STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF COMMUNITY ) AFFAIRS, )
)
Petitioner, )
)
and )
)
MANASOTA-88, INC., SIERRA ) CASE NO. 89-5157GM CLUB INC., and TAMPA BAY )
REGIONAL PLANNING COUNCIL, )
)
Intervenors, ) vs. )
)
HILLSBOROUGH COUNTY, )
)
Respondent. )
) SIERRA CLUB, INC. and )
MANASOTA-88, INC., )
)
Petitioners, )
)
vs. ) CASE NO. 90-6639GM
) HILLSBOROUGH COUNTY and ) DEPARTMENT OF COMMUNITY ) AFFAIRS, )
)
Respondents. )
)
TABLE OF CONTENTS
APPEARANCES 2
STATEMENT OF THE ISSUE 2
PRELIMINARY STATEMENT 2
FINDINGS OF FACT 15
Background 15
Data and Analysis 17
General 17
Natural Resources 19
General 19
Tampa Bay Estuarine System 21
Rivers 31
Floodplains and Drainage 35
Soils 45
Geology 47
Groundwater 49
Aquifer Recharge 51
Potable Water 56
Natural Habitats 60
Coastal Area 69
Coastal High Hazard Area
and Hurricane Planning 74
Air Quality 78
Urban Sprawl 79
Planning Strategy 79
Existing Land Uses 83
Future Land Uses Under Plan 86
Use of Public Facilities Under Plan 90
Protection of Natural Resources
Under Plan 91
Protection of Agriculture Under Plan 91
Plan Provisions 92
The FLUM 92
The Plan 116
Natural Resources 116
Coastal High Hazard Area and
Hazard Mitigation 154
Urban Sprawl 159
Funding and Financial Feasibility 193
Transportation Level of
Service Standards 195
Vested Rights and Developments
of Regional Impact 197
Miscellaneous 199
Intergovernmental Coordination 199
Dual Planning Timeframes 200
Regional Plan Provisions 200
State Plan Provisions 215
Ultimate Findings of Fact 217
Minimum Criteria of Data and Analysis 217
Sufficiency of Data and Analysis
(Issues 1-9) 217
Supporting Data and Analysis
B. | General Minimum Criteria | 248 | |
1. Public Participation (Issue 15) | 248 | ||
2. Contents of FLUM and Plan (Issues | 16-36) | 248 |
(Issues 10-14) 220
FLUM (Issue 16) 248
Plan Provisions Regarding
Natural Resources (Issues 17-22) 249
Coastal Hazards (Issues 22-23) 268
Public Facilities (Issues 24-31) 270
Urban Sprawl (Issues 32-35) 273
Miscellaneous (Issues 35-36) 274
Minimum Criterion of Internal Consistency
(Issues 37-38) 274
Minimum Criterion of Consistency with
Regional Plan (Issue 39) 275
Minimum Criterion of Consistency with
State Plan (Issues 40-41) 277
Rights of Intervenors and Standards of
Meaning of "Fairly Debatable" and
FLUM (Issue 16)
Plan Provisions Regarding
Tampa, Florida, on September 23-27, 1991, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
The parties were represented at the hearing as follows: For Petitioner Department of Community Affairs:
David J. Russ Michael P. Donaldson
Assistant General Counsel Department of Community Affairs 2740 Centerview Drive
Tallahassee, FL 32399-2100 For Intervenor Sierra Club, Inc.:
Attorney Thomas W. Reese
123 Eighth Street North St. Petersburg, FL 33701
For Respondent Hillsborough County:
John J. Dingfelder Robert R. Warchola
Assistant County Attorneys
P.O. Box 1110 Tampa, FL 33601
For Intervenor Big Bend Area Group, Inc.
David L. Smith Neil A. Sivyer
Smith & Williams, P.A. 712 South Oregon Avenue Tampa, FL 33606
STATEMENT OF THE ISSUE
The issue in the case is whether the Hillsborough County comprehensive plan is not in compliance for the reasons set forth in the petitions of Sierra Club, Inc.
PRELIMINARY STATEMENT
By Petition filed September 20, 1989, the Department of Community Affairs alleged that the Hillsborough County comprehensive plan was not in compliance. The Petition incorporated a Statement of Intent that raised a variety of issues. The Petition commenced DOAH Case No. 89-5157GM.
By letter filed September 28, 1989, Tom Traina requested leave to intervene. By Motion for Leave to Intervene filed October 6, 1989, Manasota-88, Inc. requested leave to intervene. By Motion for Leave to Intervene filed December 8, 1989, Sierra Club, Inc. requested leave to intervene. By Motion to Intervene filed July 30, 1990, the Tampa Bay Regional Planning Council requested leave to intervene. By Motion for Leave to Intervene filed April 15, 1991, Big Bend Area Group, Inc. requested leave to intervene.
All Intervenors were granted leave to intervene. Except for Sierra Club, Inc. and Big Bend Area Group, Inc., all Intervenors voluntarily dismissed their petitions. The ultimate pleadings for each remaining Intervenor are Sierra Club's Second Amended Petition-in-Intervention filed October 17, 1990, and Big Bend Area Group's Second Amended Motion for Leave to Intervene filed April 15, 1991.
The Second Amended Petition of Sierra Club raises all of the issues initially raised by the Department of Community Affairs and additional issues challenging the Hillsborough County comprehensive plan.
The Second Amended Motion for Leave to Intervene of Big Bend Area Group raises all of the issues raised by Sierra Club in its Second Amended Petition and additional issues challenging the Hillsborough County comprehensive plan. Although requesting in its petition an order that the plan is not in compliance, Big Bend Area Group, in its proposed recommended order, requests a determination that the plan, as amended, is in compliance. Arguing that greater density and intensity should have been allotted to South Hillsborough County and the I-75 corridor, the proposed recommended order does not seek relief on this point.
Thus, the issues originally raised by Big Bend Area Group for finding the plan, as amended, not to be in compliance are not considered, except to the extent they may be relevant to other issues.
The Department of Community Affairs entered into a settlement agreement with Hillsborough County. The case was abated while the County adopted settlement amendments on August 6, 1990. After reviewing the settlement amendments, the Department of Community Affairs issued a Notice of Intent, on or about September 21, 1990, determining that the plan amendments were in compliance. The Notice of Intent was submitted to a local newspaper of general circulation for publication on September 23, 1990.
On October 12, 1990, Sierra Club and Manasota-88 filed with the Department of Community Affairs a Petition for Hearing, which adopted the allegations of Sierra Club in DOAH Case No. 89- 5157GM. The petition, which challenged the settlement amendments, commenced DOAH Case No. 90-6639GM. The petition merely incorporates Sierra Club's Second Amended Petition in DOAH Case No. 89-5157GM. Manasota-88 later dismissed its petition in DOAH Case No. 89-5157GM, intending also to dismiss its petition in DOAH Case No. 90-6639GM.
By Order entered October 30, 1990, DOAH Case Nos. 89-5157GM and 90-6639GM were consolidated for hearing. For reasons explained in the Conclusions of Law, the commencement of DOAH Case No. 90-6639GM was unnecessary, and this order recommends that the Administration Commission, after entering a final order disposing of DOAH Case No. 89-5157GM, either enter a final order dismissing DOAH Case No. 90-6639GM or remand DOAH Case No. 90-6639GM to the Department of Community Affairs for the purpose of entering such a final order.
Although this recommended order concludes, as a matter of law, that the single evidentiary standard applicable to all issues 1/ is the preponderance of the evidence, the findings distinguish between degrees of proof, in the event that this conclusion is later reversed.
The issues are set forth below. The source of the issue is set forth in parentheses.
In the case of issues raised in the Department of Community Affairs petition and adopted by Sierra Club, the designation shall be "DCA."
In the case of issues specifically identified in the Second Amended Petition of the Sierra Club, which pertains to DOAH Case No. 89-5157GM, the designation shall be "Sierra Club."
The issues are as follows: 2/
Whether the plan is consistent with the criteria of depicting, on an existing land use map or map series, existing and planned waterwells, cones of influence, historic resources, floodplains, wetlands, minerals, soils, and public facilities, including schools, power line right-of-ways, and electric power generating sites, as required by Rule 9J-5.006(1). (Sierra Club 6.h)
Whether the plan is consistent with the criterion of identification and analysis of vegetative communities indicating known dominant species and species listed as endangered, threatened, or of special concern, as required by Rule 9J-5.013(1)(a)5. (Sierra Club 6.p)
Whether the plan is consistent with the criterion of analysis of the potential for conservation, use, or protection of the vegetative communities containing species listed as endangered, threatened, or of special concern, as required by Rule
9J-5.013(1)(b). (Sierra Club 6.q)
Whether the plan is consistent with the criteria of data and analysis regarding the suitability of soils for septic tanks, including the possible impact of septic tanks on estuaries, as required by Section 163.3177(6)(c) and Rules 9J-5.011(1)(f)4 and 9J-5.012(2)(d). (Sierra Club 6.bb)
Whether the plan is consistent with the criterion of identification and analysis of water quality problems related to stormwater and domestic wastewater discharges, as required by Rule 9J-5.013(1)(a) and (b). (Sierra Club 6.v)
Whether the plan is consistent with the criterion of analysis of the potential for conservation, use, or protection of Tampa Bay, its tributaries and estuaries, and Lake Thonotosassa, including the identification of known pollution problems from inadequately treated stormwater and domestic wastewater,as required by Rule 9J-5.013(1)(b) and the relevant Surface Water Improvement and Management Plans. (Sierra Club 6.u)
Whether the plan is consistent with the criteria of identification and analysis of existing and future water needs and sources and natural groundwater recharge areas, including the mapping of any areas of prime groundwater recharge, as required by Rules 9J- 5.013(1)(c) and 9J-5.011(1)(g). (Sierra Club 6.x)
Whether the plan is consistent with the criterion of a land use suitability analysis, including analysis of the presence of significant natural resources on vacant land, as required by Rule 9J-5.006(2)(a) and (b). (Sierra Club 6.o and 6.aa)
Whether the plan is consistent with the criterion of the identification of the coastal high hazard area, as required by Rule
9J-5.012(2)(e)3. (Sierra Club 6.z)
Whether the failure of the plan to set a stormwater level of service standard in terms of water quality and to require retrofitting of existing, deficient stormwater management systems is supported by data and analysis, as required by Rule 9J-5.005(2). (Sierra Club
6.u and 6.v)
Whether the plan is supported by the land use suitability analysis, as required by Rule 9J-5.005(2). (Sierra Club 6.aa)
Whether the Future Land Use Map densities on volume sensitive lands are supported by data and analysis in terms of the potential impact of stormwater runoff, as required by Rule 9J-5.005(2). (Sierra Club 6.t)
Whether the Future Land Use Map, including designated densities and intensities, is supported by data and analysis, including a land use suitability analysis, as required by Rules 9J- 5.005[(2)], 9J-5.006(2)(c), 9J-5.006(2)(b), and
9J-5.006(4), and Section 163.3177(6)(a). (DCA
III.A.3 and 4)
Whether the Future Land Use Map densities and intensities for residential, commercial, industrial, and office uses are supported by data and analysis, as required by Rule 9J-5.005(2)(a). (Sierra Club 6.a)
Whether the plan adoption process was consistent with the criterion of meaningful public participation concerning land use densities for South Hillsborough County, as required by Rule 9J-5.004. (Sierra Club 6.ll)
Whether the Future Land Use Map is consistent with the criteria of depicting existing and planned waterwells, cones of influence, historic resources, floodplains, wetlands, minerals, soils, and public facilities, including schools, power line right-of-ways, and electric power generating sites, as required by Rule 9J-5.006(4)(b). (Sierra Club 6.i and 6.x; DCA III.A.1)
Whether the plan is consistent with the criterion of an objective coordinating future land uses with topography, soils, and availability of facilities and services, as required by Rule 9J-5.006(3)(b)1. (DCA III.A.4)
Whether, given the failure of the plan to set a stormwater level of service standard in terms of water quality and to require retrofitting of existing, deficient stormwater systems, the plan is consistent with the criteria of objectives ensuring the protection of natural resources, including estuarine systems and their tributaries, and conserving, appropriately using, and protecting existing and projected water sources, as required by Rules 9J-5.006(3)(b)4 and 9J-5.013(2)(b)2. (Sierra Club 6.n, 6.v, and 6.ff)
Whether the plan is consistent with the criterion of a policy addressing implementation activities to protect water quality by restricting activities known to affect adversely the quality and quantity of identified water sources, including cones of influence, water recharge areas, and waterwells, as required by Rule 9J- 5.013(2)(c)1. (Sierra Club 6.x)
Whether the plan is consistent with the criterion of a policy addressing implementation activities to restrict activities known to affect adversely the survival of endangered and threatened wildlife, as required by Rule 9J-5.013(2)(c)5. (Sierra Club 6.r)
Whether the plan is consistent with the criterion of a policy addressing implementation activities to protect native vegetative communities from destructive development activities, as required by Rule 9J-5.013(2)(c)3. (Sierra Club 6.s)
Whether the plan is consistent with the criterion of an objective directing population concentrations away from coastal high hazard areas, as required by Rule 9J- 5.012(3)(b)6. (Sierra Club 6.z)
Whether the plan is consistent with the criterion of a policy identifying regulatory or management techniques for septic tanks as part of general hazard mitigation to reduce the exposure of human life and property in
the coastal area to natural hazards, as required by Rule 9J-5.012(3)(c)3. (Sierra Club 6.bb)
Whether the plan is consistent with the criterion of a policy establishing level of service standards at peak hours for state roads in the County and justifying setting level of service standards for certain roads below state standards and allowing levels of service on certain roads to deteriorate, as required by Rules 9J-5.007(3)(c)1 and 9J- 5.016(3)(c)4. (DCA I.A.2 and I.A.3)
Whether the plan is consistent with the criterion of a provision granting vested rights only when development has commenced pursuant to a final local development order issued prior to the adoption of the plan and has continued in good faith, as required by 9J-5.005(6). (DCA VI.A.1 and 2)
Whether the plan is consistent with the criterion of a policy addressing programs and activities for the provision of public services to serve development authorized by development orders issued prior to the adoption of the plan, as required by Rule 9J- 5.016(3)(c)5. (DCA I.A.1)
Whether the plan's authorization of pipe- lining, in which the impact of DRI development orders may degrade the level of service of certain roads as long as the developer improves other roads, is consistent with the criteria of provisions ensuring that public facilities are available concurrent with the impact of development, as required by Section 163.3177(10)(h) and Rules 9J- 5.005(6) and 9J- 5.016(4)(b). (DCA VI.A.3.)
