18-005985GM 1182/3526s Rouse Llc And 1185/3626n Rouse Llc vs. Orange County Status: Closed Recommended Order on Monday, October 14, 2019.

Summary: Petitioners proved beyond fair debate that Ordinance 2018-23 is not in compliance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1182/3526S ROUSE LLC AND

1185/3626N ROUSE LLC,

Petitioners,

vs.

Case No. 18 - 5985GM

ORANGE COUNTY,

Respondent.

_______________________________/

RECOMMENDED ORDER

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

April 16, 2019, in Orlando, Florida, before Francine M. Ffolkes,

an Administrative Law Judge with the Division of Administrative

Hearings (DOAH) .

APPEARANCES

For Petitioner s : Gregory M. Munson, Esquire

Gunster, Yoakley and Stewart, P.A.

215 South Monroe Street , Suite 601

Tallahassee, Florida 32301

For Respondent: William C. Turner, Esquire

Orange County Attorney ' s Office

201 South Rosalind Avenue , Third Floor

Orlando, Florida 32801

STATEMENT OF THE ISSUE

W hether amendments to the Orange County Comprehensive Plan ,

adopted by Ordinance 2018 - 23 on October 16, 2018, are " in

compliance , " as that term is defined in section 163.3184(1)(b),

Florida Statutes . 1

PRELIMINARY STATEMENT

On November 15, 2018, the Petitioners, 1182/3526S Rouse LLC

and 1185/3626N Rouse LLC (Petitioners) , filed a Petition for

Formal Administrative Hearing ( Petition) under s ection 163.3184 ,

Florida Statutes, challenging comprehensive plan amendments that

the Respondent, Orange County ( County), adopted on October 16,

2018, by Ordinance 2018 - 23. The parties filed their Joint

Prehearing Stipulation on April 11, 2019.

At the final hearing, the Petitioners presented the

testimony of Thoma s Jokerst, the Petitioners ' corporate

representat ive; Jim Hall, an expert i n Orange County ' s

comprehensive planning process ; and Dr. David Depew, an expert

in comprehensive planning, zoning and land use planning. Joint

Exhibits 1 through 22 were admitted into evidence.

The County presented the testimony of Olan Hill, a ssistant

m anager, Orange County Planning Division ; and Chris Testerman,

d eputy c ounty a dministrator , who was accepted as an expert in

interpretation and application of the Orange County

C omprehensive P lan . T he County ' s Exhibit s 34, 52, 53, 55 ,

and 56 were admitted into evidence.

The one - volume T ranscript was filed with DOAH on April 29,

2018. The parties ' proposed recommended orders were timely

filed and have been considered in the prep aration of this

Recommended Order.

References to the Florida Statutes are to the 201 9 version,

unless otherwise stated.

FINDINGS OF FACT

Based on the parties ' stipulations and the evidence adduced

at the final hearing, the following findings of fact are made:

The Parties

1. Orange County is a charter county in the S tate of

Florida subject to the requirements of c hapter 163, Florida

Statutes, and a l ocal government, as defined by s ection

163.3164(29), Florida Statutes.

2. The Petitioners own property in the County and are

directly and materially impacted by the a mendments. The

Pe titioners, through counsel, provided oral and written

comments, recommendations, or objections to the County between

the transmittal hearing for Ordinance 2018 - 23 on June 19, 2018,

and adoption of the a mendments on October 16, 2018. The

Petitioners are " a ffected persons " as defined in s ection

163.3184(1)(a).

The Amendments

3. On October 16, 2018 , in Ordinance 2018 - 23 , the County

amended its 2010 - 2030 Comprehensive Plan (comprehensive plan) by

adopting amendment 2018 - 2 - C - FLUE - 2, which included amendments to

Future Land Use ( FLU ) Element Policies 2.5.2, 2.5.4, 8.1.1, and

adding Map 25(d) to the FLU Map Series . T he a mendments

established the Rocking Horse Rural Residential Enclave ( Rocking

Horse RRE ). Ordinance 2018 - 23 also created Policy FLU 2.5.8

regarding new proposed land use, zoning and development

applications within or in close proximity to a Rural Residential

Enclave (RRE) .

4. In a prior action, on July 10, 2018, the County adopted

plan amendment 2018 - 2 - C - FLUE - 1 through Ordinance 2018 - 17 . This

action was not challenged by any party including the

Petitioners .

