15-003825GM Roger Thornberry, Georgette Lundquist, Steven Brodkin, Ruby Daniels, Rosalie Prestarri, And James Giedman vs. Lee County, A Political Subdivision Of The State Of Florida Status: Closed Recommended Order on Tuesday, December 1, 2015.

Summary: Plan Amendment was not "in compliance" where County's interpretation of comprehensive plan policy was contrary to the plain language.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROGER THORNBERRY, GEORGETTE

LUNDQUIST, STEVEN BRODKIN, RUBY

DANIELS, ROSALIE PRESTARRI , AND

JAMES GIEDMAN ,

Petitioners ,

vs. Case No. 15 - 3825 GM

LEE COUNTY ,

Respondent,

and

RH VENTURE II, LLC; RH VENTURE

I II, LLC; AND GREENPOINTE

COMMUNITIES, LLC ,

Intervenor s .

/

RECOMMENDED ORDER

A duly - noticed hearing was held in this matter on

October 12 , 2015, in Fort Myers , Florida, before Suzanne Van W yk,

an A dministrative L aw J udge assigned by the Division of

Administrative Hearings .

APPEARANCES

For Petitioner s: Ralf G. Brookes, Esquire

Ralf Brookes Attorney

Suite 107

1217 East Cape Coral Parkway

Cape Coral , Florida 33904

For Respondent: Mark Aank , Esquire

Neysa Borkert, Esquire

Michael D. Jacob, Esquire

Lee County AttorneyÓs Office

2115 Second Street, 6 th Floor

P ost O ffice Box 398

F ort Myers, Florida 33902

For Intervenor s: Russell P. Schropp , Esquire

Richard B arton Akin, Esquire

Henderson, Franklin, Starnes

and Holt, P . A .

1715 Monroe Street

P ost O ffice Box 280

F ort Myers, Florida 33901

S . W illiam Moore , Esquire

Moore, Bowman and Rix, P . A .

Unit E

3277 Fruitville Road

Sarasota, Florida 34237

STATEMENT OF THE ISSUE

Whether an a mendment to the Lee Co unty Comprehensive Plan ,

adopted by Ordinance 15 - 10 on June 3 , 2015 , is Ðin compliance,Ñ

as that term is defined in section 163.31 84(1)(b), Florida

Statutes (2014 ). 1 /

PRELIMINARY STATEMENT

On July 1 , 2015 , Petitioner s filed with the Division of

Administrat ive Hearings ( DOAH ) a Petition challenging the

Comprehensive Amendment adopted by Lee County Ordinance 15 - 10

(the Plan Amendment) . The Plan A mendment changes the land use

designation on 585.6 acres from Rural to Sub - Outlying Suburban .

The final hearin g was scheduled for September 29 and 30 ,

2015, in Fort Myers , Florida , but was continued to October 12

a nd 13, 2015. RH Venture II, LLC; RH Venture III, LLC ; and

Greenpointe Communities, LLC , were granted leave to intervene on

July 9, 2015. PetitionersÓ unopposed Motion for Leave to Amend

the Petition was granted on July 13, 2015. The case was

transferred to the undersigned on July 17 , 2015.

Respondent and Intervenors jointly filed a Motion for

Summary Final Order or in the Alternative to Relinquish

Juri sdiction on September 18, 2015, which was denied. On

October 7, 2015, Intervenors filed a Motion in Limine to exclude

certain evidence, to which Petitioners filed a Response and a

Supplemental Response. The Motion in Limine was denied

following a telepho nic hearing on October 9, 2015.

The parties jointly submit ted a Pre - h earing Stipulation on

October 8 , 2015 , and the hearing convened as scheduled.

At the final hearing, Petitione r s offered the testimony of

Julianne Thomas, accepted as an expert in growth management and

land use planning. PetitionersÓ exhibits 1, 3 through 10, 12

through 14, and 16 were admitted in evidence.

Intervenors offered the testimony of Carl Anthony Barraco,

accepted as an expert in civil engineering; Dr. David Depew,

accepted as an expert in comprehensive planning and land use;

and Grady Miars, President of Intervenor, Greenpointe

Communities, LLC. IntervenorsÓ exhibits 17 through 28, 30

through 32, and 34 through 48 were admitted in evidence.