Whether the plan, including its provisions pipelining specific DRI impact fees to only some impacted roads, is consistent with the criteria of provisions ensuring that required public facilities will be available concurrent with the impacts of development, as required by Section 163.3177(10)(h) and Rule 9J-5.006(3)(c)3. (Sierra Club 6.l)
Whether the plan is consistent with the criteria of policies addressing programs or activities providing for concurrency, including developments for which development orders were issued prior to plan adoption, and assessing new development a pro rata
share of costs necessary to finance public facility improvements necessitated by such development, as required by Rule 9J- 5.016(3)(c)5, 6, and 8. (Sierra Club 6.nn)
Whether the plan is consistent with the criterion of a provision to establish funding mechanisms to correct existing deficiencies in required public facilities, as required by Section 163.3177(3)(a)1. (Sierra Club 6.d)
Whether the plan is consistent with the criterion of financial feasibility, as required by Section 163.3177(2). (Sierra Club 6.c)
Whether the Future Land Use Map is consistent with the criteria of depicting the extent of urban and rural land uses, as required by Rule 9J-5.006(4). (DCA III.A.2)
Whether the plan, including the Future Land Use Map, is consistent with the criteria of provisions to discourage urban sprawl, as required by Rules 9J-5.006(2)(a) and (b) [sic; should be 9J-5.006(3)(b)7] and 9J- 5.011(2)(b)3. (Sierra Club 6.f and DCA III.A.5)
Whether the plan, regarding the protection of rural and agricultural lands, is consistent with the criteria of designating agricultural uses on the Future Land Use Map; setting objectives to conserve, appropriately use, and protect soils and natural vegetative communities; and setting policies to address implementation activities to protect and conserve the natural functions of existing soils, wildlife habitats, rivers, bays, floodplains, harbors, and wetlands, as required by Rules 9J- 5.006(4)(a)4, 9J- 5.013(2)(b)3, and 9J- 5.013[(2)](c)6. (Sierra Club 6.g)
Whether the plan is consistent with the criteria of intergovernmental coordination, especially with respect to Pinellas County and St. Petersburg's wellfields in Hillsborough County and the varying degrees of protection afforded by each local government to wellfields in its jurisdiction, as required by Section 163.3177(4)(a) and (6)(h) and Rule 9J-5.014 [sic; should be Rule 9J-5.015]. (Sierra Club 6.ii)
Whether the plan is consistent with the criterion of dual planning timeframes, as required by Rule 9J-5.005(4). (Sierra Club 6.b)
Whether the plan is internally consistent, as required by Rule 9J-5.005(5), in terms of omissions from the Future Land Use Map and plan provisions to protect environmentally sensitive lands; the densities and intensities on the Future Land Use Map and plan provisions to protect natural resources, such as estuarine systems, their tributaries, and oceans; the failure to designate cones of influence and water wells as low density residential on the Future Land Use Map and provisions of the Conservation and Recharge Element regarding cones of influence; the discouragement of urban sprawl and the adopted level of service standards on roads; and the use of dual planning timeframes. (Sierra Club 6.b, 6.j, 6.m, 6.n, 6.w, and 6.dd)
Whether, if the plan contains a provision discouraging urban sprawl, the plan is internally consistent with respect to discouraging urban sprawl, as required by Rule 9J-5.005(5), given the alleged failure of the Future Land Use Map to discourage urban sprawl and the alleged effect of a plan policy requiring that future development pay only a minimum of 20% of the cost of required public facilities. (DCA III.A.5 and 6)
Whether, as required by Section 163.3184(1)(b), the plan is consistent with the Regional Plan with respect to the discouragement of urban sprawl, identification of the coastal high hazard area, direction of population away from the coastal high hazard area, adoption of road level of service standards, protection of environmentally sensitive areas, achievement of energy-efficient design of transportation facilities, enhancement of governmental efficiency, and attainment of compliance with national air quality standards, as required by the Regional Plan. (Sierra Club 6.e, 6.z, 6.ee, 6.ff, 6.gg, 6.jj, and 6.mm)
Whether, as required by Section 163.3184(1)(b), the plan is consistent with the State comprehensive plan with respect to the elimination of the discharge of inadequately treated stormwater runoff and wastewater into state waters, as required by
Section 187.201(8)(b)12; discouragement of urban sprawl, as required by Section 187.201(16)(b)2; promotion of agricultural activities that are compatible with the protection of natural resources, as required by Section 187.201(10)(b)5; reduction of the cost of housing construction by the elimination of unnecessary, costly
regulatory practices, as required by Section 187.201(5)(b)4; coordination of transportation improvements in major travel corridors to enhance system efficiency and minimize adverse environmental impacts, as required by Section 187.201(20)(b)2; assurance that transportation improvements are consistent with the maintenance of optimum air quality and that transportation design and planning achieves efficient use of energy and transportation modes, as required by Section 187.201(11)(b)2 and (12)(b)4; elimination of regulatory activities not
tied to specific public and natural resource protection needs and discouragement of undue expansion of state government, as required by Section 187.201(21)(b)4. and 12; reduction of the need for new power plants by encouraging end-use energy efficiency and using cost-effective alternatives, as required by Section 187.201(12)(b)5; and attainment of compliance with all national air quality standards, as required by
Section 187.201(11). (Sierra Club 6.e, 6.u, 6.y, 6.cc, 6.ff, 6.gg, 6.jj, 6.kk, and 6.mm)
Whether the plan is consistent with the criterion of consistency with the State comprehensive plan--specifically Goal 16 and Policy 16(b)2; Goal 23; Policy 18(b)1 and 3; and Policy 20(b)9. (DCA IV.A.1-5)
At the commencement of the final hearing, Sierra Club announced that it was deleting from its pleadings any reference to the designation of an electric power generating facility on Cockroach Bay, as the County had amended its plan to eliminate the designation to which Sierra Club objected. The issues set forth above have thus omitted the allegations of the Department of Community Affairs and Sierra Club pertaining directly to the proposed electric power generating facility at Cockroach Bay. Sierra Club also sought leave to amend its Second Amended Petition, but, during argument, withdrew the motion.
Five other motions were disposed of at the beginning of the final hearing.
Hillsborough County's Motion to Disqualify Sierra Club's Counsel was denied. Hillsborough County's Motion to Expand Scope of Review was granted to the extent of plan amendments that had been adopted through the first day of the hearing.
The final set of amendments thus considered were those adopted in August, 1991.
Big Bend Area Group's Motion in Limine was granted in part, so as to exclude evidence of data not in existence as of the adoption date of the plan or, where relevant, plan amendment. The motion was denied as to the exclusion of any analysis. Big Bend Area Group's Motion to Exclude Witness was denied, and its Motion for Disclosure of Ex Parte Communications was mooted in the course of discussions on the record.
At the hearing, Sierra Club called ten witnesses and offered into evidence
57 exhibits. Big Bend Area Group called six witnesses and offered into evidence five exhibits. Hillsborough County called seven witnesses and offered into evidence 52 exhibits. The Department of Community Affairs called one witness and offered into evidence no exhibits. All exhibits were admitted except Sierra Club Exhibits 17, 28, 37, and 41; Big Bend Area Group Exhibits 1 and 4; and Hillsborough County Exhibit 5.
The transcript was filed October 28, 1991. Each party filed a proposed recommended order. Treatment of the proposed findings is detailed in the appendix.
FINDINGS OF FACT
Background
Hillsborough County adopted its comprehensive plan on July 12, 1989. The County adopted Plan Amendments 90-I, 90-II, and 91-I on August 6, 1990, December 18, 1990, and August 28, 1991, respectively. The plan as so amended is referred to as the Plan. 3/ The Plan is the subject of these cases.
The Plan is accompanied by data and analysis. The data and analysis of greatest significance are contained in the two- volume compilation of the Plan and other portions of Sierra Club Exhibit 1, which is the Plan and supporting data and analysis. Sierra Club Exhibit 1, which was prepared by Hillsborough County, includes background documents organized by elements, as well as oversized maps. Unless indicated to the contrary, the oversized maps are approximately 24" by 21" and are drawn on a scale of 1"= 2 miles. Many of the oversized maps bear numbers. Reference to such oversized maps shall be as follows: "Oversized Map [number]." Data and analysis from Sierra Club Exhibit
1 shall be referred to as "Data and Analysis."
The Plan consists largely of goals, objectives, and policies. In addition to such operative provisions, Hillsborough County also adopted, as part of the operative provisions of the Plan, other sections contained in the two- volume compilation of the Plan. For example, each element of the Plan relevant to the present cases includes operative provisions under sections entitled, "Implementation" and "Definitions." Other important operative provisions are sections entitled "Land Use Plan Categories" and "Legal Status of the Plan" in the Future Land Use Element and "Costs and Revisions by Type of Public Facility," "Programs to Ensure Implementation," and "Requirements for Capital Improvements Implementation" in the Capital Improvements Element.
The Department of Community Affairs (DCA) filed a petition on September 20, 1989, alleging that the original plan was not in compliance with the growth management law. This petition initiated DOAH Case No. 89-5157GM.
Various parties challenging the plan intervened in DOAH Case No. 89- 5157GM. The Sierra Club, Inc. (Sierra Club) filed its petition to intervene on December 8, 1989. The petition incorporates the allegations of DCA and alleges additional grounds for a determination of noncompliance.
As a result of the execution of a settlement agreement, DOAH Case No. 89-5157GM was abated. After Hillsborough County adopted settlement amendments on August 6, 1990, DCA determined that the plan amendments were in compliance. On or about September 21, 1990, DCA issued a Notice of Intent, which was published on or about September 23.
