20-004083GM Pgsp Neighbors United, Inc. vs. City Of St. Petersburg, Florida Status: Closed Recommended Order on Wednesday, March 3, 2021.

Summary: Petitioner did not prove beyond fair debate that the small-scale amendment is not "in compliance? as defined under section 163.3184.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

P GSP N EIGHBORS U NITED , I NC . ,

Petitioner ,

vs. Case No. 20 - 4083GM

C ITY OF S T . P ETERSBURG , F LORIDA ,

Respondent .

/

R ECOMMENDED O RDER

Administrative Law Judge Hetal Desai of the Division of Administrative

Hearings (DOAH) conducted a disputed - fact evidentiary hearing on

November 17 and 18, 2020, in Tallahassee, Florida.

A PPEARANCES

For Petitioner: Shai Ozery, Esquire

Robert N. Hartsell, Esquire

Robert N. Hartsell , P.A.

61 Northeast 1st Street, Suite C

Pompano Beach, Florida 33060

For Respondent: Heather Judd, Esquire

Michael J. Dema, Esquire

City of St. Petersburg

Post Office Box 2842

St. Petersburg, Florida 33731

S TATEMENT OF T HE I SSUE

Whether the small - scale amendment to the Future Land Use Map

(FLUM) of the City of St. Petersburg's (the City) Comprehensive Plan

(Comprehensive Plan), adopted by Ordinance 739 - L (Ordinance) on

August 13, 2020, is "in compliance" as that term is defined in section

163.3184(1)(b) , Florida Statutes (2020). 1

P RELIMINARY S TATEMENT

On February 11, 2020, the City of St. Petersburg Community Planning

and Preservation Commission (Planning Commission) voted to deny an

application by Grace Connection of Tampa Bay, Inc., seeking to amend the

FLUM of the Comprehensive Plan, changing the designation of a parcel

located at 635 64th Street South, St. Petersburg, Pinellas County, Florida.

On February 21, 2020, the applicant appealed the Planning Commission's

decision to the City of St. Petersbu rg Council (City Council), pursuant to

section 16.70.040.D.1.b.(2) of the City's Code ("A denial of an application is

final except in the case of an application initiated by the City Council unless

an appeal is taken to the City Council."). On August 13, 2 020, the City

Council granted the appeal and adopted the Ordinance. In doing so , it

overturned the Planning Commission's denial of the application and adopted

the amendment to the FLUM (Amendment) as a small - scale amendment

pursuant to s ection 163.3187(2).

On September 14, 2020, Petitioner , PGSP Neighbors United, Inc.

(Petitioner or PGSP) , timely filed a Petition for Administrative Hearing

(Petition) with DOAH pursuant to section 163.3187, challenging the

Ordinance. In the Petition, PGSP alleges the City failed to adhere to its own

policies requiring it to (1) direct population concentrations away from known

or predicted Coastal High Hazard Areas; (2) provide compatible land use

transitions; (3) protect the established compatibility of the character of

sur rounding areas; and (4) protect existing residential uses from

1 Except as otherwise noted, all references to Florida Statutes are to the 2020 version,

in ef fect when the Plan Amendment was adopted. All references to the Comprehensive Plan

are to the November 2019 version admitted into evidence as Exhibit P - 25.

incompatible uses. The Petition also alleges the Plan Amendment was not

based upon surveys, studies, and professionally accepted data and analysis.

The matter was assigned to the undersigned and set for a final disputed

fact hearing. The parties filed a Joint Pre - Hearing Stipulation on

November 12, 2020, and participated in a pre - hearing conference on

November 13, 2020, via Zoom. The facts and law stipulated to in the Joint

Stipulation and con firmed at the pre - hearing conference have been

incorporated in this Recommended Order as appropriate.

At the final hearing, PGSP presented the testimony of Charles Gauthier,

who was accepted as an expert in planning; and Dan Porter, who was

accepted as an expert in local real estate. PGSP's Exhibits P - 1 through P - 23

were admitted into evidence. The City pr esented the testimony of three

employees: Derek Kilborn, manager of the Urban Planning and Historic

Preservation Division in the City's Planning and Development Services

Department (Planning Department); Elizabeth Abernethy, Director of the

Planning Depart ment; and Thomas Whalen, a Planner III. Mr. Kilborn and

Ms. Abernethy were accepted as experts in land use planning and

development, comprehensive planning, and zoning. Mr. Whalen was accepted

as an expert in transportation planning. The City's Exhibits R - A through

R - W were admitted into evidence.