5. With the adoption of plan amendment 2018 - 2 - C - FLUE - 1 by

Ordinance 2018 - 17 , the C ounty created or amended ten FLU Element

objectives and p olicies to support and preserve the local

character of designated RREs . Included in the amendment were

M aps 25(a ) through ( c) of the FLU Map Series that depict ed the

geograph ic location of the Lake Mabel, Chickasaw, and Berry

Dease R REs . The adopted plan amendments established a

definition and intent for R REs , outlined the process for

creating new enclaves , established minimum net developable land

area requirements for new residential lots , and prohibited the

use of clustering for purposes of achievin g smaller lot sizes.

Development features and design techniques aimed at protecting

and enhancing " rural character , " such as fencing, street/rural

corridor design, and prohibition of gated developments, were

further outlined in Policy FLU 2.5.7. Finally, the " Zoning and

Future Land Use Correlation " table of Policy FLU 8.1.1 was

amended to establish consistency between the underlying FLU map

and FLU designations for each enclave and their existing zoning

districts.

6. The objective and policies i n the County ' s

comprehensive plan regarding RR Es created by Ordinance 2018 - 17

added the RRE concept to the County ' s Urban S trategies Goal

FLU 2. Goal FLU 2 states that the County ' s long term vision

includes " an urban experience with a range of choices and living

options. "

7. The provisions in the County ' s c omprehensive p lan

creating RREs adopted by Ordinance 2018 - 17 were not subject to

challenge in this proceeding. However, the evolution of and

support for RREs in general , was important for the Rocking Horse

RRE amendments in Ordinance 2018 - 23 .

Background

8. In 2015 , and at the request of several members of the

Board of County Commissioners (Board) , County staff began a

s mall a rea s tudy of four neighborhoods in unincorporated Orange

Co unty . By County staff ' s analysis, these four neighborhoods

had r elatively low densities of residential development, had

retained a rural or agricultural character and development

pattern, and had inconsistencies between the zoning districts of

the area and the applicable F LU m ap designation .

9. The County staff collected data on all four

neighborhoods, ranging from aerial map photography to zoning and

FLU maps. The County staff conducted site visits, did lot size

analyses , took and/or gathered ground photographs, and had a

series of community meetings. 2

10. On October 3, 2017, the Board conducted a work session

in which staff presented the results of the s mall area s tudy ,

and , in a subsequent meeting , d irected staff to proceed with

drafting c omprehensive p lan policies for RREs including the

Rocking Horse R RE .

11. The results of the s mall a rea s tudy showed that three

neighborhoods , including Rocking Horse RRE, were located within

the County ' s Urban Service Area (USA) and one was just outside

of the USA. Despite their locations inside the USA, these

neighborhoods had maintained a rural character exemplified by a

low density development pattern . M ore specifically, they were

single - family neighborhoods with a homogen e ous and stable

pattern of development and fairly - defined geographic boundaries.

They had existing roadways that were considered rural in

character and were designated as rural corridors.

12. T he residents of these neighborhoods desire d to

maintain their rural character into the future a gainst s uburban

development pressure that is otherwise encouraged under the

County ' s development framework and urban infill policies.

Rocking Horse RRE

13. The s mall a rea s tudy included the neighborhood located

on the east and west sides of Rocking Horse Road, which lies

south of the Orange County boundary line with Seminole County

and is bisected in a north - south direction by both Rocking Horse

Road and the Little Econlockahatchee River (Little Econ River) .

Groun d p hotographs showed Rocking Horse Road ' s existing

character as a rural corridor with r ural features such as soft

shoulders, coal - paved roads, split - rail fencing , and an

equestrian - type atmosphere .

14. In connection with the part of the s mall area s tudy

related to the Rocking Horse Road neighborhood, County staff

held three community meetings where comments and input w ere

received from neighborhood residents and other attendees

regarding the desired future density and character of

development in the area.

Boundary of Rocking Horse RRE

15. The preponderance of the evidence showed that the

final boundary of Rocking Horse RRE evolved over time. Back in

2015, the proposed study area for Rocking Horse RRE included

properties on both the east and west side s of Rouse Road.

Analysis by the County included lo o king at the existing

characteristics of the properties on both sides of Rouse Road

and taking existing development approvals into consideration.

