22-000073GM Wp Station Tower, Llc; Winterpark Station, Llc; Wintergate, Llc; And Palmetto Building 2019, Llc vs. City Of Winter Park, Florida Status: Closed Recommended Order on Thursday, June 23, 2022.

Summary: Petitioners did not prove beyond fair debate that the Amendment is not "in compliance.?

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

W P S TATION T OWER , LLC; W INTERPARK

S TATION , LLC; W INTERGATE , LLC; A ND

P ALMETTO B UILDING 2019, LLC ,

Petitioners ,

vs. Case No. 22 - 0073GM

C ITY OF W INTER P ARK , F LORIDA ,

Respondent .

/

R ECOMMENDED O RDER

The final hearing in this matter was conducted before Administrative Law

Judge Jodi - Ann V. Livingstone, of the Division of Administrative Hearings

( " DOAH " ), on April 6 and 7, 2022, in Winter Park, Florida.

A PPEARANCES

For Petitioner s : James Edward Cheek, III, Esquire

Winderweedle, Haines, Ward & Woodman, P.A.

329 Park Avenue North, Second Floor

Winter Park, Florida 32789

For Respondent: Daniel William Langley, Esquire

Eric B. Jontz, Esquire

Fishback Dominick

1947 Lee Road

Winter Park, Florida 32789

S TATEMENT OF T HE I SSUE

Whether the comprehensive plan amendment (the " Amendment " ),

adopted by the City of Winter Park, Florida ("Re spondent") , by Ordinance

3227 - 21 on December 8, 2021, is " in compliance, " as the term is defined by

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

P RELIMINARY S TATEMENT

On December 8, 2021, Respondent adopted the Amendment to amend the

City of Winter Park Comp rehensive Plan to create the Orange Avenue

Overlay District ( " OAO District " ).

On January 7, 2022, WP Station Tower, LLC; WinterPark Station, LLC;

Wintergate, LLC; and Palmetto Building 2019, LLC ( " Petitioners " ), filed a

Petition for Formal Administrative Hearing ( " Petition " ) , challenging the

Amendment.

In response to the Petition, Respondent filed a Motion for Summary

Recommended Order, dated February 15, 2022, and four separate Motions for

Partial Summary Recommended Order. The undersigned held a telep honic

motion hearing on March 4, 2022, to address the pending motions. On

March 9, 2022, the undersigned entered an Order on Pending Motions , which

(1) granted the February 15, 2022 Motion for Summary Recommended Order,

in part; (2) granted Petitioners lea ve to amend the Petition; and (3) denied

the four remaining Motions for Partial Summary Recommended Order. On

March 18, 2022, Petitioners filed an Amended Petition for Formal

Administrative Hearing ( " Amended Petition " ).

On February 22, 2022, Petitioners f iled Petitioners ' Unopposed Request

for Judicial Notice, requesting the undersigned take judicial notice of

Respondent ' s Comprehensive Plan, which is accessible online at

https://cityofwinterpark.org/departments/planning - transportation/planning

zoning/comp rehensive - plan/. The undersigned issued an Order Granting

Petitioners ' Unopposed Request for Judicial Notice, taking official recognition

of the Comprehensive Plan.

On March 24, 2022, Respondent filed a Motion in Limine to Preclude

Presentation of Eviden ce Pertaining to Paragraph 26 of the Amended

Petition ( " Motion in Limine " ). At the final hearing, the Motion in Limine was

denied. On April 4, 2022, the parties filed a Joint Stipulation Regarding

Certain Items in the Amended Petition , stipulating that: (1 ) the allegations of

paragraphs 10, 12, and 13 of the Amended Petition are not bas e s for

challeng ing the Amendment and will not be issues for the final hearing ; and

(2) Petitioners will not proceed with the allegations in paragraph 23.e. at the

final heari ng , and no evidence concerning such matter will be presented. 1

The parties filed a Joint Pre - h earing Stipulation that contained stipulated

facts for which no further proof would be necessary. Those stipulated facts

have been incorporated into the Findings of Fact below.

The final hearing commenced as scheduled on April 6, 2022. The parties '

Joint Exhibits 1 through 10 were admitted into evidence. Respondent ' s

Exhibits 2 through 43 were also admitted into evidence. Respondent

presented the expert testimony of Ellen Hardgrove ( " Ms. Hardgrove " ).

