12-003418GM Christine Davis vs. City Of Venice Status: Closed Recommended Order on Monday, July 1, 2013.

Summary: Petitioner failed to establish that plan amendments were not in compliance or that she was prejudiced by a procedural error during the adoption process.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTINE DAVIS, )

)

Petitioner , )

)

vs. ) Case No. 1 2 - 3418 GM

)

CITY OF VENICE, )

)

Respondent , )

)

and )

)

VENICE GOLF ASSOCIATION, IN C., )

d/b/a LAKE VENICE GOLF COURSE, )

)

Intervenor . )

______________________________ _ )

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings (DO AH) by its assigned

Administrative Law Judge, D . R. Alexander, on May 29, 201 3 , in

Venice, Florida.

APPEARANCES

For Petitioner: Christine Davis, pro se

340 Shore Road

Venice, Florida 34285 - 3725

Fo r Respondent: Karen A. Brodeen, Esquire

Fowler White Boggs, P.A.

Post Office Box 11240

Tallahassee, Florida 32302 - 1240

Derek P. Rooney, Esquire

Fowler White Boggs, P.A.

Post Office Box 1567

Fort Myers, Florida 33902 - 1567

For Intervenor : Jeffrey A. Boone, Esquire

Boone, Boone, Boone,

Koda & Frook, P.A.

Post Office Box 1596

Venice, Florida 34284 - 1596

STATEMENT OF THE ISSUE

The issue is whether certain revisions to the City of

Venice's (City's) Comprehensive Plan (Plan) adop ted by Ordinance

No. 2012 - 15 on August 14, 2012, are in compliance.

PRELIMINARY STATEMENT

On September 13, 2012, Petitioner filed with DOAH a request

for a hearing to challeng e certain changes made by Plan

Amendment 11 - 2CP. Among other change s , th e amendment s revise ,

delete, and renumber certain text provisions within the

Transportation Infrastructure & Service Standards Element

(Transportation Element) . The amendments relate generally to

the operation and faciliti es of Venice Municipal Airport

(Airport) , owned and operated by the City . The Venice Golf

Association, Inc., d/b/a Lake Venice Golf Course (VGA), was

authorized to intervene in support of the plan amendments. An

Amended Petition was later filed by Petiti oner.

Separate P re - Hearing Stipulation s (St atements ) were filed

by Petitioner and jointly by the City and VGA . At the final

hearing, Petitioner presented the testimony of Brian Lichterman,

a planner and accepted as an expert; Christopher A. Rozansk y ,

Airp ort Administrator; Ch arles W. Listowski , Executive Director

of the West Coast Inland Navigational District ; M. Marshall

Happer, III , former member of the City Planning Commission ;

Chad L. Minor, City Plann ing Director ; Ernie Coleman , former

president of t he Gulf Shores Association of Venice, Inc. (Golf

Shores) ; and Richard M. Alexander, who resides near the Airport .

Also, Petitioner ' s Exhibits 24, 25, 28, 29, and 34 - 36 were

received in evidence. The City presented the testimony of

Chad L. Minor, accepted as an expert; and Christopher A.

Rozansky , accepted as an expert . City Exhibits 3, 5, 8 - 11, 14,

15, 17, and 19 - 22 were admitted into evidence. 1 VGA presented

the testimony of J ames T. Collins, a land use planner and

accepted as an expert . VGA Exhibits 1 - 3, 4A and 4B, 8 , and 10

wer e admitted in evidence. Finally , Joint Exhibit 1 was

admitted into evidence.

A transcript of the hearing was not prepared . P roposed

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

and the City , an d they hav e been considered in the preparation

of this Recommended Order. VGA joined in the City's filing.

FINDINGS OF FACT

A . The P arties

1. The City is a municipality located in Sarasota County.

The City adopted the challenged amendments under the expedited

s tate review process codified in section 163.3184(3) , Florida

Statutes .

2. Petitioner owns property and resides at 340 Shore Road,

Venice. She submitted oral or written comments to the City at

the transmittal hearing for the plan amendments.