16. On the east side of Rouse Road w ere a number of zoned

planned developments (P - D) such as the Presidential Park ,

University Pines, and the Quadrangle . Quadrangle is the largest

and is a D evelopment of Regional Impact containing multi - family

dwellings, commercial , and industrial development . The P - Ds

surround ing the University of Central Florida include d

University College Center, Chancellor Commons , Arden Villas, and

Collegiate Village.

17. The County removed the properties on the east side of

Rouse Road from inclusion in Rocking Horse RRE . The stated

reason was that these properties were already heavily impacted

by existing and future development patterns , given their

existing zoning and FLU designations.

18. On the west side of Rouse Road , the proposed study

area extended almost al l the way to University Boulevard and

included properties east and west of the Little Econ River. The

properties were zoned Agricultural ( A - 2, A - R ) and Residential

( R - CE, R - 1A , and R - 1AA ) , with FLU designations that included Low

Density Residential ( LDR ) and Low - Medium Density Residential

( LMDR ) . Some of the zoning districts were not consistent with

the LDR FLU designation.

19. Petitioners own two properties between the Little

Econ River and Rouse Road. The southerly property ' s address is

3526 Rouse Road and was initially included in the proposed study

area. 3526 Rouse Road was zoned R - 1A and has a FLU designation

of LMDR. 3526 Rouse Road was excluded from the final boundary

of Rocking Horse RRE because its zoning district and FLU

designation were consistent.

20. Thus, Rocking Horse RRE ' s boundary contracted over

time . P roperties east and west of the Little Econ River with

FLU designation of LDR and zoning districts A - R , A - 2 , and R - CE

were included within Rocking Horse RRE. Petitioners ' northerly

property at 3626 Rouse Road was included. 3626 Rouse Road was

zoned A - 2 a nd has a FLU designation of LDR. The properties

within Rocking Horse RRE ha d inconsistent FLU and zoning,

including Petitioner ' s property at 3626 Rouse Road. That

incons istency was resolve d by adoption of the amendment adding

map 25(d) to the correlation table in Policy FLU 8.1.1.

Petitioners ' Objections

21. The Petitioners argue d that the Rocking Horse RRE

amendments were not " in compliance " because they failed t o

provide relevant and appropriate data and analysis , lack ed

meaningful and predictable standards to guide the use and

development of land , were internally inconsistent, and failed to

discourage urban sprawl.

Data and Analysis

22. The County considered data from professionally

accepted sources and a pplied an analysis based on the

established RRE definition and implementing policies . The

data included the small area study conducted by the County ' s

professional staff over a period of years preceding the

O ctober 16, 2018 , adoption.

23. Rocking Horse RRE was originally grouped with the

established RREs, and so was part of the process involving

surveys, studies, and public hearings about RREs in general.

During that time, data was collected, a nalyzed , and then

re - analyzed in response to the Board ' s 2017 directive for

further study of the proposed RREs and the proposed amendments .

24. Petitioners ' expert, Jim Hall, acknowledged th at the

County routinely conducted community meetings and small area

stud ies " to help provide solutions as to how to deal with these

enclaves " within the USA. The Petitioners ' other expert ,

Dr. David Depew , testified that community input constituted

acceptable data, but suggested that the County should not rely

" solely on community visioning. "

25. Dr. Depew testified to a level of data collection and

analysis that he would consider adequate to support the Rocking

Horse RRE amendments . In Dr. Depew ' s opinion, the County l acked

any prospective data regarding, or analysis of, anticipated

growth, demographics, anticipated population demand, anticipated

non - residential growth in the area, area infrastructure,

utilities, traffic, mass transit, or any of the " prospective and

proactive elements that you would normally a nticipate being

considered for a plan amendment[.] "

26. Dr. Depew testified that there should be an

examination of the development surrounding Rocking Horse RRE to

determine future growth in the area, and identify development

pressures that might press against the enclave. In particular,

Dr. Depew noted that infill policies have been in place for

" years and years, and now all of a sudden, we are enacting an

enclave policy that is really counter to all of those

[policies]. "

27. However, the preponderan ce of the evidence shows that ,

since at least 2015 , the County staff, advisory committees, and

Board conducted numerous neighborhood workshops , public

hearings , and collected empirical data about these

neighborhoods, including Rocking Horse RRE. Dr. Depew ' s

exhaustive list of data and analysis seemed more directed to

whether the RRE concept was a good idea and should have been

adopted in the first place , which is not under challenge in this

proceeding.

