18-004203GM David Anderson, Keath Cuyler, Mitchell Goldberg, And Ronald Newmark vs. Ibis Road Investors, Llc; And Sarasota County, Florida Status: Closed Recommended Order on Wednesday, February 20, 2019.

Summary: The Petitioners did not prove beyond fair debate that the Ordinance adopted by Sarasota County approving the Plan Amendment was not in compliance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID ANDERSON, KEATH CUYLER,

MITCHELL GOLDBERG, AND RONALD

NEWMARK,

Petitioners,

vs. Case No. 18 - 4203GM

IBIS ROAD INVESTORS, LLC; AND

SARASOTA COUNTY, FLORIDA,

Respondents.

_______________________________ /

RECOMMENDED ORDER

A duly - noticed final hearing was held in this matter on

December 4 and 5, 2018, in Sarasota, Florida, before Francine M.

Ffolkes, an Administrative Law Judge assigned by the Division of

Administrative Heari ngs (DOAH).

APPEARANCES

For Petitioner s : Ralf Gunars Brookes, Esquire

Ralf Brookes Attorney

1217 East Cape Coral Parkway, Suite 107

Cape Coral, Florida 33904

For Respondent Ibis Road Investors, LLC :

Scott A. McLaren, Esquire

Shane T. Costello, Esquire

Hill Ward Henderson, P.A.

Bank of America Plaza, Suite 3700

101 East Kennedy Boulevard

Tampa , Florida 33602

For Respondent Sarasota County:

Alan W. Roddy, Esquire

Office of the County Attorney

Second Floor

1660 Ringling Boulevard

Sarasota, Florida 34236

STA TEMENT OF THE ISSUE

Whether Sarasota County Comprehensive Plan Amendment

Number 2017 - B (the Plan Amendment) adopted by Ordinance Number

2018 - 006 (the Ordinance) is " in compliance , " as that term is

defined under section 163.3184(1)(b), Florida Statutes (201 8).

PRELIMINARY STATEMENT

On July 11, 2018, the Board of County Commissioners of

Sarasota County (County) adopted the Ordinance. The Ordinance

approved a privately initiated comprehensive plan amendment

requested by the Respondent, Ibis Road Investors, LL C (Ibis

Road). On August 8, 2018, the Petitioners, David Anderson, Keath

Cuyler, Mitchell Goldberg, and Ronald Newmark, timely challenged

the Ordinance under section 163.3184(5)(a) , alleging that the

Ordinance violated two provisions of section 163.3184.

The undersigned granted Ibis Road ' s Unopposed Motion to

Intervene and granted it full party status as a r espondent on

August 17, 2018. On October 15, 2018, the Petitioners filed a

Notice of Striking Issue " II, " which limited the scope of their

challenge t o whether the Ordinance violated section 163.3177(2).

The parties filed a joint pre - hearing stipulation on November 28,

2018. On December 4, 2018, the Petitioners filed Notice of

Striking references to Policy VOS 2.5, which further limited the

scope of t heir challenge.

At the hearing, Petitioner David Anderson, through counsel,

voluntarily dismissed himself as a p etitioner. Counsel for Ibis

Road reserved the right to request attorneys ' fees. The

dismissal was granted and later memorialized by Order date d

December 7, 2018. Joint Exhibits 1 through 14 were admitted into

evidence. The Petitioners presented the expert testimony of

Thomas Hawkins, who was accepted as an expert in planning and

comprehensive planning , as well as the fact testimony of Keath

Cu yler , Mitchell Goldberg , and Ronald Newmark. Petitioners '

Exhibits 1 and 17 were admitted into evidence. The County

presented the testimony of Vivian Roe. Ms. Roe was not formally

tendered or accepted as an expert but is an experienced

professional plan ner , who testified as to her opinions on

planning issues without objection. Roe , T r . pp. 182 - 83, 196 - 97.

