20-001562GM West Shore Legacy Llc vs. Alachua County, Florida Status: Closed Recommended Order on Tuesday, December 1, 2020.

Summary: Petitioner did not prove that Respondent's Plan Amendment is not "in compliance."

Ste ph en K. Tilbrook, Esquire

Akerman LLP

350 East Las Olas Boulevard , Suite 1600

Fort Lauderdale, Florida 33301

For Respondent Alachua County:

Corbin Frederick Hanson, Esquire

Alachua County

12 Southeast 1st Street

Gainesvill e, Florida 32601

For Intervenors, Fickling and Company, Inc., and NGI Acquisitions, LLC:

Patrice Boyes, Esquire Patrice Boyes, P.A.

5700 Southwest 34th Street, Suite 1120

Gainesville, Florida 32608

S TATEMENT OF T HE I SSUE

Whether the Alachua County Co mprehensive Plan Amendment adopted

by Ordinance No. 20 - 05 on February 5, 2020 (the “Plan Amendment”), is “in

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

Statutes (2019) . 1

P RELIMINARY S TATEMENT

On March 25, 2020, Petitioner , Wes t Shore Legacy, LLC (“Petitioner”) ,

filed a Petition with the Division of Administrative Hearings (“Division”) challenging the Plan Amendment as not based on relevant and appropriate data and analysis, internally inconsistent with the Alachua County

Compre hensive Plan (“the Plan”), inconsistent with the North Central

Florida Regional Policy Plan (“RPC Plan”) , and adopted in violation of the

public participation requirements of the Community Planning Act,

chapter 163, part II, Florida Statutes (“the Act”). O n March 31, 2020,

1 Except as otherwise noted, all references to the Florida Statutes are to the 2019 version,

which was in effect when the Plan Amendment was adopted.

Fickling and Company, Inc. (“Fickling”), and NGI Acquisitions, LLC (“NGI”)

(together Fickling and NGI are “Intervenors”), filed an unopposed Motion to

Intervene, which was granted by the undersigned on April 2, 2020.

The case was origina lly scheduled for final hearing on June 24 through 26,

2020, but the undersigned subsequently granted Petitioner’s Motion for

Continuance, over Respondent and Intervenors’ objections, and rescheduled the final hearing to July 30 and 31, and August 3, 2020.

On July 20, 2020, Petitioner filed a “Response Regarding Final Hearing

Venue,” requesting that the final hearing be “physically convened in Alachua

County,” in light of the requirement in section 163.3184(5)(c) that the final

hearing shall be held “in th e affected local jurisdiction[,]” but the undersigned

denied the request due to the continuing effects of the COVID - 19 pandemic

and Division - imposed COVID - 19 travel restrictions.

On July 27, 2020, Respondent and Intervenors filed a Joint Motion for

Sancti ons, pursuant to sections 57.105 and 163.3184(9), Florida Statutes

(“Motion for Sanctions”).

On July 29, 2020, the evening before the final hearing was to commence,

Petitioner filed a Motion to Amend the Petition and a response to the Motion

for Sanction s. The undersigned denied Petitioner’s Motion to Amend its

Petition. The parties also late - filed their Joint Pre - hearing Stipulation on

that date, with the permission of the undersigned.

The hearing commenced as rescheduled on July 30, 2020, via Zoom

conf erence . At the final hearing, the undersigned allowed Respondent and

Intervenors to present evidence related to their Motion for Sanctions, but

ruled that Petitioner would be entitled to a full evidentiary hearing on the

Motion for Sanctions, to be schedul ed for a later date.

At the final hearing, the p arties’ Joint Exhibits 1 through 51 were

adm itted into evidence. Petitioner’s Exhibits 9 and 109 were admitted into

evidence. An excerpt from Petitioner’s Exhibit 97 was also read into the record during th e Final Hearing.

Petitioner offered the testimony of Lee E. Rosenthal, its corporate

representative; Jeffery Hays, principal planner for Alachua County

Development Services; Suzanne Wynn, director of community planning and

facilities for the School Boar d of Alachua County; Cecelia Ward, AICP, who

was accepted as an expert in land use and c omprehensive planning; and

John P. Kim, P.E., who was accepted as an expert in traffic engineering and

transportation planning.

Respondent and Intervenors’ Joint Exhi bits 1 through 3, 5, 10 through 18,

21, 35, 36, 39 , and 40 were admitted into evidence. Respondent offered the

testimony of Jeffery Hays ; and Christopher Edward Dawson, who was

accepted as an expert in land use and transportation planning.

Intervenors o ffered the testimony of Todd Andersen, senior vice president

of Novare Group; and Robert J. Cleveland, Jr., senior vice president of

Fickling. Intervenors also offered the testimony of Ali Brighton, P.E., who

was accepted as an expert in transportation pla nning and engineering; and

David Depew, Ph.D., accepted as an expert in land use and comprehensive

planning.

The proceedings were recorded and the three - volume Transcript of the

final hearing was filed with the Division on September 11, 2020. On

September 15, 2020, Petitioner filed a Motion for Permission to Exceed Page

Limitation and for Additional Time to File Proposed Recommended Order,

which was granted, in part, on September 16, 2020, setting a deadline of

October 12, 2020, for filing p roposed r ecomme nded o rders.

The parties timely filed Proposed Recommended Orders, which have been

carefully considered by the undersigned in the preparation of this

Recommended Order.

F INDINGS OF F ACT

The Parties and Standing

1. Petitioner is a Delaware limited - liabili ty company authorized to do

business in the State of Florida. Petitioner owns and operates the Legacy at Fort Clarke, a 444 - unit apartment complex located on Fort Clarke Boulevard,

approximately 100 feet from the property that is the subject of the instant plan amendment challenge (the “subject property”).

2 . Petitioner, through its representatives, submitted oral and written

comments to Alachua County (“the County”) during the period of time

beginning with the transmittal hearing for the Plan Amendment and ending

with the adoption of the Plan Amendment.

3 . The County is a political subdivision of the State of Florida, with the

duty to adopt and amend its comprehensive plan in compliance with the Act.

See § 163.3167(1), Fla. Stat.

4 . Intervenor, Fickling, is a Georgia corporation authorized to do business

in the State of Florida.

5 . Intervenor, NGI, is a Georgia limited - liability company, and is the

contract purchaser of the subject property, currently owned by The

Gainesville Church, Inc. (“the Church”). Jam es R. Borders is NGI’s p resident .

NGI registered with the Secretary of State to conduct business in Florida on July 22, 2020.

6 . NGI is a wholly - owned subsidiary of NGI Investments, LLC, a Georgia

limited - liability company which has been registered to cond uct business in

Florida since 2013.

7 . On June 6, 2019, NGI Investments, LLC , and Fickling submitted a

letter of intent to purchase the subject property from the Church. In the

letter, NGI Investments, LLC , is identified alternatively as “Novare Group.”

8 . On July 19, 2019, NGI entered into a purchase and sale agreement with

the Church to purchase the subject property, which is signed by Mr. Borders,

as Manager of NGI. In the agreement, Fickling is identified as an entity

authorized to accept notices on NG I’s behalf related to the agreement.

Fickling appears to operate as broker/developer of the subject property.

9 . Todd Anderson is the senior vice - president of development for Novare

Group (“Novare”), a residential multifamily development group founded in

1 992. Mr. Anderson testified that NGI Investments and NGI are known in

the development industry as Novare. Since 1992, Novare has developed over

50 multifamily projects — 16,000 multifamily residential units — primarily in

the southeast United States.

10 . Nova re began partnering with Fickling in 2017 on a joint venture

program called “Lullwater.” The joint venture has developed Lullwater at

Blair Stone, an apartment complex in Tallahassee, Florida; Lullwater at Big Ridge, an apartment complex in Hixson, Tenness ee; and Lullwater at

Jennings Mill, an apartment complex in Athens, Georgia. Lullwater is an ongoing joint venture program with two pending development projects in Florida — the subject property and a site under contract in Ft. Myers.

11 . NGI/Novare has a v erbal general partnership agreement with

Fickling, and is not a registered limited partnership. Shortly prior to closing

on each property to develop a project in the Lullwater program, NGI/Novare

executes a written joint venture agreement with Fickling. Up to that point,

the entities share expenses related to pre - development costs, including

pursuit of comprehensive plan amendments and rezonings necessary to

secure project approval. Losses on any project are also shared equally.