28. The RRE concept already existed to maintain the rural

character of so identified neighborhoods into the future . The

RRE concept protects the identified neighborhoods against

suburban development pressure that is otherwise encouraged under

the County ' s development fram ework and urban infill policies.

29. There was no evidence presented that to designate

Rocking Horse RRE in Ordinance 2018 - 23 should require a higher

level of data and analys is than was collected to designate the

first three RREs in Ordinance 2018 - 17.

30. The preponderance of the evidence showed that the

final boundary of Rockin g Horse RRE evolved over time. Analysis

by the County included looking at the existing characteristics

of the properties on both sides of Rouse Road and taking

existing development approvals into considerat ion. P roperties

on the east side of Rouse Road were already heavily impacted by

existing and future development patterns .

31. Properties on the west side of Rouse Road , including

Petitione r ' s property at 3626 Rouse Road, hav ing a FLU

designation of LD R and zoning districts A - R, A - 2, and R - CE were

incl uded within Rocking Horse RRE. The Rocking Horse RRE

propert ies had inconsistent FLU and zoning, which was resolved

by the amendment adding Map 25(d) to Policy FLU 8.1.1 .

32. Petitioners did not prove beyond fair debate that the

Rocking Horse RRE final boundary was not supported by data and

analysis . Petitioners did not prove beyond fair debate that the

Rocking Horse RRE final boundary did not react appropriately to

the data and analysis collected by t he County since at least

2015 .

33. It is fairly debatable that the Rocking Horse RRE

amendments react appropriately to the data and analysis

collected by the County since at least 2015 , including the

small area study.

Meaningful and Predictable Standards

34. Prior to Ordinance 2018 - 23, there was a n inconsistency

between the A - 2, A - R , and R - CE zoning districts and the LDR F LU

category that applie d within the Rocking Horse RRE. The County

eliminated this inconsistency through adoption of Ordinance

2018 - 23, which established a consistent density standard in

Policy FLU 2.5.4 for development throughout the Rocking Horse

R RE, regardless of zoning district or FLU designation .

35. In addition, Ordinance 2018 - 17 had already established

Policy FLU 2.5.6 regarding uses of property within a n RRE. Uses

were specifically stated to be permitted by right or s pecial

e xception, permitted with conditions or prohibited, in

accordance with the zoning district in which the property is

located.

36. New P olicy FLU 2.5.8 require d review of new land use,

zoning, and development applications within or in close

proximity to a n RRE boundary for compatibility in the context of

the RRE ' s rural character. The County viewed Policy FLU 2.5.8

as a restatement of its existing policies regarding

compatibility, a so - called " belt and suspenders " approach.

37. The County ' s witness, Olan Hill, testified that it was

an approach " ensuring that we address compatibility for all new

development, whether it be within the enclave boundary or beyond

the boundary of the enclave, that could potentially influence

the character of the enclave. " Mr. Hill confirmed that

Objective FLU 8.2 cont ained policies regarding implementing

compatibility as a fundamental consideration in all land use and

zoning decisions.

38. Petitioners argued that the terms " close proximity "

and " the context of the [RRE ' s] rural character " are too vague

to provide an y objective guidance. However, new Policy

FLU 2.5.8 followed already - adopted Policy FLU 2.5.7 . Policy

FLU 2.5.7 set forth a series of requirements and guidelines to

" protect and en hance existing rural character, " which must be

applied to " all new development or redevelopment within [RREs]. "

Thus , Policy FLU 2.5.7 already provided objective guidance as to

" rural character. "

39. " Close proximity " is a phrase that already appears

elsewhere in the County ' s comprehensive plan. As found above,

the County would look at new development " beyond the boundary of

the enclave, that could potentially influence the character of

the enclave. "

40. Petitioner s did not prove beyond fair debate that

Policy FLU 2.5.8 does not guide future development decisions in

a consistent manner, and does not establish meaningful and

predictable standards for the use and development of land.

41. It is fairly debatable that Ordinance 2018 - 23 guides

future development decisions in a consistent manner, and

establishes meaningful and predictable standards for the use and

development of land .

Internal Consistency

42. Petitioners argued that Policy FLU 2.5.2 ' s amendment

designating Rocking Horse RRE as a n RRE was inconsistent with

the RRE definition in Policy FLU 2.5.1. However, as

articulated, the argument was a data and analysis dispute

masquerading as an internal inconsistency dispute.