The transcript of the final hearing was filed with DOAH on December 16,

2020. The parties requested and were granted additional time for filing

proposed recommended orders (PROs) . 2 Both parties timely filed PROs on

2 By agreeing to an extended deadline of more than ten days after the filing of the transcript

for f iling PROs, the parties waived the 30 - day time period for issuing the Recommended

Order. See Fla. Admin. Code R. 28 - 106.216.

February 1, 2021 , which have been duly considered in the preparation of this

Recommended Order.

F INDINGS OF F ACT

The Parties and Property

1. Petitioner, PGSP, is a membership organization, with 118 members. It

is registered with the State of Florida as a no t - for - profit corporation located

in St. Petersburg, Florida. PGSP's stated mission is to promote healthy urban

development throughout St. Petersburg ; it was formed to promote

development and growth compatible with surrounding neighborhoods. It

works with the City and residents to ensure new development is cohesive

with existing and planned environmental and infrastructural demands.

2. Respondent, City of St. Petersburg, is a political subdivision of the State

of Florida that is subject to th e requirements of c hapter 163, Part II, Florida

Statutes.

3. The subject property is located at 635 64th Street South,

St. Petersburg, Pinellas County, Florida (Property). It is owned by Grace

Connection of Tampa Bay, Inc. , operat ing as Grace Connection Ch urch

(Church). The Church was the applicant for the Amendment at issue but is

not a party to this action.

4. The Property is triangular in shape with a total of 4.66 acres. To the

north and west, the Property is bounded by Bear Creek, a natural water

feat ure. To the east, the Property is bounded by 6 4th Street South, a

"Collector, City Road." To the south, the Property is bounded by an

undeveloped 40 - foot right - of - way.

5. A portion of the Property that abuts Bear Creek is located in a Coastal

High Hazard A rea (CHHA). 3 Respondent has not sought changes to the

portion of the Property that is within the CHHA.

3 The Property is also within the projected storm surge in Hurricane Evacuation Level "D , "

which is a Pinellas County emergency man agement designation, and not a part of the City's

Comprehensive Plan.

6. The Property is currently categorized for Neighborhood Suburban

(NS - 1) zoning (which is separate from its Future Land Use Category).

7. A substantial number of PGSP members live within the City, in close

proximity to the Property and allege they will be adversely affected by the

concomitant impacts of increased densities in the community as addressed in

these proceedings.

The Ordinance

8 . The Church's application sought to amend the FLUM of the

Comprehensive Plan . The application divided the non - portion of the CHHA

into three portions and sought to make the following changes to the Future

Land Use categories:

A PORTION OF THE SUBJECT PROPER TY

(APPROX. 4.33 ACRES), FROM I

(INSTITUTIONAL) TO RM (RESIDENTIAL

MEDIUM); A PORTION OF THE SUBJECT

PROPERTY (APPROX. 0.21 ACRES), FROM I

(INSTITUTIONAL) TO RU (RESIDENTIAL

URBAN); AND A PORTION OF THE SUBJECT

PROPERTY (APPROX. 0.04 ACRES), FROM RU

(RESID ENTIAL URBAN) TO RESIDENTIAL

MEDIUM (RM).

9 . On August 13, 2020, the City Council had a public hearing on the

Church's appeal of the denial of its application by the Planning Commission.

At this hearing , PGSP members submitted oral or written comments,

recommendations, or objections to the City.

10 . At the August 13 meeting, the City Council adopted the Ordinance .

This had the effect of adopting the Amendment and changing the Future

Land Use categories t o the Property.

1 1 . The Ordinance instituted a small - scale amendment to the FLUM, as

defined by section 163.3187(2).

Maximum Density

1 2 . Petitioner argues the Ordinance is not "in compliance," as defined in

sections 163.3184(1)(b) and 163.3187(4). Specifically, PGSP attacks the

Am endment because it does not (1) direct "population concentrations" away

from areas designated as a CCHA; (2) pro vide for compatible land use

transitions; and (3) preserve the existing character of the surrounding areas.