3. VGA i s a for - profit corporation which operates a 27 -

hole golf course adjacent to the Airport on land leased from the

City . Through its counsel, VGA submitted comments in support of

the amendments at the various public hearings.

B. The Airport

4. All of Pet itioner's concerns center around the Airport.

The property was previously owned by the federal government for

use as an airfield during World War II. The City acquired the

Airport property from the federal government in 1947 through a

Quit Claim D eed. T he Airport is located 1.7 miles south of the

downtown area and is bounded on the southeast by the

Intracoastal Waterway, on the west by the Gulf of Mexico, and on

the north by residential development. The re are two active

runways : 13/31, the primary runw ay with a northwest/southeast

alignment, and 04/22, with a northeast/southwest alignment.

Petitioner's property is located in the Gulf Shores subdivision,

part of which lies in the path of aircraft landing on, and

taking off from, runway 13/31.

5 . The A irport property comprises 835 acres, most of which

are used for aviation purposes. One of the non - aviation uses is

the Lake Venice Golf Course, which is leased to VGA.

C. The Amendment s

6 . Ordinance No. 2012 - 15 adopts amendments to three

elements of the City Plan: the Transportation Element ; the

Capital Improvements Element (CIE) ; and the Parks and Public

Space Element (PPSE) . Among other things, the Transportation

Element contains the objectives and policies that govern the

operation s and facilitie s of the Airport. Petitioner disputes

only the following changes to the Transportation Element :

revisions to Objective 4, the deletion of former Policies 4.1,

4.4, and 4.7, and revisions to renumbered Policy 4.2.

7. Objective 4 has been revised to rea d as follows:

Airport Operations and Facilities. Operate

and M maintain the Venice Municipal Airport

as a general aviation facility in accordance

with FAA and FDOT standards and

requirements.

8. Former Policies 4.1, 4.4., and 4.7 were deleted by Plan

Ame ndment 11 - 2CP as follows:

Policy 4.1 Airport Safety. Continually

inspect airport infrastructure for

operational safety. Review and update

safety procedures for airport operations in

order to address current and future needs

and demands. As conditions c hange with the

airport and surrounding community determine

the needs for system improvements.

4.4 Involuntary Property Condemnation

Related to Airport Activities. As a policy,

the City will not condemn property adjacent

or proximate to the airport for a irport -

related activities if such condemnation

would force the property owner to surrender

his/her property involuntarily. Such policy

shall not be in conflict with the provisions

of Chapter 333.03, F.S.

4.7 Airport Economic Sustainability.

Promote the economic sustainability of the

airport by identifying business

opportunities which are compatible with

surrounding neighborhoods. Such efforts

should be coordinated with the City's

planning efforts including:

A. Venice Municipal Airport Master Plan,

B . Envision Venice: Strategic Plan 2020.

9. Former Policy 4.5 was r enumbered and revised as Policy

4.2 as follows:

Policy 4. 5 2 Airport Area Land Use

Compatibility. Until compatibility criteria

are adopted pursuant to Policy 4.1 of this

element, As part of the site and development

review process, the City shall consider the

compatibility of the airport and surrounding

land uses . i n accordance with Policy 8.2 of

the Future Land Use & Design Element.

Issues to be considered when evaluating

compatibility i nclude health and safety,

noise, natural habitat, wetlands, character

of the City and neighborhoods, natural

environment, property values, views, traffic

and odor.

10. Finally, although not challenged by Petitioner, the

amendments deleted PPSE Policy 1.9 , which affects the Lake

Venice Golf Course.

D. Procedural Issues

1 1 . The transmittal hearing for the proposed amendments

was conducted by the City Council on April 24, 2012. The

amendments were adopted by the City Council at a public hearing

held on Au gust 14, 2012. Petitioner contends the published

notices for the transmittal and adoption hearings did not comply

with state law.

