

7 . M any areas of the County have high population centers

and an urban character ; however , th e Keystone - Odessa community ,

which makes up the study area, is characterized in the KOCP as

"rural" in nature, with many lakes, wetlands, creeks , and a

network of two - lane rural roads. There are, however, commercial

enclaves , planned developments, and residential subdivisions

within the community area . Most, if not all, of these projects

were approved or vested before the adoption of the KOCP. In

addition , some of the roads are highly congested. A few small

areas (less than 10 percent of the KOCP ) lie within the urban

service area and can receive water and sewer services, while

properties that are vested but not in the urban service area can

also receive those service s . The record contains different

population estimates for the area. The Planning Commission used

an estimated 2009 populat ion of 10,700 in its support data; in

February 2009 , a Planning Commission employee used census block

data to update that estimate to 17,483; and sometime later,

P etitioner's demographer relied on June 2011 census block data

to arrive at a n estimat ed 2010 population of 21,259.

8 . The Planning Commission serves as the local planning

agency for all local governments in the County and is tasked

with the responsibility of developing the periodic update s for

the community plans. The recommended updat e is then submitted

to the Board of County Commissioners for its final approval.

The same review process is used for all community plans.

9 . In January 2010, the Planning Commission staff, along

with interested citizens who wished to participate in the

p rocess , began development of the ten - year KOCP update .

Although the entire KOCP was subject to review, most of the

effort was directed to the few areas "that the community

[participants] brought forward" for possible change; therefore,

a substantial part of the original KOCP remain s unchanged.

Whether other changes to the KOCP could or should have been made

is not at issue. The review process in cluded 2 0 meetings and

two open houses over a two - year period and resulted in the

adoption of a proposed p lan a mendment on December 12, 2011. Th e

County approved the recommendation without change and adopted

Plan Amendment No. 12 - 01 on May 17, 2012.

10 . No more than 35 or so citizens (out of the thousands

who reside in the KOCP area) actively participated throu ghout

the entire Planning Commission review process . However, the

evidence shows that it is not unusual for a very small number

of persons to participate in a community plan update process. 1

Through various forms of notice, all interested residents and

property owners, including Mr. Dibbs and/or his agents, were

given the opportunity to provide input concerning suggested

changes to the KOCP. Petitioner contends that a small group of

anti - growth activists controlled the review process ; that he and

his re presentatives who attended meetings were made to feel

"unwelcome" ; that the anti - growth group rejected any attempt to

reduce or eliminate the restrictions on development within the

KOCP ; and that the Board of County Commissioners simply rubber -

stamped the Planning Commission's recommended changes . Even if

this is true, Petitioner's remedy for changing the County's

community plan review process lies in another forum , and not in

a plan amendment challenge. Notably, Petitioner has not

contended that the Coun ty failed to comply with the adoption

procedures required under the expedited state review process.

C. The Corridor Preservation Plan

1 1 . Besides updat ing the KO C P, the County also revised its

2025 (now designated as 2035) Corridor Preservation Plan , whi ch

identifies the strategy for long - term planning and management of

important roadways within the County . The Corridor Preservation

Plan is found in Appendix G of the Transportation Element and

consists of a multi - page list ing of County roadways that are

anticipated to need enhancements because of safety or capacity

issues. Among other things, it identifies the proposed

enhancements for each roadway or segment included in the

Appendix, such as turn lanes, widening, extension s , sidewalks,

shoulders, or add ed bike lanes.

1 2 . Plan Amendment 12 - 03 deletes a listing on line 5 of

page G - 7 that provide s for the enhancement of Gunn Highway from

Pasco County to South Mobley Road . Gunn Highwa y , "a primary

north/south roadway," is a highly congested two - lane arte rial

road that runs south from Odessa in Pasco County through the

Odessa - Keystone community. It is on the County's Table of

Highly Congested Roads with about 4,215 hours of daily vehicle

delays. Petitioner's property is located on Lutz Lake Fern

Road, wh ich appears to intersect with Gunn Highway just south of

the Pasco County line.