On October 12, 1990, Sierra Club filed a petition challenging the plan amendments adopted in connection with the settlement agreement. This petition initiated DOAH Case No. 90- 6639GM. The allegations are the same as those raised by Sierra Club in DOAH Case No. 89-5157GM in its Second Amended Petition- in-Intervention, which was filed October 17, 1990.
By Order entered October 30, 1990, DOAH Case Nos. 89- 5157GM and 90- 6639GM were consolidated for hearing.
On April 15, 1991, Big Bend Area Group, Inc. (Big Bend) filed a petition to intervene to challenge the plan. A Second Amended Motion for Leave to Intervene was granted. Despite the allegations of noncompliance, Big Bend's proposed recommended order requests that the Plan be determined to be in compliance.
Sierra Club and Big Bend each has members who reside in Hillsborough County. Each party submitted the required oral or written objections during the relevant review and adoption period.
The County conducted the required hearings, gave adequate notice of the hearings, and otherwise substantially complied with the requirements of public participation.
Data and Analysis
General
Hillsborough County is located on the Gulf Coast. The western boundary of the County abuts Tampa Bay and Pinellas County. Pasco County and a small part of Polk County are to the north, Polk County is to the east, and Manatee County is to the south. The only incorporated municipalities in Hillsborough County are Tampa, Temple Terrace, and Plant City.
Tampa is at the north end of Tampa Bay and extends through the westcentral part of the County almost to the Pasco County line. Temple Terrace abuts the northeast boundary of Tampa. About 14 miles east of Tampa is Plant City, which is in the northeast part of Hillsborough County. The two cities are linked by Interstate (I-) 4, which runs from Daytona Beach to Tampa. In Tampa, I-4 intersects with I-275, which crosses upper Tampa Bay, runs south through Pinellas County, and spans the mouth of Tampa Bay before entering Manatee County.
I-75 also runs through Hillsborough County. From the Pasco County line, where I-275 divides and proceeds southwest into downtown Tampa, I-75 runs generally due south. The path of I-75 lies just east of downtown, where the road turns southwest at a point north of the Little Manatee River. From there, I-75 parallels the shoreline of Tampa Bay until entering Manatee County.
Other important roads in Hillsborough County include SR 60, which runs east-west through the center of the County and connects Tampa and Clearwater.
US 301 runs along the Hillsborough River in the northeast part of the County, and then turns due south midway between Temple Terrace on the west and Lake Thonotosassa on the east. At this point, US 301 crosses I- 75 and runs due south, recrossing I-75 about three miles north of the Alafia River and just south of SR 60. US 41 runs due south from the Pasco County line into the center of Tampa and then turns east, before continuing south, parallel to the shoreline, varying from one-half to three miles inland from Tampa Bay.
Natural Resources
General
The Data and Analysis accompanying the Conservation and Aquifer Recharge Element (CARE) describe the County's natural resources, past land use practices, and planning challenges:
Hillsborough County, by virtue of its subtropical climate and variable hydrology and geology, supports a rich and diverse complement of natural resources. The County borders the largest estuary in the State, Tampa Bay . . .. The County is underlain by the Floridan aquifer, the largest and highest quality potable water aquifer in the State, as well as by some of the richest phosphate deposits in the world. The karst topography of the County has created a mosaic of solution sinks and depressions which contain a wide variety of wetland flora and fauna, while the higher well-drained elevations
support rare xeric hammocks and scrub habitat.
Over the past century, however, development has slowly destroyed and degraded the rich natural resources of the County. The unregulated filling of wetlands, discharge of pollutants, mining of phosphate deposits,
clearing of forests, dredging of bay bottoms, channelizing of streams and rivers, and overpumping of groundwater supplies has irretrievably destroyed or altered much of the original natural resource base.
Environmental legislation passed at the federal, state, regional and local levels over the past two decades has done much to stem the tide of this destruction; however, advance planning and further safeguards will
be needed to ensure the preservation and conservation of the County's remaining natural resources for future generations.
Hillsborough County is experiencing a high rate of population growth. Between 1970 and 1980, Hillsborough County's population grew from an estimated 490,265 to 646,939, an increase of 32 percent This
population size ranked fourth among counties in the state. . . .
Future population projections for Hillsborough County . . . generally show that the population of Hillsborough County may continue to increase, if the high estimate occurs, or may level off if the lower estimate proves more accurate. . . .
Hillsborough County's population is concentrated primarily within the cities of Tampa and Temple Terrace. However, during the five year period of 1980 through 1985, the majority of the population growth for the County has taken place away from these areas. Population has decreased in portions of the City of Tampa and increased in the previously less populated portions of the County.
The Future Land Use Element of the [Plan] identifies the major center of future growth as the I-75 corridor. If the upper population projections are realized over the next 15 years, directed growth into this area will threaten the integrity of many of the County's most valuable natural resources, including the three major river corridors, areas of high aquifer recharge/contamination potential, and sensitive estuarine wetlands. The [CARE] is needed to identify these potential problems and to set forth a plan and policy direction for ensuring environmental protection and orderly economic growth under all projected population scenarios.
CARE, pages 2-3.
Acknowledging the environmental degradation that has resulted from land use planning that has traditionally ignored natural features of the land and water systems, the Data and Analysis state:
In past decades, land use decisions were based primarily upon socio-economic and demographic factors, with little considera- tion given to preserving or conserving the natural attributes of the land. As a result, urban land uses were often allowed to
replace or permanently alter environmentally sensitive lands and natural systems. With a better understanding of the ecological impacts of land uses, it has become clear that the natural carrying capacity of the land must be carefully considered in land use decisions if the natural attributes and functions of the environment are to be maintained for future generations. Policies and regulations that appropriately preserve or conserve valuable natural resources while allowing for orderly economic growth are needed.
CARE, page 73.
2. Tampa Bay Estuarine System
The Tampa Bay estuary is
a semi-enclosed coastal body of water having a free connection with the Gulf of Mexico and within which sea water is measurably diluted
with freshwater derived from land drainage. ...
[T]he Tampa Bay estuary is a zone of transition between fresh and salt water with unique and valuable ecological characteristics.
Coastal Management and Port (Coastal) Element, page 13.
The estuarine system includes tidal freshwater habitats as well as mangroves, salt marshes, and seagrass meadows along the shallow bottom and estuarine fringe. The functions of the estuarine system are described as follows:
Because of their unique physical and chemical properties, estuaries are among the most biologically diverse and productive ecosystems in the world. Tidal wetland vegetation at the headwaters of estuaries trap silt and absorb excess nutrients resulting from land drainage, thus buffering the coastal ecosystem somewhat from upland sources of pollution. Tidal wetland vegetation also protects upland areas by stabilizing coastal sediments and preventing erosion from storm events.
The real importance of estuarine plant communities such as mangrove forests, salt marshes, and seagrass beds lies in the vital functions they perform in the aquatic ecosystem. First and foremost is their role in converting sunlight and nutrients into food usable by marine animals, thus forming the base of the aquatic food chain. . . .
Although relatively little of this plant material is eaten directly by higher animals, it is broken down into detritus by micro- organisms and consumed by small crustaceans and other animals which are, in turn, eaten by larger fishes and so on up the food web
. . . .
In addition to serving as a food source, estuarine wetland vegetation provides shelter and nursery areas for the young of many economically important species such as shrimp, seatrout, mullet, and red drum (redfish). . . . [I]t is estimated that nearly 98% of the most economically important fisheries species taken along the Gulf of Mexico coast are directly dependent upon estuarine habitat during some portion of their life cycle. . . .
Coastal Element, pages 13-14.
Florida's largest open water estuary, Tampa Bay covers about 400 square miles. Coastal Element Figure 6 depicts the Tampa Bay estuary, including its subdivisions. Old Tampa Bay separates Tampa and Pinellas County and forms the shoreline of northwest Hillsborough County. Hillsborough Bay extends from Tampa to Apollo Beach and forms the shoreline of central Hillsborough County, as well as the northern part of south Hillsborough County. The Hillsborough and Alafia Rivers empty into Hillsborough Bay, which joins McKay Bay at Tampa. Middle Tampa Bay, which forms the shoreline of most of south Hillsborough, runs from the southern ends of Old Tampa Bay and Hillsborough Bay down to the southern ends of Pinellas and Hillsborough Counties. The Little Manatee River empties into Middle Tampa Bay.
A variety of nonfish wildlife is dependent upon the waters of Tampa Bay. In addition to the 100-200 bottlenose dolphin in Tampa Bay, as many as 55 West Indian manatees reside in the bay in the winter, congregating around industrial thermal discharges. The largest group--42--was found at the mouth of the Alafia River, which is the only designated State Manatee Sanctuary in Tampa Bay.
About one-third of the laughing gull population in the southeastern United States breeds in the Tampa Bay region, as does nearly one-third of the brown pelicans in Florida. McKay Bay is an important feeding area for a variety of birds.
General water quality in Tampa Bay is "good to excellent," but is "declining" in Old Tampa Bay and "undesirable" in Hillsborough Bay, including McKay Bay. Coastal Element, page 15. Both Hillsborough Bay and Old Tampa Bay receive little tidal flushing due to natural conditions, so they are not "particularly well suited for the discharge of municipal and industrial wastes, and . . . the continued flow of freshwater to Tampa Bay, especially Hillsborough Bay, is essential to maintain good circulation and flushing." Coastal Element, page 19.
The water quality in Middle Tampa Bay ranges from "fair to good," but is periodically influenced by water from Hillsborough Bay. Water quality in and near the Cockroach Bay Aquatic Preserve is "excellent or good," except for occasional "fair to poor" conditions due to seasonal discharges from the Little Manatee River or periodically "poor" conditions due to malfunctioning septic tanks near Cockroach Bay. Coastal Element, page 15.
"One of the most pristine biologically productive areas remaining in Tampa Bay," Cockroach Bay is part of the Cockroach Bay Aquatic Preserve, which is shown in Coastal Element Figure 17. Coastal Element, page 48. The only aquatic preserve in Hillsborough County, Cockroach Bay Aquatic Preserve runs from submerged lands along the Little Manatee River upstream to US 301. From the mouth of the Little Manatee River, the preserve runs along the Tampa Bay shoreline past Cockroach Bay, which is about three miles south of the mouth of the Little Manatee River, to the Manatee County line. Noting that the Governor and Cabinet approved the Cockroach Bay Aquatic Preserve Management Plan in 1987, the Data and Analysis acknowledge that "[s]uccessful implementation of this plan depends upon the cooperation of Hillsborough County." Coastal Element, page 48.
The decline of water quality in Tampa Bay has had a predictably devastating effect upon commercially valuable fish in the area. "[O]nce the State's most productive and diverse estuarine system" with a
diversity and abundance of marine life [in the 1960's] not exceeded by any other estuary between the Chesapeake Bay and the Laguna Madre of Texas, . . . [t]he productivity of Tampa Bay in terms of commercially valuable fisheries has . . . declined dramatically in recent decades due to man's influence on the Bay.
Coastal Element, page 21.
According to Coastal Element Figure 15, shellfish landings in Tampa Bay have declined from 20 million pounds in the mid 1950's to early 1960's to two million pounds in 1978. Finfish landings have declined from a high of 4.5 million pounds in 1964 to 1.75 million pounds in 1978.
Five economically important shellfish species occur in Tampa Bay: bait shrimp, stone crab, blue crab, oysters, and quahog clams. By the mid 1950's, degraded water quality had eliminated from the estuary the bay scallop, which had formerly flourished in these estuarine waters. By 1970, degraded water quality "essentially eliminated" commercial harvesting of oysters, which had accounted for 500,000 pounds annually at the turn of last century. Coastal Element, page 22. Poor water quality has left bait shrimp and stone crabs as the only remaining commercially viable shellfish left in Tampa Bay.
Areas approved for shellfishing are restricted to lower Tampa Bay where better flushing takes place. The Cockroach Bay Aquatic Preserve is conditionally approved, but "has been closed periodically due to coliform contamination from nearby septic systems and is being considered for permanent closure by the Florida Department of Natural Resources." Coastal Element, page 22.
The majority of the recreational fish landings in Tampa Bay consist of spotted seatrout, red drum, and snook. These fish are also declining in numbers.