Ibis Road presented the testimony of David Anderson by videotape

from his deposition; and Kelly Klepper, who was accepted as an

expert in comprehensi ve planning. Ibis Road ' s Exhibits 2, 8, 17,

26, 27, 28, 68, 69, 70, and 71 were admitted into evidence.

The two - volume Transcript was filed with DOAH on

December 19, 2018. On December 28, 2018, Ibis Road filed a

motion for attorneys ' fees and costs, to w hich the Petitioners

responded on January 2, 2019. The parties filed their proposed

recommended orders January 2, 2019, which were considered in the

preparation of this Recommended Order.

FINDING S OF FACT

The Parties and Standing

1. Ibis Road is a limite d liability company that applied to

the County for the comprehensive plan amendment adopted by the

Ordinance, in conjunction with a Development of Critical Concern

and a rezoning to Village Planned Development for a property it

owns along Ibis Street in un incorporated Sarasota County. Ibis

Road owns approximately 533 acres designated under the County ' s

Village/Open Space (VOS) Resource Management Area (RMA) future

land use overlay.

2. The County is a political subdivision of the state. The

County adopted the Ordinance that approved the Plan Amendment on

July 11, 2018.

3. Petitioner Keath Cuyler appeared and objected at the

May 23, 2018, adoption hearing, and is a citizen of the County.

Petitioner Cuyler resides at 8300 Ibis Street, Sarasota, Florida,

lo cated in unincorporated Sarasota County, near and proximate to

the lands that are subject to the Plan Amendment. Petitioner

Cuyler testified he owns approximately 37 acres and shares his

west and south property line with Ibis Road ' s property. He hunts

on his property and likes its rural character. He i s concerned

about traffic since the entrance to the Village Planned

Development would be near his property, which now fronts on an

infrequently used dirt road.

4. Petitioners Mitchell Goldberg and Ronald N ewmark

appeared and objected at the May 23, 2018, County adoption

hearing and are citizens of Sarasota County. They co - own ten

acres abutting Ibis Road ' s Village Planned Development. These

Petitioners utilize their property for raising and riding horses.

The entrance to Ibis Road ' s Village Planned Development is

adjacent to their property and they are concerned that traffic

and lights would disturb the horses and affect the rural nature

of their property.

5. Dismissed Petitioner David Anderson testified that he

opposed Ibis Road ' s Village Planned Development because it would

impact the rural character of his community, which was the reason

he had moved fro m Washington, D.C. , to Florida.

6. T he Petitioners and dismissed Petitioner Anderson

deferred techn ical questions regarding the allegations of their

chal lenge to their expert planner.

The Comprehensive Plan

7. The County ' s Comprehensive Plan (Comp Plan) adopted

October 25, 2016, is the applicable version of the plan. The

County ' s Comp Plan sets forth a listing of the material within

it, entitled " The Components of the Plan. " This section outlines

seven categories of " Primary Components " of the Comp Plan and the

remainder of the document is classified as " support material, "

used to explain the Primary Components. The list of Primary

Components includes the Goals, Objectives, and Policies of each

chapter, and such other components as the Future Land Use Map

Series and the Future Thoroughfare Plan. The County ' s expert

witness testified that the Primary Components are used to

evaluate consistency with the County ' s Comp Plan. She also

testified that the support material is not used as criteria for

evaluating development proposals.

8. The Future Land Use (FLU) Element of the County ' s Comp

Plan is divided into two chapters. Chapter 7 of the County's

Comp Plan contains the base or underlying FLU provisions and the

FLU Map. Under Chapter 7 of the County's Comp Plan , most of the

private land east of the County ' s Urban Service Area Boundary is

designated as e ither Rural with a maximum density of one dwelling

unit per five acres, or Semi - Rural with a maximum density of one

dwelling unit per two acres.

9. Chapter 8 of the County's Comp Plan contains the

alternative FLU provisions called Sarasota 2050. Sarasota 2050

is a system designed to encourage preservation of open space by

allowing transfer of density into developments called Villages

and Hamlets. Sarasota 2050 allows owners of Rural or Semi - Rural

FLU designated property to develop at higher densities tha n

allowed under those FLU designations.