12 . As of the date of the fi nal hearing, NGI/Novare and Fickling had

expended almost $500,000 in pre - acquisition costs to develop the subject

property, including hiring an engineer, Jay Brown, to prepare the Plan

Amendment application, and an attorney and experts to represent the

In tervenors at the public hearings, as well as in this proceeding. The exact

contribution from each of the partners will be “trued up” at a later date.

13 . If the instant plan amendment is not approved, the Intervenors stand

to lose the investment of approx imately $500,000, as well as the time and

effort expended on the project thus far, as well as the opportunity costs

associated with having devoted time and resources to this project as opposed

to others in the Lullwater program.

14 . At the local planning a gency public hearing on November 20, 2019,

Jay Brown made a presentation regarding the Plan Amendment. He stated,

“I’m here to represent a joint venture of development group that’s made up of

two companies, the Fickling Company and the Novare Group.” When Mr. Brown made his presentation on the underlying rezoning application at

the same meeting, he stated that he was “representing the Fickling Company and Novare Group[.]”

15 . Again at the December 10, 2019 County Commission public hearing,

Mr. Brown indica ted he was representing the developers Fickling and

Novare. At the February 25, 2020, adoption hearing, Mr. Brown presented on behalf of the developers. Although he did not identify them by name, he

referred to the presentation he had made before that same body on

December 10, 2019.

The Subject Property and Surrounding Uses

16 . The subject property is 25.64 undeveloped acres located on Fort Clarke

Boulevard in Gainesville, Florida.

17 . It is located in the Alachua County Floridan Aquifer High Recharge

Area , which, according to the Comprehensive Plan, is an “[a]rea[] where

stream - to - sink surface water basins occur and [an] area[] where the Floridan

Aquifer is vulnerable or highly vulnerable.” The subject property is located in

an area where the aquifer is hi ghly vulnerable.

18 . The subject property is designated “ institutional ” on the County’s

Future Land Use Map (“FLUM”).

19 . Under the institutional FLUM designation, the subject property could

be developed for a public or private educational use, daycare c enter, nursery

school, community service (e.g., fire and emergency services, law

enforcement, or health facilities), public utility or other infrastructure,

religious facility, or cemetery.

20 . The uses surrounding the subject property are a mix of reside ntial and

institutional. Immediately to the west and south is the Eagle Point subdivision, with a FLUM designation of low - medium density residential,

which allows residential density at up to four dwelling units per acre

(“4 du/acre”). The subdivision is b uilt out at 2 du/acre.

21 . Two apartment communities are located across Fort Clark Boulevard

from the subject property — Legacy at Fort Clarke (owned by Petitioner) and

The Paddock Club Gainesville — both of which are designated medium density

on the FLUM, al lowing residential development at a density of up to

8 du/acre.

22 . Institutional uses border the property on the north and immediate

east. A County fire station is located north of the subject property, and a

senior living facility is located directly acr oss Fort Clarke Boulevard from the

subject property in a “corner” adjoining both Legacy at Fort Clarke and

Paddock Club apartments.

23 . The subject property is located in the Urban Cluster, which is,

according to the Comprehensive Plan, “[a]n area designat ed on the [FLUM]

for urban development, which includes residential densities ranging from one

unit per acre to 24 units per acre or greater, non - residential development,

and is generally served by urban services.”

The Plan Amendment

24 . The Plan Amendmen t changes the FLUM designation of the subject

property from institutional to medium - high density residential, allowing

development at up to 14 du/acre.

25 . The Comprehensive Plan designates Fort Clarke Boulevard as an

“Express Transit Corridor” and a “Rap id Transit Corridor.” All new

multifamily development along the corridors must be developed as a

Traditional Neighborhood Development (“TND”), a compact, mixed - use

development which allows for internal capture of vehicle trips and

encourages walking and bi cycling as the primary means of mobility. TNDs

are required to develop with a village center and gridded street network

emanating outward from the village center, and are entitled to a development

density bonus.

26 . Due to its location along the corridors, and the allowable density

bonus, the subject property under the Plan Amendment can be developed at a

maximum residential density of 16 du/acre. 2 Based on the acreage of the

subject property, the Plan Amendm ent authorizes a maximum of

410 dwelling units.

2 7 . The Comprehensive Plan requires TNDs to include non - residential

uses at intensities specified in Future L and Use Element (“FLUE”)

Policy 1.6.5.2. Based on the acreage of the subject property, the Plan

Amendment authorizes a maximum of 267,500 square fee t (“s.f.”) of non -

residential uses.

2 Policy 1.6.5.1 provides that a TND contiguous with a Rapid Transit or Express Transit

corridor is entitled to an additional 8 du/acre in the village center and an additional 6 du/acre

in the transit - supportive area outside the village center. Ba sed on the policy, it appears the

Plan Amendment authorizes the subject property to be developed at a density greater than

16 du/acre. However, the parties stipulated that the maximum development density of the

subject property is 16 du/acre and that stipu lation is accepted by the undersigned.

Challenges to the Plan Amendment

28 . Petitioner allege s (as stipulated by the parties) that the Plan

Amendment: (1) creates internal inconsistencies with the existing

Comprehensive Plan, in contravention of section 163. 3177(2); (2) is not “based

upon relevant and appropriate data and analysis,” as required by

section 163.3177(1)(f); (3) is not “based upon surveys, studies, and data

regarding the area, as applicable, including … the character of undeveloped

land,” as requ ired by section 163.3177(6)(a)2., and not based on an “analysis

of the suitability of the plan amendment for its proposed use considering the

character of the undeveloped land, soils, topography, natural resources, and

historic resources on site,” as requi red by section 163.3177(6)(a)8.; and (4) is

inconsistent with the RPC Plan, in violation of section 163.3184(1)(b).

Petitioners further contend Respondent violated public participation requirements for adoption of the Plan Amendment.

29 . The challenges gen erally raise concerns with the impact of the Plan

Amendment on area schools, transportation facilities, the Floridan Aquifer, and compatibility with surrounding uses.

School Capacity Issues

30 . Petitioner alleges the County failed to properly analyze the i mpact of

the Plan Amendment on the County’s school system, and maintains that the Plan Amendment will “overburden already overcrowded schools that serve

neighborhood residents.”

31 . Suzanne Wynn, director of community planning for the School Board

of Alach ua County (“SBAC”), performed a school capacity analysis of the Plan

Amendment. Ms. Wynn testified that the purpose of a school capacity

analysis is to put the school board on notice of an estimated number of students anticipated to be generated from a pla n amendment which increases

residential density, so the school board can factor that in for future facility planning.

32 . In calculating the student impact of the Plan Amendment, Ms. Wynn

made a couple of errors, which are reflected in her initial Report: First, she

utilized 256 as the total number of dwelling units authorized by the Plan

Amendment, which does not account for the density bonus. Second, she

applied a student generation multiplier of .08 students per multifamily unit,

rather than the correct multiplier of .09.

33 . Prior to the County’s adoption of the Plan Amendment , Ms. Wynn’s

analysis was updated with the correct number of dwelling units. Utilizing

410 as the maximum number of dwelling units authorized by the Plan

Amendment, Ms. Wynn confirm ed that the estimated number of students

generated from the Plan Amendment is a total of 57, allocated as follows:

33 elementary, 12 middle, and 12 high.

34 . At final hearing, Ms. Wynn presented a corrected Report. Utilizing the

correct student generation multiplier, the Plan Amendment is projected to

generate a total of 63 students, allocated as follows: 37 elementar y,

13 middle, and 13 high.

35 . In her initial Report, Ms. Wynn concluded that “[s]tudent generation

by the [Plan Amendment] at the elementary , middle, and high school levels

can be reasonably accommodated during the five, ten, and twenty - year

planning period through planned capacity enhancement and management

practices.” Ms. Wynn testified that the updated student generation numbers

contained i n the corrected Report did not cause her to change her conclusion.

The number of students generated by the maximum density allowed under

the Plan Amendment can be accommodated during the school board’s

applicable planning periods through capacity enhanceme nts and

management practices.

