STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS ROGER THORNBERRY, GEORGETTE LUNDQUIST, STEVEN BRODKIN, RUBY DANIELS, ROSALIE PRESTARRI, AND JAMES GIEDMAN, Petitioners, vs. Case No. 15-3825GM LEE COUNTY, and Respondent, RH VENTURE II, LLC; RH VENTURE III, LLC; AND GREENPOINTE COMMUNITIES, LLC, Intervenors. / RECOMMENDED ORDER A duly-noticed hearing was held in this matter on October 12, 2015, in Fort Myers, Florida, before Suzanne Van Wyk, an Administrative Law Judge assigned by the Division of Administrative Hearings. APPEARANCES For Petitioners: Ralf G. Brookes, Esquire Ralf Brookes Attorney Suite 107 1217 East Cape Coral Parkway Cape Coral, Florida 33904
For Respondent: Mark A. Trank, Esquire Neysa Borkert, Esquire Michael D. Jacob, Esquire Lee County Attorney s Office 2115 Second Street, 6th Floor Post Office Box 398 Fort Myers, Florida 33902 For Intervenors: Russell P. Schropp, Esquire Richard Barton Akin, Esquire Henderson, Franklin, Starnes and Holt, P.A. 1715 Monroe Street Post Office Box 280 Fort Myers, Florida 33901 S. William Moore, Esquire Moore, Bowman and Rix, P.A. Unit E 3277 Fruitville Road Sarasota, Florida 34237 STATEMENT OF THE ISSUE Whether an amendment to the Lee County Comprehensive Plan, adopted by Ordinance 15-10 on June 3, 2015, is in compliance, as that term is defined in section 163.3184(1)(b), Florida Statutes (2014). 1/ PRELIMINARY STATEMENT On July 1, 2015, Petitioners filed with the Division of Administrative Hearings (DOAH) a Petition challenging the Comprehensive Amendment adopted by Lee County Ordinance 15-10 (the Plan Amendment). The Plan Amendment changes the land use designation on 585.6 acres from Rural to Sub-Outlying Suburban. The final hearing was scheduled for September 29 and 30, 2015, in Fort Myers, Florida, but was continued to October 12 2
and 13, 2015. RH Venture II, LLC; RH Venture III, LLC; and Greenpointe Communities, LLC, were granted leave to intervene on July 9, 2015. Petitioners unopposed Motion for Leave to Amend the Petition was granted on July 13, 2015. The case was transferred to the undersigned on July 17, 2015. Respondent and Intervenors jointly filed a Motion for Summary Final Order or in the Alternative to Relinquish Jurisdiction on September 18, 2015, which was denied. On October 7, 2015, Intervenors filed a Motion in Limine to exclude certain evidence, to which Petitioners filed a Response and a Supplemental Response. The Motion in Limine was denied following a telephonic hearing on October 9, 2015. The parties jointly submitted a Pre-hearing Stipulation on October 8, 2015, and the hearing convened as scheduled. At the final hearing, Petitioners offered the testimony of Julianne Thomas, accepted as an expert in growth management and land use planning. Petitioners exhibits 1, 3 through 10, 12 through 14, and 16 were admitted in evidence. Intervenors offered the testimony of Carl Anthony Barraco, accepted as an expert in civil engineering; Dr. David Depew, accepted as an expert in comprehensive planning and land use; and Grady Miars, President of Intervenor, Greenpointe Communities, LLC. Intervenors exhibits 17 through 28, 30 through 32, and 34 through 48 were admitted in evidence. 3
Respondent offered the testimony of Alvin Block, III, and Brandon Dunn, Respondent s principal planners, both of whom were accepted as experts in planning and zoning. Respondent s exhibits 50 through 55 and 57 through 69 were admitted in evidence. The parties joint exhibit 49 was also admitted in evidence. The undersigned took official recognition of Lee County Ordinance 09-06. The two-volume Transcript of the hearing was filed on October 27, 2015. The parties timely filed Proposed Recommended Orders, which have been considered by the undersigned in preparation of this Recommended Order. FINDINGS OF FACT 1. Petitioners, Roger Thornberry, Georgette Lundquist, Steven Brodkin, Ruby Daniels, Rosalie Prestarri, and James Giedman, reside in and own property within Lee County. Petitioners submitted oral and written comments to Lee County concerning the challenged Plan Amendment during the period of time beginning with the transmittal hearing for the Plan Amendment and ending with the adoption of the Plan Amendment. 2. Respondent, Lee County (the County), is a political subdivision of the State of Florida with the duty and 4