10. Sarasota 2050 maps the unincorporated area of the

County as RMAs. Outside of the Urban Service Area, it shows RMAs

for " Publicly Owned Lands and Lands Protected for Preservation, "

the connecting environmental c orridors called " Greenways, " and

others. Map 8 - 3: RMA - 3 designates three large VOS RMAs outside

of the County ' s Urban Service Area Boundary for Village Land Use.

The three areas are referred to as the North Village Area,

Central Village Area, and South Village Area. Ibis Road ' s

property lies within the South Village Area.

11. Within these Village Areas , there are multiple property

owners. Sarasota 2050 offers the property owners significant

density incentives , as well as opportunities for non - resident ial

development if they develop their properties according to the

Sarasota 2050 Village criteria.

12. Approval of a Village requires rezoning to the Village

Plan Development zoning district and approval of a Village Master

Development Plan. Each Village must have at least one Village

Center. Villages have a minimum open space requirement of

50 percent and the remainder of the Village is called the

Developed Area. The Developed Area is comprised of the Village

Center and the Neighborhoods. Each Neighbor hood has its own

Neighborhood Center.

13. There may be several Villages within each Village Area.

The maximum size of a Village is 3,000 acres and the minimum size

is 1,000 acres. The long - range plan of the County, as reflected

in Sarasota 2050, is for all of the lands within each Village

Area to be developed as Villages.

14. VOS Policy 1.3 provides that " Neighborhoods form the

basic building block for development within the [ VOS] RMA and are

characterized by a mix of residential housing types that are

distributed on a connected street system and the majority of

housing is within a walking distance or ¼ mile radius of a

Neighborhood Center. " Neighborhood Centers may have " a

combination of parks, schools, public type facilities such as

churches and or co mmunity centers and may contain Neighborhood

Oriented Commercial Uses that are no greater than 20,000 square

feet of gross floor area and internally designed to specifically

serve the needs of that Neighborhood . "

15. Sarasota 2050 does not require that Ne ighborhood

Centers contain commercial or office development or that houses

in the Neighborhoods be within walking distance of commercial or

office uses.

16. VOS Policy 1.2.A more specifically sets forth

requirements for Villages.

Villages

Villages are a collection of Neighborhoods

that have been designed so that a majority of

the housing units are within a walking

distance or ¼ mile radius of a Neighborhood

Center. Villages shall be supported by

internally designed, mixed - use Village

Centers (designed specifically to serve the

daily and weekly retail, office, civic, and

government use and services needs of Village

residents), and the Village shall be

surrounded by large expanses of Open Space

that are designed to protect the character of

the rural land scape and provide separation

between Villages and existing low density

rural development. The minimum size of a

Village is intended to be sufficient to

support a public elementary school.

There is no requirement that residential development within the

Vi llage be within walking distance of commercial or office uses.

17. A table in VOS Policy 1.2.A sets forth the maximum and

minimum sizes , densities , and percentages of land uses within a

Village. Two asterisked footnotes allow deviations from the

table:

*Projects may be less than 1,000 acres of

Developed Area, if said project adheres to

the requirements found in Policy VOS2.1(a)1 ,

Developed Area Minimum Size.

**After an initial Village Master Development

Plan has been approved for a Village Area

(North, Central, South), the gross leasable

square footage may be reduced or eliminated

and the minimum land area percentages

adjusted for each additional contiguous

Village Master Development Plan within that

Village Area where it is demonstrated that

the non - re sidential needs of the Village will

be served within that Village Area in a

manner consistent with the purposes of this

chapter .

18. Every Village must have a Village Center that includes

non - residential uses. In practice, not every Village Center was

r equired to include a commercial use, as described in the second

asterisked footnote to VOS Policy 1.2.A.

19. The County ' s witness testified that an initial Village

in a Village Area was required to have a commercial component.