Many species of birds in Tampa Bay have suffered population declines due in part to red tides, parasite outbreaks, dredge and fill operations, pesticide use, and oil spills. However, the reddish egret and roseate spoonbill have recently returned to Tampa Bay.
Accompanying the decline in animal species has been a decline in estuarine plant species, such as seagrass meadows. The "catastrophic loss of seagrasses in Tampa Bay," which is attributable primarily to water quality degradation, is taking place at accelerating rates. About 81% of the seagrass meadows, which once covered 76,500 acres of Tampa Bay bottom, have been lost. Coastal Element, page 20.
Tampa Bay is undergoing eutrophication. The process of eutrophication, or increasing concentrations of nutrients, has already led to algal blooms, noxious odors, decreases in water clarity, declines in dissolved oxygen, and periodic fish kills. Excessive nutrient levels have resulted in phytoplankton blooms in the water column and excessive epiphytic growth of macroalgae on the leaves of seagrasses, leaving insufficient sunlight for the growth and reproduction of seagrasses that help trap nutrients. The destruction of seagrasses is further hastened by widespread increases in water column turbidity caused by harbor- and channel-deepening projects, which, with boat prop dredging, also destroy seagrass.
The loss of critical nutrient-trapping vegetation has simultaneously taken place in wetlands and upland adjacent to Tampa Bay, such as in the destruction of as much as 44% of the original emergent wetlands, which comprise salt marshes and mangrove forests. In the process of development, these wetlands have been dredged and filled, thereby removing the intertidal substrata necessary for these vegetative communities. Likewise, the loss of freshwater wetlands along rivers and streams has deprived the estuarine system of useful organic matter and filtration.
Dredging and filling activities have dramatically changed the features of the Tampa Bay estuarine system. The extent of the system itself has been reduced by 3.6%, or 13.15 square miles, primarily by filling shallow tidal wetlands for the development of causeways, residences, power plants, and port facilities. Port development is responsible for about 60% of the reduction of the estuary due to the construction of channels, filled sites, and disposal sites for dredged materials.
Dredge and fill projects routinely permitted in the 1950's and 1960's are no longer permitted. But expansion and maintenance of the Port of Tampa will generate annually about one million cubic yards of dredged material from the channel and port. Present disposal sites may be exhausted in 25 years, and the Data and Analysis recommend that the dredged material be considered for wetlands mitigation and restoration.
The primary factors contributing to the eutrophic degradation of the water quality of Tampa Bay are, in addition to dredging and filling, the discharge of inadequately treated domestic and industrial wastewater and inadequately treated urban and agricultural runoff.
In 1980, point sources contributed 2.35 and 3.58 million pounds of phosphorous and nitrogen, respectively, to Tampa Bay. The Alafia River carried 75% of the water contributed by permitted point discharges because the Alafia absorbs discharges from extensive phosphate mining operations in Polk County. Not surprisingly, the highest concentrations of organic carbon and nitrogen and total phosphate are in the sediments at the mouth of the Alafia River. But domestic wastewater treatment plants discharging directly into Tampa Bay accounted for 78% and 84% of the annual phosphorous and nitrogen loadings, respectively.
The degraded water quality in Old Tampa Bay and especially Hillsborough Bay is due largely to sewage and industrial wastes. Old Tampa Bay continues to suffer from the discharge of inadequately treated domestic waste. However, the water quality in Hillsborough Bay improved substantially after over
$100 million was spent to upgrade Tampa's Hookers Point sewage treatment facility in 1979 from primary to advanced or tertiary treatment. Only one of the six County regional wastewater treatment facilities fails to meet advanced water treatment standards, but "numerous subregional and interim plants" fail to meet these standards. Coastal Element, page 24.
According to the Data and Analysis, passage of the Grizzle-Figg bill in 1986 "currently requires that all sewage treatment plants discharging into Tampa Bay attain advanced wastewater treatment standards." Coastal Element, page 24. Upon compliance with the Grizzle-Figg law, nutrient loadings into Tampa Bay will decrease and "a net reduction . . . is possible as interim package plants are ultimately phased out or upgraded." Id.
Regarding wastewater discharges generally, including industrial wastewater, a major reduction in nutrient loadings since 1980 has been realized from the use of alternative effluent disposal methods (such as spray irrigation and deep-well injection), municipal and industrial water reuse, upgrading of treatment capabilities, and phosphate land reclamation projects.
Nutrient loadings from stormwater runoff will "most likely be a more intractable problem" than inadequately treated domestic wastewater. Coastal Element, page 24. Runoff from streets, parking lots, and lawns may contribute up to 25% of the biochemical oxygen demand, 35% of the suspended solids, and 15% of the nitrogen loading. Referring to state rules regulating stormwater, 4/ the Data and Analysis anticipate that the state- imposed standards on stormwater runoff will become more stringent, so there should not be significant increases in stormwater nutrient loadings into the bay. However:
little can be done to reduce current loading rates, as retrofitting of stormwater treatment facilities is most likely economically prohibitive. Retrofitting will probably only occur on a piecemeal basis as redevelopment occurs in previously urbanized areas.
Coastal Element, page 24.
Unsound land use practices introducing high levels of nutrients into Tampa Bay exacerbate background conditions that predate either all or recent development activity. The Data and Analysis caution that "there may always be a
significant reservoir of nitrogen and phosphorous in Bay sediments to contribute to water quality problems in upper Tampa Bay." Coastal Element, page 16. The Data and Analysis explain:
even with advanced wastewater treatment and improved stormwater management, localized pockets of polluted sediments in the Bay may still release excessive nutrients into the water column and cause water quality problems. The ultimate solution to this problem may involve the removal of excessively enriched sediments by dredging or the capping of polluted sediments with clean fill material.
Coastal Element, page 24.
Other unsound land use practices, such as the diversion of river flows and structural drainage improvements, greatly impact Tampa Bay in another respect not directly related to the eutrophication process. The Tampa Bay estuary and its dependent fish and shellfish rely upon the freshwater flow into the bay. Areas of the estuary with the lowest salinity, as well as low- salinity tidal marshes, are often the most productive nursery habitat for many marine and estuary species. The timing of the freshwater infusions are naturally correlated to the spawning periods of the fish. The salinity regimes of Tampa Bay may be disturbed by upstream demands for freshwater and the alternating excessive and insufficient flows of freshwater due to structural drainage improvements that hasten the natural drainage of uplands immediately following major storm events, leaving less water to drain slowly to the bay during relatively drier periods.
Reviewing "numerous studies" that, for the past 30 years, "have documented the deterioration of water quality and habitat values of the estuary," the Data and Analysis attribute the environmental degradation of Tampa Bay to:
direct habitat destruction from dredging and filling, and the hardening of shorelines for coastal development; degradation of water quality and eutrophication resulting from the discharge of municipal and industrial effluents, and stormwater runoff; and the reduction of natural freshwater inputs due to the impoundment and withdrawals from rivers and streams.
Coastal Element, page 48.
Concluding that "piecemeal urbanization" around Tampa Bay has resulted in its "broadscale environmental degradation," the Data and Analysis warn: "Without proper management and the proper balance between public and private uses, Tampa Bay could become a major liability rather than the area's main asset." Coastal Element, page 48. The Data and Analysis advise that the protection and restoration of the Tampa Bay estuary requires a "comprehensive, coordinated and holistic management approach." Id.
3. Rivers
Covering 1072 square miles, Hillsborough County comprises five physiographic provinces, which reflect topography and soils. The physiographic provinces are Coastal Swamps, Gulf Coast Lowlands, Zephyrhills Gap, Polk Upland, and a small portion of the DeSoto Plain. Elevations range from sea level in the Coastal Swamps and Gulf Coast Lowlands, which separate the Polk Upland from the Tampa Bay estuary, to 160 feet above sea level in the Polk Upland at the Polk County line. CARE Figure 4 displays the topographic contours of Hillsborough County.
The County's major rivers and drainage features are, from north to south, the Hillsborough, Alafia, and Little Manatee Rivers. Each of these rivers empties into Tampa Bay. The three major river basins together with six smaller basins transport, on average, more than 1.2 billion gallons per day of freshwater into Tampa Bay. This is almost 80% of the freshwater flow into the bay. CARE Figure 11 shows the major rivers and drainage basins in Hillsborough County.
A fourth river, the Palm River, once drained lands between the Hillsborough and Alafia Rivers. Emptying into McKay Bay, the Palm River was "completely channelized and controlled" by 1970 and is now known as the Tampa Bypass Canal. Coastal Element, page 18.
The Hillsborough River begins in the Green Swamp and flows southwest through Tampa and into the bay. Traveling nearly 54 miles, the river is supplied by many artesian springs, which supply the river with water from the Floridan aquifer. The natural drainage basin of the river is 690 square miles, including 120 square miles in Hillsborough County.
The upper Hillsborough River is a Class I water, which means that it is suitable as a source of potable water. The lower Hillsborough River is a Class III waterbody, which means that it is suitable for propagation of fish and wildlife. The part of the river passing through the Hillsborough River State Park in the northeast area of the County is also designated as an Outstanding Florida Water.
Two dams span the Hillsborough River. The upper dam is just north and east of I-75 near Fletcher Avenue. This dam, which is under the jurisdiction of the Southwest Florida Water Management District, is used for flood-control purposes. The lower dam is at 30th Street in Tampa and is operated by the City of Tampa to form a reservoir from which potable water is taken.
Flow of the river ranges from 9.5 billion gallons per day during the wet season to under 30 million gallons per day at the end of the spring dry season. The average flow into Tampa's reservoir is 368 million gallons per day.
Of the 55.5 linear miles of shoreline (both banks) along the Hillsborough River in the unincorporated County, 17.6 miles are private and 37.9 miles are public. The predominant land uses are rural, agricultural, and conservation. The riverbanks are in their native state with no seawalls and few boat docks or ramps, except for canoe access.
The Alafia and Little Manatee Rivers originate in the Polk Upland and receive water from widely branching tributaries.
The Alafia River begins in Polk County and runs west to Gibsonton and into the bay at a point about five miles south of Tampa. The Alafia drains a
420 square mile drainage basin. The average flow at the mouth of the river is
million gallons per day.
In general, the water quality of the Alafia River is "poor." CARE, page 13. A Class III waterbody, the river's entire corridor is rural or suburban, and much of its original floodplain wetlands are still intact. Phosphate mining has damaged the quality of the river's headwaters.
The Little Manatee River begins in southeast Hillsborough County and flows west by Ruskin and into the bay at a point about ten miles south of Gibsonton. The Little Manatee River drains about 225 square miles.
The average flow of the Little Manatee River is over 150 million gallons per day. Florida Power and Light pumps water from the river to supply an off-stream reservoir for cooling a thermonuclear power plant.
The water quality of the Little Manatee River is "generally good." CARE, page 14. The river, which is a Class III waterbody, is designated an Outstanding Florida Water for its western two-thirds, with the portion of the river west of US 301 designated as an aquatic preserve. The river is more pristine than the other County rivers due to its "relatively unimpacted floodplains, swamps and tributaries." Id. However, the river is
threatened by phosphate mining in its upper reaches. Rich deposits of phosphate matrix lie near the surface along the river's bed, and the easy extraction makes these areas extremely attractive for future mining.
Id.
In contrast to the well-developed stream systems of northeast,
central, and southern Hillsborough County, northwest Hillsborough County has relatively few such streams. Rain in this area rapidly infiltrates the surficial soils through shallow creeks and solution features.
The Data and Analysis concede that "surface water quality in Hillsborough County has been degraded due to a variety of unregulated water uses and adjacent land uses." CARE, page 54. The most prominent sources of water pollution have been discharges of wastewater, mining operations, and urban and agricultural runoff. The Data and Analysis recommend "[b]etter compliance with existing point and non-point source and stormwater regulations" and the consideration of "more stringent regulations for septic tank discharges." Id.
4. Floodplains and Drainage
Over 30% of Hillsborough County is within the 100 year floodplain. The floodplains, which have been mapped throughout the County by the Federal Emergency Management Agency, are depicted on Oversized Map 9.