responsibility to adopt and maintain a comprehensive growth management plan pursuant to section 163.3167, Florida Statutes (2015). 3. Intervenors, RH Venture II, LLC; RH Venture III, LLC; and Greenpointe Communities, LLC (Greenpointe), are the owners and developers of the property which is subject to the Plan Amendment. Intervenors are the applicants for the Plan Amendment. 4. The Lee County Comprehensive Plan (Comprehensive Plan) allocates future land uses based on community plans for 22 distinct communities within the County. 5. The Fort Myers Shores planning community is located in eastern Lee County. Within Fort Myers Shores is a sub-community planning area known as Caloosahatchee Shores, which is located south of the Caloosahatchee River, east of Interstate 75 (I-75), and west of Hickey s Creek. The southern boundary of Caloosahatchee Shores is the Orange River and State Road 82. 6. Caloosahatchee Shores contains a mixture of future land use designations. The majority of the land is designated Suburban, Sub-Outlying Suburban, Rural, or Urban Community. 7. The subject property is located in Caloosahatchee Shores within an existing 1,978-acre mixed-use golf community known as River Hall. 5
8. Most of the existing development in River Hall was completed between 2004 and 2009 by the original developer, Landmar Group, which was then owned by Crescent Resources. Crescent Resources declared bankruptcy in 2009. Those portions of River Hall subject to the Plan Amendment were acquired by Greenpointe in 2010. 9. The property subject to the Plan Amendment is approximately 585 acres of non-contiguous land within the existing mixed-use development. All of the property subject to the Plan Amendment is located within the Rural future land use category. 10. The Plan Amendment changes the future land use category of the subject property from Rural to Sub-Outlying Suburban. 2/ The density of development allowed in Rural is one dwelling unit per acre and the density of development allowed in Sub-Outlying Suburban is two units per acre. 11. In 2001, the Lee County Board of County Commissioners (Lee County Commission) adopted procedures to encourage community planning aimed at specific neighborhood interests within the County. A coalition of property owners in Caloosahatchee Shores developed the Caloosahatchee Shores Community Plan (Community Plan) between 2001 and 2003. The Community Plan was incorporated 6
into the Comprehensive Plan in 2003 and is codified as Future Land Use Element (FLUE) Goal 21 and its implementing objectives and policies. 12. FLUE Goal 21 reads as follows: GOAL 21: CALOOSAHATCHEE SHORES: To protect the existing character, natural resources and quality of life in Caloosahatchee Shores, while promoting new development, redevelopment and maintaining a more rural identity for the neighborhoods east of I-75 by establishing minimum aesthetic requirements, planning the location and intensity of future commercial and residential uses, and providing incentives for redevelopment, mixed use development and pedestrian safe environments. This Goal and subsequent objectives and policies apply to the Caloosahatchee Shores boundaries as depicted on Map 1, page 2 of 8 in the Appendix. 13. The Community Plan was amended in 2007 and again in 2009. Policy 21.1.5 was added to the Community Plan in 2009, and reads as follows: POLICY 21.1.5: One important aspect of the Caloosahatchee Shores Community Plan goal is to retain its [sic] rural character and rural land use where it currently exists. Therefore no land use map amendments to the remaining rural lands category will be permitted after May 15, 2009, unless a finding of overriding public necessity is made by three members of the Board of County Commissioners. 14. It is undisputed that the Plan Amendment removes land from the Rural land use category. 7
15. It is undisputed that the Lee County Commission did not make a finding of an overriding public necessity when it adopted the Plan Amendment. 16. Petitioners allege the Plan Amendment is internally inconsistent with Policy 21.1.5 because the Lee County Commission did not make the requisite finding of an overriding public necessity to remove property from the Rural land use category. 3/ 17. Respondent and Intervenors argue that Policy 21.1.5 does not apply to the Plan Amendment because the existing development on the property subject to the Plan Amendment is not rural in either character or land use. Respondent and Intervenors introduced abundant evidence to establish that the property subject to the Plan Amendment is suburban development served by the full spectrum of urban services and devoid of any of the trappings of rural development, such as large-lot residential and agricultural uses. 18. Respondent and Intervenors advocate an interpretation of Policy 21.1.5 which requires a finding of overriding public necessity only if a plan amendment removes property that exhibits rural character or rural land use from the Rural land use category. 19. The County offered the testimony of Brandon Dunn, one of its principal planners. Mr. Dunn characterized the Policy as an if/then statement : if property in the Rural land use 8