However, an exception could be made for reduction or elimination

of the commercial component for a new Village development in the

same Village Area. Each new Village subsequent to the initial

Village in a Village Area was evaluated to see if it could

support its own commercial use, or whether it could be supported

by the commercial component of other Villages in the Village

Area. In addition, the exception should be " consistent with the

purposes of [Chapter 8 of the County ' s Comp Plan ], " and the

subsequent Village was contiguous to the first Village .

20. The Village Areas have multiple property owners. VOS

Policy 2.6 addresses the possibilities that the property owners

may apply for Village approval all together or in separate

Village Master Development Plans. When they apply for approval

separately, the policy provides that Village Master Development

Plans subsequent to the first one " may be considered as related

to the initial Village, " with no requirement for contiguity.

21. The initial Village Master Development Plan sets a

f ramework for subsequent Villages in that particular Village

Area. This includes the location of the school, the commercial

center, and the primary road systems. The initial Village Center

is required to have a commercial component. When subsequent

Villa ges seek approval , the County evaluates how they would be

connected, so that they complement each other.

22. LT Ranch Village was the initial Village approved

in the South Village Area, and it sets the framework for the

entire Village Area. It has a Vill age Center that includes

300,000 square feet of commercial retail development. A typical

Publix shopping center with a Publix and a few other in - line

restaurants and stores is approximately 60,000 to 80,000 square

feet. Subsequent Villages, such as that proposed by Ibis Road,

may be developed within the South Village Area. Where it is

shown that the commercial needs of subsequent Villages within the

South Village Area may be met by the LT Ranch Village Center,

subsequent Villages need not include a comme rcial component.

23. The evidence established that Ibis Road provided a

market study to the County to show that the commercial needs of

its residents would be met by the LT Ranch Village Center. Thus,

except for contiguity, Ibis Road ' s Village developmen t is an

illustration of t he intent behind Sarasota 2050.

The Plan Amendment

24. T he Plan Amendment would delete the word

" contiguous " from the double - asterisked footnote exception in

VOS Policy 1.2.A. The Plan Amendment would apply to all

properties des ignated under the VOS RMA FLU overlay, i.e., in

each of the three Village Areas. The change would allow the

County to approve a reduction or elimination of commercial/office

uses within the Village Center of a Village subsequent to the

initial Village, wh ich is not contiguous with the initial

Village. To obtain this exception, the property owner would

still demonstrate that the initial Village already serves the

non - residential needs of the new Village, and the reduction is

otherwise consistent with the p urposes of C hapter 8 of the

County ' s Comp Plan.

25. County staff reviewed the Plan Amendment for

consistency with the remainder of the Comp Plan, and specifically

referenced the original adoption of the double - asterisked

footnote in 2014. The staff repor t stated that " [t]he analysis

for the 201[4] amendment recognized that smaller subsequent

Villages may not be of sufficient size to support their own non -

residential uses (Village Center), and that the initial, larger

Village could provide sufficient non - r esidential services to

support the entire Village Area. " Thus, County staff concluded

that removal of the word " contiguous " from the double - asterisked

footnote " would not impede on the intent of Policy VOS 1.2.A. "

26. On February 15, 2018, the County ' s P lanning Commission

held a duly noticed public hearing and received public comments,

reviewed the Plan Amendment, and by Resolution unanimously

recommended approval.

27. On March 14, 2018, the Board of County Commissioners

held a duly advertised transmitta l stage public hearing pursuant

to Section 163.3184(3) and (15) and by Resolution approved the

Plan Amendment for transmittal to the Florida Department of

Economic Opportunity (DEO).