Each of these claims are either partially or wholly dependent on the

increased maximum density for the Property after the A mendment. As such,

the th reshold issue of density must be addressed.

1 3 . This dispute involves the 4.37 acre that are changed from the

Residential Urban (RU) and I nstitutional land use categories to Residential

Medium (RM) made up of approximately 4.33 acres from Institutional to RM

and approximately 0.04 acres from RU to RM.

14. The "Institutional" designation allows a density of 12 dwelling units

per acre but limits resident ial use as an accessory to the primary

institutional use, which in this case i s a church. 4 The Church submitted the

application for the FLUM amendment because it ultimately seeks to sell the

Property for multi - family housing development, which would not be a proper

use in an area designated "Institutional."

15. The Future Land Use categories for the area to the north and east of

the Property are RU, which have a density of 7.5 units per acre. See

Comprehensive Plan Policy LU 3.1A.2. This area is primarily m ade up of

single - family homes.

16. The southern boundary of the property is also the municipal border

between St. Petersburg and an unincorporated portion of Pinellas County.

This area is governed by the Pinellas County FLUM and Pinellas County

Comprehens ive Plan. The adjacent property to the south is a mobile home

park development which has a residential density of 20.4 units per acre.

4 Pursuant to section 16.10.020.2 of the City's Code, Institutional uses include, "government

buildings and grounds, and cemeteries, hospitals, houses of worship and schools."

17. In between the RU and RM categories is a category labeled

"Residential Low Medium" (RLM). The RLM category allows lo w to

moderately intensive residential development with a density not to exceed

ten dwelling units per acre. See Comprehensive Plan Policy LU 3.1A.3.

18. As stated above, the Ordinance would categorize the portion of the

Property at issue as RM. The RM cate gory allows medium density

residential development and has a maximum density of 15 dwelling units

per acre, with a possible maximum density of 30 dwelling units per acre

with the qualification of a density bonus. See Comprehensive Plan Policy LU

3.1A.4.

19. P GSP argue s the density of the areas designated as RM by the

Ordinance will have a maximum possible density of 30 dwelling units per

acre. The City argues the maximum density is calculated using the actual

density that can be built in the RM areas . As explained below, the practical

allowable density of 15 dwelling units per acre with a Workforce Housing

Bonus of six, or 21 dwelling units per acre.

20. Petitioner relies on a "Missing Middle Housing" density bonus

allowable in Neighborhood Traditional Mi xed Residential (NTM) zoning

category. This bonus allows up to 30 units per acre as an incentive to

develop housing that is lacking in the area.

21. While NTM is an available zoning category for RM, the Plan

specifically states that 30 dwelling units per acre is only " permitted in

accordance with the Land Development Regulations [LDRs]. " Per the LDRs,

the NTM designation could not be placed over this parcel because the

designation is used as a transitional zoning category in St. Petersburg ' s

traditional ne ighborhoods.

22. While PGSP's planning expert considered the neighborhood

surrounding the Property to be traditional , he admitted his opinion was not

based on standards in the Comprehensive Plan or LDR definitions regarding

what is considered a traditional or suburban neighborhood.

23. In contrast, Derek Kilborn , a manager in the City's Planning

Department, testified about the different characteristics of traditional versus

suburban neighborhoods and opined that the neighborhood surrounding the

Property is "suburban" according to the terms in the Comprehensive Plan.

This determination is bolstered by the existing zoning of the surrounding

neighborhood being largely NS - 1.

24. The City established it would be impossible for the Property to

qualify for the Mis sing Middle Housing bonus, because the parcel at issue is

not in the NTM zoning category. Rather, as explained by Mr. Kilborn's

testimony and based on the LDRs and the Comprehensive Code, the RM

category only allows a maximum of 15 dwelling units per acre.

25. The Church ha s not applied to rezone the Property. The Planning

Department's director testified, however, that if the Church had applied for

a rezoning for the Property to NTM, the maximum number of dwelling units

would be less than the numbers asserted by Petitioner due to the

requirements for spacing, alleyways, and height restrictions required in

NTM zones.