Respondent offered the testimony of Alvin Block, III, and

Brandon Dunn, RespondentÓs principal planner s , both of whom were

accepted as expert s in planning and zoning . Resp ondentÓs

exhibits 50 through 55 and 57 through 69 were admitted in

evidence.

The partiesÓ joint e xhibit 49 was also admi tted in

evidence. The undersigned took official recognition of Lee

County Ordinance 09 - 06 .

The two - volume T ranscript of the hearing was filed on

October 27 , 2015 . The parties timely filed Proposed Re commended

Order s , which have been considered by the und ersigned in

prepara tion of this Recommended Order.

FINDINGS OF FACT

1 . Petitioner s , Roger Thornberry, Georgette Lundquist,

Steven Brodkin, Ruby Daniels, Rosalie Prestarri, and James

Gie dman , reside in and own property within Lee County .

Petitioners submi tted oral and written comments to Lee County

concerning the challenged Plan Amendment during the period of

time beginning with the transmittal hearing for the Plan

Amendment and ending with the adoption of the Plan Amendment .

2 . Respondent, Lee County (th e County), is a political

subdivision of the State of Florida with the duty and

responsibility to adopt and maintain a comprehensive growth

management plan pursuant to section 163.3167, Florida Statutes

(2015) .

3 . Intervenor s , RH Venture II, LLC ; RH V enture III, LLC ;

and Greenpointe Communities, LLC (Greenpointe), are the owners

and developers of th e property which is subject to the Plan

Amendment. Intervenors are the applicants for the Plan

Amendment.

4 . The Lee County Comprehensive Plan (Comprehen sive Plan)

allocates future land uses based on community plans for

22 distinct communities within the County .

5 . The Fort Myers Shores planning community is located in

east ern Lee County. Within Fort Myers Shores is a sub - community

planning area known as Caloosahatchee Shores, which is located

south of the Caloosahatchee River, east of Interstate 75 (I - 75),

and west of HickeyÓs Creek. The southern boundary of

Caloosahatchee Shores is the Orange River and State Road 82.

6 . Caloosahatchee Shores con tains a mixture of future land

use designations. The majority of the land is designated

Suburban, Sub - Outlying Suburban, Rural, or Urban Community.

7 . The subject property is located in Caloosahatchee Shores

within an existing 1,978 - acre mixed - use golf community known as

River Hall.

8 . Most of the existing development in River Hall was

completed between 2004 and 2009 by the original developer,

Landmar Group, which was then owned by Crescent Resources.

Crescent Resources declared bankruptcy in 2009. Those portions

of River Hall subject to the Plan Amendment were acquired by

Greenpointe in 2010.

9 . The property subject to the Plan Amendment is

approximately 585 acres of non - contiguous land within the

existing mixed - use development. All of the prop erty subject to

the Plan Amendment is located within the Rural future land use

category .

10 . The Plan Amendment changes the future land use category

of the subject property from Rural to Sub - Outlying Suburban. 2 /

The density of development allowed in Rura l is one dwelling unit

per acre and the density of development allowed in Sub - Outlying

Suburban is two units per acre.

11 . In 2001, the Lee County Board of County Commissioners

( Lee County Commission ) adopted procedures to encourage community

planning aim ed at specific neighborhood interests within the

County . A coalition of property owners in Caloosahatchee Shores

developed the Caloosahatchee Shores Community Plan (Community

Plan) between 2001 and 2003. The Community Plan was incorporated

into the Co mprehensive Plan in 2003 and is codified as Future

Land Use Element (FLUE) Goal 21 and its implementing objectives

and policies.

12 . FLUE Goal 21 reads as follows:

GOAL 21: CALOOSAHATCHEE SHORES: To protect

the existing character, natural resources and

quality of life in Caloosahatchee Shores,

while promoting new development,

redevelopment and maintaining a more rural

identity for the neighborhoods east of I - 75

by establishing minimum aesthetic

requirements, planning the location and

intensity of future commercial and

residential uses, and providing incentives

for redevelopment, mixed use development and

pedestrian safe environments. This Goal and

subsequent objectives and policies apply to

the Caloosahatchee Shores boundaries as

depicted on Map 1, page 2 of 8 in the

Appendix.