Major portions of the 100 year floodplain cover the coastal high hazard area 5/ and the Hillsborough River valley in northeast Hillsborough County. Floodplains cover perhaps a quarter of northwest Hillsborough County, including an extensive area north of Tampa where I-275 and I-75 join at the Pasco County line. Considerable floodplains encompass the corridors of the
Alafia River and its major tributary and the Little Manatee River, all of which extend into phosphate mining areas of east- central and southeast Hillsborough County.
The County has adopted a flood-control ordinance. But this ordinance "does not provide the County with a comprehensive flood plain management program
. . . for maintaining wildlife habitat protection, aquifer recharge protection and water quality benefits." CARE, page 20.
The Data and Analysis discuss the floodplains and their functions:
Lands that are naturally subject to flooding serve valuable functions in the regional hydrologic and ecological system. Flood- prone lands provide temporary natural storage of runoff from upland areas and overflow from water bodies. By temporarily detaining surface water, flood-prone lands help to regulate the timing, velocity and levels of flood discharges and enable the recharge of groundwater resources. In addition, flood- prone lands help to maintain water quality and provide habitat that is vital to the sustenance of fish and wildlife populations. Those lands that are most frequently flooded, i.e., wetlands, are the most important in terms of providing these functions, but less frequently flooded areas are also important for handling more severe floods and providing other natural benefits.
The maintenance of natural storage is extremely important for regional water management. . . . During times of abundant rainfall, . . . rivers and lakes overflow their normal banks and occupy the floodplain. The floodplain provides storage for this additional water.
Even a greater volume of water is stored in areas outside of the floodplain of established lakes and rivers. Cypress heads, swamps, marshes and isolated topographic depressions provide a large portion of the natural storage in this area. . . .
By temporarily storing and retarding the flow of flood waters, flood-prone lands also help to regulate the velocity and timing of flood discharges. Runoff in southwest Florida is usually intercepted by wetlands or topographic depressions. When these areas are full, the overflow moves slowly through shallow swales and linear depressions toward streams and water bodies. Obstructions to flow such as logs, rocks, trees, undergrowth
and meanders in the watercourse reduce the rate of flow and thereby help to minimize the level and velocity of downstream flooding.
Flood-prone areas are also important sites for groundwater recharge. The water table aquifer is directly dependent on the levels of water in such low-lying areas as cypress heads, sinkholes, swales and floodplains.
When these areas are flooded, they may help recharge the water table aquifer. Then, during dry periods, the water table aquifer may provide part or all of the base flow to rivers and streams. Water stored in the water table also serves to recharge the Floridan aquifer by percolating downward through breaches in impermeable layers. ...
Another important benefit of natural flood- prone lands is in the maintenance of water quality. Water tends to travel slowly across flooded lands, giving suspended sediments time to settle and thereby clarifying water before it enters or returns to a watercourse or water body. . . .
The stems, leaves and branches of plants in flooded areas, together with flooded soils, provide an enormous surface area for biological and chemical processes. Micro- organisms on these surfaces initiate complex chemical reactions involving nitrogen, phosphorus, heavy metals and other pollutants. The roots of indigenous plants also absorb and remove nutrients from the water. Flood-prone lands, particularly wetlands, thus act like a giant biological filter. . . .
Flood-prone lands also play a regional ecological role that depends upon periodic inundation. Wetlands and bottomland hardwood forest are the most biologically diverse and productive areas in Florida, other than estuaries. They support a wide variety of plants, which provide vital habitat for . . .
game and fur-bearing animals . . . and for such endangered and threatened species, such as the wood stork. Much of the food for game fish comes from wetlands and floodplains along the shores of rivers and lakes.
Juvenile fish, in particular, tend to hide and feed in these areas. There would be drastic reductions in the number of species, the number of fish per acre and the pounds of fish per acre if these areas were eliminated.
Periodic inundation, alternating with periods of relative dryness, is vital to the maintenance of these ecological systems.
Flood-prone lands tend to have rich, organic soils with a high capacity to retain water. The micro-organisms and plant communities associated with these soils support a complex food chain. High water tables and regular flooding are necessary to maintain organic soils. Regular flooding is needed to bring additional rich sediments into flooded areas and make them accessible to foraging fish. In addition, flood water transports out of flooded lands a load of detritus, nutrients, minerals and sediments that is vital to maintaining the productivity of estuarine systems.
CARE, pages 14-15.
Describing the consequences of poor land use planning in floodplains, the Data and Analysis continue:
Improperly designed and executed land development interferes with the natural functions described above. Water resources and related land resources can thereby be degraded and unnecessary expense, loss of property, personal injury and loss of life can result.
Building in flood-prone areas is particularly unwise. When floods recur, which is inevitable, considerable damage to houses, roads, utilities and other structures results. . . . Roadbeds are often weakened, undermined or washed away by flood waters.
Electrical, telephone, and cable television lines are seldom designed to be submerged. Flood waters can enter sewage lines, causing them to overflow and contaminate an area or overload the capacity of treatment facilities. . . .
. . . The storage and detention capacity of a watershed can also be reduced by drainage improvements, such as clearing and straightening natural watercourses, constructing new channels, and creating impervious surfaces. . . .
* * *
Reducing the capacity of a watershed to detain and store flood waters has several harmful effects on water and related resources, in addition to those associated
with increased flooding. Variations in the flow of rivers and streams become more accentuated. Flood discharges peak more quickly and at higher elevations, but less water flows during dry periods and they extend for longer periods of time. The effects of both drought and flood are thus enhanced. Consumptive water suppliers, riverine aquatic life and estuarine processes, all of which depend on natural flow, may be disrupted.
Recharge of groundwater is reduced by draining surface water from recharge areas or by covering them with impervious surfaces.
The total amount of runoff discharged is thus increased and the amount of water stored in aquifers and available for consumptive use or to maintain streams flows is correspondingly diminished.
Development of natural storage and detention areas also tends to cause degradation of water quality. Wetlands, vegetated swales
and floodplain forests act as giant biological filters. If these filters are destroyed or bypassed, pollutants are discharged directly into open water systems.
CARE, pages 15-16.
As typified by its flood-control ordinance, the County has traditionally pursued the structural approach to floodplain management and drainage generally. This approach consists of building systems of channels, dams, levees, and other structures to hold back flood waters or rapidly carry them elsewhere.
However, the Data and Analysis identify serious shortcomings in the structural approach to floodplain management and drainage. In addition to problems involving cost and relocating flood damage, the structural approach
substantially degrades other values and functions of flood-prone lands and natural watercourses. Water quality protection, groundwater recharge, maintenance of base flows, estuarine salinity regulation, detrital production and export, fish and wildlife habitat, and other natural resource functions are frequently impaired by the construction of structural works.
CARE, page 17.
The Data and Analysis set forth a number of guidelines for a comprehensive floodplain management program "to prevent flood damage and minimize interference with the beneficial functioning of flood-prone lands." CARE, page 17.
The first guideline to floodplain management is to avoid building in areas likely to be damaged by flooding. The Data and Analysis recommend the use of the ten year floodplain for this purpose.
The second guideline to floodplain management is to avoid interfering with the beneficial functions of floodprone lands, which are "storage, conveyance, groundwater recharge, maintenance of minimum flows and levels, water quality maintenance and habitat for fish and wildlife." CARE, page 18. In a discussion not limited to the ten year floodplain, the Data and Analysis advise:
Buildings, fill, roads and other structures that displace or obstruct the flow of surface waters should not be located in flood-prone areas. In addition, these areas should generally not be drained and their natural vegetation should be maintained.
Id.
With respect to the environmental benefits inherent in the second
guideline, the Data and Analysis discuss each of the functions separately.
For storage functions, the Data and Analysis note that floodwaters are stored by floodplains contiguous to water bodies and wetlands considerably removed from water bodies, but connected to them by cypress strands, marshy sloughs, and the underground water table. Thus, "[i]n order to preserve storage, it is necessary to prevent building in these storage areas, diverting [building] instead to upland sites." CARE, page 18.
For conveyance functions, the Data and Analysis observe that obstructions, such as buildings and roads, to the flow of floodwater cause flooding upstream of the obstruction. Thus, "[i]n order to preserve the conveyance capacity of flood-prone lands it is necessary to restrict building in these areas." CARE, page 18-19.
For groundwater recharge functions, the Data and Analysis relate recharge to storage and conveyance. If water that would otherwise percolate downward into groundwater is blocked by impervious surfaces, removed by drainage works, or displaced by fill, the water contributes to increased flooding downstream. "Filling of flood-prone lands or drainage of them should therefore be restricted." CARE, page 19.
For minimum flows and levels, the Data and Analysis recognize that the management of maximum flows--i.e., floodwaters--"is integrally related to minimum flows." By increasing floodwater flows, such as by reducing natural storage and conveyance through structural flood control, "there will be less water in storage in wetlands and groundwater to supply minimum flows." The reduction of minimum flows and levels adversely impacts "navigation, recreation, water supply, dilution of pollutants, estuarine systems and fish and wildlife." CARE, page 19.
For water quality, the Data and Analysis acknowledge the "major role" of frequently flooded lands in water quality. Pollutants are removed from storage waters when they are stored in natural floodplains or wetlands. "Cleaning, filling or draining these areas will cause degradation of water quality and should be restricted." CARE, page 19.
For fish and wildlife habitat, the Data and Analysis note the importance of floodprone lands as habitat. Maintenance of this function "frequently depends on maintenance of the natural hydrologic regime or is consistent with maintenance of the area's hydrologic values." CARE, page 19.
The third guideline to floodplain management is to avoid alterations of the natural rate, quantity, and pattern of surface waters. Applicable to both "flood-prone lands and more upland sites," this guideline advises that the "rate, volume, timing and location of discharge of surface water should generally not be altered from predevelopment conditions." In this case, surface water includes floodwater. CARE, page 19.
Acknowledging the increasing stress upon wetlands and floodplains from "increased growth pressure in the more marginally developable portions of the County," the Data and Analysis advise that:
[w]here wetland or floodplain encroachment is unavoidable, a scientifically defensible and effective compensatory mechanism is needed to ensure than no net loss of wetland acreage occurs. Where feasible, previously altered wetlands should be restored or recreated to increase overall viable wetland acreage.
CARE, page 56.
The Data and Analysis set a level of service standard for stormwater, but only in terms of existing, structural stormwater management facilities, such as channels, canals, and ditches. The standard relates to the quantity but not quality of stormwater runoff. The stormwater level of service standard thus illustrates the traditional structural approach to drainage that ignores water quality, groundwater recharge, base flow, salinity requirements, detrital food supplies, and habitat values.
Dealing strictly with how fast and how much floodwater can be conveyed, ultimately to Tampa Bay, the stormwater standard describes the rainfall event that a particular stormwater facility, such as a ditch, can accommodate without causing floodwaters to rise above a specified level. The selected rainfall event is expressed in terms of frequency and duration, such as the 10 year/24 hour duration storm event. The level of flooding is expressed by degree. Level A, which is the most restrictive, means "no significant street flooding." Level B is "no major residential yard flooding."
Acknowledging that the level of service standard for stormwater facilities "consists primarily of attempting to minimize and alleviate flooding
. . . in developed areas . . .," the Introduction to the Stormwater Management (Stormwater) Element promises:
the overall [Stormwater Management] Program will be expanded to include not only the quantity aspects, but the quality aspects of stormwater runoff.
Stormwater Element, page 18.
The Data and Analysis likewise agree that the qualitative aspect of stormwater runoff must be addressed:
Much attention has, in recent years, been focused on the quality aspects of stormwater management regulations relative to the establishment of regulations and corresponding design criteria for new development. The application of these regulations must continue in order to minimize the potential for "new" water quality degradation, and the design criteria must be refined to increase the effectiveness of treatment systems as technology advances. However, existing water quality problems may not be correctable
without the effective maintenance of existing stormwater treatment systems, and perhaps more importantly, without the retrofitting of older public and private stormwater management systems with stormwater management technologies. . . . The use of wetlands should be promoted as a natural means of providing stormwater treatment, and the direct discharge of untreated stormwater runoff to the Florida Aquifer must be minimized.
Stormwater Element, page 20.