1 2 . The published notic e for the first hearing states that

the proposed amendments will "include New, Revised and/or

Update d Goals, Objectives and Policies in the [Transportation

Element], [PPSE], and [CIE]." Petitioner's Ex. 24. It further

states that the text amendments "are intended to accomplish the

following: 1) revise policies to reflect current/practices/

processes; 2) amend/remove pol i cies that conflict with state and

federal regulations and guidelines; 3) facilitate a

comprehensive plan amendment as previously agreed upon in former

General Manager of Development Services September 9, 2010 letter

to VASI [Venice Avia tion Society, Inc.] and VABA [Venice Airport

Business Association]." Id. The published notice for the

second hearing simply stated that the proposed ordinance is

"amending the City's Comprehensive Plan, Volume I to include

new, revised and/or updated goa ls, objectives and policies in

the [Transportation Element], [PPSE], & [CIE]; and providing an

effective date." Petitioner's Ex. 35. Each notice also

includes a citywide map.

1 3 . The applicable notice requirements are contained in

section 166.041, whic h are made applicable to notices regarding

comprehensive plan amendments through section 163.3184(11)(a).

The only statutory notice required is by publication; no direct

notice is required to be given to anyone. See § 16 6 .041(3),

Fla. Stat. Therefore, P etitioner's objection that separate

notice was not given to residents in the Airport area, the

president of her subdivision, or the West Coast Inland

Navigational District is not well taken. 2

1 4 . Under section 166.041(3), the notice must "contain a

geogra phic location map which clearly indicates the area covered

by the ordinance. Such notice shall include major street names

as a means of identification of the general areas." There is no

requirement for an airport to be depicted on a notice's map.

1 5 . Th e notice statutes do not require the inclusion of

the proposed text changes or their summaries. There is also no

statutory requirement that each discrete policy change receive

separate treatment in the notice. A single notice can provide

notice of multip le proposed text changes, provided that its

breadth covers the range of changes.

1 6 . Petitioner's expert, Brian Lichterman, addressed the

notice issue but did not offer opinions on the substantive

compliance issues. Mr. Lichterman opined that the publish ed

notices should have included information that specifically

described the plan amendments or provided a more detailed map

that depicted the Airport and surrounding lands. He also opined

that the notices should have included a telephone number so that

a reader could have called the City to inquire about the scope

of the amendments.

1 7 . Mr. Lichterman further opined that the published

notice for the transmittal hearing should have spelled out the

acronyms "VASI" and "VABA" because some readers may not b e aware

of which organizations they are. Had the notices included their

full spellings, he believed that readers would be placed on

notice that the amendments would address Airport issues.

Finally, he was especially concerned with the deletion of Policy

4.4, which relates to the City's inverse condemnation authority

of "property adjacent to or proximate to the airport."

1 8 . Mr. Lichterman acknowledged that there is no

requirement in chapter 163 to describe the amendments in the

notices or to provide a telephone number. When asked how far

from the Airport the notice maps should depict the affected

properties, he admitted that the delineation would be subjective

and suggested a radius of one mile from the Airport.

19. Testimony by the City established that the amendments

could be of interest to persons outside the vicinity of the

Airport. Persons who live throughout the City use the Airport's

aviation facilities and golf course. Most of the amendments

address Airport safety and operations. Aircraft o wners, pilots,

and passengers are interested in Airport safety and operations.

Also, the del etion of PPSE Policy 1.9 could be of interest to

golfers who live beyond the vicinity of the Airport. Given the

range of Airport related issues in the amendments, as well as

the golf course referenced in PPSE Policy 1.9, it is reasonable

for the notice maps to depict the entire municipality.

20. Petitioner did not testify at the final hearing.

Therefore, the record does not show whether she was confused

about any aspects of the notices.

21. Regardless of whether there was an error in either of

the notices, Petitioner did not demonstrate how they caused her

prejudice. She attended the transmittal hearing and

participated, enabling her to gain standing as an affec ted

person under section 163.3184(1)(a). She also timely filed her

petition to initiate this proceeding within 30 days after the

adoption hearing. During the final hearing, Petitioner

submitted into evidence documents from City records related to

the ame ndments, and she did not demonstrate that she was unable

to obtain copies of any relevant documents.

22. In her Statement, Petitioner also raised a concern

that the transmittal public hearing was not properly conducted.