1 3 . The deletion eliminate s Gunn Highway from the Corridor

Preservation Ordinance . That Ordinance allows the County to

acquire right - of - way from developments as they occur and require

setbacks from existing roads in order to preserve future right -

of - way for road widening and improvements. Th us, if the County

decides at some future time to enhance that part of Gunn

Highway, and additional right - of - way is required for a

parti cular improvement, t he cost of making th at improvement will

likely rise. The amendment does not change the roadway in any

other respect.

D. Objections to the KO C P

1 4 . Petitioner purchased his property from Tampa Electric

Company in 200 2 or 2003 , or afte r the initial KOCP was adopted

and its development restrictions were in place . Although

Petitioner says he knew there were some restrictions when he

bought the property , it was not until a few years later that he

says he learned the full extent of the se r estrictions. He

desires to develop his property and has a potential buyer who

believes that a 920 - unit apartment complex could be a successful

venture. However , u nder the current Plan, h e is limited to

building one dwelling unit per five upland acres ( mo st of the

parcel is wetlands) , and because the parcel is not in the urban

service area, he is prohibited from hooking up to County urban

services ( water and sewer ) even though they are located in the

right - of - way of the street in front of his property . At the

same time, owners of properties that are vested ( grandfathered )

are able to develop their properties and connect to water and

sewer . F or example, one of his neighbor s is zoned to allow up

to 304 residential units on quarter - acre lots , 25,000 square

f eet of commercial space , and access to urban services; there is

a major subdivision ( built by Cheval) across the street to the

south; and a major residential subdivision lies to the north

just across the Pasco County line. There are also a number of

o ther planned developments and subdivisions that were approved

in the early 1990s before the KOCP was adopted.

1 5 . Even if he prevails on the narrow issues in this case,

it appears that Pe titioner would still be unable to develop his

property in the manner t hat he chooses unless further amendments

to the Plan and/or KO C P are made. His ultimate goal is to

"eliminate" the KOCP , which he says is "unconstitutional . " In

any event, Petitioner has challenged five revisions in the KOCP,

which relate generally to st rategies for preserving the rural

residential community character of the area , locating commercial

development, and relieving traffic on Gunn Highway.

a. Rural Residential Community Character Revisions

1 6 . Petitioner contends that two changes in the fir st

paragraph of the section entitled "Rural Residential Community

Character" are not in compliance. That section describes the

County's vision for the character of the community and expresses

a desire that the community retain its rural residential

charac ter. As revised , the paragraph read s as follows:

The Keystone - Odessa community desires to

retain its predominant rural residential

character as an area of lakes, agriculture

activities, and homes built on varied lot

sizes and in a scattered development

p attern. Rural is based on the County's

Future Land Use Element , Urban Service Area

boundary objectives and policies .

(Underline d language represents new

language, while strike through language has

been deleted.)

1 7 . Petitioner 's primary concern is th at the deletion of

the word "predominant" changes the meaning, intent, and

application of the provision and will require that t he entire

area remain rural in perpetuity. In striking the wor d

"predominant , " however, the County simply deferred to the

standa rds found in the urban services area boundary objectives

and policies of the FLUE , cited in the second sentence of the

paragraph . Th es e broad guidelines provide that if land is in

the urban service area, the land is considered urban, while land

outside th e urban service area is considered rural. In

distinguishing between rural and urban areas, t he FLUE

recognizes that within the rural area, there may be small

suburban enclaves and other non - rural properties that predate

the KOCP and which are located in t he urban service area . To

make the first sentence more consistent with the Plan, the

County removed the word "predominant," as being unnecessary. It

is not un reasonable to interpret this revision as not being the

equivalent of a declaration that the KOCP is exclusively rural

and as not materially chang ing the meaning of the provision.

Finally, it is not unreasonable for the County to rely on FLUE

provisions having countywide application in characterizing the

Keystone - Odessa area as rural.

1 8 . Petitione r contends that the changes in the paragraph

violate sections 163.3177(4)(a) and (6)(a). The first statute

requires coordination of the plan with the plans of adjacent

local governments . (It does not require coordination with other

elements, as alleged i n the Amended Petition . ) But aspirational

amendment s that simply express the desire of a community and

nothing more do not require review and coordination by Pasco

County before being adopted. T he second statute requires

generally that FLUE amendments be based on surveys, stud ies, and

data regarding the affected area, which include projected

population, availability of urban services, proximity to

schools, protection of the environment, diversification of the

economy, and the like, and which ensure that t he amendment does

not promote urban sprawl. The plan amendment being challenged

is a part of the Livable Communities Element, and not the FLUE .