5. Soils
The soils in Hillsborough County are depicted in CARE Figure 9 and Oversized Map 10. In addition to mine pits and dumps, which are located south and east of Plant City, the maps show that the County soils are poorly drained to very poorly drained, moderately well drained to poorly drained, and well drained.
The largest area of well-drained soils lies east of I-75 from US 301, which is south of the Hillsborough River, to just north of the Alafia River. The two other areas of well- drained soils are an area east of Tampa and south of Temple Terrace and the Little Manatee River valley upstream to US 301.
The soils surrounding the Alafia River and its major tributaries are predominantly poorly and very poorly drained, as are the soils at the upper end of the Little Manatee River. The entire coastal fringe of the County abutting the east side of Tampa Bay is also poorly and very poorly drained for a distance of about one mile inland, as is the coastal fringe between Tampa and Pinellas County. Other poor to very poorly drained areas include several areas of northwest Hillsborough County, an area in north-central Hillsborough County where I-75 and I-275 join, the Hillsborough River corridor, and an L-shaped area straddling Big Bend Road between I-75 and US 301.
Except in extreme cases, such as wetland soils, soil limitations can generally be alleviated for development purposes. Moderate limitations require more extensive alterations to the soils than do minor limitations. "Severe limitations may require the removal of the natural material and replacement with a more suitable soil type." CARE, page 7.
However:
[t]he use of septic systems for the treatment and disposal of sewage effluent may . . . be significantly limited by site specific soil conditions. The location of septic systems in improper soils may result in several undesirable effects. If the soils have wetness and poor permeability then the discharged effluent will not percolate properly and may runoff into, and contaminate, adjacent surface waters. The Cockroach Bay Aquatic Preserve has been closed to shellfishing numerous times in recent years due to improperly sited and maintained septic tanks in the Ruskin area.
CARE, page 7.
Conversely, "[i]n areas of excessively well-drained sand, septic effluent can migrate too rapidly for purification processes to occur, and carry contaminants into the groundwater supply." CARE, page 8. The surficial, intermediate, and Floridan aquifers are all subject to contamination by this means.
6. Geology
Southeast Hillsborough County contains significant phosphate deposits. This area is the northwest extent of the Central Florida Phosphate District, which is located in Hillsborough, Manatee, Polk, and Hardee Counties. CARE Figure 10 and Oversized Map 8 show that phosphate mines are located in southeast Hillsborough County, at the headwaters of the Little Manatee River and a major tributary of the Alafia River. CARE Figure 10 and Oversized Map 8 show another phosphate mining area in eastcentral Hillsborough County adjacent to the headwaters of the Alafia River or another of its major tributaries.
Providing "hundreds" of jobs in the Tampa Bay area in mining, shipping, marketing, and processing, the phosphate industry produces a "net capital inflow to Hillsborough County," although the text fails to identify what cost items associated with phosphate mining are netted. CARE, page 8. CARE Table 2 indicates that there are five major phosphate mining operations in the County involving 26,326 mineable acres and 5772 mined acres. Due to current market conditions, the only active mine accounts for 2510 mineable acres, 2890 mined acres, and 6933 total acres.
The Data and Analysis warn: "phosphate mining severely complicates land use considerations in the central and southeast portions of the County. Large areas of known deposits are held by private companies for future mining." Id.
In addition to the space demanded by clay settling ponds, which may consume a one square mile area for a single mine, a typically mining operation involves the "complete disruption" of up to 400 acres annually. The disruption involves the "on-site natural vegetation, drainage, and soil characteristics." Id. Mining may also result in the drawdown of groundwater supplies in the vicinity.
Phosphate mining exposes the leach zone, which contains the greatest concentration of uranium. This process increases the risk that the radioactive material will enter the air or water. Heavy water demands in the mining process involve the removal of water from the surficial aquifer and return of used water, possibly with excessive radionuclides, to the Floridan aquifer.
After the strip mining operations are completed:
Reclamation and restoration of mined lands is extremely important for long-term land use planning in Hillsborough County. The vast acreages of mined trenches and slime ponds are virtually useless for long time periods unless effective reclamation measures are implemented.
CARE, page 9.
Recent reclamation techniques include surface contouring, use of original topsoil and vegetation types, and restoration of original drainage patterns. The Florida Department of Natural Resources and Hillsborough County both impose reclamation requirements.
Noting the economic benefits bestowed on the Tampa Bay region from phosphate mining, the Data and Analysis nevertheless observe:
the relatively unregulated mining industry of the past was also responsible for significant environmental damage, including the destruction of wetlands and floodplains, and the siltation and eutrophication of rivers and streams. In addition, large tracts of land have been committed to the maintenance of clay settling ponds and non-productive reclamation areas. Improved State and local regulation of the phosphate industry in recent years has reduced operational impacts on the environment. However, more effective and productive methods of reclamation, and greater enforcement of reclamation requirements, may be needed.
CARE, page 63.
CARE Figure 10 and Oversized Map 8 depict the location of numerous sand mines and shell mines, as well as one peat mine. Limestone deposits in the northeast part of Hillsborough County are near the surface and may be the subject of future limestone mining for use as road base, fill, concrete, and asphalt. Another mineral present in commercially significant quantities is sand.
In areas underlain by limestone deposits, sinkholes may form, especially in northern and eastern Hillsborough County. The collapse of the limestone formation, which results in the sinkhole, is associated with reduced water tables. "Sinkhole areas are generally unsuitable for development." CARE, page 6. CARE Figure 8 depicts areas of observed and potential sinkhole development.
7. Groundwater
The three aquifer systems present in most of Hillsborough County are the surficial, intermediate, and Floridan. The Floridan aquifer is the most productive freshwater aquifer system in Hillsborough County.
The surficial aquifer runs through most of Hillsborough County. The water table in the County generally follows the topography, and groundwater flow is west and south. The average depth to the water table is five feet. Fluctuating seasonally less than five feet, the water table is lowest in April or May and highest in September. The surficial aquifer supplies the least amount of water in the County.
An intermediate aquifer system forms from the Alafia River basin south in the County. The top of the intermediate aquifer is near sea level, and the intermediate aquifer system thickens to about 200 feet near the Manatee County line.
The water quality in the intermediate aquifer is generally good and is primarily used for domestic water supply in extreme south Hillsborough County. The aquifer is most productive in the east and south part of the County, although the phosphate mines in southeast Hillsborough County use the intermediate aquifer as the injection zone for dewatering surficial deposits. The most suitable areas for groundwater development are the extreme northeast and southeast areas of the County.
The Floridan aquifer is the major source of groundwater in the County. About 175 million gallons per day of the total 178.2 million gallons per day of groundwater withdrawals in Hillsborough County are taken from the Floridan aquifer. The top of the aquifer ranges from near land surface in the north part of the County to about 200 feet below sea level in the south part of the County. The aquifer thickness ranges from less than 1000 feet in the north part of the County to more than 1200 feet in the south part of the County.
The water of the Floridan aquifer is more mineralized than the water of the surficial or intermediate aquifer. Concentrations of chloride exceed 250 mg/l near the coast, but are less than 25 mg/l in east and southeast Hillsborough County.
Of the total groundwater withdrawn in the County, about 58%, or 103.3 million gallons per day, is devoted to agriculture. Other uses include 43.7 million gallons per day for public supply, 21.2 million gallons per day for industrial use, and 6.5 million gallons per day for rural use.
8. Aquifer Recharge
Aquifer recharge is the "replenishment of water in an aquifer system." CARE, page 23. Hillsborough County contains no areas of high natural aquifer recharge. Areas of high natural aquifer recharge, where annual recharge rates range from 10-20 inches per year, are rare in Florida, representing only about 15% of the entire state.
In terms of natural recharge rates, the County contains areas characterized by very low and very low to moderate recharge. The areas of very low to moderate recharge, in which the annual recharge rate is from 2-10 inches, are depicted in CARE Figure 14 and cover the northwest corner of the County, smaller areas in the northcentral and northeast areas of the County, and a large area in northeast Hillsborough County. The large recharge area in the northeast part of the County corresponds to the 100 year floodplain associated with the Hillsborough River basin; this is the largest contiguous 100 year floodplain in the County.
Despite the absence of high natural recharge areas, the County contains areas highly susceptible to contamination of the Floridan aquifer. CARE Figure 15 shows three highly susceptible areas. One of these areas is the north half of northwest Hillsborough County. This area contains wellfields located along Gunn Highway and SR 597. The easternmost extent of this area is just east of the intersection of I-275 and I-75. Most of the highly susceptible areas in the northwest part of the County are in areas of very low to moderate natural groundwater recharge.
Another area highly susceptible to contamination of the Floridan aquifer is in northeast Hillsborough County, north of I-4 and mostly east of US
301. This area includes two mining areas, but neither is a phosphate mine.
The third area of high susceptibility to contamination of the Floridan aquifer runs from an area between Lake Thonotosassa and Plant City southwest through the parcels designated Light Industrial north of Gibsonton.
Although similar contamination maps for the surficial and intermediate aquifer systems were not included, the surficial aquifer is highly susceptible to contamination due largely to its proximity to the surface, and the intermediate aquifer is less susceptible to contamination.
The Data and Analysis warn that "[d]evelopment in areas of high recharge/contamination potential may . . . pose unacceptable threats to the
long-term water quantity and quality within the aquifer system." CARE, page 58. Potable water supplies are also threatened by "the proliferation of improperly sited, constructed and maintained septic tanks." Id.
CARE Figure 16 displays potential sources of contamination of the groundwater and surface water. The only potential source of contamination in the recharge area associated with the Hillsborough River basin is an active landfill situated at the southern edge of the recharge area, just southeast of Lake Thonotosassa. However, three active landfills and seven sewage treatment plants have been situated in the large recharge area in the northwest corner of the County, although these ten sites are southwest of existing public supply wells.
9. Sanitary Sewer
An unnumbered oversized map entitled Hillsborough County Wastewater Element shows existing and proposed wastewater service areas and collection lines; the projected facilities are shown as of 1994 and 2010. Oversized Map 3, which is entitled Potable Water and Wastewater Facilities, also shows existing and proposed wastewater service areas as of 1994 and 2010. Sanitary Sewerage (Sewer) Element Figure 1 depicts the same information on a smaller scale, although the earlier year of projection is 1995, not 1994. Another unnumbered oversized map accompanying the Plan shows the location of domestic wastewater treatment plants, but the date of the map is omitted.
In terms of the existing collection and conveyance system, Sewer Element Figure 1 depicts a central sewer system considerably more proposed than existing in the area south of the Alafia River. No sewer lines exist south of the Alafia River except for a one-mile segment along Big Bend Road east of US
and west of Balm-Riverview Road; a little more than a half-mile segment on the peninsula extending from Apollo Beach; a half- mile segment southeast of the preceding segment, about midway between the shoreline and US 41; and roughly five miles of lines along SR 674 between I-75 and just east of US 301.
In contrast to the seven miles of existing sewer lines described in the preceding paragraph, Sewer Element Figure 1 indicates that the area south of the Alafia River is proposed to receive another 30 miles of lines by 1994 and another 30 miles of lines by 2010. In other words, the County intends to expand the central sewer system by almost tenfold over 20 years in the area south of the Alafia River.
Four to six sewage treatment plants are operating close to the Alafia River, and two such plants are operating close to the Little Manatee River. In addition, two sewage treatment plants and an active landfill are also operating between the two rivers, located west of US 41 and east of the shore of Tampa Bay.
The Data and Analysis report that one of the assumptions in the Sewer Element is that all regional and subregional wastewater treatment plants will use advanced wastewater treatment except the Van Dyke plant, which uses secondary wastewater treatment. The Data and Analysis also indicate that, as sewer connections are made, interim and private wastewater plants will be phased out. The Data and Analysis recognize the risk that septic tanks pose to potable water supplies: "As more and more quantities of potable water are needed to supply the County and as urbanization of previously rural areas occurs, the possible dangers due to septic tanks systems contaminating potable water supplies increases." Sewer Element, page 14.
As noted below, the Plan distinguishes among Urban, Suburban, and Rural general service levels. 6/ For sanitary sewer, Rural services means "there would most likely be no service connection to an area treatment plant." Sewer Element, page 3. For sanitary sewer, Urban or Suburban service means "there would most likely be current or planned service connection to an area treatment plant." Sewer Element, page 4. Only in "intense urban areas" can the Plan assure "there would be service connection to an area treatment plant." Id.