36 . The SBAC 2019 Annual Report on School Concurrency (“2019

Concurrency Report”) notes that “significant growth [in middle school

students] is anticipated in the next five years, followed by slower growth

rates during the lat ter part of the 10 - year planning period.”

37 . The subject property is located in the Fort Clark School Concurrency

Service Area (“SCSA”), in which the middle school is operating above capacity

and enrollment “is expected to exceed capacity during the ten - y ear planning

period.” The 2019 Concurrency Report notes that the deficiencies in the Fort

Clarke SCSA are addressed in the SBAC 2019 - 2030 Strategic Plan. In other

words, the SBAC has already anticipated increased enrollment at the middle

school serving the subject property, and has plans to reduce overcrowding

and accommodate new students through its strategic planning process.

38 . Petitioner argued that the specific plans to reduce overcrowding and

accommodate new growth in the Fort Clark SCSA were not int roduced in

evidence and Ms. Wynn’s testimony was speculative. However, Petitioner

introduced no evidence to refute Ms. Wynn’s testimony and her conclusion

that the SB AC can accommodate the new middle school students estimated

to be generated by the Plan Am endment.

39 . Petitioner next argues that the Plan Amendment is internally

inconsistent with Public School Facilities Element (“PSFE”) Policy 1.1.3, which governs the geographic basis for school capacity planning, and Policy

1.1.5, which describes the SBAC report to the County.

40 . In describing the analysis of Plan Amendments to be performed by the

SBAC, Policy 1.1.3 specifically provides, “ [f] or purposes of this planning

assessment, existing or planned capacity in adjacent SCSAs shall be not be

considered. ” Petitioner alleges Ms. Wynn relied upon existing or planned

capacity outside the Fort Clark S CSA in conducting her analysis, in violation

of Policy 1.1.3.

41 . It is important to note that Policy 1.1.3 requires the SBAC to assess

the Plan Amendment “in te rms of its impact (1) on the school system as a

whole and (2) on the applicable SCSA(s).”

42 . Ms. Wynn’s analysis states, in pertinent part, as follows:

The [Plan Amendment] is situated within the Fort

Clark [ S CSA] … [which] contains one middle school

with a capacity of 900 seats. The current

enrollment is 1,042 students representing a 116%

utilization compared to an adopted LOS standard

of 100%.

The [Plan Amendment] petition is projected to generate 13 middle school students at buildout.

Districtwide midd le school capacity is well within

the 100% LOS throughout the 10 year planning period. The School District is evaluating options for relieving capacity deficiencies at Fort Clark Middle.

43 . Ms. Wynn’s analysis does not ignore the impact of the Plan

Amend ment on the applicable SCSA. Implicit in Ms. Wynn’s analysis is the

conclusion that the Fort Clark S CSA does not have adequate capacity to

accommodate the maximum number of students estimated to be generated by

the Plan Amendment. Ms. Wynn’s analysis also assesses the impact of the Plan Amendment districtwide, as required by the Policy, concluding that

there is adequate capacity within the applicable planning periods.

44 . Finally, Petitioner contends that Ms. Wynn’s analysis falls short of the

Policy’s dire ction to “include its recommendations to remedy the capacity

deficiency including estimated cost” if the SBAC “determines that capacity is

insufficient to support the proposed land use decision.”

45 . Ms. Wynn’s report does not conclude that a capacity def iciency exists

within the district to accommodate the new middle school students estimated to be generated by the Plan Amendment. If no deficiency is determined, no

recommendation to remedy a deficiency is required.

46 . While the report indicates a deficie ncy in the Fort Clark SC S A, there

is no requirement that the students be accommodated within that particular SC S A. Perhaps the SBAC plans include changing school zones to

accommodate those students at a school other than Fort Clark Middle, where

capacity d oes exist. Perhaps it plans to build a new middle school that will

add capacity. Perhaps it plans to add portables at Fort Clark Middle.

Whatever the plans are, Ms. Wynn’s conclusion that the projected number of

students “can reasonably be accommodated dur ing the five, ten, and twenty

year planning period through planned capacity enhancement and

management practices” was unrebutted. 3

Transportation Issues

47 . Petitioner contends that the analysis of the transportation impact

from the Plan Amendment is flaw ed because : (1) it was not based on the

maximum buildout allowed by the Plan Amendment; and (2) failed to meet

the requirements of Policy 1.1.6.11 of the Transportation Mobility Element

(“TME”).

48 . Based on the maximum development potential of 410 multifa mily

dwelling units and 267,500 s.f. of non - residential development, the County

determined the Plan Amendment will generate approximately 9,364 new

daily vehicular trips to Fort Clark Boulevard.

49 . Petitioner asserts that this analysis is erroneous becaus e the

methodology employed by the developer allocated the 267,500 s.f. of non -

residential development evenly between retail and office. Petitioner asserts that, because the County ’s land development code allows the non - residential

square footage to be deve loped at up to 75 percent retail, the project should

have been analyzed based on a 75/25 retail - to - office split. Petitioner argues

that failure to analyze the traffic generation in that way undercounts the

vehicular trips to be generated by the Plan Amendm ent at its maximum

development potential.

50 . Petitioner introduced the testimony of John P. Kim, who was accepted

as an expert in transportation planning and engineering. Mr. Kim offered no testimony regarding the use of the 75/25 retail - to - office split v ersus the

3 Petitioner complained that Ms. Wynn’s testimony lacked specificity and found fault with

Respondent for not introducing the SBAC Strategic Plan into evidence to support its position

that the anticipated students can be accommodated with planned capacity improvements.

However, Petitioner, not Respondent, carries the burden of proof in this case to demonstrate

that the “planned capacity enhancement and ma nagement practices” are insufficient to

accommodate those students .

50/50 retail - to - office split for non - residential uses allowed under the Plan

Amendment.

51 . Petitioner introduced no evidence that the methodology utilizing the

50/50 retail - to - office split was not a professionally - acceptable methodology for

calc ulating trip generation based on the maximum development potential of

the subject property under the Plan Amendment.

52 . Next, Petitioner argues that the Plan Amendment is not supported by

a roadway - capacity analysis for any of the major roadways that will serve the

subject property. Petitioner maintains that the applicants for the Plan

Amendment were required to submit a study demonstrating that adopted

Level of Service (“LOS”) guidelines on those roadways can be achieved given

the projected traffic genera tion from the Plan Amendment. To that end,

Petitioner alleges the Plan Amendment is inconsistent with TME

Policy 1.1.6.11, which provides as follows:

Large scale comprehensive plan amendments to the

[FLUE] or Map that result in a greater

transportation im pact shall require the entity

requesting the amendment to demonstrate that the

adopted LOS guidelines for the affected Urban

Transportation Mobility District are achieved and that additional required infrastructure is fully funded. Applicants may only incl ude projects that

are fully funded and scheduled to commence

construction within one (1) year of approval of the

Comprehensive Plan Amendment.

53 . Petitioner’s expert, Mr. Kim, expressed his opinion that the policy

requires the applicant to demonstrate th at the LOS guidelines can be

achieved under the Plan Amendment, and that the additional infrastructure

required to achieve the guidelines is “fully funded and scheduled to

commence construction within one (1) year of approval of the Plan

Amendment.”

54 . Mr . Kim prepared an analysis to demonstrate that the Plan

Amendment will prevent achievement of the applicable LOS guidelines, as

the basis for his opinion that the Plan Amendment is not supported by

adequate data and analysis, and inconsistent with TME Poli cy 1.1.6.11.

55 . Mr. Kim analyzed the project’s impact on the specific segment of Fort

Clark Boulevard immediately adjacent to the subject property, utilizing

roadway capacity data from the 2018 Multimodal Level of Service

(“MMLOS”) Report published by the Metropolitan Planning Organization for

the Gainesville Urbanized Area. According to the report, that segment of Fort

Clark Boulevard has an adopted LOS of “D” and a maximum service volume

of 13,985 vehicles per day. The report indicates the particular seg ment has

available capacity for only 1,319 daily vehicles. Mr. Kim concluded that the

capacity for 1,319 daily vehicles will easily be exceeded by the 9,364 trips projected to be generated from development allowed under the Plan

Amendment. Mr. Kim also loo ked at the capacity of the two roadways at

which Fort Clark Boulevard terminates — Northwest 23rd Avenue to the

north, and Newberry Road to the south — and found that they are both

operating at above their capacity, according to the report. In Mr. Kim’s

opinio n, the traffic projected to be generated by development anticipated

under the Plan Amendment will further deteriorate the LOS on those

roadways.