43. Petitioners essentially argued that the empirical

data , and an analysis of that data, did not s upport Rocking

Horse ' s de signation as a n RRE , including its boundaries shown on

the new FLU M ap 25(d) . As found above, Petitioners did not

pr ove beyond fair debate that the Rocking Horse RRE final

boundary was not supported by data and analysis , and that it did

not react appropri ately to the data and analysis collected by

the County since at least 2015, including the small area study.

44. Petitioners also argued inconsistency between Policy

FLU 2.5.4 , which established a density for Rocking Horse RRE of

one dwelling unit (du) per two acres , and Housing Element

Objective H1.1 . Objective H1.1 states that the County will

continue to support private sector housing production capacity

sufficient to meet the needs of existing and future residents.

45. Neithe r O bjective H1.1 nor its implementing polices

contain a prohibition against establishing a density standard

for the Rocking Horse RRE . In fact, properties within the

Rocking Horse RRE with inconsistent future land use and zoning,

such as Petitioners ' property , did not have a pre - existing

entitlement to build four units per acre, as argued. Instead,

property owners of such properties would have had to seek a

rezoning from their existing A - R, A - 2, or R - CE zoning districts ,

a c omprehensive p lan amendmen t to change their FLU designation

from LDR , or both .

46. Petitioners did not prove beyond fair debate

that Policy FLU 2.5.4 was internally inconsistent with

Objective H1.1.

47. Petitioners argued that the Rocking Horse RRE

amendments were inconsistent with the portions of the County ' s

c omprehensive p lan promoting urban infill and redevelopment,

including Policies FLU 1.1.5, 1.3.2, Goal FLU 2 , Objective

FLU 2. 1, Urban Design Element Goal UD 3 , Objective UD 7.1, and

Neighborhood Element Policy N 6.1.5. The area comprising

Rocking Horse RRE was considered a potential infill opportunity

by the County. A map in the Infill Master Plan still reflects

Petitioners ' properties as potential inf ill properties.

48. The County ' s witness es testified that the adopted

objective and policies for RREs recognized and created an

exception for the urban development pattern a llowed within the

USA. Although infill development is a priority for the County,

the County ' s witnesses testified that the County had ample

o pportunities for future infill development within the USA that

would not be impacted by the removal of the 220 acres comprising

Rocking Horse RRE.

49. Since the Rocking Horse RRE amendments were adopted as

an exception to the urban development pattern allowed within the

USA, it is fairly debatable that the amendments are inconsistent

with the portions of the County ' s comprehensive plan promoting

urban infill and redevelopment, including Policies F LU 1.1.5,

1.3.2, Goal FLU 2, Objective FLU 2.1, Urban Design Element Goal

UD 3, Objective UD 7.1, and Neighborhood Element Policy N 6.1.5.

Urban Sprawl

50. Petitioners challenged the Rocking Horse RRE

a mendments for failing to discourage urban sprawl. Dr. Depew

analyzed the a mendments using the primary indicators and factors

detailed in section 163. 3177(6)(a)9 .a. and b. He testified that

the a mendments met ten of the thirteen primary indicators of

urban sprawl, and f ail ed to mee t at least four of the f actors

that discourage d urban sprawl.

51. T he County ' s expert witness , Chris Testerman ,

testified that the a mendments could not constitute urban sprawl

since the Rocking Horse RRE was within the USA .

I don ' t know how you can have sprawl within

the urban service area. Historically, any

-- the accusations of promoting urban sprawl

have been when we have tried to expand the

urban service area and not -- not within the

urban service area.

Tr . p. 214, lines 1 - 6.

52. Only the Petitioners ' expert presented an analysis of

the amendments using the urban sprawl primary indicators and

factors detailed in section 163.3177(6)(a)9.a. and b. As a

result , Petitioners proved beyond fair debate that the

a mendments fail ed to discourage urban sprawl, in violat ion of

sec tion 163.3177(6)(a)9.a. and b.

CONCLUSIONS OF LAW

Standing and Scope of Review

53. To have standing to challenge a comprehensive plan

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

the Community Planning Act ' s section 163.3184(1)(a). The

Petitioner s are affected person s and ha ve st anding to challenge

Ordinance 2018 - 23 .

54. An affected person challenging a plan amendment must

show that the amendment is not " in compliance " as de fined in

section 163.3184(1)(b). " In co mpliance " 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

55. As the part y challenging Ordinance 2018 - 23 , the

Petitioner s ha ve t he burden of proof.