Petitioners presented the expert testimony of Jim Hall ( " Mr. Hall " ). The

parties were reminded that even though their exhibits were admitted into

evidence, hearsay evidence contained in the exhibits would not be relie d on as

the sole basis for findings of fact unless the hearsay evidence would be

admissible over objection in a civil action in Florida. See § 120.57(1)(c), Fla.

Stat.; Fla. Admin. Code R. 28 - 106.213(3).

A one - volume Transcript of the final hearing was fi led with DOAH on

May 24, 2022 . The parties timely filed Proposed Recommended Orders

( " PRO " ) , which were duly considered in preparing this Recommended Order.

1 The final hearing proce eded on what, in essence, was a second amended petition.

References to the Florida Statutes are to the 2021 version, unless

otherwise indicated.

F INDINGS OF F ACT

Stipulated Facts

1. Petitioners each own property within the jurisdictional boundaries of

the city of Winter Park, Florida.

2. Petitioners own property within and abutting the OAO District created

by the Amendment.

3. Respondent is the City of Wi nter Park, Florida, a municipal corporation

organized and existing under the laws of the State of Florida , which is

governed by its duly elected Mayor and City Commission (the " City

Commission " ).

4. On April 24, 2017, Respondent adopted its current C ompre hensive P lan

by way of Ordinance Number 3076 - 17 .

5. The Comprehensive Plan is accessible online at:

https://cityofwinterpark.org/departments/planning - transportation/planning

zoning/comprehensive - plan/.

6. On December 8, 2021, Respondent adopted the Amendme nt.

7. The State of Florida Department of Economic Opportunity ( " DEO " ) and

other reviewing agencies had no comments on the Amendment.

8. On January 19, 2022, DEO issued a letter to Respondent stating that

DEO found no basis to challenge the Amendment.

Th e Amendment

9. The Amendment created the OAO District and sets forth goals,

objectives , and policies governing the development of properties within the

newly created OAO District. The Amendment essentially creates an overlay

district over existing future l and use map and zoning map designations of the

properties within the OAO District.

10. Currently, properties within the OAO District are mostly developed

with one - or two - story buildings.

11. The creation of the OAO District is contemplated and directed b y the

existing goals, objectives, and policies within the Comprehensive Plan, as can

be seen in Policy 1 - 2.4.14: Mixed Use Designation, which provides as follows:

Within one year from the adoption of this

Comprehensive Plan, the City will create a mixed

us e overlay or district for commercially designated

parcels that would be intended to facilitate design

and use flexibility to achieve pedestrian scale,

innovative transit connectivity and maximizing

open space within a commercially viable and

architecturall y desirable design. Complementary

uses may include, but are not limited to retail,

entertainment, office, civic and residential uses.

The City shall also prepare companion land

development code regulations that implement the

proposed mixed use overlay or d istrict

simultaneously with any policy amendments

related to this overlay or district. All policies

related to this overlay or district will be subject to a

Comprehensive Plan amendment.

12. The Amendment explicitly sets forth the goal of the creation of the

OAO District, which is as follows:

GOAL 1 - 9: Establishment of the [OAO District]. It

is the intent of the [OAO District] to provide

enhanced standards to protect and promote the

unique characteristics of the Orange Avenue area

and create a distinct ga teway into Winter Park.

This [OAO District] is used to create a sense of

place established through specific architectural

styles, streetscape design, open space areas,

setbacks, site design, block structure, landscaping

and other regulatory controls.

Peti tioners ' Challenges to the Amendment

13. In the Amended Petition (as limited by the Joint Stipulation

Regarding Certain Items in the Amended Petition), Petitioners allege that

the Amendment is not " in compliance " because it: (1) is not internally

consisten t with the Comprehensive Plan, as required by section 163.3177(2);

(2) does not guide " future decisions in a consistent manner, " establish

" meaningful and predictable standards for the use and development of land, "

or provide " meaningful guidelines for the content of more detailed land

development and use regulations , " as required by section 163.3177(1); and

(3) is not based upon sufficient relevant and appropriate data and analysis,

as required by section 163.3177(1)(f).