56 . The 2018 MMLOS Report shows the segment of Fort Clark Boulevard

and Northwest 23rd Avenue, which were analy zed by Mr. Kim, as located

within a Transportation Concurrency Exception Area (“TCEA”). The Florida

Legislature repealed the statewide requirement for traffic concurrency in

2011. See ch. 2011 - 139, § 15, Laws of Fla. In 2019, the County rescinded

transport ation concurrency as a part of its Evaluation and Appraisal of its

comprehensive plan. See § 163.3191(1), Fla . Stat. (“At least once every

7 years, each local government shall evaluate its comprehensive plan to

determine if plan amendments are necessary to reflect changes in state

requirements in this part since the last update of the comprehensive plan[.]”).

The County also changed its areawide LOS standards to “guidelines.” These

changes are reflected in the County’s 2040 Comprehensive Plan, adopted

Decem ber 13, 2019, and against which this Plan Amendment is compared for

internal consistency.

57 . Mr. Kim has never conducted transportation analysis in Alachua

County prior to the case. Likewise, Mr. Kim has not performed transportation analyses in any local government which has repealed

transportation concurrency.

58 . Mr. Kim testified that he understood the County’s transportation

mobility system utilizes an area - wide capacity analysis, as opposed to

individual roadway capacity. Mr. Kim’s analysis was wholl y irrelevant to the

County’s area - wide capacity analysis.

5 9 . Under the County’s system, the County is divided into three

transportation mobility districts: Northwest, Southwest, and East. The Plan

Amendment is located in the Northwest District.

60 . The Co unty’s expert in land use and transportation, Chris Dawson, is

the County’s transportation planning manager. Mr. Dawson analyzed the

Plan Amendment for transportation impacts.

6 1 . Mr. Dawson determined that sufficient capacity exists in the

Northwest Mobi lity District for the additional 9,364 new daily trips

generated from the Plan Amendment under the maximum development

potential. For his analysis, Mr. Dawson utilized the data and analysis compiled for the County’s 2019 Evaluation and Appraisal of the

Com prehensive Plan. That data showed a maximum service volume of

408,655 trips in the Northwest District, and an average annual daily trip

volume of 265,237. In other words, available capacity exists in the district for

an additional 143,418 trips, well below the projected generation of 9,364

trips. Mr. Dawson opined that the Plan Amendment will not prevent the

Northwest District LOS guidelines from being achieved.

6 2 . Petitioner criticized Mr. Dawson’s analysis as based on incorrect data

because the transport ation mobility district level of service analysis

contained in the Evaluation and Appraisal Report (“EAR”) was based on the

County’s 2017 data. Petitioner opined that Mr. Dawson should have updated

those trip counts to account for development approved sinc e 2017 in the

Northwest District.

63 . Ms. Brighton conducted the traffic generation analysis for Intervenors.

She testified that, given the available land in the Northwest District, it is

unrealistic to assume that the growth in the last three years would have

consumed all the roadway capacity in the District. In fact, she testified that,

even if the County collected new raw data of actual trips, the capacity may be

even higher than it was in 2017, because growth is not realized in every year;

some years a re even marked by negative growth.

6 4 . Petitioner did not introduce any readily - available data which was

more recent than that relied upon in the County’s 2019 EAR update.

6 5 . Petitioner’s overarching concern is that Fort Clark Boulevard is a two -

lane road , operating at either near or over capacity, unable to handle the new

trips anticipated to be generated by development allowed under the Plan

Amendment; that the County has no plans to widen the roadway to improve

capacity; and that, even if the County is relying on total capacity in the

District, rather than a summation of the capacity of each individual roadway

in the District, it failed to update the 2017 data to determine actual capacity

at the time the Plan Amendment was adopted .

6 6 . The County’s mult i - modal approach to transportation planning

anticipates congestion along certain corridors, and encourages compact, higher - density development in the Urban Cluster to support transit use. See

TME Policy 1.1.3 (“The intent of the [mobility districts] are … [t]o recognize

that certain roadway corridors will be congested and that congestion will be

addressed by means other than solely adding capacity for motor vehicles and

maintaining roadway level of service on those corridors.”). Congestion would

actually se rve the County’s goal of increasing demand for transit options and

bicycle and pedestrian use in lieu of creating road capacity by traditional

means, such as road - widening, adding lanes, and creating or extending turn

lanes. See TME Policy 1.1.5 (“Over the time horizon of the Comprehensive

Plan, as the densities and intensities within the Urban Cluster necessary to

support transit are realized, the County shall transition from providing new

capital infrastructure for a multi - modal transportation network to providing

frequent transit service along rapid transit corridors.”)

6 7 . In the Comprehensive Plan, Capital Improvements Element (“CIE”),

the County has planned two dedicated transit lanes on Fort Clark Boulevard,

between Newberry Road and Northwest 23 rd Av enue, the segment

immediately adjacent to the subject property. This improvement is planned to

implement the County’s designation of Fort Clark Boulevard as a rapid transit corridor.

6 8 . Development projects in the Urban Cluster are charged a multi - modal

t ransportation mobility fee (“fee”) in satisfaction of their obligation to

mitigate transportation impacts within the applicable district. Intervenors

are expected to pay a fee of approximately $1 million to the County in mitigation. Petitioner elicited tes timony from the transportation experts that

the County is not required to spend the fee on Fort Clark Boulevard. It is true that the County can spend the fee on improvements anywhere within the

District; however, given the structure of the Comprehensive Pl an, it is most

likely the funds will be spent to further planned improvements adopted in the

CIE. See TME Policy 1.1.6 (“The Multi - Modal Infrastructure Projects in the

[CIE] are identified to meet the adopted level of service guidelines and proactively add ress projected transportation needs from new development and redevelopment within the Urban Cluster by 2040”).

Compatibility

6 9 . Petitioner alleges the maximum density and intensity of development

allowed under the Plan Amendment is incompatible with surro unding uses,

especially the low - density residential neighborhood to the west and south of

the subject property.

70 . Petitioner introduced the testimony of Cecelia Ward, who was

accepted as an expert in land use and comprehensive planning. Ms. Ward

opined t hat residential density of up to 16 du/acre is incompatible with low -

density residential and community institutional land uses in the area.

Further, she opined that the scale and intensity of the non - residential uses

allowed by the TND were inconsistent wi th the character of the existing

neighborhood.

7 1 . The Comprehensive Plan does not define “compatibility.” The Act

defines “compatibility” as “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 negatively impacted directly or indirectly by another use or condition.” § 163.3164(9), Fla. Stat.

7 2 . Both the Intervenors’ land use planning expert, David Depew, and the

County’s principal planner for dev elopment services, Jeffrey Hays, agreed

that merely locating high - density residential development adjacent to low -

density residential development is an insufficient basis on which to

determine an unduly negative influence over time. All five higher - density

TNDs in the County are located adjacent to existing lower - density residential

development. No evidence was introduced to suggest that the proximity of

TNDs to those neighborhoods has destabilized the low - density residential

neighborhoods.

7 3 . Moreover, t he Comprehensive Plan specifically addresses

compatibility between TNDs and single - f amily developments. FLUE

Policy 1.2.1 provides that “appropriately scaled and designed non - residential

land uses are compatible with single family or multi - family residenti al

development” in mixed - use TNDs. Despite Ms. Ward’s opinion that the Plan

Amendment would allow non - residential development out of scale with

surrounding neighborhoods, she admitted that the specific site - design policies

for TNDs would apply to the Plan Amendment.

7 4 . Further, the Comprehensive Plan policies governing neighborhood

design and site standards will also apply to the development allowed under

the Plan Amendment. Those policies provide that “[u]rban development shall

incorporate design techniqu es to promote integration with adjacent

neighborhoods.” FLUE Policy 1.4.1.4. Design techniques include “transitional

intensity (types of uses), stepped density, buffering, boundaries, landscaping

and natural open space.” FLUE Policy 1.4.1.4(a). The Plan pr ovides that

“[s]pecial attention shall be provided to the design of development and

neighborhood edges, which shall be designed to be integrated into the

surrounding community.” FLUE Policy 1.4.1.4(c).