56. The C ounty ' s determination that Ordinance 2018 - 23 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.

57. The term " f airly 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 planning action if a reasonable per son could

differ as to its propriety. " The Court further explained, " an

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 deduction that in no way involve s 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 debatable. '" Martin Cnty. v.

Secti on 28 Pshp, Ltd. , 772 So. 2d 616 (Fla. 4th DCA 2000).

58. " A compliance determination is not a determination of

whether a comprehensive plan amendment is the best approach

available to the local government for achieving its purpose. "

See Martin Cnty . Land Co. v. Martin Cnty. , Case No. 15 - 0300GM at

¶ 149 (Fla. DOAH Sept. 1, 2015; Fla. DEO Dec. 30, 2015). Moreover, i n a compliance determination, the motives of the

local government are not relevant. See Pacetta, LLC v. Town of

Ponce Inlet , Case No. 09 - 1231GM (Fla. DOAH Mar. 20, 2012; Fla.

DEO June 19, 2012).

59. The standard o f proof for findings of fact is

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

60. I n Dibbs v. Hillsborough County , Case No. 12 - 1850GM

(Fla. DOAH July 2, 2012) (Order on Motion) , the ALJ granted the county ' s motion to strike portions of a petition for

administrative hearing that raised matters beyond the scope of

the actual amendments at issue . Th is conclusion of law was

specifically upheld in the Final Order . See Dibbs v.

Hillsborough Cnty. , Case No. 12 - 1850GM (Fla. DOAH Apr . 22, 2013;

Fla. DEO Dec. 10, 2013)( " The ALJ correctly noted that the state

land planning agency has consistently followed the principle

that existing plan provisions that were previ ously determined to

be in compliance and that are not amended are not subject to

review or challenge in a subsequent plan amendment

proceeding. " ).

Data and Analysis

61. Section 163.3177(1)(f ) requires that all plan

amendments be based on relevant and appropriate data and an

analysis by the local government. Pursuant to the statute, " To

be based on data means to react to it in an appropriate way and

to the extent necessary indicated by the dat a available on that

particular subject at the time of adoption of the plan or plan

amendment at issue. " § 163.3177(1)(f), Fl a . Stat . " However,

the evaluation may not include whether one accepted methodology

is better than another. " § 163.3177(1)(f)2., F la . Stat . While

data supporting a comprehensive plan amendment must be taken

from professionally accepted sources, local governments are not

required to collect original data. Id.

62. The data which may be relied upon in this proceeding

is not limited to the data identified or used by the local

government. All data available to the local government and in

existence at the time of adoption of the challenged a mendments

may be presented. See Zemel v. Lee Cnty. , 15 F.A.L.R. 2735

( Fla. Dep ' t of Cmty. Aff. 1993) (Final Order) , aff ' d , 642 S o. 2d

1367 (Fla. 1st DCA 1994).

63. Section 163.3177(1)(f) lists " community goals and

vision " as a type of data, along with surveys, studies, and

other data available at the time the plan amendment was adopted,

on which the plan amendment must be based. The statute

anticipates " community goals and vision " as something separate

from, or other than , the comprehensive plan itself. Many

communities have a free - standing vision statement which may, in

part, inform future planning decisions. See Seminole T ribe of

Fla. v. Hendry Cnty . , Case No. 14 - 1441GM ( Fla. DOAH Feb. 12,

2015).

64. The preponderance of the evidence, however,

established that the County did not rely on " community goals and

vision " as the only data and analysis to support the amendments.

The County gathered data, and analyzed that data, in a small

area study, so as to enact plan amendments that reacted

appropriately to the information revealed by the small area

study . See a lso § 163.3177(6) (a)2 . , Fla. Stat. ( " The future

land use plan and plan amendments shall be based upon surveys, studies, and data regarding the area, as applicable [ . ] " ).

65. Many of the issues raised by the Petitioner s were

focused on attacking the sufficiency of the data and analysis to

support the prior amendments adopting the RRE concept , which

were not t he subject of this proceeding.

66. The Petitioners did not prove beyond fair debate that

the a mendments were not supported by relevant and appropriate

data and analysis , or that the County did not react

appropriately to the data and analysis.