S he took issue with the time of da y that the City Council

considered the amendments. Each of the two notices stated that

the public hearing would begin "at 9:00 a.m. or shortly

thereafter." Petitioner contended that the City should have

started at or shortly after 9:00 a.m., not later in the day.

She also contended that the City should have strictly followed

the agenda, and not take items out of order.

23. Testimony by the City established that it is not

uncommon for a City Council's agenda to include many items or

for agenda items to b e moved during the course of the hearing,

resulting in a noticed item commencing later than the timeframe

stated in the notice. There is no evidence that this practice

is prohibited, or that DOAH or the Department of Economic

Opportunity ( DEO ) has juris diction over the local governing

body's conduct of its public hearings.

E. Compatibility

24. Section 163.3177(6)(b)2.d. requires the Transportation

Element to address "land use compatibility around airports."

Revised and renumbered Policy 4.2 (formerly Policy 4.5) is

intended to satisfy this requirement. Petitioner contend s that

unless former P olic y 4.5 is retained in the Plan, her property

will not be protected against incursions by Airport operations.

25. The revisions include the deletion of a list of

compatibility criteria for consideration and a substituted

reference to Future Land Use & Design Element Policy 8.2, which

addresses land use compatibility throughout the City.

26. The former version of Policy 4.2 addressed

compatibility of the Airport and surrounding uses but provided

less detail for evaluating compatibility between the Airport and

surrounding land uses than is provided in Policy 8.2.

27. The different compatibility criteria in the two

policies also created confusion as to which set o f criteria to

apply to land use decisions in the vicinity of the Airport.

Revised Policy 4.2 resolves this conflict by incorporating by

reference the compatibility criteria in Policy 8.2. The

new compatibility criteria satisfy the statutory requirement

that the City address "land use compatibility around airports."

F . Data and Analysis

28. Petitioner also alleges that the amendments are not

supported by relevant and appropriate data and analysis. See

§ 163.3177(1)(f), Fla. Stat.

29. The Plan is no t required to address airport

operations, as they are regulated by the Federal Aviation

Administration (FAA) and the Florida Department of

Transportation (FDOT).

30. Although the City takes the position that the deletion

of discretionary planning polici es requires little, if any,

supporting data and analysis , it compiled data and analysis

regarding all of the plan amendments. Additional data and

analysis were submitted at the final hearing.

3 1 . The City submitted various documents to the DEO with

the t ransmittal package. See City Ex. 15. They include an

underline - strike - through format of the proposed changes, each of

which is accompanied by an explanation for the revision or

deletion; a memorandum from the City Planning Director to the

City Council; a license issued by the FDOT; two memoranda from

its outside counsel; a 1947 Quit C laim Deed from the federal

government to the City which transfers rights to the Airport's

real property; Terms and Conditions of Accepting Airport

Improvement Program Grants (Grant Assurances); a letter from the

FDOT planner , Sergey Kireyev, dated September 29, 2009; the

Department of Community Affairs (DCA's) Objections, Comments,

and Recommendations (ORC) r eport; and a lease between the City

and the VGA. The FDOT letter and the ORC r eport contai n th e

agencies' reviews of Evaluation and Appraisal Report based

amendments, including Airport issues, before their adoption in

2010.

3 2 . At the hearing, an FDOT letter dated June 4, 2012,

from Mr. Kireyev, which addressed the amen dments, was received

in evidence. See City Ex. 5. T hroughout the amendment process,

t he Airport Administrator coordinated with Mr. Kireyev to ensure

that FDOT's concerns were addressed. The letter confirms that

the se concerns were satisfied.

3 3 . The re visions to Objective 4 are supported by the

Airport's FDOT license and the Grant Assurances. The license

and the Grant Assurances section entitled "Operations and

Maintenance" demonstrate that the Airport must operate in

accordance with FDOT, as well as t he FAA.