26. The Property is eligible for a Workforce Housing density bonus. This

bonus would increase the maximum density by six dwelling units fo r

workforce housing. The City's final density calculation incorporated the

Workforce Housing bonus and determined the maximum density for the RM

portion of the Property to be 21 dwelling units per acre.

27. PSGP did not prove beyond fair debate that the ac tual density of 21

units per acre is an erroneous calculation or contrary to the Comprehensive

Plan.

Consistency with Objective CM 10B and Policy CM 10.6 5

28. Comprehensive Plan Objective CM 10B states:

The City shall direct population concentrations

away from known or predicted coastal high hazard

areas consistent with the goals, objectives and

policies of the Future Land Use Element.

29. The phrase "Population concentrations" is not defined by the

Comprehensive Plan.

30. The only p olicy referring to "directing" related to Objective CM 10B is

Policy CM 10.6, which states:

The City shall direct population concentrations

away from known or predicted coastal high hazard

areas by not locating water line extensions in the

coastal high hazard ar ea, beyond that which is

necessary to service planned zoning densities as

identified on the Future Land Use Map.

31. The remaining policies related to this Objective involve the placement

of transportation and infrastructure, expenditures for flood contro l, and the

operation of roads in a CHHA ; none of these issues were raised in these

proceedings . In fact, o ther than the reference to placement of water line

extensions in Policy CM 10.6, there is no provision establishing standards for

what would constitut e direction away from a CHHA.

32. The only area on the Property designated a CHHA is near Bear

Creek. 6 The Ordinance does not increase density in any p art of the CHHA

portion of the Property .

33. PGSP's planning expert, Charles Gauthier, equated a popula tion

concentration as an area with high density. He argued the Ordinance

5 "CM" means Coastal Management in the Comprehensive Plan.

6 Mr. Kilborn testified that in reviewing the property for compliance with the Plan related to

CHHA, there was no study or analysis provided to the City by Petitioner or others showing

flooding or hazard impacts for the non - CHHA portion of the Property .

violated Policy 10.6 because it increased the density of the area on the

Property adjacent to the CHHA. At one point, Mr. Gauthier seemed to say

this policy encourages higher density future land use categories only in the

"central core or spine of the City." Mr. Gauthier maintained the increas e in

density on the non - CHHA portion of the Property frustrated this policy

because only land in the central part of St. Petersburg should experi ence

density increases . PGSP's reasoning would imply any increase in density

near any CHHA and not near the "central core" would violate P olicy CM 10.6.

34. Elizabeth Abernethy , Director of the Planning Department, testified

that "population concentration s " as contemplated by the Comprehensive Plan

are not simpl y increase s in density. Rather, the City core had a concentration

of high - density categories yielding approximate 80 to 120 dwelling units per

acre; she would not characterize 15 or even 30 units per acre as a "high

density" much less a "population concentration." Although she concurred that

there are "population concentration s " in St. Petersburg centered in its urban

core , s he disagreed with Petitioner's expert that increased density on the

Property created a "population concentration" near the CHHA or Bear Creek

area.

35. There was no competent evidence as to where any water line

extensions would be located if the Property's Future Land Use Category were

to change from RU and Industrial to RM.

36. T he City's interpretation of "population concentration" as used in CM

10.6 is reasonable, and therefore, the City's determination that the

Ordinance is in compliance with CM 10.6 is fairly debatable.

Consistency with LU 3.4 7

37. Comprehensive Plan Policy LU 3.4 states:

The Land Use Plan shall provide for compatible land

use transition through an orderly land use

arrangement, proper buffering, and the use of

physical and natural separators.

7 "LU" refers to Future Land Use Element in the Comprehensive Plan.

38. Petitioner focuses on compatible land use transition as only a function

of density. PGSP argues a parcel categorized as RM (15 unity density) cannot

abut an RU (7.5 unit density ) categorized parcel because it violates Policy LU

3.4 . Rather, it argues the RLM ( 10 unit density) category should have been

used instead. It claims the City "leap - frogged" categories instead of using a

"one step" up or down approach.

39. PGSP's expert admits that a direct step down between plan categories

is not explicitly required under the Comprehensive Plan language but argues

other languag e related to "limited variation" required the single step.