Therefore, the requirements imposed on a local government when

adopting a FLUE amendment do not apply. 2 Final ly, a n allegation

that the changes violate Florida law because they may result in

" a taking of or unreasonable burden on private property" is not

a consideration in a compliance proceeding.

1 9 . Petitioner has failed to prove to the exclusion of all

reas onable debate that the revisions are not in compliance.

b. Commercial Revisions

20 . Th is section describes the visions and strategies for

commercial uses within the community area . Plan Amendment 12 - 01

made only minor changes to the section . One chang e is to place

commercial activities into two categories: the "Keystone - Odessa

Rural Activity Center" and "Other Commercial . " Also, the

amendment describes the activities envisioned for each category.

The following changes were made to the second sentenc e in th e

first paragraph of the Keystone - Odessa Rural Activity Center

category :

It is the desire of the community to

encourage transfer of development rights for

some of this the currently approved unbuilt

commercial within the community planning

area and to direct the new commercial to the

intersection of Gunn Highway and North

Mobley Road with the community plan

boundary, and to other eligible receiving

areas in Hillsborough County .

2 1 . Before the revision, the KOCP reflected a desire by

the community to direct new commercial activity to Gunn Highway

and North Mobley Road. In the following paragraph of the

Commercial section, n ot changed by Plan Amendment 12 - 01 , the

intersection of those two roads is " recognized as a rural

activity center. " To implem ent that recognition, the County

later developed a section in the Land Development Code defining

the intersection of those two roads as the Keystone Activity

Center. The new language is intended to clarify that the KOCP

activity center is the intersection of those two roads and to

direct new commercial activity to that location. It does not

bar commercial development at other locations in the community

area , provided that other Plan requirements are met.

2 2 . Petitioner contends that before the revision,

commercial activity could be placed "along" the two roads, but

the amend ment now directs all commercial activity in the KOCP to

a single intersection. He argues that the revision violates

section 163.3177(4)(a) because the County failed to coordinate

thi s provision with the FLUE. However, th e statute requires,

whe re appropriate, coordination of plan amendments with the

plans of adjacent local governments , and not coordination with

other element s in the Plan . He also contends that the amendment

violates subsec tions 163.3177(6)(a)2. b., d., and h. These

provisions prescribe certain requirements for FLUE amendments.

B ecause the changes are to the Livable Communities Element, the

requirements do not apply. See Endnote 1, infra .

2 3 . Petitioner has failed to show to the exclusion of all

fair debate that the se revisions are not in compliance.

c. Transportation Revisions

2 4 . The Transportation section addresses the visions

and/or strategies for transportation issues that affect the

community. Among other c hanges, the County amended the third

paragraph of the section by adding the following language:

The community supports the expansion of the

Suncoast Parkway to 6 lanes (3 in each

direction) to relieve traffic through the

Keystone - Odessa Community Plan area .

2 5 . The Suncoast Parkway is a toll road running in a

north - south direction from Hernando County to the northern

terminus of the Veterans Expressway (in the northern part of the

County) , passing on the eastern side of the KOCP. The new

language does not mandate that the State or any other entity

expand the Suncoast Parkway . Also, it does not mean that an

expanded toll road would cure all traffic problems throughout

the Keystone - Odessa community area. The language is simply a

statement of support by the community for the widening of the

toll road if that project is ever considered in the future.

2 6 . Petitioner contends that the statement of support must

be coordinated with adjacent local governments; that it equates

to a failure to provide a safe a nd efficient transportation

system on the other roadways within the KOCP, as required by the

Transportation Element ; that an expanded Sun coast Parkway cannot

relieve traffic on other KOCP roads; and that there is no

consensus among the Odessa - Keystone comm unity to support the

expansion of the Sun coast Parkway.

27. The amendment depends on future activities,

assessments, and decision - making by the County or other entities

that have the responsibility of funding and building toll roads .