28. DEO, the Southwest Florida Regional Planning Council,

the Florida De partment of Transportation, the Florida Department

of Environmental Protection, the Florida Department of

Agriculture and Consumer Services, and the Southwest Florida

Water Management District reviewed the Plan Amendment and had no

objection to or comments on the Plan Amendment. The DEO reviewed

the Plan Amendment and determined there was " no provision that

necessitates a challenge of the Ordinance adopting the

amendment. "

29. On May 23, 2018, the Board of County Commissioners held

a duly - noticed public h earing and took public comment. The

hearing was continued to the duly - noticed hearing on July 11,

2018, at which time the Plan Amendment was adopted by the

Ordinance.

Petitioners ' Objections

30. The Petitioners contend that the Plan Amendment is

inconsis tent with the purpose, intent , and core principles of

Chapter 8 of the County ' s Comp Plan , including VOS Objective 1,

VOS Policy 1.1, VOS Policies 1.2.A and 1.4 (the first, fourth,

sixth, seventh, and eighth bullet points), and the definition of

urban spra wl.

31. Central to the Petitioners ' claims of inconsistency are

the concepts of compactness, walkability, interconnectedness, and

development with a mix of uses. The Petitioners ' expert witness

testified that removing the term " contiguous " caused

inconsi stency with the County ' s Comp Plan because it was

inconsistent with the concepts of a compact development that is

walkable, interco nnected, and has a mix of uses.

32. " Walkability " to the commercial component of a Village

Center was a contention of the Pe titioners. The Petitioners '

expert testified that the rule of thumb for " walkability " was how

far one can walk in 15 minutes. He did agree with the County and

Ibis Road ' s expert witnesses that there is no requirement for

Neighborhoods to be within any fi xed distance of a Village

Center, no requirement of walkability from residential

development to the Village Center, and no requirement of

walkability from a residence to any commercial/office use.

33. VOS Policy 1.3 requires that the majority of the

housi ng within a Village be within walking distance or one -

quarter mile of a Neighborhood Center, but does not require that

the Village Center be within walking distance fro m the

Neighborhoods themselves.

34. " Walkability " is used with respect to Neighborhoods and

Neighborhood Centers, only the term " pedestrian friendly " is used

with respect to Villages. " Pedestrian friendly " means that a

range of pedestrian options are provided such as

bicycle/pedestrian facilities, larger sidewalks, multimodal

trails, access ibility, and lighting, the things that make it more

comfortable for the pedes trian or the non - vehicle user.

35. The Petitioners ' contend that a Village Center must be

walkable from all areas of a Village. However, the allowable

maximum size of 3,000 acre s for a Village would not accommodate

the walkability describ ed by the Petitioners ' expert.

36. There is no requirement in the County ' s Comp Plan for a

specific location of a Village Center. The evidence established

that in the South Village Area, the in itially approved LT Ranch

Village covers an area three or four times the distance from

north to south as it does from east to west and its Village

Center is located at the northernmost point. Based on the

allowable size of a Village and the lack of any re quirement as to

the location of the Village Center, " walkability " to the Village

Center would not be possible. For example, the distance from the

southernmost Neighborhood of LT Ranch Village to its Village

Center is about th ree and one - half to four miles .

A. The Core Principles and the Introduction

37. The " Core Principles " of the Sarasota 2050 RMA system

are set forth on the first page of C hapter 8 of the County ' s Comp

Plan . This page generally describes the objectives of Sarasota

2050, but these are not Goals, Objectives, and Policies of the

Comp Plan, and are not Primary Components of the Comp Plan. The

County views the " Core Principles " as support material that it

does not use to evaluate the consistency of development proposals

with the Comp Plan. The Petitioners ' expert conceded that the

" Core Principles " provide context but should not be relied on as

the sole basis for a finding of inconsistency.

38. Even if the Core Principles were a Primary Component of

the Com p Plan, they do not contain a re quirement regarding

commercial/office uses in the Village Center or proximity of

these uses to residences within the Village. Thus, the Plan

Amendment is not inconsistent with the Core Principles.