40. The plain language of Policy LU 3.4, however, simply requires an

"orderly land use arrangement." It does not explicitly or implicitly state that

the City must use a "step up" approach when dete rmining the appropriate

Future Land Use category.

41. Furthermore, PGSP relied on its density calculation of 30 dwelling

units per acre to argue that with t he surrounding adjacent land density of 7.5

units per acre , there would be a 400% increase in planned residential density.

As stated above , the maximum possible density under the Amendment is 21

dwelling units per acre.

42. Moreover, the City points out that that the mobile home park to the

south of the Property has an actual density of approxima tely 20 dwelling

units per acre. Thus, the transition from 20 to 21 is an orderly land use

arrangement as contemplated by Policy LU 3.4.

43. The FLUM also does not reflect a perfect one up or down transition

pattern throughout St. Petersburg. Rather, it sh ows areas categorized RM

abutting areas categorized RU and RLM. In fact, there is an area designated

RM which abuts RU parcels within 800 feet of the Property.

44. The City presented adequate evidence establishing the change from

Institutional to a residen tial category fits with surrounding residential use.

Moreover, it established that natural and physical barriers on the P roperty ,

includ ing creeks and right of ways , provide transition as contemplated by

Policy LU 3.4. PGSP does not explain why these barri ers are inadequate.

45. Petitioner did not prove beyond fair debate that the Ordinance is

inconsistent with Policy LU 3.4.

Consistency with Objective Policy LU 3.6

46. Policy LU 3.6 states:

Land use planning decisions shall weigh heavily the

established c haracter of predominately developed

areas where changes of use or intensity of

development are contemplated.

47. PGSP argues the increase in density as a result of the change in

categories from RU to RM is inconsistent with the "character" of the

surrounding neighborhood, which is made up of single - family homes. Again,

PGSP's argument relies heavily on the density calculation of 30 units per

acre. As stated above , this density is only available with a chang e to the

underlying zoning to NTM, which was not sought by the Church in its

application. The maximum density applicable to the RM portions of the

Property is 21 dwelling units per acre.

48. As stated above, the City established there are other instances o f RM

abutting RU in the same neighborhood, approximately 800 feet from the

Property. Ms. Abernathy testified that , based on the City's historic

development pattern, RM is the appropriate transitional category next to RU

on a major street (such as 6 4th Stre et South) under the Comprehensive Plan.

49. Ms. Abernethy further testified that residential single - family use

adjoining either residential multi - family or commercial uses in the City is a

"very common development pattern." Therefore, the RM designation is not

inconsistent with Policy LU 3.6. Moreover, the RM designation provides for a

primary residential use, which the Institutional designation does not.

50. Although PGSP focused solely on density as the grounds for

evaluating the "established character of the neighborhood," the City

established that several other considerations go into its analysis related to

Policy LU 3.6 . Beyond looking at existing and proposed densities of the

Future Land Use categories, City staff considers the occurrences and

relat ionships between the uses of the property (i.e., residential versus

institutional; or residential versus residential) and the existence of similar

patterns in the surrounding neighborhood. In this case, the surrounding

areas included other areas designated RM and the mobile home park.

51. Determination of the character of the neighborhood was also based on

a study of the existing road network and the potential impacts on traffic due

to the Amendment . The s treet classification of 64th Street South as a Futu re

Major was a key consideration in determin ing whether the changes in the

Property were consistent with the character of the surrounding area because

that street is the Property's frontage and only access point.

52. Petitioner did not prove beyond fair de bate that the Ordinance i s

inconsistent with Policy LU 3.6.

Data and Analysis

53. PGSP also claims the City did not rely on relevant and appropriate

data and analysis in adopting the Ordinance and A mendment . PGSP,

however, did not conduct or provide the Ci ty with any studies. 8

54. Daniel Porter, PGSP's expert in real estate, did not provide a

comparative market analysis of the neighborhood or any other industry -

recognized report. He proffered only opinion testimony based on email

responses from four nearby residents , only one of which alluded to any issues

with selling a home in the area .

8 PGSP retained Mr. Gauthier for this administrative proceeding ; he did not testify or

prepare a report to the Planning Commissi on or the City Council. Petitioner's members

presented no opposing reports or studies beyond lay opinion testimony during the public

hearing.