category (subject to a plan amendment) exhibits rural character and rural land use, then a finding of overriding public necessity is required. Under Mr. Dunn s analysis, Policy 21.1.5 does not apply to the Plan Amendment because River Hall is a suburban community. 20. Intervenors planning expert, Dr. David Depew, testified that the first sentence narrows the application of the second. Dr. Depew testified that the first sentence indicates we aren t talking about the category per se. 4/ Under Dr. Depew s reading, the second sentence only applies to plan amendments which exhibit rural character or rural land use, rather than all plan amendments removing property from the Rural land use category. 21. Neither Mr. Dunn s nor Dr. Depew s opinion is persuasive. 5/ The interpretation advanced by both Respondent and Intervenors adds language to the second sentence of Policy 21.1.5 limiting its application to only those plan amendments which exhibit rural character and rural land use. 22. The plain language of Policy 21.1.5 contains no such limitation. The policy directs the County to make a finding of an overriding public necessity as a prerequisite to removing land from the Rural land use category in Caloosahatchee Shores. 9
The first sentence of Policy 21.1.5 does not constitute a limitation on the directive for a finding of an overriding public necessity. CONCLUSIONS OF LAW 23. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to sections 120.569, 120.57(1), and 163.3184(5)(a), Florida Statutes (2015). 24. To have standing to challenge a plan amendment, a person must be an affected person as defined in section 163.3184(1)(a). Petitioners are affected persons within the meaning of the statute. 25. Intervenors have standing to intervene in this proceeding because they own the property affected by the Plan Amendment. 26. As the party challenging the Plan Amendment, Petitioners have the burden to prove the Plan Amendment is not in compliance, as that term is defined in section 163.3184(1)(b). 27. 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 is fairly debatable. 28. The term fairly debatable is not defined in chapter 163, but in Martin County v. Yusem, 690 So. 2d 1288, 1295 10
(Fla. 1997), the Supreme Court of Florida explained that [t]he fairly debatable standard is a highly deferential standard requiring approval of a planning action if reasonable persons could differ as to its propriety. 29. The standard of proof to establish a finding of fact is preponderance of the evidence. See 120.57(1)(j), Fla. Stat. 30. The elements of a comprehensive plan must be internally consistent. See 163.3177(2), Fla. Stat. 31. Local government ordinances are subject to the same rules of construction as are state statutes. See Rinker Materials Corp. v. City of N. Miami, 286 So. 2d 552, 553 (Fla. 1973); 1000 Friends of Fla. v. Palm Beach Cnty., 69 So. 2d 1123, 1126 (Fla. 4th DCA 2011). 32. In Blanton v. City of Pinellas Park, 887 So. 2d 1224, 1230 (Fla. 2004), the Florida Supreme Court summarized the application of the rules of statutory construction, as follows: As in all cases of statutory construction, we first look to the language of the statute. See Woodham v. Blue Cross & Blue Shield of Florida, Inc., 829 So. 2d 891, 897 (Fla. 2002). When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning. Modder v. American Nat'l Life Ins. Co., 688 So. 2d 330, 333 (Fla. 1997) (quoting Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984)). It is only if the statutory language is ambiguous that "the Court must resort to 11
traditional rules of statutory construction to determine legislative intent." Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1273, 1282 (Fla. 2000); see also Joshua v. City of Gainesville, 768 So. 2d 432, 435 (Fla. 2000) (stating that "if the language of the statute is unclear, then rules of statutory construction control"). Ambiguity suggests that reasonable persons can find different meanings in the same language. Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 455 (Fla. 1992). 33. In the case at hand, the County and Intervenors resorted to a number of extrinsic aids--legislative history, expert testimony--to support an interpretation of Policy 21.1.5 which would exempt the Plan Amendment from its application. 34. The legislative history and other extraneous matters are properly considered only when construction of a statute results in doubtful meaning. See Dep t of Rev. v. Lockheed Martin Corp., 905 So. 2d 1017, 1019 (Fla. 1st DCA 2005)(citing Fajardo v. State, 805 So. 2d 961, 963-64 (Fla. 2d DCA 2001) ( [a]lthough virtually every English sentence contains some level of uncertainty, the rules of construction are reserved for cases in which a fair reading of the statute leaves the judiciary in genuine doubt about the correct application of the statute. )). 35. The language at hand has no doubtful meaning. 6/ The Lee County Commission is required to make a finding of an overriding public necessity when changing the future land use category of lands designated Rural in Caloosahatchee Shores. 12