39. The " Introduction " following the page of Core

Princip les is also viewed as support material rather than as a

Primary Component of the County ' s Comp Plan. It generally

describes Sarasota 2050 ' s purpose as an incentive system to

" encourage[] a compact development form, " but does not address

commercial/office uses within Village Centers, or set forth any

standards that could be deemed inconsistent with the Plan

Amendment. Thus, the Plan Amendment is not inconsistent with

this support material.

B. VOS Objective 1 and VOS Policy 1.1

40. VOS Objective 1 state s the objective of preventing

urban sprawl by guiding the development of lands outside the

Urban Service Area into compact, mixed - use, pedestrian friendly

Villages within a system of large areas of permanent open space.

41. The Petitioners argued that t he Plan Amendment ' s

deletion of a contiguity requirement would be inconsistent with

VOS Objective 1. The Petitioners ' expert testified that

" compact, mixed - use, and pedestrian friendly " to a layman meant

creating the ability to walk to a commercial use su ch as a

restaurant, as exemplified in a downtown or mixed - use area.

42. However, VOS Objective 1 describes why Sarasota 2050

guides the development of land outside of the Urban Service Area

into " compact, mixed - use, pedestrian friendly Villages " and is

no t a categorical prohibition against urban sprawl.

43. " Compact " is not defined in the County ' s Comp Plan.

The criteria for Sarasota 2050 Villages are that 50 percent of

the Village that is not open space is Developed Area broken up

into Neighborhoods wit h a majority of the housing within walking

distance of a Neighborhood Center, and at least one Village

Center. The Petitioners did not prove that excepting a second

Village from providing unnecessary commercial/office uses

violated the compactness of a Vi llage or the requirement for mix

uses.

44. " Pedestrian friendly " is also not defined, but is more

a matter of pedestrian safety than proximity to particular uses.

The Plan Amendment does not prevent the Villages from being

compact, mixed - use, or pedestri an - friendly.

45. VOS Policy 1.1 also requires a connected system of

roads encouraging alternative means of transportation such as

pedestrians, bicycles, and transit. Removal of the requirement

for one Village to be contiguous with another does not affect

achievement of this policy.

C. VOS Policy 1.2.A

46. VOS Policy 1.2.A provides the general requirements for

Village development, including an internal, mixed - use Village

Center. As found above, the double - asterisked footnote was added

in 2014 to reduce or eliminate the requirement of a commercial

use within the Village Center where it is demonstrated that there

is already an existing Village Center within that Village Area

with a commercial component, and the commercial needs of the new

Village will be s erved by that existing Village Center " in a

manner consistent with the purposes of [Chapter 8 of the County ' s

Comp Plan ]. "

47. The Petitioners ' expert admitted that the double -

asterisked footnote was an exception that allowed for greater

flexibility when approving Village developments without

undermining the other policies of the Comp Plan. The

Petitioners ' expert opined that removal of the word " contiguous "

from the double - asterisked footnote would be inconsistent with

VOS Policy 1.2.A because it would r esult in development of a new

Village without any non - residential land uses. However, the

double - asterisked footnote ' s exception would have that same

result whether or not the word " contiguous " was present.

48. The County ' s expert witness testified that the

Plan Amendment did not result in an inconsistency with VOS

Policy 1.2.A, because the intent of the policy was that each

Village Area, not each Village, meet the daily and weekly non -

residential, including commercial , needs of the residents of the

Villa ge Area. Thus, deleting the word " contiguous " would no t

have a negative effect on this intent .

D. VOS Policy 1.4

49. The Petitioners relied on bullet points within VOS

Policy 1.4. The Petitioners contended that the first bullet

point of VOS Policy 1.4 , which requires a mix of uses within a

Village, expressly mandated commercial development within every

Village. However, the Policy should be read in conjunction with

the double - asterisked footnote of VOS Policy 1.2.A. The double -

asterisked footnote pro vides for reduction or elimination of

commercial uses in a Village Center as described in the above

findings. The County ' s and Ibis Road ' s experts testified that

the Plan Amendment was not inconsistent with the first bullet

point of VOS Policy 1.4 because it only requires a mix of uses

within each Village, which can be achieved without having a

commercial use.