Building Heights

14. Petitioners ' e xpert, Mr. Hall, testified that the Amendment is

inconsistent with the Comprehensive Plan with respect to the number of

stories permitted for buildings within the OAO District. Under the

Comprehensive Plan, Petitioners ' existing properties were permitted u p to a

four - story limit. By contrast, the Amendment limits all properties falling

within " Subarea A , " abutting Orange and Minnesota Avenue s , which includes

Petitioners ' properties, to a maximum height of two stories. This reduces the

maximum allowed buildi ng height for Petitioners ' properties from four stories

to two stories.

15. The Comprehensive P l an provides the following policy in regards to

building heights:

Policy 1 - 2.2.5: Maximum Building Height Defined

" Map FLUM - 1 - 03: Comprehensive Plan Maximum

Bu ilding Heights " designates graphically the

maximum threshold for such building heights by

stories. The Maximum Height Map is intended to

be used together with the Future Land Use Map

and applicable land use designations to determine

the maximum density and intensity permitted to be

developed within the City of Winter Park. The

combination is detailed in the Maximum Future

Land Use Map Designation Density/Intensity

Table. The height thresholds do not include

ancillary structures regulated by the land

develop ment code, including respective floor to floor

heights, parapets, mechanical and elevator/stair

components, and architectural appendages.

( e mphasis added) .

16. The language included below in Table 1 - 3 , the Maximum Future Land

Use Map Designation Density/I ntensity Table, referenced in the above policy,

make s two inescapable " Notes. " It provides as follows:

NOTE All categories count private parking garage

floor space toward FAR limits. Maximum number

of stories is determined by the Maximum Height

Map and may be further restricted by other policies

of this Comprehensive Plan .

* * *

NOTE This table reflects the maximum intensities

that may be permitted in the underlying zoning

district. The maximum intensity that will be

approved on any specific site will be based on the

applicable development regulations and the ability

of the project to further promote the goals of the

City, but is not an entitlement . ( e mphasis added) .

17. It is clear that the Comprehensive Plan contemplates and allows for

two thing s: (1) the maximum number of stories permitted for a building may

be " further restricted " by other policies of the Comprehensive Plan, which

includes the policies adopted by the Amendment; and (2) the maximum

height map in the Comprehensive Plan creates a maximum limit for building

heights, but not an entitlement to the amount shown.

18. The Amendment is not inconsistent with the Comprehensive Plan as it

relates to building heights. Rather, the Amendment does what the plain

language of the Comprehensive Pla n allows it to do Ð that is, further limit the

maximum height allowances of buildings.

Parking Garages and Floor Area Ratios ( " FAR " )

19. Mr. Hall testified that the FAR allowance in the Amendment, as it

relates the parking garages, is inconsistent with the FAR allowance in the

Comprehensive Plan. This alleged inconsistency rests on his interpretation of

the distinction between what is " above grade " and " below grade. "

20. The Comprehensive Plan addresses FARs for parking garages in the

following policy:

Pol icy 1 - 2.2.4: Application of Floor Area Ratio

Basement areas or other below grade floor areas

are excluded from the floor area when more than

one - half of that basement or floor height is below

the established curb level. The area of stairways,

elevators, an d multi - story rooms or atriums shall

be counted on each floor level. The floor area of

private parking garages (above grade) or parking

levels shall be counted toward the floor area ratio

when such parking is provided to meet the parking

requirements of th e Land Development Code except

for the top open parking level if it is open and

uncovered. The public parking component of any

parking garage may be excluded from the floor area

ratio calculation by the City Commission. ( e mphasis

added) .

21. The Amendment addresses FARs for parking garages in its own policy,

which is set forth below:

Policy 1 - XXX: Floor Area Ratio for Parking

Structures. Parking structures shall count towards

the Floor Area Ratio (FAR) for any project/property

within the Orange Avenue Over lay District, except

for any underground levels, parking dedicated for

public parking in perpetuity, and the open top level.

Additionally, the required 10% of parking spaces

provided above and beyond minimum code

requirements (which is required to be lease d to

small businesses in the OAO) shall not count

towards the FAR of a project. For any units

qualifying for the workforce housing exemption, not

to exceed 20% of the total project, the required

parking spaces shall be exempt. ( e mphasis added) .