3 4 . The deletion of Policy 4.1, entitled "Airport Safety,"

is supported by data and analysis. Requirements for the Airport

to operate safely are included in the FDOT license, the Quit

Claim Deed, and the Grant Assurances. The FDOT license and th e

Grant Assurances demonstrate that the Airport is subject to

various requirements to operate safely, which are not mandated

in chapter 163. The deletion of this policy will have no

adverse impact on airport safety.

3 5 . The deletion of Policy 4.4 was sug gested by FDOT in

order to preserve the City's ability to protect aerial

approaches to the Airport through its eminent domain powers

under chapter 333. Among its various authorizations, section

333.12 grants the City the power to acquire land through emin ent

domain for airport approach protection. The Grant Assurances

require the Airport to operate safely and support deletion of

the policy, which limited the City's ability to address safety

issues. The two FDOT letters reiterate that the City should not

surrender its eminent domain powers and also support a safety

basis for the policy's deletion.

3 6 . The deletion of Policy 4.4 will have no negative

impact on airport safety and may enhance safety because it

removes an obstruction to one of the City's meth ods of

protecting airport approaches.

3 7 . The deletion of Policy 4.7, titled "Airport Economic

Sustainability," is supported by data and analysis. Its

requirement to promote airport business opportunities with

surrounding neighborhoods is inconsistent wi th the Grant

Assurances, which do not require airport businesses to be

compatible with surrounding neighborhoods. Sections 22 and 24

of the Grant Assurances require the Airport to be accessible to

all types of aeronautical opportunities and to be financia lly

self - secure as possible. Retention of this policy could lead to

results that conflict with the Grant Assurances, such as the

example of a proposed helicopter training facility to which

neighbors may raise objections under this policy on the basis of

n oise.

3 8 . During the final hearing, Petitioner expressed

concerns about the Airport Layout Plan (ALP) and the accuracy of

its depictions of the Airport' s Runway Protection Zones (RPZs). 3

The ALP was most recently updated and approved in 2011. The ALP

ap proved in 2000 contained an error in its graphic depiction of

the RPZ in the northwest corner of the Airport, but the current

ALP accurately depicts all four of the RPZs. The ALP was not

part of the data and analysis submitted by the City to DEO, and

Peti tioner failed to demonstrate its relevance to the plan

amendments, especially in light of the expert testimony of the

Airport Administrator that the RPZs are correctly shown.

G . Internal Consistency

39 . In her unilateral Statement, Petitioner alleges th at

the amendments are inconsistent with the Housing and

Neighborhood Development Element. That element is contained in

the Plan's Land Use and Development Chapter, which includes the

Future Land Use & Design Element. Neither her Statement n or her

Amended Petition identifies any specific goal, objective, or

policy with which she alleges an inconsistency.

4 0 . During the hearing, Petitioner asked the City Planner,

Mr. Minor, about Future Land Use & Design Policy 1.11, which is

entitled "Neighborhood Charact er Preservation." Mr. Minor

testified that there is no conflict. This was not refuted.

4 1 . She also asked Mr. Minor about Future Land Use &

Design Policy 8.2, which is entitled "Land Use Compatibility

Review Procedures." Mr. Minor opined that the plan amendments

do not conflict with that policy . This testimony was not

refuted.

H . Other Issues

4 2 . Throughout this proceeding, Petitioner has expressed

concerns about a wide range of matters related to the Airport,

such as the expansion of the RPZs into h er neighborhood when the

ALP was adopted in 2011 , alleged errors in the ALP when it was

approved by the FAA , inconsistencies between the Plan and the

ALP and Airport Master Plan , and her belief that at some point

in the future the City intends to use its e minent domain powers

to condemn her property and other homes in Gulf Shores for

expansion of the Airport . No judgment one way or the other is

made on the merits of these claims because none of these issues

are within the scope of this proceeding.

I . Su mmary

4 3 . Petitioner failed to establish beyond fair debate that

the challenged plan amendments are not in compliance.

CONCLUSIONS OF LAW

4 4 . To have standing to challenge or support a plan

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

s ec tion 163.3184(1)(a) . Both Petitioner and VGA are affected

persons within the meaning of the statute.