7 5 . Ms. Ward opined that the existing institutional d esignation provides

for greater compatibility between development proposed on the subject property and the adjoining neighborhood. FLUE Policy 5.2.1 lists the

threshold criteria which must be met to establish an institutional use. Ms. Ward specifically ide ntified the following two criteria: (1) “Compatibility

of the scale and intensity of the use in relationship to surrounding uses,

taking into account impacts such as noise, lighting, visual effect, traffic

generation, [and] odors” ; and (2) “Preservation an d strengthening of

community and neighborhood character through design.” Ms. Ward expressed

the opinion that removing the subject property from the institutional

designation removes these protections for the adjacent low - density

neighborhood.

7 6 . However, the TND - specific design policies likewise require

establishment of compatibility through project design, scaling, and integration with the adjacent neighborhoods. Just because the TND policies

do not specifically c ite “noise, lighting, [and] visual effect, ” does not mean the

County will not consider those development aspects in approving the specific

site design for the subject property. The nature of institutional uses makes it

more likely that off - site impacts will be incompatible with residential, hence

the need for enhanced analysis of those specific types of impacts. For

example, emergency fire and law enforcement uses are more likely to

generate offsite noise impacts than an adjoining residential or mixed use; and

public utility uses are more likely to generate offsite lighting impacts, due to

security lighting needs.

7 7 . The Plan Amendment does not jeopardize the stability of the adjacent

single - family neighborhood by “removing protections” provided under the

institutional land use category, as suggest ed by Ms. Ward.

Data on Suitability

7 8 . Petitioner alleges the Plan Amendment is not supported by relevant

data and analysis concerning the suitability of the subject property for the

density and intensity of development allowed.

79 . County s taff performed a suitability analysis related to the Plan

Amendment application as part of its review. The suitability analysis

included consideration of significant habitat areas, location in flood zones, impact on aquifer recharge, appropriateness for the level of den sity, and the

availability of water and sewer, emergency services, solid waste , and other

public utilities to serve the allowable development.

80 . At hearing, Petitioner focused on the location of the subject property in

the high aquifer recharge area, all eging the County did not analyze data to

determine if the TND development was suitable for this site. Mr. Hays

testified that the staff review included consideration of the location of the subject property within that sensitive area. Mr. Hays explained tha t the

County has adopted special storm - water treatment criteria for development

within the high aquifer recharge area.

81 . In formulating her opinion that the site is not suitable for the density

and intensity of development allowed under the Plan Amendmen t, due to its

location in the high aquifer recharge area, Ms. Ward did not consider the

County’s development regulations for karst - sensitive lands that comprise

much of western Alachua County.

8 2 . Further, the impact on the aquifer as a regional resource was

evaluated by the North Central Florida Regional Planning Council (“RPC”)

during its review of the Plan Amendment. The RPC found that “significant

adverse impacts [to the Floridan Aquifer] are not anticipated as the County

Comprehensive Plan contains go als and policies to mitigate impacts to the

[aquifer].”

8 3 . Petitioner did not prove the Plan Amendment is not supported by data

and analysis regarding the suitability of the subject property for the

development allowed thereunder.

Consideration of Alterna tives

8 4 . Petitioner alleges the Plan Amendment is inconsistent with FLUE

Policy 7.1.24, which provides, as follows:

Prior to amending this Element, every

consideration shall first be given to alternatives to detailed map changes. Such alternatives might i nclude clarifying text amendments and additional

policy statements.

8 5 . Ultimately, Petitioner’s argument is that the subject property is more

appropriate for low - density or medium - density, rather than the medium - high

density category applicable under the Plan Amendment. Petitioner sought to

prove that the County did not consider a lower - density on the subject

property as an alternative.

8 6 . However, the policy requires the County to consider alternatives to

detailed map changes; not alternative types of map changes.

8 7 . The alternatives contemplated by the policy are “clarifying text

amendments” and “additional policy statements.”

8 8 . Ms. Ward suggested three alternatives that could have, and perhaps

should have, been considered by the County: (1) a cha nge to low - density or

medium - density category; (2) a text amendment to allow TNDs within

i nstitutional parcels along the Fort Clark Boulevard (as an express transit

corridor); and (3) additional policy statements that would allow residential

use while prov iding “compatibility provisions” to ensure “protection in terms

of compatibility and intensity and density.”

8 9 . Ms. Ward’s first suggestion is a different type of map amendment,

which, as addressed above, is not the type of alternative contemplated by the

policy. Ms. Ward’s second suggestion is hardly a “clarifying” text amendment. It takes the form of an overlay amendment authorizing a new use (TNDs) on

a limited number of properties (institutional) in a specified location (along

Fort Clark Boulevard). Fu rther, this suggestion does not address the heart of

the issue — what density of residential development would be allowed on the

subject property. TNDs only provide for density bonuses; the base density is

established by the underlying land use category, whi ch, in this case , is

institutional, and which provides for no residential density. Ms. Ward’s third

suggestion was not fully fleshed - out at the final hearing. It appears she was

suggesting an amendment to allow residential uses in the institutional land

us e category, which would include specific provisions to protect those

residential uses from the inevitable incompatibility with existing

institutional uses already developed on those sites. At any rate, the

suggestion is again, more than a mere “clarifying text amendment.”

90 . Mr. Hays testified that the only alternative text amendment he could

envision that would accomplish the applicant’s goal of developing the

property for residential, would be an amendment to allow residential development in the institut ional category. Mr. Hays testified that such a

change would have unintended, and potentially negative, consequences when applied to all the institutionally - designated properties in the County.

Moreover, Mr. Hays testified that there is no alternative that he, as a

professional planner, would recommend to the Board of County

Commissioners.

91 . On this issue, Mr. Hays’ testimony is accepted as more persuasive

than Ms. Ward’s.

Other Alleged Internal Inconsistencies

9 2 . Petitioner alleges that adoption of the P lan Amendment creates

internal inconsistencies in the Comprehensive Plan, specifically between the

Plan Amendment and the FLUE Goal and Principles, which read as follows:

Goal

Encourage the Orderly, Harmonious, and Judicious

Use of Land, Consistent with t he Following

Guiding Principles.

Principle 1

Promote sustainable land development that

provides for a balance of economic opportunity, social equity including environmental justice, and protection of the natural environment.

Principle 2

Base new develo pment upon the provision of necessary services and infrastructure, focus on

urban development in a clearly defined area and

strengthen the separation of rural and urban uses.

Principle 3

Recognize residential neighborhoods as a collective

asset for all r esidents of the county.

Principle 4

Create and promote cohesive communities that provide for a full - range and mix of land uses.

9 3 . The Goal and Principles at issue are aspirational in that they do not

specifically mandate any action that can be objecti vely or quantitatively

measured for consistency. Rather, the Goal and Principles express a

community vision. In short, they are not self - enforcing.

9 4 . The policies contained within the Comprehensive Plan establish the

means by which the County intends to achieve its Goal, consistent with the

Principles established in each element. It is to the policies that one must look

to be informed about how the Comprehensive Plan will be applied to a

particular property or situation.

9 5 . When determining internal con sistency, it is necessary to consider the

Comprehensive Plan as a whole and goals must not be taken out of context as

Petitioner has done in this case. For example, Petitioner’s expert planner,

Ms. Ward, objected to siting the density and intensity represe nted by the

requirement of this Plan Amendment to build out as a TND because it would

be in conflict with the FLUE Goal of “orderly and harmonious” development.

Ms. Ward confined her analysis to the limited context of the FLUE Goal and

Principles and did n ot consider the implementing FLUE general strategies or

policies. Had she examined the policies, the County’s express intent to

increase density within the Urban Cluster for myriad reasons would have

been evident.

9 6 . Petitioner did not prove that the Plan Amendment renders the

Comprehensive Plan internally inconsistent with the cited Goal and Principles.

Public Participation

9 7 . Petitioner contends that the County failed to comply with public

participation requirements of both the Act and the Comprehensive Plan in

adopting the Plan Amendment.

9 8 . FLUE Policy 7.1.25 provides that “[a]ll amendments to the

Comprehensive Plan shall meet the requirements of Chapter [sic] 163.3181,

Florida Statutes for public participation in the comprehensive planning

process.”