22. Mr. Ha ll asserts that, based upon his interpretation of the words

" above grade, " as included in the Comprehensive Plan Policy 1 - 2.2.4, the first

level of a parking structure is not counted in the FAR calculation. Mr. Hall

believes that the removal of the term " a bove grade , " in the Amendment policy

quot ed above, allows first floors of parking structures to be included in FAR

calculations under the Amendment. Mr. Hall testified that by taking out the

reference to " above grade, " the Amendment changes the definition of how

FARs are calculated for parking structures, thereby reducing the resulting

building size of properties in the OAO District.

23. Respondent ' s expert, Ms. Hardgrove, testified that the first level of a

parking garage is included in the calculation of a property ' s FAR in both the

Comprehensive Plan and the Amendment. This testimony is supported by a

note on the Comprehensive Plan Maximum Height Map, which states:

" Parking garage levels shall be counted as stories for each level accept [sic]

the basement or open roof level. "

24. Even without considering the note, it is a completely reasonable

interpretation of the language in Policy 1 - 2.2.4, which provides that the " floor

area of private parking garages (above grade) or parking levels shall be

counted tow ard the floor area ratio, " that the FAR calculation includes the

first level (that is, every level of a parking garage not underground).

Meaningful Open Space and Block Structures

25. The Amendment sets forth requirements for the redevelopment of

certain p roperties in the OAO District , including provision of " meaningful

open space " and specific block structure requirements. The policies are set

forth in full as follows:

Policy 1 - XXX: Meaningful Open Space

Requirements. At a minimum, each property 1.5

acres in size and above, or any project covering 1.5

acres, that is redeveloped shall provide a minimum

of 25% meaningful open space, which is open to and

available to the public. At least 50% of required

meaningful open - space areas provided shall be

greenspace and at least 50% of hardscape areas

shall be pervious or semi - pervious. At least 90% of

the open space shall be provided at ground level.

* * *

Policy 1 - XXX: Block Structure. Any additional

development or redevelopment of parcels in excess

of 1.5 acres within the OAO shall be required to

create a block structure and pedestrian corridors

conducive to pedestrian safety, comfort, or

vehicular circulation.

26. Petitioners challenge the meaningful open space requirement of the

Amendment for several re asons. First, Mr. Hall testified that internal

inconsistencies exist because the Comprehensive Plan does not include any

reference to the term " meaningful " open space and has no requirement that

properties over 1.5 acres designate any portion of their land to " open space. "

Petitioners allege that, because of this, the Amendment increases open space

requirements in ways not contemplated by the Comprehensive Plan. Mr. Hall

also suggested that no meaningful open space requirement was necessary as

the Comprehen sive Plan provides that until the population of the city of

Winter Park reaches 36,000 , or the year 2026, no more open space is needed.

27. Although there is no mention of " meaningful " open space in the

Comprehensive Plan, 2 there is nothing therein, identi fied by Petitioners

through testimony or documentary evidence, that prohibits or makes

inconsistent the requirement in the Amendment. Rather, Policy 1 - 2.4.14

requires that development in the newly created OAO District " maximiz[e]

open space within a commer cially viable and architecturally desirable

design. "

28. Second, Petitioners allege that the Amendment fails to establish

meaningful and predictable standards in that there is no definition of what

makes an open space " meaningful, " n or is there any inform ation on how the

2 On the other hand, references to " open space " are plentiful.

1.5 - acre condition is calculated. As such, a property owner would need to

undergo a review of their development by the City Commission to determine

if Respondent believed the open space it created was " meaningful. "

29. Ms. Hardgrove tes tified that an evaluation of the Amendment to

determine if it has meaningful and predictable standards requires an

evaluation of the entire Comprehensive Plan as amended by the Amendment.

The Comprehensive P l an, in its entirety , provides meaningful and

pre dictable standards as to who is required to create a meaningful open space

and what that space should include.

30. Third, Petitioners allege that no data or analysis exists to support the

1.5 - acre trigger that is provided for in the Amendment in regards t o

meaningful open spaces and block structures. Specifically, Petitioners allege

Respondent has not provided , and does not have , a study or other rational

basis for " treating 1.5 acre and larger parcels differently, or for requiring

them to contribute meani ngful open space in order to obtain certain

development rights. "

31. Although Mr. Hall testified that he did not see any data and analysis

supporting the meaningful open space requirements and block structure

policies adopted by the Amendment, he also tes tified that he did not review

all the data and analysis that was considered by Respondent in the adoption

of the Amendment.