Meaningful and Predictable Standards

67. Compr ehensive plans must provide " meaningful and

predictable standards for the use and development of land and

provide meaningful guidelines for the content of more detailed

land development and use regulations. " § 163.3177(1), Fla.

Stat. The Petitioner s fail ed to prove beyond fair debate that

the Rocking Horse RRE amendments violate this requirement.

68. The Petitioners ' argument focused on Policy FLU 2.5.8.

The County ' s view of this policy as described above is

consistent with the Community Planning Act ' s definition of

compatibility . See § 163.3164(9), Fla. Stat. ( "' Compatibility '

means a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over

time such that no use or condition is unduly negative ly impacted

directly or indirectly by another use or condition. " ).

69. Petitioners did not prove beyond fair debate that

Policy FLU 2.5.8 does not guide future development decisions in

a consistent manner and does not establish meaningful and

predictable standards for the use and development of land.

Internal Consistency

70. Section 163.3177(2) requires the several elements of

the c omprehensive plan to be consistent . A plan amendment

creates an internal inconsistency when it conflicts with an

existing provision of the comprehensive plan.

71. The County ' s c omprehensive p lan is formatted with

goals, objectives, and policies which describe how the County ' s

programs, activities, and land development regulations will be

initiated, modified, or continued , to implement the

comprehensive plan in a consistent manner. See § 163.3177(1),

Fla. Stat. In the context of the Community Planning Act, goals are statements of long - term vision or aspirational outcomes and

are not measurable in and of themselves. Goals must be

implemented by intermediate objectives and specific policies to

carry out the general plan goals. See § 163. 3164(19), (34), and

(37), Fla. Stat.

72. Internal consistency does not require a comprehensive

plan amendment to further every other go al, objective, and

policy in the comprehensive plan. It is enough if a plan

provision is " compatible with, " i.e., does not conflict with,

other goals, objectives, and policies in the plan. If the

co mpared provisions do not conflict, they are coordinated,

related and consistent. See Melzer, et al., v. Martin Cnty., et

al. , Case Nos. 02 - 1014GM and 02 - 1015GM, RO at 19 4 - 195 (Fla. DOAH

July 1, 2003; Fla. DCA Oct. 24, 2003). If an amendment

expressly creates an exception or waiver to a general rule set

forth in the plan, it does not create an internal inconsistency.

Id.

73. Petitioners did not prove beyond fair debate that

Po licy FLU 2.5.2 ' s amendment designating Rocking Horse RRE as a n

RRE was inconsistent with the RRE definition in Policy FLU

2.5.1. Petitioners did not prove beyond fair debate that Policy

FLU 2.5.4 was internally inconsistent with Objective H1.1.

74. Petitioners did not prove beyond fair debate that the

Rocking Horse RRE amendments are inconsistent with the portions

of the County ' s comprehensive plan promoting urban infill and

redevelopment, including Policies FLU 1.1.5, 1.3.2, Goal FLU 2,

Objective FLU 2.1, Urban Design Element Goal UD 3, Objective

UD 7.1, and Neighborhood Element Policy N 6.1.5.

Urban Sprawl

75. The Community Pla nning Act defines urban sprawl as " a

development pattern characterized by low density, automobile -

dependent development with either a single use or multiple uses

that are not functionally related, requiring the extension of

public facilities and services i n an inefficient manner, and

failing to provide a clear separation between urban and rural

uses. " § 163.316 4 (52) , Fla. Stat.

76. Section 163.3177(6)(a)9.a . lists 13 primary indicators

of urban sprawl, the presence of which determine whether the

a mendments encourage the proliferation of urban sprawl. See

Herrin v. Volusia Cnty. , Case No. 10 - 2419GM (Fla. DOAH Jan. 24,

2012; Fla. DEO Mar. 29, 2012). If four of the eight factors listed in section 163.3177(6)(a)9.b . are met by the a mendments,

then the a mendments discourage urban sprawl regardless of the

outcome of the evaluation under the 13 primary indicators. Id.

at ¶ 313.

77. The Community Planning Act , which was enacted in 2011,

does not reserve the urban spraw l analysis of FLU amendments to

urban development or urban - type development that is being

extended into rural areas. The prior case law and rule

definitions made that distinction. See H ome Builders &

Contractors Ass ' n v. Dep ' t of Cmty. Aff . , 585 So. 2d 965 , 968

(Fla. 1st DCA 1991); Fl a. Admin. Code R. 9J - 5.003(134) (2010) (definition repealed by section 72, chapter 2011 - 139, Laws of

Florida) . Thus, the current language of the Community Planning

Act " may require some amendments that look less like urban

sprawl to go through more steps to get that determination. "

Kathryn Barkett Rossmell, Note: From Tools to Toys – The Gutting

of the Infamous Primary Indicators: How the Florida Legislature

Accidentally Encouraged Urban Sprawl , 23 U. Fla. J. L. & Pub.