36. Respondent and Intervenors argue that the first sentence of the policy creates doubt because it refers to the terms rural character and rural land use, rather than the Rural land use category, generally. They conclude that the County only meant to apply heightened scrutiny to those lands within Caloosahatchee Shores which exhibit rural characteristics. That interpretation is not supported by the plain language of the directive: Therefore no land use map amendments to the remaining rural lands category.... 37. If the County had wanted to limit the directive to only amendments which would change the category on property which exhibited rural character, or was developed with rural land uses, it could have done so. The undersigned is not free to add words to the second sentence of the policy which do not exist. See Stroemel v. Columbia Cnty., 930 So. 2d 742 (Fla. 1st DCA 2006)( courts generally may not insert words or phrases in municipal ordinances in order to express intentions which do not appear, unless it is clear that the omission was inadvertent, and must give to a statute (or ordinance) the plain and ordinary meaning of the words employed by the legislative body. (quoting Rinker, 286 So. 2d at 553-54)(trial court erred in interpreting the term public resource based recreation facilities to mean 13
publicly owned recreation facilities because that interpretation was contrary to the plain language of the city code)). 38. Finally, Respondent and Intervenors argue that Petitioners interpretation renders the first sentence of the policy meaningless, a result likewise prohibited by the rules of statutory construction. See Mendenhall v. State, 48 So. 3d 740, 747-48 (Fla. 2010) ( Courts should avoid readings that would render part of a statute meaningless. ). 39. That argument is not persuasive. The first sentence expresses the desire to retain rural character and rural land uses where they exist in Caloosahatchee Shores. There is no regulatory operation of that precatory statement. The clear directive is to make a finding of an overriding public necessity as a condition precedent to changing the future land use designation of property in the Rural land use category within Caloosahatchee Shores. 40. Petitioners proved beyond fair debate that the Plan Amendment is inconsistent with FLUE Policy 21.1.5. 41. Petitioners proved beyond fair debate that the Plan Amendment is inconsistent with section 163.3177(2), thus not in compliance. 14
RECOMMENDATION Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the Lee County Plan Amendment, adopted by Ordinance 15-10 on June 3, 2015, is not in compliance, as that term is defined in section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 1st day of December, 2015, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2015. 1/ ENDNOTES All references herein to the Florida Statutes are to the 2014 version, unless otherwise noted. 2/ The Plan Amendment also changes Table 1(b) of the Comprehensive Plan to conform the acreages associated with the Rural and Sub-Outlying Suburban land use categories with the map amendment. 15
3/ This is a case of first impression under the Comprehensive Plan. Lee County has not previously considered any future land use map amendment to the Rural land use category in Caloosahatchee Shores. 4/ T.206:3-4. 5/ None of the expert witnesses was accepted as, or relied upon, as an expert in statutory interpretation. 6/ In Forsyth, the Supreme Court notes that ambiguity suggests that reasonable persons can find different meanings in the same language. 604 So. 2d at 455. However, contrary expert witness opinions do not denote ambiguity. COPIES FURNISHED: Ralf G. Brookes, Esquire Ralf Brookes Attorney Suite 107 1217 East Cape Coral Parkway Cape Coral, Florida 33904 (eserved) Mark A. Trank, Esquire Lee County Attorney's Office 2115 Second Street, 6th Floor Post Office Box 398 Fort Myers, Florida 33902 (eserved) Richard Barton Akin, Esquire Henderson Franklin Starnes and Holt, P.A. 1715 Monroe Street Post Office Box 280 Fort Myers, Florida 33902 (eserved) S. William Moore, Esquire Moore Bowman & Rix. P.A. Unit E 3277 Fruitville Road Sarasota, Florida 34237 (eserved) 16
Russell P. Schropp, Esquire Henderson, Franklin, Starnes and Holt, P.A. 1715 Monroe Street Post Office Box 280 Fort Myers, Florida 33902 (eserved) Neysa Borkert, Esquire Lee County Attorney's Office 2115 Second Street, 6th Floor Post Office Box 398 Fort Myers, Florida 33902 (eserved) Michael D. Jacob, Esquire Lee County Attorney's Office 2115 Second Street, 6th Floor Post Office Box 398 Fort Myers, Florida 33902 (eserved) Cynthia Kelly, Secretary Executive Office of the Governor The Capitol, Suite 1801 Tallahassee, Florida 32399-0001 John P. Jack Heekin (General Counsel to Commission) Office of the General Counsel Office of the Governor Room 209, The Capitol Tallahassee, Florida 32399-0001 (eserved) Barbara Leighty, Clerk Transportation and Economic Development Policy Unit Room 1801, The Capitol Tallahassee, Florida 32399-0001 (eserved) 17
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case. 18