32. Ms. Hardgrove testified that the Amendment was based upon

substantial data and analysis collected by Respondent, which included

surveys, studies, community goals and vision, and other data available at the

time of adoption of the Amendment. She went on to provide testimony listing

and explaining multiple documents used by Respondent as data and analysis

in support of the Amendment .

33. Ms. Hardgrove testified that discussions surrounding the idea to

require meaningful open spaces for 1.5 - acre and greater sized properties w ere

documented in Respondent ' s Steering Committee final report. The Steering

Committee indicated the intent of the OAO District is to " ensure that the

development and enhancement of properties includes the creation of

meaningful, useable, accessible, green and beautiful open space that invites

the public to relax, interact, recreate, unwind and stimulate social

co nnection. " It goes on to discuss that " [m]any of the existing properties do

not have much opportunity for the creation of open space due to smaller

size[.] " With that in mind, the Steering Committee proposed that " where

properties are planned for redevelop ment, meaningful open space and the

design of structures around these open spaces is the most important

consideration. At a minimum, each property 1.5 acres in size and above that

is redeveloped shall provide at least 25% meaningful open space, which is

op en to and available to the public. " The rationale behind the need for

meaningful open spaces and why larger parcel properties would be better

suited to accomplish this is documented in Respondent ' s reports.

34. B oth the meaningful open space requirement an d the block structure

policy a re supported by existing Comprehensive Plan policies , as

Ms. Hardgrove explained .

35. As Ms. Hardgrove testified , the block structure policy in the

Amendment was also supported by data and analysis, including the report of

th e Steering Committee , transportation and technical studies that were

prepared by consultants , and Respondent ' s community goals and vision. T he

block structure policy was put in place to effectuate Respondent ' s overarching

goal Ð that is, to maintain the trad itional scale of the OAO District and

making the area welcoming to pedestrian traffic.

36. Finally, Petitioners allege that the restrictions and requirements as to

meaningful open spaces and block structures result in a decreased ability for

redevelopment . Petitioners allege that there is no legitimate need for

Respondent to require as much meaningful open space as is required by the

Amendment. Petitioners, however, neither proved this was the case nor

showed how that creates an internal consistency or fai ls to establish

meaningful and predictable standards.

General Impact of Amendment

37. Petitioners made several general and conclusory arguments that

development under the Amendment ' s restrictions will lead to lower quality

and less dense development and th at such development is economically

unfeasible. Here, as above, Petitioners failed to provide competent,

substantial evidence to support this assertion or prove how such makes the

Amendment not " in compliance. "

Ultimate Findings of Fact

38. Petitioners di d not prove beyond fair debate that the Amendment is

not in compliance.

39. Respondent ' s determination that the Amendment is " in compliance " is

fairly debatable.

C ONCLUSIONS OF L AW

40. DOAH has jurisdiction over the parties and subject matter of this

pro ceeding pursuant to sections 120.569, 120.57(1), 163.3184, and 163.3187,

Florida Statutes.

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

person must be an " affected person " as defined in section 163.3184(1)(a). The

parties have stipul ated that Petitioners qualify as an " affected person " and

have standing to challenge the Amendment.

42. As the part ies challenging the Amendment to the Comprehensive

Plan, Petitioners have the burden of proof and must show the Amendment is

not " in complian ce , " as defined in section 163.3184(1)(b).

43. The Amendment is " in compliance " if it is consistent with the

requirements of sections 163.3177, 163.3178, 163.3180, 163.3191, 163.3245,

and 163.3248.

44. The standard of proof for findings of fact in this p roceeding is the

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

45. Petitioners are limited to the allegations in the Amended Petition , as

further limited by the parties' stipulations, as to the alleged deficiencies in

the Amendmen t. See §§ 120.569 and 120.57(1), Fla. Stat.

46. Respondent ' s determination that the Amendment is " in compliance " is

presumed to be correct and must be sustained if Respondent ' s determination

of compliance is fairly debatable. See §§ 163.3187(5)(a) and 163 .3184(5)(c)1.,

Fla. Stat.