Sewer Element Table 1 discloses that the design capacity of wastewater treatment plants--both publicly and privately owned--is 42.163 million gallons per day with 46% of the capacity in the northwest service area, 42% of the capacity in the central service area, and 12% of the capacity in the south service area.
The Data and Analysis indicate that the County has embarked on an "vigorous construction program aimed at meeting the existing commitments within its service areas and providing capacity capable of accommodating growth through 1995." Sewer Element, page 5. However, the construction of treatment facilities has proceeded faster than the construction of collection and transmission lines.
9. Potable Water
Oversized Map 3 shows the location of existing water lines, proposed water lines through 1994, proposed water lines through 2010, and water service area boundaries. Potable Water Element Figure 1 depicts on a smaller scale the same information, plus the location of the water service area boundaries in 1995 and 2010.
In general, water lines cover a considerable portion of the northwest and central parts of Hillsborough County, appearing in all parts of the County to serve all land that is both designated Suburban Density Residential and contiguous to areas designated for greater densities.
Again, as in the case of central sewer, the part of Hillsborough County south of the Alafia River is not as well served. Twelve miles of line run along US 301, south from the Alafia River to SR 674. About seven miles of line run west on SR 674 to a point about two miles east of the mouth of the Little Manatee River. About five miles of line cover the Ruskin area directly northeast of the previously described terminus, and one mile of line proceeds south toward the Little Manatee River.
Closer to Tampa Bay, about seven miles of water line run along US 41 south from the Alafia River to a point a couple of miles south of Big Bend Road, stopping about three and one- half miles north of the nearest existing line in Ruskin. About eight miles of line run just south of, and parallel to, the Alafia River. Another five miles of water line run from the Alafia River south, along the scenic corridor (evidently a railroad line to be converted into a two- lane road, at least part of which may be known as the Jim Selvey Highway) running parallel to, and about one mile west of, the boundary between Rural and Suburban designations between SR 640 and the line extending east of the end of Big Bend Road. 7/
Oversized Map 3 discloses that the County can provide central water service to relatively little of the area south of the Alafia River within the Urban and Suburban areas. As is the case with central sewer, the County's plans for new central water service project the majority of construction activity toward the end of the 20-year period. Although starting with considerably more water line mileage--about 47 miles--than sewer line mileage south of the Alafia River, the County plans only about eight new miles in this area by 1994, but over 90 new miles by 2010.
For potable water service, a Rural service area "would most likely be served by a system of private wells." Potable Water Element, page 3. Urban or Suburban service means "there would most likely be current or planned service connecting to this area." Potable Water Element, page 4. Again, as in the case of sewer service, a guarantee of central water service applies only to intensive urban service, where "there would be service connecting to this area." Id.
After detailed analysis, the Data and Analysis conclude that the County will require 235-318 million gallons per day of water in 2000. Responsibility in coordinating water supplies in the Tampa Bay area has been assigned to the West Coast Regional Water Supply Authority (WCRWSA). According to CARE Figure 19, Hillsborough County will run short of potable water by the early 1990's and need water supplies from the WCRWSA. CARE, page 28. Due to assumptions of increased water usage in Pasco and Pinellas Counties, "there is concern that the 'safe yield' limit of regional groundwater aquifers may be approached in the foreseeable future." Id. The Data and Analysis report that additional water for the fast-growing southcentral area will come from a "planned" wellfield in northeast Brandon. Potable Water Element, page 9.
CARE Figure 18 shows the location of major public supply reservoirs and water wells of more than 100,000 gallons per day. Oversized Map 18, which is dated February, 1990, depicts a 200-foot radius for each major public supply well. The greatest concentration of public supply water wells is in northwest Hillsborough County, especially the northern half of this area.
Based on rough projections, the Data and Analysis warn that there is a "need to develop and communicate accurate water supply and safe yield projections to ensure sound water use planning. In addition, [there is a] need to immediately conserve existing water supplies and to develop new supplies." Id.
In the meantime, potential water sources are threatened by development:
The quantity and quality of groundwater resources may also be adversely impacted by land development. Because of the dry, well- drained soils, many of the most important aquifer recharge areas in the County are considered to be the most desirable sites for development. However, the increase in impervious surface cover associated with land development may, in theory, reduce the amount of water available to recharge groundwater aquifers by increasing the amount of surface runoff and evaporation. In addition, pollution discharges to groundwater, including septic drainfields, leaking underground storage tanks, etc., percolate rapidly through the topsoil and into the underlying rock in such areas, and may pose a significant contamination threat to existing and future water supplies.
CARE, page 28.
Water conservation will help extend existing potable water supplies. Residential water use may be reduced by 15% to 70% by conservation measures. Agricultural water use may be reduced by better irrigation practices, reducing losses to seepage, and using the lowest quality water necessary. Only 33 of the
267 wastewater treatment plants in the County presently use direct wastewater reuse options. The Data and Analysis recommend the exploration of this option.
With respect to potable water sources, the Data and Analysis also consider desalinization. About 70 such plants currently operate in Florida.
The reverse osmosis method of desalinization appears to be a particularly viable alternative for Hillsborough County.
Noting the inevitability of new demands for potable water from population growth, the Data and Analysis warn that "significant increases in impervious surfaces may actually decrease the recharge potential and the available water supply below historically reliable levels." CARE, page 61. Excessive groundwater withdrawals in Hillsborough County have historically dewatered wetlands and surface waters; excessive groundwater withdrawals in other coastal areas in Florida have historically resulted in saltwater intrusion. Thus, the Data and Analysis recommend the establishment of "'safe yield' groundwater withdrawal limitations." Id. Until the development of more sophisticated means, the Data and Analysis recommend the use of the "Water Budget Concept" to estimate probable limits on potable water supply and demand. Id.
10. Natural Habitats
Because of the size, location, and estuarine shoreline of Hillsborough County, representatives of over half of the major plant communities in Florida are found in the County. The 14 major plant communities found in Hillsborough County are: pine flatwoods, dry prairies, sand pine scrub, sandhills, xeric hammocks, mesic hammocks, hardwood swamps, cypress swamps, freshwater marshes, wet prairies, coastal marshes, mangrove swamps, coastal strand, and marine grassbeds. With the exception of marine grassbeds, these habitats are depicted on the multicolor fold-out map entitled "Natural Systems and Land Use Cover Inventory," which is identified as CARE Figure 20 in the Plan. Coastal Figure 11 depicts the established extent of seagrass meadows in Tampa Bay.
Coastal Figure 14 shows the location in Tampa Bay of different classes of waters. The waters adjacent to the shoreline of northwest Hillsborough County are Class II waters that are closed to shellfish harvesting. The waters from about a mile south of Apollo Beach to Manatee County are also Class II waters with shellfish harvesting approved in the area of Cockroach Bay. The remaining waters are Class III.
Coastal Figure 13 depicts the location of emergent wetlands along the fringe of Tampa Bay. Concentrations of emergent wetlands are notable south of Apollo Beach and upstream varying distances along the fringes of the three major rivers and the former Palm River. Emergent wetlands also fringe the shoreline of northwest Hillsborough County.
Most of the County's natural habitat has been lost to urban, agricultural, and industrial development, which has altered over half of the original freshwater wetlands and over three-quarters of the uplands. The trend of habitat destruction, though abated by wetland protection laws, continues to apply to the upland habitats of xeric and mesic hammocks.
Supplementing CARE Figure 20 are Oversized Map 8, which depicts "major natural systems" based on CARE Figure 20, and CARE Table 11, which indicates where, by specific habitat, each of the endangered, threatened, or special-concern plant or animal species may be expected to occur.
The Data and Analysis acknowledge that
the rapidly growing human population and its associated urbanization has resulted in a substantial loss of natural wildlife habitat, especially in the coastal portions of the County, while the cumulative impacts of development continue to divide and isolate large contiguous natural areas. . . . As a result of habitat destruction and alteration, the natural populations of many wildlife species have declined dramatically. . . .
comprehensive wildlife protection and management program is needed to inventory populations of threatened or endangered species and species of special concern, and to inventory significant and essential wildlife habitat and protect those areas in the future.
Coastal Element, page 68.
The pine flatwoods habitat is characterized by long- leaf pines on drier sites and slash pine on wetter sites. Despite overlap between the understories of the two types of pine flatwoods communities, saw palmetto predominates in slash pine flatwoods and wiregrass predominates in long-leaf pine flatwoods. Pine flatwoods depend on fire to eliminate hardwood competition. Longleaf pine flatwoods are more susceptible to lack of water than are slash pine flatwoods. In the absence of fire, the pine flatwoods community is replaced by a mixed hardwood and pine forest.
Various species that are endangered, threatened, or of special concern are associated with the pine flatwoods habitat. These species include the Florida golden aster, eastern indigo snake, short-tailed snake, gopher tortoise, gopher frog, Florida pine snake, peregrine falcon, Southern bald eagle, Southeastern American kestrel, red-cockaded woodpecker, scrub jay, and Sherman's fox squirrel.
Originally, 70% of Hillsborough County was vegetated by pine flatwoods, but now only 5% of the County is pine flatwoods. The level surface, thick understory, and poorly drained soils of the pine flatwoods tend to retain and slowly release surface water, so the pine flatwoods enhance surface water quality and reduce downstream flooding.
Dry prairies are treeless plains, often hosting scattered bayheads, cypress ponds, freshwater marshes, and wet prairies. Dry prairies resemble pine flatwoods without the overstory and perform similar functions in terms of surface water drainage. The endangered, threatened, or special-concern species using dry prairies include those using the pine flatwoods plus the Florida sandhill crane and burrowing owl.
Sand pine scrub is found mostly on relict dunes or other marine features found along present and former shorelines. Sand pine forms the overstory, and scrubby oaks compose a thick, often clumped understory. Large areas of bare sand are present in the habitat of the sand pine scrub, which requires fires to release the pine seeds. Without fires, the sand pine scrub habitat evolves into a xeric oak scrub habitat.
The rare sand pine scrub community hosts many of the endangered, threatened, or special-concern species found in the pine flatwoods habitat. Supporting the highest number of such species, the sand pine scrub habitat's extremely dry environment sustains highly specialized plants and animals that could survive nowhere else. The unique adaptations of species to the sand pine scrub environment generates much scientific research of this unusual habitat, which is easily disturbed by human activities. The rapid percolation typical of the deep sandy soils of the sand pine scrub makes the community an important aquifer recharge area that is also vulnerable to groundwater contamination.
Featuring more organic material in its sandy soils, the sandhill community, like the sand pine scrub community, is uncommon in Hillsborough County. Longleaf pines form the overstory of the sandhill habitat, unless, due to fire suppression and logging, xeric oaks, like turkey oak and bluejack oak, have been permitted to grow sufficiently to form the overstory. In the absence of the pines, the community is known as the xeric oak scrub. Longleaf pines require frequent fires to control hardwood competition, as does wiregrass, which, when present, prevents the germination of hardwood seeds and serves to convey fires over large areas.
The endangered, threatened, or special-concern species of the sandhill habitat are similar to those of the pine flatwoods. The plant and animal species using the sandhill habitat are, like those using the sand pine scrub habitat, adapted to high temperatures and drought. These plant and animal species are often found nowhere else but in the sandhills, which, like the sand pine scrub community, allows rapid percolation of water. The well-drained soils render the area useful for natural recharge of the aquifer, but also vulnerable to groundwater contamination.
Xeric hammocks feature live oaks in well-drained, deep sand. Providing habitat for many of the species using the pine flatwoods, the xeric hammock canopy provides a microclimate of cooler, moister conditions and supplies good natural recharge to the aquifer.
Mesic hammocks are the climax community of the area and contain a wide diversity of plant species. Trees include the Southern Magnolia, laurel oak, American holly, dogwood, pignut hickory, and live oak. Endangered, threatened, or special- concern species using the habitat are Auricled Spleenwort, Eastern indigo snake, peregrine falcon, Southern bald eagle, Southeastern American kestrel, and Sherman's fox squirrel. Not dependent upon fire, mesic hammocks efficiently use solar heat and recycle nutrients. Mesic hammocks are adaptable to development if native vegetation, including groundcover, is retained.