50. The fourth bullet point of VOS Policy 1.4 expressly

provides that the Village Center must be conveniently served by

regional bus service. This language does not contemplate that

the Village Center must be a walkable distance from the

residences. The language does not require that every Village

Center have commercial uses.

51. The Petitioners also relied on the sixth bullet point

of VOS Policy 1.4 referencing " compact design " of a Village

linking one Neighborhood to another. This language is specific

to the connections between Neighborhoods within a Village, not

the relationship of multiple Villages to one another. The

compact design within a Village is not related to contiguity

between Villages.

52. The Petitioners relied on the seventh bullet point of

VOS Policy 1.4 to support their argument of internal

inconsistency. The language requires Villages to include

interconnected streets to balan ce the needs of all users. This

language is relevant to development within Villages, not the

relationship between one Village and another.

53. Finally, the Petitioners relied on the eighth bullet

point of VOS Policy 1.4 to support their argument of inter nal

inconsistency. This provision calls for a Village to have

pedestrian - friendly components such as sidewalks, lighting, and

signage. This language addresses the development of the internal

components of a particular Village. The language is not releva nt

to the relationship between Villages.

Attorney s ' Fees

54. Ibis Road did not prove by a preponderance of the

evidence that the Petitioners and dismissed Petitioner Anderson

participated in this proceeding for an improper purpose.

55. Ibis Road did not prove by a preponderance of the

evidence that the Petitioners, dismissed Petitioner Anderson, or

the Petitioners ' attorney should be sanctioned for fil ing a

pleading, motion , or paper for an improper or frivolous purpose.

56. There was an arguable basis f or the Petitioners ' claims

of inconsistency presented through the expert testimony of Thomas

Hawkins. Mr. Hawkins is a certified planner and was accepted as

an expert in comprehensive land use planning.

Summary

57. The Petitioners did not prove beyond f air debate that

the Plan Amendment causes C hapter 8 , or any other portion , of the

County ' s Comp Plan to be internally inconsistent.

CONCLUSIONS OF LAW

Standing and Scope of Review

58. To have standing to challenge a comprehensive plan

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

section 163.3184(1)(a). The Petitioners are affected persons and

have standing to challenge the Ordinance.

59. An affected person challenging a plan amendment must

show that the amendment is not " in compliance " as defined in

section 163.3184(1)(b). " In compliance " means consistent with

the requirements of sections 163.3177, 163.3178, 163.3180,

163.3191, 163.3245, and 163.3248.

Burden and Standard of Proof

60. As the parties challenging the Ordinance, the

Peti tioners have the burden of proof.

61. The County ' s determination that the Ordinance is " in

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

the County ' s determination of compliance is fairly debatable.

See § 163.3184(5)(c)1., Fla. Stat.

62. The term " fairly debatable " is not defined in

chapter 163. In Martin County v. Yusem , 690 So. 2d 1288, 1295

(Fla. 1997), the Florida Supreme Court explained " [t]he fairly

debatable standard is a highly deferential standard requiring

approval of a planni ng action if a reasonable person could differ

as to its propriety. " The c ourt further explained, " [a]n

ordinance may be said to be fairly debatable when for any reason

it is open to dispute or controversy on grounds that make sense

or point to a logical d eduction that in no way involves its

constitutional validity. " Id. Put another way, where there is

" evidence in support of both sides of a comprehensive plan

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

decision was anything but ' fairly deba table. '" Martin Cnty. v.

Section 28 P ' ship, Ltd. , 772 So. 2d 616 (Fla. 4th DCA 2000).

63. Moreover, " a compliance determination is not a

determination of whether a comprehensive plan amendment is the

best approach available to the local government for ac hieving

its purpose. " Martin Cnty. Land Co. v. Martin Cnty . , Case

No. 15 - 0300GM , RO at 149 (Fla. DOAH Sept. 1, 2015; Fla. DEO

Dec. 30, 2015).