9 9 . The County requires the applicant for a large - scale plan amendment

to hold a noticed neighborhood workshop prior to the public hearings on the

plan amendment. Intervenors’ agent conducted the required neighborhood

workshop on August 22, 2019, and Petit ioner’s representative, Lisa Allgood,

attended that workshop.

100 . During the County’s review of the Plan Amendment application,

Petitioner submitted written comments, through its agent, Steven Tilbrook, to the County through email communications with Coun ty staff and

commissioners.

101 . The County held three separate, properly - noticed, public hearings;

one before the local planning agency, and two before the full County Commission. Petitioner participated in all three public hearings through its

representa tive, Mr. Tilbrook.

10 2 . Nevertheless, Petitioner alleges that its rights were violated because

the applicant was given more time to make its presentation at the public hearings than Petitioner was to make its comments.

10 3 . It is difficult to determine e xactly how much time Petitioner was

afforded at the public hearings based on the transcripts. At the local planning

agency public hearing, Petitioner’s presentation continued for several pages

of transcript, and at one point, the chair extended Petitioner an additional ten minutes.

10 4 . At the first C ounty Commission public hearing, Petitioner was given

ten minutes, but gave an uninterrupted presentation of an unknown length, followed by a presentation by Petitioner’s expert transportation planner.

Followi ng the presentation, one of the commissioner’s engaged Mr. Tilbrook

in a question and answer session.

10 5 . At the second C ounty C ommission public hearing, Petitioner’s

transportation expert addressed the commissioners, as well as Petitioner’s

corporate rep resentative, Ms. Allgood, and attorney, Mr. Tilbrook.

10 6 . Following adoption of the Plan Amendment, Petitioner timely filed a

Petition challenging the Plan Amendment, which gave rise to the instant

proceeding.

Regional Policy Plan

10 7 . Petitioner further alleges that the Plan Amendment is not in

compliance because it is inconsistent with the RPC Plan , specifically

Goals 5.1 and 2.14.

10 8 . Regional Goal 5.1 states the regional goal to “[m]itigate the impacts

of development to the Regional Road Network as w ell as adverse

extrajurisdictional impacts while encouraging development within urban

areas.” Goal 5.1 is implemented by Policies 5.1.1 through 5.1.4, which

describe how the RPC determines mitigation of local government plan

amendment impacts to regional r esources.

10 9 . Policy 5.1.1. provides that “within … urban development areas where

the local government comprehensive plan includes goals and policies which implement Transportation Planning Best Practices, adverse impact to the Regional Road Network are a dequately [mitigated].” In other words, where a

plan amendment is located in an urban development area, and the local

government comprehensive plan contains transportation planning best

practices, the RPC Plan deems the impacts from a local government plan

amendment on the regional roadway network “mitigated.”

1 10 . The Plan Amendment is located in the Urban Cluster, an area of the

County designated for urban development. Fort Clark Boulevard, also known

as State Road 26 (“S.R. 26”), is part of the regional road network.

1 11 . Section 163.3184(3)(b)2. requires the regional planning agency to

review a local government plan amendment and comment specifically on “important state resources and facilities that will be adversely impacted by

the amendment if adopted .”

11 2 . The RPC reviewed the Plan Amendment and determined that “the

County Comprehensive Plan Transportation Element contains policies

consistent with Best Transportation Planning Practices contained in the

[RPC Plan].” The RPC concluded, consistent with Goal 5.1 and Policy 5.1.1 . ,

that adverse transportation impacts of the Plan Amendment to the regional

road network “are adequately mitigated.”

11 3 . Nevertheless, Ms. Ward testified that, based on Mr. Kim’s

transportation impact analysis, “there was nothin g to rely on as

transportation best planning practices in the review of this amendment application.”

11 4 . Petitioner introduced no evidence to refute the RPC’s determination

that the County’s Comprehensive Plan contains policies “consistent with Best

Trans portation Planning Practices contained in the [RPC Plan].”

11 5 . Regional Goal 2.14 establishes the RPC’s intent to “ [e] nsure future

growth and development decisions maintain a balance between sustaining

the region’s environment and enhancing the region’s e conomy and quality of

life.” Goal 2.14 is implemented by Policies 2.14.1 and 2.14.2, which establish the desire of the RPC to “ [c] reate and sustain vibrant, healthy communities

that attract workers, businesses, residents, and visitors to the region” ; and

“ Promote and incentivize local government in the development of vibrant city

centers,” respectively.

11 6 . Petitioner presented no evidence that the Plan Amendment would

not create a community that would attract workers, businesses, residents ,

and visitors t o the region. Petitioner presented no evidence that the Plan

Amendment would not develop as a vibrant city center.

11 7 . Instead, Ms. Ward opined that the Plan Amendment violates the

“balance” required by Goal 2.14 because the density and intensity of devel opment on the subject property will negatively affect surrounding

communities. This is a restatement of Petitioner’s compatibility argument.

Petitioner did not prove the Plan Amendment is incompatible with the

adjacent low - density residential development.

11 8 . Petitioner did not prove the Plan Amendment is inconsistent with the

RPC Plan.

C ONCLUSIONS OF L AW

11 9 . The Division has jurisdiction over the subject matter and parties

hereto pursuant to sections 120.569, 120.57(1), and 163.3184(5), Florida

Statutes.

1 20 . To have standing to challenge a plan amendment, a person must be

an “affected person,” as defined in section 163.3184(1)(a).

1 21 . Petitioner is an “affected person” with standing to bring this action

pursuant to section 163.3184(1)(a).

12 2 . “In compl iance” means “consistent with the requirements of

§§ 163.3177, 163.3178, 163.3180, 163.3191, 163.3245, and 163.3248, with the

appropriate strategic regional policy plan, and with the principles for guiding

development in designated areas of critical state concern and with part III of

chapter 369, where applicable.” § 163.3184(1)(b), Fla. Stat.

12 3 . The County’s determination that the Plan Amendment is “in

compliance” is presumed to be correct and must be sustained if the County’s

determination of complianc e is fairly debatable. See § 163.3184(5)(c), Fla.

Stat.

12 4 . “The ‘fairly debatable’ rule is a rule of reasonableness; it answers the

question of whether, upon the evidence presented to the [government] body,

the [government’s] action was reasonably - based. ” Lee Cty. v. Sunbelt

Equities, II, Ltd. P’ship , 619 So. 2d 996, 1002 (Fla. 2d DCA 1993)(citing Town

of Indialantic v. Nance , 400 So. 2d 37, 39 (Fla. 5th DCA 1981)).

12 5 . The mere existence of contravening evidence is not sufficient to

establish that a lan d planning decision is “fairly debatable.” It is firmly

established that:

[E]ven though there was expert testimony adduced

in support of the City’s case, that in and of itself does not mean the issue is fairly debatable. If it did,

every zoning case would be fairly debatable and the

City would prevail simply by submitting an expert

who testified favorably to the City’s position. Of course that is not the case. The trial judge still

must determine the weight and credibility factors

to be attributed to the ex perts. Here the final

judgment shows that the judge did not assign much weight or credibility to the City’s witnesses.

Boca Raton v. Boca Villas Corp ., 371 So. 2d 154, 159 (Fla. 4th DCA 1979).

12 6 . The standard of proof to establish a finding of fact is p reponderance

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

Standing

12 7 . Petitioner alleges that Intervenors do not have standing to intervene

in this proceeding because neither Intervenor is an “affected person,” as that

term is defined in the Act.

1 2 8 . This proceeding was initiated pursuant to section 163.3184(5)(a),

which does not address intervention by any party in a challenge to a

comprehensive plan amendment brought by an “affected person,” such as

Petitioner. By contrast, section 163.3184(5)(b) , which governs challenges to a

comprehensive plan amendment brought by the state land planning agency,

specifically addresses intervention, providing that the parties to the

proceeding are limited to the state land planning agency, the affected local gove rnment, “and any affected person who intervenes.” Unlike the statutory

section governing challenges brought by the land planning agency, the statutory section governing Petitioner’s challenge is silent as to intervenors.

12 9 . Petitioner relies upon the de cision in St. Joe Paper Company v.