It does not requir e the County to take any immediate action. In

short, it does not mandate anything. Given these

considerations, Petitioner has failed to prove to the exclusion

of all fair debate that the aspiration al language is not in

compliance for the reasons alleged .

2 8 . Finally, t he penultimate paragraph of the

Transportation section, as revised, reads as follows:

Gunn Highway will be identified as a County

roadway, which cannot be widened further due

to social, economic, policy and

environmental constraints. The i dentified

and designated constrained corridors list

found in the Transportation Element will

also be recognized. The provision to

eliminate the truck route on Gunn Highway

from Pasco County Line to Van Dyke , when the

Suncoast Corridor is completed, will b e is

enforced as set out by the adopted

Hillsborough County Truck Route Ordinance . 3

2 9 . Since the KOCP was adopted in 2001, Gunn Highway has

been constrained to two lanes. Until that language is amended,

Gunn Highway "cannot be widened further." This p rovision was

not changed by Plan Amendment 12 - 01 and is not subject to

challenge in this proceeding .

30 . The Suncoast Parkway and Veterans Expressway w ere

completed years ago . Therefore , the phrase "when the Suncoast

Corridor is completed" is obsolete and should be deleted .

3 1 . When t he KOCP was first adopted, the Transportation

section contained a provision that would eliminate a portion of

Gunn Highway between Pasco County and Van Dyke as a truck route.

It further provide d that this provision woul d be enforced after

the Suncoast Corridor was completed . During the update process,

t he County decided that this kind of specific direction does not

belong in a community plan and chose to defer that decision to

the County's Truck Route Ordinance . That O rdinance contains a

list, periodically updated , of designated County roads on which

certain types of trucks may operate. T he KOCP now acknowledges

that Gunn Highway's truck route status will be as designated in

the Truck Route Ordinance , a more logical pl ace for that type of

decision. It does not force the County to take action one way

or the other regarding the status of Gunn Highway.

3 2 . Petitioner contends that the se changes violate

section 163.3177(2) , which provides that coordination of the

vario us elements is a major objective in the planning process,

and that the elements should be consistent with one another.

Petitioner asserts that the County failed to coordinate with

Transportation Element Objectives 1.1, 1.5, and 6.9 and Policy

6.9.1 and th e Florida Department of Transportation's Goods

Movement Study . The cited objectives, policy, and study require

generally that the County provide a safe, efficient, and

environmentally sensitive transportation system, and th at the

transportation system pro vide for th e efficient and effective

movement of goods. There is insufficient evidence to establish

a lack of coordination between the two elements , or to prove

that by deferring the truck route status of Gunn Highway to the

Truck Route Ordinance, the Cou nty has created an internal

inconsistency between the KOCP and the Transportation Element.

3 3 . Petitioner also contends that the amendment violates

section 163.3177(6)(a) because it is not based on the necessary

surveys, studies, and data required for F LUE amendments.

However, the amendment is to the Livable Communities Element and

not the FLUE.

3 4 . Petitioner has failed to show to the exclusion of all

fair debate that the revisions in the Transportation section of

the KOCP are not in compliance.

E. O bjections to the Corridor Preservation Plan

3 5 . Plan Amendment 12 - 03 modifies the County's Corridor

Preservation Plan. The changes were required because , since the

Corridor Preservation Plan's last update, several community

plans , including the KOCP, wer e adop ted, and they provided

direction for widening certain roads and the need for other

roadway improvements. Also, in 2009, the Metropolitan Planning

Organization adopted a 2035 Long Range Transportation Plan that

extended the horizon year by ten years.

3 6 . Among the changes is the removal of the planned

expansion and enhancement of Gunn Highway from the Pasco County

line to South Mobley Road. According to the staff report, this

deletion was required because the adopted community plan says

that Gunn Highway should not be widened. The original KOCP

acknowledges, however, that "some changes to roadway

configurations may be needed for safety" in the future, but

these changes should be limited to turn lanes, pedestrian/

equestrian crossings or traffic co ntrol mechanisms rather than

widening the road. These provisions were not amended by Plan

Amendment 12 - 01 and are not subject to challenge here.