47. In Martin County v. Yusem , 690 So. 2d 1288, 1295 (Fla. 1997), the

Florida Supreme Court explained, " [t]he fairly debatable standard of review

is a highly deferential standard requiring approval of a planning action if

reasonab le persons could differ as to its propriety. " Quoting from City of

Miami Beach v. Lachman , 71 So. 2d 148, 152 (Fla. 1953), the Court further

explained, " [a]n ordinance may be said to be fairly debatable when for any

reason it is open to dispute or controve rsy on grounds that make sense or

point to a logical deduction that in no way involves its constitutional

validity. " Id . Where there is " evidence in support of both sides of a

comprehensive plan amendment, it is difficult to determine that the

[Respondent ' s] decision was anything but ' fairly debatable. '" Martin C n ty. v.

Section 28 P ' sh i p, Ltd. , 772 So. 2d 616 , 621 (Fla. 4th DCA 2000).

Internal Consistency

48. Section 163.3177(2) requires the elements of a comprehensive plan to

be internally consistent. It provides in full as follows:

(2) Coordination of the several elements of the

local comprehensive plan shall be a major objective

of the planning process. The several elements of the

comprehensive plan shall be consistent. Where

data is relevant to several elements, consistent

data shall be used, including population estimates

and projections unless alternative data can be

justified for a plan amendment through new

supporting data and analysis. Each map depicting

future conditions must reflect the principles,

guidelines, and standards with in all elements, and

each such map must be contained within the

comprehensive plan.

49. A plan amendment creates an internal inconsistency when it conflicts

with an existing provision of the plan.

50. Petitioners argue that the Amendment is inconsistent with the

Comprehensive Plan in regards to allowable maximum building heights, the

treatment of parking garages in calculations of FARs, the requirements for

meaningful open space, and the general impact of the Amendment on the

redevelopment of the OAO Dist rict .

51. Mr. Hall ' s testimony on the alleged internal inconsistency caused by

the Amendment was not persuasive. Petitioners failed to produce competent,

substantial evidence that the requirements of the Amendment are

inconsistent with those set forth in t he Comprehensive Plan. Where the

Amendment expands requirements (as with open spaces) or reduces

maximum allocations (as with building heights), the Comprehensive Plan

allows for such.

52. The Comprehensive Plan specifically provides that other policies

w ithin the Comprehensive Plan may further restrict building heights from

the maximum heights allowed for in the Maximum Height Map.

53. Mr. Hall ' s testimony that there are differences between parking

garage FAR calculations in the Amendment and Comprehensi ve Plan is not

supported by the plain language of the notes in the policies. When read as a

whole, it is clear that the Comprehensive Plan provides that every level of a

parking garage, except basement levels or open roof levels, shall be counted

as storie s.

54. Mr. Hall presented no competent substantial evidence on any other

issue involving internal inconsistency alleged in the Amended Petition.

55. Petitioners did not prove beyond fair debate that the Amendment is

inconsistent with any of the provisions of the Comprehensive Plan.

56. Petitioners ' general complaint that the impact of the requirements of

the Amendment will be low - quality redevelopment of the OAO District that

will not be economically feasible is not supported by evidence. Even so, " [a]

com pliance determination is not a determination of whether a comprehensive

plan amendment is the best approach available to the local government for

achieving its purpose. " See Martin C n ty. Land Co. v. Martin C n ty. , Case

No. 15 - 0300GM (Fla. DOAH Sept. 1, 2015 ; Fla. DEO Dec. 30, 2015).

Predictable Standards and Meaningful Guidelines

57. Section 163.3177(1) provides as follows:

(1) The comprehensive plan shall provide the

principles, guidelines, standards, and strategies for

the orderly and balanced future eco nomic, social,

physical, environmental, and fiscal development of

the area that reflects community commitments to

implement the plan and its elements. These

principles and strategies shall guide future

decisions in a consistent manner and shall contain

pro grams and activities to ensure comprehensive

plans are implemented. The sections of the

comprehensive plan containing the principles and

strategies, generally provided as goals, objectives,

and policies, shall describe how the local

government ' s programs, activities, and land

development regulations will be initiated, modified,

or continued to implement the comprehensive plan

in a consistent manner. It is not the intent of this

part to require the inclusion of implementing

regulations in the comprehensive p lan but rather to

require identification of those programs, activities,

and land development regulations that will be part

of the strategy for implementing the comprehensive

plan and the principles that describe how the

programs, activities, and land devel opment

regulations will be carried out. The plan shall

establish meaningful and predictable standards for

the use and development of land and provide

meaningful guidelines for the content of more

detailed land development and use regulations.