Florida Department of Community Affairs , 657 So. 2d 27 (Fla. 1st DCA 1995), for the proposition that intervenors must satisfy the affected person standing

requirements. The challenge to the comprehensive plan amendment th at is

the subject of St. Joe Paper was brought pursuant to section 163.3184(10),

Florida Statutes (1990), governing challenges initiated by the state land planning agency’s determination that the plan amendment was not “in

compliance.” The statute has been significantly rewritten since the 1990

version. 4 The decision in St. Joe Paper is not binding precedent in the instant

proceeding, which was brought pursuant to an entirely different statutory

section under a completely different process for state review of local

comprehensive plan amendments.

1 30 . Assuming, arguendo , Petitioner is correct that Intervenors must

qualify as “affected persons,” Petitioner did not prove that Intervenors fell short of that standard.

1 31 . An “affected person” is defined in the Act to include “persons owning

property, residing, or owning or operating a business, within the boundaries of the local government whose plan is the subject of the review[.]”

§ 163.3184(1)(a), Fla. Stat. In addition to this geographical requirement, the

statute requires an “affected person,” to have “also submitted oral or written

comments, recommendations, or objections to the local government” during

its consideration of the plan amendment. Id . Petitioner alleges Intervenors do

not meet either the geogr aphical requirement or the participation

requirement.

13 2 . Petitioner argues that neither NGI nor Fickling owned property,

resided in, or owned or operated a business within the County during the

time the Plan Amendment was either being considered for ado ption or was

adopted.

13 3 . It is correct that neither NGI nor Fickling owned the subject

property, or any other property in the County, by which they could attain “affected person” status. However, based on the Findings of Fact , both

NGI/Novare and Fickli ng were conducting, and continue to conduct, business

within the County in pursuit of developing the subject property. It is a

4 However, it is notable that even in the 1990 version, the Growth Management Act (the

former version of the Community Planning Act) was silent as to intervention in a challenge

brought by an affected person following the state land planning agency’s det ermination that

the subject plan amendment was “in compliance.”

business venture on which the entities have expended at least $500,000,

which they stand to lose if the Plan Amendment is not app roved.

13 4 . Petitioner next maintains that neither Fickling nor NGI made

comments regarding the Plan Amendment during the time in which the Plan

Amendment was being considered by the County. Petitioner argues that

comments during the public hearings were m ade solely on behalf of Novare

and there is no record of comments made by, or on behalf of, either NGI or

Fickling.

13 5 . Petitioner’s contention is baseless. Mr. Brown clearly stated that he

was representing Fickling when he appeared before both the local planning

agency and the County Commission. Mr. Brown also appeared on behalf of

NGI/Novare, although he only mentioned Novare by name.

13 6 . Furthermore, contrary to Petitioner’s position, Intervenors were not

required to be specifically identified by their representatives. “There is no

express language in section 163.3184 that would deny a corporation standing

as an affected person if the corporation’s representative makes timely

comments, but does not identify the name of the corporation at the time the

co mments are made.” Gulf Trust Dev., LLC v. Manatee Cty. , Case No. 11 -

4502 (Fla. DOAH Mar. 2, 2012; Fla. DEO Mar. 30, 2012).

13 7 . Both Fickling and NGI have standing to i ntervene i n this proceeding.

School Capacity Issues

13 8 . Petitioner contends that the P lan Amendment is not supported by

data and analysis regarding the impact of the Plan Amendment on area schools, contrary to section 163.3177.

13 9 . The statute provides, in pertinent part, that “plan amendments shall

be based upon relevant and appropriate data and an analysis by the local government,” which analysis may include “surveys, studies, community goals

and vision, and other data available at the time of adoption of the … plan

amendment.” § 163.3177(1)(f), Fla. Stat. Further, the statute provides t hat “[t]o be based on data means to react to it in an appropriate way and to the

extent necessary indicated by the data available on that particular subject at

the time of adoption of the plan or plan amendment at issue.” Id .

1 40 . Petitioner alleges the C ounty relied upon Ms. Wynn’s flawed analysis

of the Plan Amendment’s impact on area schools, and that the Plan

Amendment was not an appropriate reaction to the data on overcrowding of

the Fort Clark Middle School.

1 41 . However, this is a de novo hearing , not a review of action taken by

the County in adopting the Plan Amendment. See § 120.57(1)(k), Fla. Stat.

The undersigned is not limited to only the data and analysis which was

before the County during its consideration of the Plan Amendment. If the

data w as available at the time the County adopted the Plan Amendment, the

undersigned may consider new analysis of that data at the final hearing. See

§ 163.3177(1)(f), Fla. Stat. (“plan amendments shall be based upon relevant

and appropriate data … available at the time of adoption of the … plan

amendment.”).

142 . Ms. Wynn’s corrected analysis, introduced at the final hearing,

supports the Plan Amendment, even though the analysis was erroneous at

the time it was presented to the County at the time of adoption.

14 3 . Petitioner contends that Ms. Wynn’s school capacity analysis was

flawed because it considered capacity “districtwide” to serve the students

anticipated to be generated from development allowed under the Plan

Amendment, rather than the capacity within the particular SCSA. Petitioner

relies upon PSFE Policy 1.1.3, which states that for purposes of evaluating

the impact of a Plan Amendment on school capacity, “existing or planned

capacity in adjacent SCSAs shall not be considered.” As discussed in the Fi ndings of Fact, Ms. Wynn’s analysis correctly evaluated the impact of the

Plan Amendment on both the particular SCSA and the district as a whole. Her conclusion that there is capacity districtwide to serve the middle school

students anticipated by the Plan Amendment was inherent in her evaluation

of the impact on the system as a whole.

14 4 . The Plan Amendment is not an inappropriate reaction to data

showing that Fort Clark Middle School is overcapacity. The purpose of the

capacity analysis is not to prohib it new development in the County, but

rather to provide the SBAC with data projections to be considered for future

planning. Ms. Wynn’s conclusion that the students estimated to be generated

under the Plan Amendment “can reasonably be accommodated during t he

five, ten, and twenty - year planning period through planned capacity

enhancement and management practices” was unrefuted.

14 5 . Petitioner did not prove the Plan Amendment was not supported by

appropriate data, and an analysis thereof, related to school capacity.

14 6 . Nor did Petitioner prove that the Plan Amendment creates an

internal inconsistency with PSFE Policies 1.1.2, 1.1.3, and 1.1.5.

Transportation Issues

14 7 . Petitioner’s contention that the Plan Amendment is not supported by

data and analysi s related to transportation impacts is likewise unpersuasive.

First, Petitioner’s contention that the traffic generation analysis was flawed

because it utilized a 50 / 50 split for retail and office uses in the TND was

wholly unproven. No evidence was introd uced to support a finding that the

50 / 50 split was not a professionally - acceptable methodology for analyzing

traffic impacts from a TND.

14 8 . Second, while Petitioner lamented that the County relied upon 2017

data regarding roadway capacity within the Nort hwest District, the evidence

showed that the data was the best available data on district capacity. That data was relied upon by the County in its recent 2019 EAR process.

14 9 . Petitioner argued that the County should have factored in the new

trips genera ted by development approved since 2017 to get a more accurate

assessment of capacity. That argument is contrary to the plain language of

section 163.3177 that “[o]riginal data collection by local governments is not

required.” § 163.3177(1)(f)2., Fla. Stat. The 2017 data was relevant and

appropriate data, and the best data available on that particular subject at the

time of adoption of the plan amendment.

1 50 . Finally, Petitioner’s argument that the Plan Amendment is not

supported by adequate data because th e County did not require the applicant

to submit a capacity analysis specified in TME Policy 1.1.6.11 is likewise

unpersuasive. The County staff’s determination — that more than adequate

capacity was available in the Northwest District to accommodate the new

trips anticipated to be generated from the Plan Amendment — was unrefuted.

1 51 . Petitioner did not prove the Plan Amendment is not supported by

appropriate data, and analysis thereof, related to transportation impacts.

15 2 . Petitioner did not prove the Pl an Amendment is internally

inconsistent with FLUE Principle 2 (“ [b] ase new development upon the

provision of necessary services and infrastructure. Focus development in a clearly defined area and strengthen the separation of rural and urban uses.”) .

Compat ibility and Suitability

15 3 . Based on the foregoing Findings of Fact, Petitioner did not prove the

Plan Amendment was incompatible with surrounding uses, particularly the adjacent low - density residential neighborhood.