Pol ' y 215 , 224 (2012).

78. Petitioners proved beyond fair debate that the

amendments failed to discourage urban sprawl, in violation of

section 163.3177(6)(a)9.a. and b.

Summary

79. The C ounty ' s determination that Ordinance 2018 - 23 is

in compliance is not fairly debatable.

80. Petitioner s prove d beyond fair debate that Ordinance

2018 - 23 is not in compliance.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Administration Commission issue a

final order determining that the Rocking Horse RRE amendments

a dopted by Ordinance 2018 - 23 are not in compliance.

DONE AND ENTERED this 1 4 th day of October , 2019 , in

Tallahassee, Leon County, Florida.

FRANCINE M. FFOLKES

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 4 th day of October , 2019 .

ENDNOTES

1 / The Petitioners ' proposed recommended order suggest ed that a

constitutional claim regarding impairment of contracts is a

separate c ognizable issue in this proceeding. However, it is

well established that the administrative law judge in this type

of proceeding does not have the authority to adjudicate

constitutional issues. See Southern Alliance v. Graham , 113 So.

3d 742, 748 (Fla. 2 013); Fla. Hosp. v. Ag. for Health Care

Admin. , 823 So. 2d 844 , 849 ( Fla. 1st DCA 2002).

The argument that the administrative law judge is required

to address the Petitioners ' constitutional claim with

affirmative findings of fact and conclusions of la w that are not

relevant to an " in compliance " determination under section

163.3184(1)(b), Florida Statutes, is contrary to existing case

law. See Albrecht v. State , 444 So. 2d 8, 12 - 13 (Fla.

1984)( reflecting that the facts necessary to maintain the constitutional claim may be irrelevant to the determination of

the propriety of the challenged agency action), superseded by

statute on other grounds; Modern, Inc. v. Florida , 381 F. Supp.

2d 1331 (M.D. F la. 2004); Peck Plaza Condo. v. Div. of Land

Sales , 371 So. 2d 152, 154 (Fla. 1st DCA 1979)(jurisdiction to

interpret contracts is vested solely in the judiciary). The argument is an improper interpretation of the statement in Key

Haven Associated Enterpr ises, Inc. v. Board of Trustees of the

Internal Improvement Trust Fund , 427 So. 2d 153 (Fla. 1982),

that a constitutional claim can be raised on direct appeal " if

an adequate record is available. " Key Haven , 427 So. 2d at 159.

2 / The Orange County Comp rehensive Plan 2010 - 2030 provides:

OBJ FLU2.4 SMALL AREA STUDIES. Orange County

shall use Small Area Studies as an

appropriate urban strategy to facilitate

infill, mixed use development, and

redevelopment in a manner compatible with

existing communities. Small Area Studies

shall incorporate public outreach

techniques, such as charettes, community

meetings, and other public involvement, to

ensure they reflect the community ' s

preferred vision for the area ' s future.

(Added 10 - 13 - 09, Ord. 2009 - 28)

POLICY FLU 8.2.12 Public or private sector

sponsored Small Area Studies (completed in

coordination with the County ' s

recommendations) may be conducted to

identify strategies for physically and

functionally integrating a mixture of land

uses in developed areas within the USA.

Upon Board of County Commissioner ' s

approval, the Future Land Use Map shall be

amended. (Policy 3.1.2 - r)

COPIES FURNISHED:

Gregory M. Munson, Esquire

Gunster, Yoakley and Stewart, P.A. 215 South Monroe Street , Suite 601 Tallahassee, Florida 32301

(eServed)

William C. Turner, Esquire

Orange County Attorney ' s Office

201 South Rosalind Avenue , Third Floor

Orlando, Florida 32801

(eServed)

William Chorba, General Counsel

Department of Economic Opportunity

Caldwell B uilding , MSC 110

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

Taya Orozco, Agency Clerk

Department of Economic Opportunity

Caldwell Building

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)

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 with the agency that

will issue the Final Order in this case.