13 . The Community Plan was amen ded in 2007 and

again in 2009. Policy 21.1.5 was added to the

Community Plan in 2009 , and reads as follows:

POLICY 21.1.5: One important aspect of the

Caloosahatchee Shores Community Plan goal is

to retain itsÓ [sic] rural character and

rural land use where it currently exists.

Therefore no land use map amendments to the

remaining rural lands category will be

permitted after May 15, 2009, unless a

finding of overriding public necessity is

made by three members of the Board of County

Commissioners.

14 . It is undisputed that the Plan A mendment removes land

from the R ural land use category.

15 . It is undisputed that the Lee County Commission did not

make a finding of an Ð overriding public necess ity Ñ when it

adopted the Plan Amendment.

16 . Petitioners allege the Plan Amendment is internally

inconsistent with Policy 21.1.5 because the Lee County Commission

did not make the requisite finding of an Ðoverriding public

necessit yÑ to remove property f rom the R ural land use category. 3 /

17 . Respondent and Intervenors argue that Policy 21.1.5

does not apply to the Plan Amendment because the existing

development on the property subject to the Plan Amendment is not

rural in either character or land use. R espondent and

Intervenors introduced abundant evidence to establish that the

property subject to the Plan Amendment is suburban development

served by the full spectrum of urban services and devoid of any

of the trappings of rural development, such as large - lot

residential and agricultural uses .

18 . Respondent and Intervenors advocate an interpretation

of Policy 21.1.5 which requires a finding of Ðoverriding public

necessityÑ only if a plan amendment removes property that

exhibits rural character or rural land use from the Rural land

use category.

19 . The County offered the testimony of Brandon Dunn, one

of its principal planner s . Mr. Dunn characterized the Policy as

an Ðif/then statementÑ : if property in the Rural land use

category ( subject to a plan amendment ) exhibits rural character

and rural land use, then a finding of Ð overriding public

necessity Ñ is required . Under Mr. DunnÓs analysis, Policy 21.1.5

does not apply to the Plan Amendment because River Hall is a

suburban community.

20 . Intervenor sÓ planning expert, Dr. David Depew,

testified that the first sentence narrows the application of the

second. Dr. Depew testified that the first sentence indicates

Ðwe arenÓt talking about the category per se.Ñ 4 / Under

Dr. DepewÓs reading, the second sen tence only applies to plan

amendments which exhibit rural character or rural land use,

rather than all plan amendments removing property from the Rural

land use category.

21 . Neither Mr. DunnÓs nor Dr. DepewÓs opinion is

persuasive. 5 / The interpretation advanced by both Respondent and

Intervenors adds language to the second sentence of Policy 21.1.5

limiting its application to only those plan amendments which

exhibit rural character and rural land use.

22 . The plain language of Policy 21.1.5 contains no such

limitation. The policy directs the County to make a finding of

an Ðoverriding public necessityÑ as a prerequisite to removing

land from the Rural land use category in Caloosahatchee Shores.

The first sentence of Policy 21.1.5 does not constitute a

limitation on the directive for a finding of an Ð overriding

public necessity. Ñ

CONCLUSIONS OF LAW

23 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to sections 120.569, 120.57(1), and 1 63.3184 (5) (a) ,

Florida Statutes (2015) .

24 . To have standing to challenge a plan amendment, a

person must be an affected person as defined in section

163.3184(1)(a). Petitioners are affected persons within the

meaning of the statute.

25 . Intervenors hav e standing to intervene in this

proceeding because they own the property affected by the Plan

Amendment.

26 . As the party challenging the Plan Amendment,

Petitioners have the burden to prove the Plan Amendment is not

Ði n compliance , Ñ as that term is defin ed in section

163.3184(1)(b).

27 . The CountyÓs determination that the Plan Amendment is

in compliance is presumed to be correct and must be sustained if

the County Ós determination is Ðfairly debatable.Ñ

28 . The term Ðfairly debatableÑ is not defined in

chapter 163, but in Martin Coun t y v. Yusem , 690 So. 2d 1288, 1295

(Fla. 1997), the Supreme Court of Florida explained that Ð[t]he

fairly debatable standard is a highly deferential standard

requiring approval of a planning action if reasonable persons

could differ as to its propriety.Ñ

29 . The standard of proof to establish a finding of fact is

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

30 . The elements of a comprehensive plan must be internally

consistent. See § 163.3177(2), Fla. Sta t.