58. In their PRO, Petitioners argue that the Amendment : (1) fails to guide

future decisions in a consistent manner; (2) fails to establish meaningful and

predicable standards for the use and development of land; and (3) fails to

provide meaningful guidelines for the c ontent of more detailed land

development and use regulations. To the contrary , Respondent persuasively

argue s that the entire Comprehensive P l an, along with the Amendment, is

clear Ð it creates the OAO District by implementing and advancing the

existing poli cies within the Comprehensive Plan.

59. The Comprehensive Plan, along with the Amendment, sets out specific

guidance as to how the redevelopment of the OAO District is to occur.

Specifically, the Amendment sets forth firm requirements for the creation of

m eaningful open spaces and to which parcels the requirements apply. Parcels

being redeveloped that are 1.5 acres or greater shall have 25 percent

meaningful open space, of which certain portions must be greenspace and

others pervious or semi - pervious surfac es. The guidelines are clear,

meaningful, and predictable. Similarly, the block structure requirements are

clear, meaningful, and predictable.

60. Mr. Hall ' s testimony that the meaningful open space and block

structure requirements did not provide meaningf ul and predictable standards

was not persuasive or supported by the evidence.

61. Respondent presented competent and substantial evidence that the

Comprehensive Plan, as amended by the Amendment, meets the

requirements of section 163.3177(1).

Relevant an d Appropriate Data and Analysis

62. Section 163.3177(1)(f) states:

(f) All mandatory and optional elements of the

comprehensive plan and plan amendments shall be

based upon relevant and appropriate data and an

analysis by the local government that may in clude,

but not be limited to, surveys, studies, community

goals and vision, and other data available at the

time of adoption of the comprehensive plan or plan

amendment. To be based on data means to react to

it in an appropriate way and to the extent

neces sary indicated by the data available on that

particular subject at the time of adoption of the

plan or plan amendment at issue.

63. Ms. Hardgrove presented persuasive, substantial, and competent

testimony about all the research, compilation of data, and a nalysis of such,

that Respondent engaged in when preparing the Amendment.

64. Mr. Hall ' s testimony indicating that the meaningful open space and

block structure policies adopted by the Amendment were not supported by

data and analysis was not persuasive.

65. Petitioners did not prove beyond fair debate that the Amendment is

not supported by data and analysis as required by section 163.3177(1)(f).

Conclusion

66. Petitioners failed to prove any bases for challenging the Amendment

that ha ve been raised in t his proceeding.

67. In summary, Petitioners have failed to demonstrate beyond fair debate

that the Amendment is not in compliance.

R ECOMMENDATION

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

R ECOMMENDED that the Department of Ec onomic Opportunity enter a final

order finding that the Amendment adopted by Ordinance 3227 - 21, on

December 8, 2021, is " in compliance, " as defined by section 163.3184(1)(b).

D ONE A ND E NTERED this 23rd day of June , 2022 , in Tallahassee, Leon

County, Flor ida.

S

J ODI - A NN V. L IVINGSTONE

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 23rd day of June , 2022 .

C OPIES F URNI SHED :

James Edward Cheek, III, Esquire Phil Anderson

Winderweedle, Haines, Ward & Woodman, P.A. City of Winter Park, Florida

329 Park Avenue North, Secon d Floor 401 South Park Avenue

Winter Park, Florida 32789 Winter Park, Florida 32789

Daniel William Langley, Esquire Dane E agle, Executive Director

Eric B. Jontz, Esquire Department of Economic Opportunity

Fishback Dominick Caldwell Building

1947 Lee Road 107 East Madison Street

Winter Park, Florida 32789 Tallahassee, Florida 32399 - 4128

Karen Gates, General Counsel Jaiden Foss, Agency Clerk

Department of Economic Opportunity Department of Economic Opportunity

Caldwell Building , MSC 110 Caldwell Building

107 East Madison Street 107 East Madison Street

Tallahassee, Florida 32399 - 4128 Tallahassee, Flor ida 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.