55. Mr. Gauthier testified that in calculating his density and formulating

his opinions, he used the City's map set and GIS data from the City's

website. 9

56. In contrast, the City relied on several data sources in reaching its

conclusions regarding compliance in the Staff Report, in the presentations at

the City Council meeting, and at the final hearing. These sources include the

Comprehensive Plan and maps; LD Rs; GIS aerials and maps; application

materials; a narrative from the property owner; plat records; the Pinellas

Countywide Plan Rules; and an outside Traffic Impact Statement by a traffic

engineering firm, Kimley - Horn.

57. In addition to the Kimley - Horn report, Tom Whalen, the City's

transportation planning expert, performed an analysis related to 6 4th Street

South , which was included in the Staff Report. He also testified at the final

hearing regarding his sources for that data , including a City - conducte d traffic

count, use of the Florida Department of Transportation's level of service

tables, and the Forward Pinellas Countywide Rules.

58. At the final hearing, t he City also presented demonstrative exhibits i n

the form of enlarged maps illustrating the su rrounding neighborhood, the

Property, and similar development patterns of RM and RU designations

across the City.

59. Regarding the density calculation, the City introduced and explained

the reasons and sources supporting its maximum density figure of 21

d welling units per acre. This included the Pinellas Countywide Plan Rules,

the Comprehensive Plan, and LDRs. 10

60. The City established the Ordinance and Amendment are based upon

surveys, studies, and data regarding the character of the land.

9 "GIS" is Geographic Information Systems.

10 Moreover, Mr. Kilborn explained that exact density calculations would be finalized during

the site plan review process , which involve s further surveys and engineering measurements.

61. Petition er failed to prove beyond fair debate that the Ordinance was

not supported by data and analysis, and/or that the City's response to that

data and analysis was not appropriate.

Ultimate Findings

62. PGSP did not prove beyond fair debate that the Ordinance is not in

compliance. All other contentions not specifically discussed have been

considered and rejected.

63. The City has provided a preponderance of the evidence, which is both

competent and substantial, which supports the findings in the Staff Report

an d the City Council's adoption of the Ordinance.

64. The City's determination that the Ordinance is in compliance is fairly

debatable.

C ONCLUSIONS OF L AW

Scope of Review and Standing

65. DOAH has jurisdiction over the parties to and the subject matter of

this proceeding pursuant to sections 120.569, 120.57(1), 163.3184, and

163.3187, Florida Statutes.

66. Chapter 163, part II (Community Planning Act), and the case law

developed pursuant thereto, are the applicable law in this proceeding. See

Amelia Tree Co nservancy, Inc. v. City of Fernandina Beach , Case N o . 19 -

2515GM (Fla. DOAH Sept. 16, 2019; Fla. DEO Oct. 16, 2019). A hearing on a

plan amendment is a de novo proceeding. Id.

67. To have standing to challenge a comprehensive plan amendment, a

person must b e an "affected person" as defined in the Community Planning

Act , section 163.3184(1)(a). The parties have stipulated that PGSP qualifies

as an "affected person" and has standing to challenge the Ordinance.

68. As the party challenging the Amendment to the Comprehensive Plan's

FLUM, PGSP must show the A mendment is not "in compliance" as defined in

section s 163.3184(1)(b) and 163.3187(4). "In compliance" includes consistency

with the requirements of sections 163.3 177, 163.3178, 163.3180, 163.3191,

163.3245, and 163.3248.

69. In this proceeding , PGSP assert s the Amendment is inconsistent with

the following policies in the Comprehensive Plan: Objective CM 10B and

Policy CM 10.6 . ; Policy LU 3.4 ; and Policy LU 3.6 .