31 . Local government ordinances are subject to the same

rules of construction as are state statutes . See Rinker

Materials Corp. v. City of N. Miami , 286 So. 2d 552, 553 (Fla.

1973) ; 1000 Friends of Fla. v. Palm Beach Cnty. , 69 So. 2d 1123,

1126 (Fla. 4th DCA 2011).

32 . In Blanton v. City of Pinellas Park , 887 So. 2d 1224,

1230 (Fla. 2004) , t he Florida Supreme Court summarized the

application of the rules of statutory construction, as follows:

As in all cases of statutory construction, we

first look to the language of the statute.

See Woodham v. Blue Cross & Blue Shield of

Florida, Inc. , 82 9 So. 2d 891, 897 (Fla.

2002). Ò When the language of the statute is

clear and unambiguous and conveys a clear and

definite meaning, there is no occasion for

resortin g to the rules of statutory

interpretation and construction; the statute

must be given its plain and obvious meaning.Ó

Modder v. American Nat'l Life Ins. Co. , 688

So. 2d 330, 333 (Fla. 1997) (quoting Holly v.

Auld , 450 So. 2d 217, 219 (Fla. 1984)). It

is only if the statutory language is

ambiguous that "the Court must resort to

traditional rules of statutory construction

to determine legislative intent." Palm Beach

County Canvassing Bd. v. Harris , 772 So. 2d

1273, 1282 (Fla. 2000); see also Joshua v.

City of Gainesville , 768 So. 2d 432, 435

(Fla. 2000) (stating that "if the language of

the statute is unclear, then rules of

statutory construction control"). Ò Ambiguity

suggests that reasonable persons can find

different meanings in the same language.Ó

Forsy the v. Longboat Key Beach Erosion

Control Dist. , 604 So. 2d 452, 455 (Fla.

1992).

33 . In the case at hand, the County and Intervenors

resorted to a number of extrinsic aids -- legislative history,

expert testimony -- to support an interpretation of Policy 21 .1.5

which would exempt the Plan Amendment from its application.

34 . The legislative history and other Ðextraneous mattersÑ

are properly considered only when construction of a statute

results in doubtful meaning. See DepÓt of Rev. v. Lockheed

Martin Corp. , 905 So. 2d 1017, 1019 (Fla. 1st DCA 2005) ( citing

Fajardo v. State , 805 So. 2d 961, 963 - 64 (Fla. 2d DCA 2001)

( Ð [a] lthough virtually every English sentence contains some level

of uncertainty, t he rules of construction are reserved for cases

in which a fair reading of the statute leaves the judiciary in

genuine doubt about the cor rect application of the statute . Ñ ) ) .

35 . The language at hand has no doubtful meaning. 6 / The

Lee County Commission is required to make a finding of an

Ðoverriding public ne cessity Ñ when changing the future land use

category of lands designated Rural in Caloosahatchee Shores.

36 . Respondent and Intervenors argue that the first

sentence of the policy creates doubt because it refers to the

terms Ðrural character and rural lan d use ,Ñ rather than the R ural

land use category, generally. They conclude that the County only

meant to apply heightened scrutiny to those lands within

Caloosahatchee Shores which exhibit rural characteristics. That

interpretation is not supported by the plain language of the

directive: Ð Therefore no land use map amendments to the

remaining rural lands category . . . .Ñ

37 . If the County had wanted to limit the directive to only

amendments which would change the category on property which

exhibited r ural character , or was developed with rural land uses,

it could have done so. The undersigned is not free to add words

to the second sentence of the policy which do not exist. See

Stroemel v. Columbia Cnty . , 930 So. 2d 742 (Fla. 1st DCA

2006)( Ð c ourts gen erally may not insert words or phrases in

municipal ordinances in order to express intentions which do not

appear, unless it is clear that the omission was inadvertent, and

must give to a statute (or ordinance) the plain and ordinary

meaning of the words e mployed by the legislative body . Ñ ( quoting

Rinker , 286 So. 2d at 553 - 54 ) (trial court erred in interpreting

the term Ðpublic resource based recreation facilitiesÑ to mean

Ð publicly owned recreation facilitiesÑ because that

interpretation was contrary to the plain language of the city

code) ) .