4 5 . P lan amendments adopted under the expedited state

review process do not receive an ORC report or a notice of

intent from the state land planning agen cy. See § 163.3184(3),

Fla. Stat. Instead, proposed plan amendments are sent directly

to reviewing agencies that have 30 days to send comments within

their respective areas of expertise back to the local

government. In this case, no adverse comments wer e made by the

reviewing agencies. Within 30 days after the adoption process

is concluded, an affected person may challenge the plan

amendment by filing a petition directly with DOAH. See

§ 163.3184(5)(a), Fla. Stat. A hearing is then conducted t o

determine "whether the plan or plan amendments are in compliance

as defined in paragraph [163.3184](1)(b)." Id.

4 6 . "In compliance" means "consistent with the

requirements of ss. 163.3177, 163.3178, 163.3180, 163.3191,

163.3245, and 163.3248, with th e 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 7 . The "fairly debatable" stand ard, which provides

deference to the local government 's disputed decision, applies

to any challenge filed by an affected person. Therefore,

Petitioner bear s the burden of proving beyond fair 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 nty. v.

Yusem , 690 So. 2d 1288, 1295 (Fla. 1997). Or, w here there is

"evidence in support of both sides of a comprehensive plan

amendmen t, it is difficult to determine that the County's

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

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

2000).

4 8 . The standard of proof to establish a finding of fact

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

Stat.

49 . Section 163.3181(1) provides that "[i]t is the intent

of the Legislature that the public participate in the

comprehensive planning process to the fullest extent possible."

Section 163.3181(2) provides g eneral public participation

procedures. Section 163.3184(11) includes public hearing

requirements applicable to loca l comprehensive plans. Whether

the City has supplemental procedural requirements is not of

record. In any event, neither statute is withi n the scope of

the definition of "in compliance."

5 0 . The extent or quality of public participation is not

subject to compliance review. See , e.g. , Brevard Cnty. v. City

of Cocoa , Case Nos. 05 - 1220GM and 05 - 1221GM, 2006 Fla. Div. Adm.

Hear. LEXIS 288 at *59 (Fla. DOAH July 3, 2006), adopted , DCA

Case No. DCA06 - GM - 249 (Fla. DCA Sept. 29, 2006). However, a

plan amendment may be set aside for a procedural defect if a

challenger demonstrates that the error resulted in prejudice.

See, e.g. , Brevard Cnty. v. City of Palm Bay , Case Nos. 00 -

1956GM and 02 - 0391GM, 2002 Fla. ENV LEXIS 288 at *36 (Fla. DOAH

Dec. 16, 2002), adopted , DCA Case No. DCA03 - GM - 013A (Fla. DCA

Feb. 2003). Petitioner did not demonstrate any statutory

procedural error, including any notice er ror . Also, she did not

demonstrate any prejudice. She appeared and participated at the

transmittal hearing, timely filed her petition, and was given an

opportunity to contest the amendments in this compliance

proceeding.

5 1 . The elements of a comprehens ive plan must be

internally consistent. See § 163.3177(2), Fla. Stat. Although

Petitioner's unilateral Statement alleged that the amendments

are inconsistent with the Housing and Neighborhood Development

Element, no evidence to support his claim was pres ented.

5 2 . Section 163.3177(6)(b)2.d. requires that the

Transportation Element address "land use compatibility around

the airport." The evidence supports a conclusion that the City

satisfied this requirement by revising Policy 4.2 to incorporate

by refer ence the compatibility criteria in F uture Land Use &

Design Policy 8.2.

5 3 . Section 163.3177(1)(f) requires that all plan

amendments be based on relevant and appropriate data and an

analysis by the local government. In her unilateral Statement,

Petition er contended that the ALP was used as data to support

the amendments, and that it is inconsistent with "the

professional land survey boundaries." Statement, p. 6. The

evidence shows, however, that the ALP was not part of the data

and analysis submitted b y the City to the DEO. Further, the

unrefuted testimony of the Airport Administrator established

that the current ALP accurately depicts all four of the RPZs.