3 7 . Petitioner contends that this amendment violates

sections 163.3177(6) (b) 1.e. and 337.273 . The first stat ute

requires that the Transportation Element reflect the "data,

analysis, and associated principles and strategies" relating to

"[h]ow the [County] will correct existing facility deficiencies,

meet the needs of the projected transportation system, and

adva nce the purpose of this paragraph and the other elements of

the comprehensive plan." The second statute provides generally

that if a "transportation corridor" is used by a local

government to address transportation issues, it should be

included in the com prehensive plan .

3 8 . Petitioner essentially argues that unless the County

create s a plan that addresses all failing roads in the KOCP , it

cannot delete Gunn Highway from the Corridor Preservation Plan .

But this would mean that no amendment affecting tra nsportation

in the KOCP , or any other area of the County , could ever be

adopted un til the County develops a plan for funding and

correcting each road way deficiency. Given the existing

constraint on widening Gunn Highway, the effect of the amendment

is sim ply to make the Transportation Ele ment consistent with the

KOCP , a requirement under section 163.3177(2). Also, u nder

these circumstances, there was no need to coordinate with Pasco

County before making this change.

3 9 . Petitioner also argues that the de letion violates

section 163.3177(2) because the County failed to coordinate this

change with numerous other Transportation Element objectives and

policies , which generally promote right - of - way protection and

the use of enhancements for constrained roads .

40. The KOCP currently allows only certain improvements to

Gunn Highway. Even though the deletion of the line item may

increase the cost of these enhancements, it does not prevent the

County from adding them at a future time. I t is at least fairly

deba table that t he deletion does not conflict with the above

objectives and policies, and that the County reviewed the

relevant portions of the Transportation Element before the

amendment was adopted. Finally, a n a rgument that the deletion

vi olates sections 1 63.3180(1) and (5) ha s been rejected.

41 . In summary, Petitioner has failed to prove to the

exclusion of all fair debate that the deletion in Plan Amendment

12 - 03 is not in compliance.

4 2 . All other arguments not specifically addressed in this

Recomm ended Order have been considered and rejected.

CONCLUSIONS OF LAW

4 3 . The parties have stipulated to the facts necessary to

establish that Petitioner is an affected person .

4 4 . The challenged amendments were adopted u nder the

expedited state review pro cess codified in section 163.3184(3).

There is no claim that any procedural requirement in that

statute was violated.

4 5 . In order for a plan amendment to be in compliance, it

must be:

consistent with the requirements of ss.

163.3177, 163.3178, 163.3180, 163.3191,

163.3245, and 163.3248, with the appropriate

strategic regional policy plan, and with the

principles for guiding development in

designated areas of critical state concern

and with part III of chapter 369, where

applicable.

§ 163.3184(1)(b), Fla. Stat.

4 6 . Section 163.3184(5)(c)1. provides that a plan

amendment shall be determined to be in compliance if the local

government's determination of compliance is fairly debatable.

Therefore, Petitioner bear s the burden of proving to the

exclusion of f air debate that the challenged plan amendment s are

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 "ev idence in support of both sides of a comprehensive

plan amendment, it is difficult to determine that the County's

decision was anything but 'fairly debatable.'" Martin C n ty. v.

Section 28 P 'ship , Ltd. , 772 So. 2d 616, 621 (Fla. 4th DCA

2000).

4 7 . A s pirat ional amendments require less data and analyses

than might otherwise be required. Indian Trail Improve. Dist.

v. Dep't of C mty. Affairs , 946 So. 2d 640, 641 (Fla. 4th DCA

2007). Th erefore, the revisions in Plan Amendment 12 - 01 which

simply express suppor t for a particul ar vision or strategy and

require no immediate action by the County do not need to be

supported by the extensive data and analysis suggested by

Petitioner . U nless some formal action is taken by the County to

implement these visions , it is unlikely that the y create an

internal inconsistency with other portions of the Plan.

4 8 . Petitioner has argued that both amendments must comply

with section s 163.3177(6)(a), (b), and (f), which require that

each comprehensive plan contain a Future Land Us e,

Transportation, and Housing Element, respectively , and describe

the content of each . While the Transportation Element has been

revised by Plan Amendment 12 - 03, and its requirements must be

considered for that amendment, the other elements have not been

amended. Even so, Petitioner contends that the KOCP, a part of

an optional element, is controlling over the more generic

provisions of the mandatory Futur e Land Use and Housing

Elements, and therefore any KOCP amendment must comply with the

statutory req uirements when adopting FLUE and Housing Element

amendments. However, t he plain language in the statute provides

that the se requirements apply only when the local government

adopts a FLUE or Housing Element amendment. Petitioner has

cited no persuasive a uthority supporting a contrary

interpretation of the law. The argument has been rejected.