38 . Finally, Respondent and Intervenors argue that

Petitioners Ó interpretation renders the first sentence of the

policy meaningless, a result likewise prohibited by the rules of

statutory construction. See Mendenh all v. State , 48 So. 3d 740,

747 - 48 (Fla. 2010) (Ð Courts should avoid readings that would

rende r part of a statute meaningless . Ñ).

39 . That argument is not persuasive. The first sentence

expresses the desire to retain rural character and rural land

uses where they exist in Caloosahatchee Shores . There is no

regulatory operation of that precatory statement. The clear

directive is to make a finding of an Ðoverriding public

necessityÑ as a condition precedent to changing the future land

use designation of property in the Rural land use category within

Caloosahatchee Shores.

40 . Petitioners prove d beyond fair debate that the Plan

Amendment is i nconsistent with FLUE Policy 21.1.5.

41 . Petitioners prove d beyond fair debate that the Plan

Amendment is inconsis tent with section 163.3177(2), thus not Ðin

compliance . Ñ

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Administration Commission enter a f inal

o rder determining that the Lee County Plan Amendmen t , adopted by

Ordinance 15 - 10 on June 3, 2015, is not Ð in compliance ,Ñ as that

term is defined in section 163.3184(1)(b ) , Florida Statutes .

DONE AND ENT ERED this 1st day of December , 2015 , in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

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

Divi sion of Administrative Hearings

this 1st day of December , 2015 .

ENDNOTES

1 / A ll references herein to the Florida Statutes are to the 2014

v ersion, unless otherwise noted.

2 / The Plan Amendment also change s Table 1(b) of the

Comprehensive Plan to conf orm the acreages associated with the

Rural and Sub - Outlying Suburban land use categories with the map

amendment.

3 / This is a case of first impression under the Comprehensive

Plan. Lee County has not previously considered any future land

use map amendme nt to the Rural land use category in

Caloosahatchee Shores.

4 / T.206:3 - 4.

5 / None of the expert witnesses was accepted as, or relied upon,

as an expert in statutory interpretation.

6 / In Forsyth , the Supreme Court notes that Ða mbiguity suggests

that reasonable persons can find different meanings in the same

language.Ñ 604 So. 2d at 455. However, contrary expert witness

opinions do not denote ambiguity.

COPIES FURNISHED :

Ralf G. Brookes, Esquire

Ralf Brookes Attorney

Suite 107

1217 East Cape Coral Parkway

Cape Coral, Florida 33904

(eServed)

Mark Aank, Esquire

Lee County Attorney's Office

2115 Second Street, 6th Floor

P ost O ffice Box 398

Fort Myers, Florida 33902

(eServed)

Richard Barton Akin, Esquire

Henderson Franklin Starnes

and Holt, P.A.

1715 Monroe Street

Post Office Box 280

Fort Myers, Florida 33902

(eServed)

S. William Moore, Esquire

Moore Bowman & Rix. P.A.

Unit E

3277 Fruitville Road

Sarasota, Florida 34237

(eServed)

Russell P. Schropp, Esquire

Henderson, Franklin, Starnes

and Holt, P.A.

1715 Monroe Street

Post Office Box 280

Fort Myers, Florida 3390 2

(eServed)

Neysa Borkert, Esquire

Lee County Attorney's Office

2115 Second Street, 6th Floor

P ost Office Box 398

Fort Myers, Florida 33902

(eServed)

Michael D. Jacob, Esquir e

Lee County Attorney's Office

2115 Second Street, 6th Floor

P ost Office Box 398

Fort Myers, Florida 33902

(eServed)

Cynthia Kelly, Secretary

Executive Office of the Governor

The Capitol, Suite 1801

Tallahassee, Florida 32399 - 0001

John P. ÐJackÑ Heeki n

(General Counsel to Commission)

Office of the General Counsel

Office of the Governor

Room 209, The Capitol

Tallahassee, Florida 32399 - 0001

(eServed)

Barbara Leighty, Clerk

Transportation and Economic

Development Policy Unit

Room 1801, The Capitol

Ta llahassee, Florida 32399 - 0001

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed w ith the agency that

will issue the Final Order in this case.