At hearing, Petitioner also questioned whether other amendments

were supported by data and anal ysis . F or the reasons previous ly

found, it is concluded that the plan amendments are supported by

relevant and appropriate data and an analysis by the City.

5 4 . In summary, Petitioner failed to prove beyond fair

debate that the plan amendments adopted on August 14, 2012, by

Ordinance No. 2012 - 15 are not in compliance.

5 5 . Finally, the City contends that , except for

Transportation Policy 4.2, which addresses statutorily required

compatibility, all other revisions are non - mandatory in nature,

they require even less supporting data and analysis than

aspirational amendments , and the decision to revise or delete

them is wholly within the discretion of the local government .

However, it is unnecessary to decide the correctness of this

broad proposition in orde r to reach the merits of the case. 4

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Economic Opportunity

enter a Final Order determining that Plan Amendment 1 1 - 2CP

adopted by Ordinan ce No. 2012 - 15 on August 14, 2012, is in

compliance.

DONE AND ENTERED this 1st day of J uly , 20 1 3 , in

Tallahassee, Leon County, Florida.

S

D . R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkw ay

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of J uly , 2013 .

ENDNOTE S

1 A ruling was reserved on the admission of Exhibit 14; th e

objection is overruled and the exhibit is received.

2 The West Coast Inland Navigation al District is a multi - county

special taxing district which assists in the planning and

implementation of various waterway projects . See § 374.975, Fla.

Stat . Its relevance to this proceeding was not shown.

3 RPZs are designated areas at the end of the runways that serve

to enhance and protect the people and property on the ground in

the event an aircraft lands or crashes beyond the runway end.

The ir bound aries are designated in the ALP; however, the ALP is

not a part of the City Plan.

4 Section 163.3177(1)(f) provides in part that "[a]ll mandatory

and optional elements of the comprehensive plan and plan

amendments shall be based upon relevant and appropr iate data and

an analysis by the local government." (emphasis added). Thus,

the statute requires data and analysis for all plan amendments,

including discretionary amendments, but the amount or type of

data can vary, depending on the nature of the amendm ent. See

Indian Trail Improvement Dist . v. Dep 't of C mty. Affairs , 946 So.

2d 640, 641 (Fla. 4th DCA 2007). A different question is

presented if the City is suggesting that once it establishes that

a "discretionary" amendment is at issue, the inquiry by an

affected person ends. Obviously, a local government has the

discretion to delete plan provisions, even if they are mandatory,

if they duplicate or exceed statutory requirements and are "no

longer necessary." See Ashley v. Dep 't of Comm . Affairs , Case

Nos. 05 - 2361GM and 05 - 2730GM, 2006 Fla. ENV LEXIS 178 at *65

(Fla. DOAH June 12, 2006), adopted , AC Case Nos. 06 - 008 and 06 -

022 (Fla. Admin. Comm. Dec. 8, 2006). But absent these

circumstances, a revision or deletion of optional text might

create an inter nal inconsistency with other plan provisions, lack

even a modicum of data and analyses, or otherwise contravene a

requirement in chapter 163. If these issues are alleged to be

present, it seems likely that a local government would be forced

to defend agai nst these claims .

COPIES FURNISHED:

Jesse Panuccio , Executive Director

Department of Economic Opportunity

107 East Madison Street

Tallahassee, Florida 32399 - 4128

Robert N. Sechen , General Counsel

Department of Economic Opportunity

107 East Madison Str eet

Tallahassee, Florida 32399 - 4128

Christine Davis

340 Shore Road

Venice, Florida 34285 - 3725

Karen A. Brodeen, Esquire

Fowler White Boggs, P.A.

Post Office Box 1 1240

Tallahassee, F lorida 3 2399 - 1240

D errick P. Rooney, Esquire

Fowler White Boggs, P.A.

Post Office Box 1567

Fort Myers, Florida 3 3902 - 1567

Jeffrey A. Boone, Esquire

Boone, Boone, Boone,

Koda & Frook, P.A.

Post Office Box 1596

Venice, Florida 34284 - 1596

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit writte n exceptions within 15

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

this Recommended Order should be filed with the agency that will

render a final order in this matter.