Bu rden and Standard of Proof

70. As the par ty challenging the Ordinance, PGSP has the burden of

proof. The findings of fact in this matter are to be determined by a

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

71. The City's determination t hat the Ordinance is "in compliance" is

presumed to be correct and must be sustained if the City's determination of

compliance is fairly debatable. See § 163.3187(5)(a), Fla. Stat.; Coastal Dev. o f

N. Fla. v. City of Jacksonville Beach , 788 So. 2d 204, 210 (Fla. 2001).

72. The term "fairly debatable" is not defined in chapter 163. In Martin

C ounty . v. Yusem , 690 So. 2d 1288, 1295 (Fla. 1997), however, the Florida

Supreme Court explained , "[t]he fairly debatable standard is a highly

deferential standard req uiring approval of a planning action if a reasonable

person 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 involves its constitutional validity." Id . Put another

way, where there is "evidence in support of both sides of a comprehensive

plan amendment, it is difficult to determine that the [City's] decision was

any thing but 'fairly debatable.'" Martin Cty. v. Section 28 P'shp, Ltd. , 772 So.

2d 616 (Fla. 4th DCA 2000).

7 3 . "A compliance determination is not a determination of whether a

comprehensive plan amendment is the best approach available to the local

governmen t for achieving its purpose." See Martin Cty. Land Co. v . Martin

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

Dec. 30, 2015). Moreover, in a compliance determination, the motives of the

local government are not relevant. See Pac etta, LLC v. Town of Ponce Inlet ,

Case No. 09 - 1231GM (Fla. DOAH Mar. 20, 2012; Fla. DEO June 19, 2012).

7 4 . The findings of fact must additionally be supported by competent,

substantial evidence. See Payne v. City of Miami, 52 So. 3d 707, 735 (Fla. 3d

DC A 2010).

7 5 . The competent, substantial evidence standard of review has been

described as:

[E] ffectivel y [ ] the same standard [as] the " fairly

debatable " test for review of legislative municipal

zoning action: For the action to be sustained, it must

be reasonably based in the evidence present. By

whatever name it is called, the task of the court

reviewing a zoning variance decision is to insure

that the au thority's decision is based on evidence a

reasonable mind would accept to support a

conclusion. If there was such evidence presented, the

authority's determination must stand.

Indialantic v. Nance , 400 So. 2d 37, 40 (Fla. 5th DCA 1981) (internal

quotation s and citations omitted) .

7 6 . Mere " generalized statements in opposition to a land use proposal, even

those from an expert, should be disregarded" and fail the competent,

substantial evidence standard. See City of Hialeah Gardens v. Miami - Dade

Charter Found., Inc. , 857 So. 2d 202, 204 (Fla. 3d DCA 2003).

Internal Consistency with the Comprehensive Plan

7 7 . Section 163.3177(2) requires the several elements of the

comprehensive plan to be consistent. A plan amendment creates an internal

inconsistency when it conflicts with an existing provision of the applicable

comprehensive plan.

7 8 . The Comprehensive Plan is formatted with goals, objectives, and

policies that describe how the City'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.

7 9 . 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.

80 . Internal consistency does not require a comprehensive plan

amendment to further every goal, 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 compared

provisions do not conflict, they are coordinated, related , and consistent. See

Melzer, et al. v. Martin Cty. , Case Nos. 02 - 1014GM and 02 - 1 015GM, at RO

¶¶ 194 - 195 (Fla. DOAH July 1, 2003; Fla. DCA Oct. 24, 2003).

8 1 . Based on the foregoing Findings of Fact, Petitioner did not prove

beyond fair debate that the Ordinance is inconsistent with Comprehensive

Plan Element CM 10B, or Policies CM 10 .6, LU 3.4, and LU 3.6.

Data and Analysis

8 2 . Section 163.3177(1)(f) requires all plan amendments be based on

"relevant and appropriate data and an analysis by the local government."

§ 163.3177(1)(f)2., Fla. Stat. "The statute explains that to 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 Èplan amendment at issue.'" 222 Lakeview LLC v. City of

West Palm Beach , Case No. 18 - 4743 GM , at RO ¶ 84 (Fla. DOAH Dec. 26,

201 8 ), aff'd per curium , 295 So. 3d 1185 (Fla. 4th DCA 2020).

8 3 . All data available to the local government and in existence at the time

of adoption of the plan amendment may be presented at the final hearing in

this proceeding . See 1182/3526S Rouse LLC and 1185/3626 Rouse LLC v.

Orange Cty , Case No. 18 - 5985GM, RO at ¶ 62 (Fla. DOAH Oct. 14, 2019).