64. The standard of proof for findings of fact is

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

65. Section 163.3177(2) requires the elements of a

comprehensive plan to be internally consistent. A plan amendment

creates an internal inconsistency when it conflicts with an

existing provision of the plan. " If the objectives do not

conflict, they are coordinated, related, and consistent. " Melzer

et al . v. Martin C n ty . et al. , Case Nos. 02 - 1014GM and 02 - 1015GM ,

RO at 194 (Fla. DOAH July 1, 2003; Fla. DCA Oct. 24, 2003). " If

an amendment expressly creates an exception or waiver to a

general rule set f orth in the plan, it does not create an

internal inconsistency. " Id. at 195.

66. The Petitioners did not prove beyond fair debate that

the Plan Amendment was inconsistent with the goals, objectives,

or policies of Sarasota 2050.

Attorneys ' Fees

67. Ibis Road did not prove by a preponderance of the

evidence that the Petitioners and the dismissed Petitioner

Anderson participated in this proceeding for an improper purpose

as defined under section 120.595(1) , Florida Statutes .

68. There was an arguable basi s for the Petitioners ' claims

of inconsistency that was presented through the expert testimony

of Mr. Hawkins. Mr. Hawkins is a certified planner and was

accepted as an expert in comprehensive land use planning.

69. Ibis Road did not prove by a preponder ance of the

evidence that the Petitioners, the dismissed Petitioner Anderson,

or the Petitioners ' attorney filed a pleading, motion, or paper

in this proceeding for an improper purpose as defined under

sections 120.569(2)(e) and 163.3184(9). See Friends o f Nassau

Cnty. v. Nassau Cnty. , 792 So. 2d 42, 57 (Fla. 1st DCA 2000)( " The

reasonableness of a lawyer ' s actions in filing an administrative

petition should not be determined by the outcome of the

proceeding . . . the determination must be based on an objec tive

evaluation of the circumstances existing at the time the petition

was filed. " ); see also Mercedes Lighting & Elec. Supply v. State ,

560 So. 2d 272 (Fla. 1st DCA 1990).

Summary

70. The County ' s determination that the Ordinance is in

compliance is fair ly debatable.

71. The Petitioners did not prove beyond fair debate that

the Ordinance is not in compliance.

RECOMMENDATION AND CONCLUSIONS

Based on the foregoing Findings of Fact and Conclusions of

Law, it is:

RECOMMENDED that the Department of Economic O pportunity

issue a final order finding the Plan Amendment adopted by the

Ordinance in compliance.

It is ORDERED that:

A. Ibis Road ' s motion for attorneys ' fees and costs under

section 120.595(1) is denied.

B. Ibis Road ' s motion for attorneys ' fees and co sts under

sections 120.569(2)(e) and 163.3184(9) is denied.

DONE AND ENTERED this 20 th day of February , 2019 , in

Tallahassee, Leon County, Florida.

S

FRANCINE M. FFOLKES

Administrative Law Judge

Division of Administrativ e 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 Hearings

this 20 th day of February , 2019 .

COPIES FURNISHED:

Ralf Gunars Brookes, Esquire

Ralf Brookes Attorney

1217 East Cape Coral Parkway , Suite 107

Cape Coral, Florida 33904

(eServed)

Alan W. Roddy, Esquire

Office of the County Attorney

Second Floor

1660 Ringling Boulevard

Sarasota, Florida 34236

(eServed)

Scott A. McLaren, Esquire

Shane T. Costello, Esquire

Hill Ward Henderson, P.A.

Bank of America Plaza, Suite 3700

101 East Kennedy Boulevard

Tampa, Florida 33602

(eServed)

William Chorba, General Counsel

Department of Economic Opportunity

C aldwell Building, MSC 110

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

Ken Lawson, Executive Director

Department of Economic Opportunity

Caldwell Building

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

Stephanie Webster, Agency Clerk

Department of Economic Opportunity

Caldwell Building

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days fro m the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.