4 9 . A well - established principle in a compliance

proceeding is that once a plan provision is determined to be in

compliance, it cannot be collaterally attacked in a subsequent

proceeding. See Schember v. Dep't of C mty. Affairs , Case No.

00 - 2066GM at pp. 78 - 80 (Fla. DOAH July 16, 2001), adopted ,

Case No. DCA01 - GM - 167 (Fla. DCA Oct. 31, 2001); Order on Motion ,

July 2, 2012. Nonetheless, Petitioner argues that he s hould be

allowed to challenge all provisions in the KOCP, including those

that were not amended during the update process. To support his

argument, Petitioner relies on the case of Department of

Community Affairs v. Lee County , Case No. 95 - 00 98GM (Fla. DO AH

Jan. 31, 1996) , adopted , 1996 Fla. ENV. LEXIS 101 ( Fla. Admin.

Comm. Jul y 25, 1996). In that case, among other amendments ,

Lee County proposed the elimination of a 2010 O verlay to the

Future Land Use Map , which applied to the entire unincorporated

Cou nty and served to increase the capacity of the land use map.

Th e Administration Commission concluded, as did the hearing

officer in the underlying proceeding , that this constituted a

"fundamental revision of the FLUM affecting the entire local

government jurisdiction" and required "the examination of the

remaining provisions of the [FLUE] for compliance with 9J - 5."

Id. at *8. These unusual circumstances are not present here.

This case involves revisions to a subpart of a n optional element

affecting onl y one of the more than 20 community plans in th at

element. None of the revisions can be characterized as

"fundamental" or "affecting the entire local government

jurisdiction." Except for the Lee County case, the state land

planning agency has consistentl y followed the principle in

Schember that pre - existing plan provisions not amended are not

subject to review or challenge. The prior rulings on this issue

are reaffirmed.

50 . The evidence supports a conclusion that Petitioner has

failed to prove beyond f air debate that the plan amendment s are

not in compliance. Therefore, the plan amendment s adopted by

Ordinance No . 12 - 01 and 12 - 03 on May 17, 2012, should be found

i n compliance.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

L aw, it is

RECOMMENDED that the Department of Economic Opportunity

en ter a final order determining that Hillsborough County Plan

Amendment s 12 - 01 and 12 - 03 are in compliance.

DONE AND ENTERED this 22nd day of April , 20 1 3 , in

Tallahassee, Leon County, Florid a.

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

Divisi on of Administrative Hearings

this 22nd day of April , 20 1 3 .

ENDNOTE S

1/ There is no requirement that the Planning Commission take a

vote, or conduct a poll, of all of the res idents of the community

to determine the " consensus " of the community on a par ticular

issue. This is especially true for aspirational amendments,

which simply support a vision or idea and require no immediate

action by the County . See Conclusion of Law 47, infra .

2 / As to this revision, the Amended Petition does not allege a

vio lation of section 163.3177(2), which requires coordination of ,

and consistency between, the elements .

3 / Although the phrase "as set out by the adopted Hillsborough

County Truck Route Ordinance" is shown in various documents as

new text in the paragraph, th is language is not new and was a

part of the original KOCP. See Respondent's Ex. 1, p. 22.

COPIES FURNISHED:

Jesse Panuccio , Secretary

Department of Economic Opportunity

107 East Madison Street

Tallahassee, Florida 32399 - 4120

Robert N. Sechen, Gen eral Counsel

Department of Economic Opportunity

107 East Madison Street

Tallahassee, Florida 32399 - 4120

Kristin M. Tolbert, Esquire

1910 East Palm Avenue, No. 8322

Tampa, Florida 33605 - 3819

Louis Whitehead, III, Esquire

Senior Assistant Coun ty Attorney

601 East Kennedy Boulevard, 27th Floor

Tampa , Florida 33602 - 4156

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.