8 4 . Relevant analysis of data need not have been in existence at the time

of adoption of a plan amendment. Data e xisting at the time of adoption may

be analyzed through the time of the administrative hearing. 222 Lakeview

LLC, Case No. 18 - 4743GM at RO ¶ 86.

8 5 . Data supporting an amendment must be taken from professionally

accepted sources. See § 163.3177(1)(f)2., Fl a. Stat. However, local

governments are not required to collect original data. Id.

8 6 . PGSP argued (1) the City did not have data to support the Ordinance

and (2) the City did not look at enough data to support the Ordinance.

However, consistent with its b urden of proof, Petitioner must do more than

simply allege a land use amendment is not based upon the best available

existing data. PGSP was required to specifically identify the best available

existing data it claims the City could have used but failed to use . See Envt'l

Coalition of Fla., Inc. v. Broward Cty. , 586 So. 2d 1212, 1215 (Fla.1st DCA

1991). "The fact that other data may be available is irrelevant, as long as the

data upon which the City's decision to adopt the amendment is based is taken

from professionally accepted sources and gathered through prof essionally

accepted methodologies." Amelia Tree Conservancy, Inc. , Case No. 19 -

2515GM RO at ¶ 152.

8 7 . The City Council properly relied upon the Staff Report in adopting the

Ordinance, which further qualifies as competent, substantial evidence. As

reflecte d in the Staff Report, the presentation to the City Council, and the

evidence at the final hearing, the City relied upon several sources of data and

analyses in support of its determination of the Amendment's c ompliance. See

Katherine's Bay, LLC v. Fagan , 52 So. 3d 19, 28 (Fla. 1st DCA 2010).

8 8 . The evidence demonstrated there was extensive data and analysis,

taken from professionally accepted sources and gathered through

professionally accepted methodologies , to support the Ordinance.

89 . PGSP failed to p rove beyond fair debate that the Ordinance is not

based on relevant and appropriate data and analysis by the City, as required

by section 163.3177(1)(f).

Summary

90 . For the reasons stated above, the City's determination that the

Ordinance is "in complianc e" is fairly debatable.

9 1 . DOAH is not permitted to "substitute its discretion for that of the

legislative body if the issue is a fairly debatable one." Orange Cty. v. Butler

Estates Corp. , 328 So. 2d 864, 866 (Fla. 4th DCA 1976).

9 2 . For the reasons state above, PGSP did not prove beyond fair debate

that the Ordinance is not "in compliance," as that term is defined in section

163.3184(1)(b).

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 the City of St. Petersburg Comprehensive Plan

Amendment, Ordinance 739 - L , is "in compliance" as that term is defined by

section 1 63.3184(1)(b).

D ONE A ND E NTERED this 3rd day of March , 2021 , in Tallahassee, Leon

County, Florida.

S

H ETAL D ESAI

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of March , 2021 .

C OPIES F URNISHED :

Robert N. Hartsell, Esquire Sarah M. Hayter, Esquire

Robert N. Hartsell, P.A. Robert N. Hartsell, P.A.

61 Northeast 1st Street , Suite C 61 Northeast 1st Street , Suite C

Pompano Beach, Florida 33060 Pompano Beach, Florida 33060

Jacqueline Kovilaritch, Esquire Shai Ozery, Esquire

City of St. Petersburg Florida Robert N. Hartsell P.A.

One 4th Street North , 10th Floor 61 Northeast 1st Street , Suite C

St. Petersburg, Florida 33731 - 2842 Pompano Beach, Florida 33060

Michael J. Dema, Esquire Heather Judd, Esquire

City of St. Petersburg City of St. Petersburg

Post Office Box 2842 Post Office Box 2842

St. Petersburg, Florida 33731 St. Petersburg, Florida 33731

Tom Thomas, General Counsel Dane Eagle, Executive Director

Department of Economic Opportunity Department of Economic Opportunity

Caldwell B ui ld in g, MSC 110 Caldwell Building

107 East Madison Street 107 East Madison Street

Tallahassee, Florida 32399 - 4128 Tallahassee, Florida 32399 - 4128

Janay Lovett, Agency Clerk

Department of Economic Opportunity

Caldwell Building

107 East Madison Street

Tallahassee, Florida 32399 - 4128

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.