15 4 . Petitioner did not prove the Pl an Amendment created an internal

inconsistency with FLUE Principle 3 (“ [r] ecognize residential neighborhoods

as a collective asset for all residents of the County”), or Principle 4 (“ [c] reate

and promote cohesive communities that provide for a full range a nd mix of

land uses”).

155 . Petitioner did not prove the Plan Amendment was not supported by

data regarding the character of the undeveloped land, available services and facilities, as required by section 163.3177(6)(a)2. As recited in the Findings of Fact , County staff analyzed the suitability of the subject property for

development as well as the availability of public services and utilities to serve

the anticipated development. While Petitioner would have preferred the

County to perform additional, thoug h unspecified, analysis of potential

contamination to the Floridan Aquifer, Petitioner did not prove that

additional data was available to be analyzed. Nor did Petitioner carry its

burden by introducing any data or an analysis to contradict the RPC’s

concl usion that no significant impacts to the Floridan Aquifer were

anticipated from the development allowed under the Plan Amendment.

15 6 . Petitioner did not prove the Plan Amendment creates an internal

inconsistency with FLUE Principle 1 (“ [p] romote sustainab le land

development that provides for a balance of economic opportunity, social

equity including environmental justice, and protection of natural resources.”) .

Alternatives

15 7 . Petitioner’s allegation that the Plan Amendment is inconsistent with

FLUE Poli cy 7.1.24, because the County did not consider alternatives to the

map amendment , is likewise unpersuasive. Whether the County considered

other alternatives or not, no reasonable alternative was identified at final hearing that would accomplish the purpose of allowing residential uses on

the subject property short of a map amendment.

Public Participation

15 8 . Section 163.3181 governs the public participation requirements for

development and adoption of local government comprehensive plan

amendments. The Co unty has adopted procedures in its Comprehensive Plan

and land development code to implement the statutory requirement that the

“public participate in the comprehensive planning process to the fullest

extent possible.”

15 9 . Petitioner does not allege that the County failed to comply with the

notice and public hearing procedures required by either the applicable statutes or the County’s regulations.

5

5 Even if Petitioner’s allegation was that the County failed to comply with required notices

and public hearings, that failure would not be a sufficient basis on which to find a

comprehensive plan amendment not “in compliance.” See § 163.3184(1)(b), Fla. Stat. (“‘In

compliance’ means consistent with the requirements of ss. 163.3177, 163.3178, 163.3180,

163.3191, 163.3245, and 163.3248[.]”). Section 163.3181 is not included in that definition.

1 60 . Instead, Petitioner singularly complains that it was not given

adequate time at the public hearings to make its presentations to the

governing bodies. Decisions regarding comprehensive plan amendments are

legislative in nature. See Martin Cty. v. Yusem , 690 So. 2d 1288 (Fla. 1997).

In a legislative decision - making process, Petitioner posits that members of

the public must be given equal time to comment on the proposed action.

Petitioner argues that, in hearings related to the Plan Amendment, the County imposed the public participation requirements of a quasi - judicial

hearing, allowing the applicant to take additional time for a presentation and

limiting all other speakers to an abbreviated comment period.

1 61 . Petitioner alleges it was denied due process which is a constitutional

question beyond the scope of the undersigned’s authority. Circuit courts have t he power, in all circumstances, to consider constitutional issues. See Gulf

Pines Mem ’ l Park, Inc. v. Oakland Mem ’ l Park, Inc. , 361 So. 2d 695 (Fla.

1978). However, where, as here, Petitioner alleges a constitutional deficiency in the administrative proces s, administrative remedies must be exhausted to

ensure that the County has “had a full opportunity to reach a sensitive,

mature, and considered decision upon a complete record appropriate to the issue.” Key Haven Assoc . Enter . v. Bd . of Trs . , 400 So. 2d 66 (Fla. 1st DCA

1981). The appropriate course of action, which was followed here, was for

Petitioner to make a record of the alleged unconstitutional deficiency during

the administrative hearing. Then, the district court is the “proper forum to resolve this type of constitutional challenge because those courts have the

power to declare the agency action improper and to require modifications in the administrative decision - making process.” Key Haven Assoc . Enter . , Inc. v.

Bd. of Trs. of the Int. Imp. Trust Fun d, 427 So.2d 153 (Fla. 1982).

16 2 . In light of those decisions, the undersigned has made Findings of

Fact relative to Petitioner’s constitutional challenge, which may be

considered by the appellate court, should Petitioner appeal the Final Order

resulting from this Recommended Order.

16 3 . Assuming, arguendo , Petitioner was alleging the County failed to

follow applicable public notice and hearing procedures within the framework

of the Act, Petitioner has an opportunity to make a record to demonstrate

how i t was prejudiced by the alleged failures. See Emerald Lakes Residents’

Ass ’ n, Inc. v. Collier Cty . , Case No. 02 - 3090 (Fla. DOAH Feb. 10, 2003; Fla.

DCA May 8, 2003). The undersigned concludes, based on the record and the Findings of Fact herein, that Petit ioner suffered no prejudice from alleged

inadequate presentation time at the public hearings. Petitioner participated

in all three public hearings, made lengthy presentations (although not as

long as the applicants’ presentations), presented information fr om its experts,

and answered questions from the commissioners who engaged directly with

its representatives.

Other Internal Inconsistencies

16 4 . Petitioner did not prove that the Plan Amendment creates internal

inconsistencies with the FLUE Goal and Prin ciples 1 through 4.

Regional Policy Plan

16 5 . Section 163.3184(1)(b) defines “in compliance” to include consistency

with the applicable strategic regional policy plan.

166 . Petitioner did not prove its allegation that the Plan Amendment is

inconsistent w ith Goals 5.1 and 2.14 of the RPC Plan.

Other Issues

167. Petitioner failed to prove any other bases for challenging the Plan

Amendment raised in this proceeding.

Conclusion

16 8 . For the reasons stated above, Petitioner ha s not proven beyond fair

debate th at the Plan Amendment is not “in compliance,” as that term is

defined in section 163.3184(1)(a).

169. The undersigned reserves jurisdiction in this case to rule on

Respondent and Intervenors’ Joint Motion for Sanctions following an

evidentiary hearing to b e scheduled in the near future.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Department of Economic Opportunity enter a final

order determining that the Comprehensive Plan Amendment adopted

by Or dinance No. 20 - 05 on February 5, 2020, is “in compliance,” as that term

is defined in section 163.3184(1)(b).

D ONE A ND E NTERED this 1st day of December , 2020 , in Tallahassee, Leon

County, Florida.

S UZANNE V AN W YK

Administrative Law Judge

Division of A dministrative 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 1st day of December , 2020 .

C OPIES F URNISHED :

Joni Armstrong Coffey, Esquire

Akerman LLP

Suite 1100

98 Southeast 7th Street

Miami, Florida 33131

(eServed)

Kristofer David Machado, Esquire

Akerman LLP

Suite 1100

98 Southeast 7th Street

Miami, Florida 33131

(eServed)

Sylvi a Torres, Esquire

Alachua County

12 Southeast 1st Street

Gainesville, Florida 32601

(eServed)

Patrice Boyes, Esquire Patrice Boyes, P.A.

Suite 1120

5700 Southwest 34th Street

Gainesville, Florida 32608

(eServed)

Corbin Frederick Hanson, Esquire

Alachua County

12 Southeast 1st Street

Gainesville, Florida 32601

(eServed)

Stephen K. Tilbrook, Esquire

Akerman LLP

Suite 1600

350 East Las Olas Boulevard

Fort Lauderdale, Florida 33301

(eServed)

Wesley J. Hevia, Esquire

Akerman LLP

Suite 1100

98 Southeast 7 th Street

Miami, Florida 33131

(eServed)

Bryan West, Esquire

Akerman LLP

Suite 1100

98 Southeast 7th Steet

Miami, Florida 33131

(eServed)

Mark Buckles, Interim General Counsel

Department of Economic Opportunity

Caldwell Building, MSC 110

107 East M adison Street

Tallahassee, Florida 32399 - 4128

(eServed)

Dane Eagle, Executive Director

Department of Economic Opportunity

Caldwell Building

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

Janay Lovett, Agency Clerk

Department of Econo mic Opportunity

Caldwell Building

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.