Hardwood swamps, which are also known as floodplain swamps, riverine swamps, and hydric hammocks, border rivers and lake basins where the ground is saturated or submerged during part of the year. The wettest part of these swamp forests features bald cypress or black gum trees. In higher areas, the trees typically include sweet gum, red maple, water oak, American elm, water hickory, and laurel oak. Hardwood swamps rely upon periodic flooding, absent which other communities will replace the hardwood swamps.
Endangered, threatened, or special-concern species associated with hardwood swamps are the American alligator, Suwanee cooter, peregrine falcon, wood stork, Southern bald eagle, little blue heron, snowy egret, tricolored heron, and limpkin. "The hardwood swamp is extremely important for water quality and quantity enhancement." CARE, page 38. The hardwood swamp also retains and slowly releases floodwaters, which, among other things, allows suspended material to settle out. The swamp vegetation then removes excess nutrients and produces detritus for downstream swamps, such as estuaries.
Cypress swamps are found along river or lake margins or interspersed through pine flatwoods or dry prairies. Bald cypress is the dominant tree along lakes and streams, and pond cypress occurs in cypress heads or domes. The endangered, threatened, or special-concern species associated with cypress swamps are the same as those associated with hardwood swamps. Especially when found in pine flatwoods or dry prairies, cypress swamps are important to wildlife because of their cooler, wetter environment. Cypress domes function as natural retention ponds. Cypress swamps along rivers and lakes absorb nutrients and store floodwaters.
Freshwater marshes and wet prairies are herbaceous plant communities on sites where the soil is saturated or covered with water for at least one month during the growing season. Wet prairies contain shallower water, more grasses, and fewer tall emergents than do marshes. Fire recycles nutrients back into the soil and removes older, less productive plant growth. Flooding also reduces competition. The endangered, threatened, or special-concern species are the same as those using the cypress swamps except that the freshwater marshes and wet prairies host the Florida sandhill crane and roseate spoonbill, but not the limpkin.
Freshwater marshes and wet prairies are the most important vegetative communities functioning as a natural filter for rivers and lakes. The ability to retain water allows freshwater marshes and wet prairies to moderate the severity of floods and droughts. But the freshwater marshes and wet prairies have suffered most from agricultural and urban development. Wet prairies in particular are susceptible to damage from recreation vehicle use, horseback riding, and foot traffic. Among the many species using freshwater marshes and wet prairies as habitat, the sandhill crane depends on this community for nesting habitat.
Coastal marshes are located on low-energy shorelines and are interspersed with mangroves. Coastal marshes may be found along tidal rivers. Tides contribute to the high productivity of the coastal marshes, as tidal waters provide food to, and remove waste from, the organisms found in the coastal marshes. Endangered, threatened, or special-concern species associated with coastal marshes are the American alligator, peregrine falcon, wood stork, Southern bald eagle, redish egret, snowy egret, tricolored heron, and roseate spoonbill.
With the mangrove swamp, the coastal marsh is the "key to the extremely high levels of biological productivity found in estuaries such as Tampa Bay." CARE, page 40. Marsh grasses convert sunlight and nutrients into plant tissue, which decomposes once the plant dies and becomes available to a number of detritus-feeding organisms. These organisms are themselves food for large animals. Coastal marshes also serve as nurseries for young fish, stabilize shorelines, filter out nutrients, and trap sediments.
Mangrove swamps also occur along low-energy shorelines. The mangrove community "provides much of the driving force behind the productivity of bordering estuaries." CARE, page 41. Leaves from the mangroves fall into the water, supplying food to organisms as large as mullet. Mangrove swamps host the same animals as do coastal marshes except for the absence of alligators and presence of brown pelicans. The environmental values of the mangrove swamps are the same as the values of coastal marshes.
The coastal strand includes beaches and coastal dunes. Prime examples of this type of habitat in Hillsborough County are Egmont Key and the larger islands in Cockroach Bay and at the mouth of the Little Manatee River.
Marine grassbeds are found in estuaries and consist of vast meadows of different types of seagrasses. Having evolved from terrestrial forms, seagrasses contain roots, stems, leaves, and flowers and are able to grow in soft, sandy, or muddy sediments. Species of seagrasses found in Tampa Bay are limited to a water depth of about six feet, which is the average depth through which light can presently penetrate. Fast-growing seagrasses trap material from the land, absorb nutrients, and convey animal and plant products to the open sea.
11. Coastal Area
The County's "most significant surface water resource" is Tampa Bay. CARE, page 10. In northwest Hillsborough County, the coastal area, which is also known as the coastal zone, consists of a strip of land about five miles wide running from the shoreline between Tampa and the Pinellas County line in the northwest part of the County. The coastal area for central and south Hillsborough County encompasses a band of land of about similar width running from the Tampa line south along US 301 across the Alafia River, then south from the Alafia River along I-75 to the Little Manatee River, where the boundary runs west to US 41, and then south along US 41 to the Manatee County line.
Coastal Figure 16 locates coastal marine resources in and adjacent to Tampa Bay. Two locations of wading birds are in the northwest part of Hillsborough County. The only resources depicted between Tampa and the Alafia River are shorebirds in the Bay. At the Alafia River are wading birds, shorebirds, and pelicans. Wading birds and shorebirds are located in the Cockroach Bay Aquatic Preserve, as are manatee and oyster beds.
The Data and Analysis describe the different land use planning challenges in the coastal area:
coastal land issues are unique primarily due to the intense competing and often incompatible use demands, serious environmental constraints or impacts and the limited supply of shoreline lands.
Coastal Element, page 3.
The intent of the Plan is that
coastal land use should be dominated by those uses which can only take place in or near the shoreline. This concept, by which water- dependent and water-related uses receive priority, stems from logic furthered by the Federal Coastal Zone Management Act .. ..
Coastal Element, page 2.
According to Coastal Element Table 2, the coastal area comprises 20,946 acres of developed land and 54,011 acres of undeveloped land. The developed land includes 12,343 acres of residential (75% single family detached), 4638 acres of community facilities (75% utilities and recreation/open space), 2095 acres of commercial (equal amounts of heavy and light commercial), and 1870 acres of industrial. The undeveloped land includes 24,388 acres of natural land (including 16,533 acres of woodlands and wetlands), 29,025 acres of agriculture, and 598 acres of mines (consisting of 299 acres of active mines, 75 acres of reclaimed mines, and 224 acres of unreclaimed mines).
Many of the residential uses in the coastal area are on floodprone lands or land formed from dredge and fill operations. Many of these residential areas are in the unincorporated areas of Town and Country, Clair Mel City,
Apollo Beach, and Bahia Beach. The problems common to these areas are
periodic flooding, cumulative adverse impacts to wetlands, soil erosion, non-functioning septic systems, high potential for surface water pollution, potential for salt water intrusion, and reduced public access to the shoreline.
Coastal Element, page 4.
Most commercial development in the coastal area is of the neighborhood, rather than regional, variety. Commercial uses have generally followed rather than preceded residential development in the coastal area. However, in the Hillsborough Avenue/Memorial Highway area, which is in the coastal area between Tampa and Pinellas County, extensive commercial activity serves Town and County and the area off SR 580 (Hillsborough Avenue) toward Pinellas County. Much of the County's heavy industry is located in the coastal area due to proximity to the port.
Agriculture is treated as undeveloped land, although only one-third of agricultural uses are merely fenced pastureland. In any event, "urban growth is steadily displacing [agricultural and vacant land] uses forcing agricultural activities to move to more inland parts of the County." Coastal Element, page 5.
The largest uses within the category of community facilities in the coastal area are electric power generating and transmission facilities. The next largest is recreation/open space. Both of these uses are water dependent.
The coastal natural areas provide vital shoreline habitat and protect against storm surge. The Data and Analysis warn:
Displacement of these natural areas by continued urban development will result in a net reduction of water quality within Tampa Bay and tidal rivers and creeks, loss of vital wildlife habitat, a diminished sense of open space, and the exposure of property and human life to the dangers of storm surge.
Coastal Element, page 6.
In discussing potential conflicts in potential shoreline land uses, the Data and Analysis note that more coastal areas that are vacant, recreational, or agricultural have been designated as Environmentally Sensitive Areas, Low Density Residential, Recreation and Open Space, or Natural Preservation. The development of the coastal area has resulted in the elimination of natural shoreline vegetative communities such as mangroves and wetlands. The Data and Analysis acknowledge the "urgency to more effectively manage coastal zone natural resources and direct urban development into areas more appropriate for such growth." Coastal Element, page 7. The Data and Analysis also note that stormwater runoff into Tampa Bay and its tributaries may constitute the "greatest impact to marine habitat." Id.
According to the Data and Analysis, the main uses that are neither water-dependent nor water-related are commercial and industrial uses that "could function just as well inland as in a coastal location" and "intense urban residential." Coastal Element, page 9.
The Data and Analysis endorse the trend toward displacing agricultural uses in the Apollo Beach/Ruskin area west of I-75 between the Alafia River and the Manatee County line. The Data and Analysis approve of the increased concentration of development closer to the amenities of the coastal area without using the coastal zone for non-water-dependent uses.
Oversized Maps 11 and 12 respectively show the location of archaeological sites and historic resources. Oversized Map 11 indicates by Florida Master Site File number the location of at least 200 archaeological sites. Due to the presence of numerous archaeological sites in the coastal area, the County "needs to establish a method to protect, preserve, and restore its historic resources." Coastal Element, page 13. Because the County has not adopted a local preservation ordinance, the Data and Analysis admit that "historic resource management efforts are not clearly defined." Coastal Element, page 60. However, the Data and Analysis indicate that provisions in the Future Land Use Element and Coastal Element will preserve the historic resources in the coastal area.
12. Coastal High Hazard Area and Hurricane Planning
The entire Tampa Bay region:
has been identified by the National Weather Service as one of the most hurricane- vulnerable areas of the United States, with the potential for large scale loss of life.
Coastal Element, page 37.
The vulnerability of the County and its residents to hurricanes is due to geography and land use. The proximity of large numbers of persons near Tampa Bay and residing in low- lying areas or mobile homes increases the risk of loss of life and property.
The hurricane vulnerability analysis is based on the 100 year storm event or Category 3 hurricane, which produces winds of 111-130 miles per hour and storm surge of 12-18 feet above normal. The Data and Analysis define the hurricane vulnerability zone as the area from which persons must be evacuated in the event of a Category 3 hurricane.
The Data and Analysis also identify the coastal high hazard area, which is the area from which persons must be evacuated in the event of the less intense Category 1 hurricane. The coastal high hazard area is also the velocity zone shown on maps issued by the Federal Emergency Management Agency.
Coastal Element Figure 18 depicts the coastal high hazard area as a strip of land fringing Tampa Bay. The northwest section of the coastal high hazard area between Pinellas County and Tampa is nearly one mile wide. The width of the coastal high hazard area from Tampa to Manatee County ranges from nonexistent to about 1.5 miles, and even more at the Little Manatee River, but averages about one mile.
The Data and Analysis recognize the special planning issues that apply to the coastal high hazard area:
The issue with respect to development in the coastal high hazard area is the protection of residents and the public expenditure of funds for areas that are subject to severe flooding from storm surge and rainfall and structure damage as a result of high winds. In addition to limiting development, the permitted development shall be designed to mitigate problems associated with stormwater runoff, wastewater treatment, and septic tanks.
Coastal Element, page 61.
Dealing with the provision of infrastructure in the coastal area, the Data and Analysis ask, but do not answer, the following questions:
Does the provision of infrastructure encourage development of coastal areas? Should all citizens be required to bear the burden of increased public infrastructure cost in coastal areas? As development and redevelopment pressures continue in the coastal areas these questions and others must be answered.
Coastal Element, page 64.
Analysis of the County's hurricane preparedness requires consideration of the availability of shelters. The County has 46 primary shelters that, at the applicable ratio of 20 square feet per shelter resident, can accommodate about 59,000 persons. Unfortunately, about 60,000 of the 175,000 evacuees sought shelter space during Hurricane Elena, which, during the Labor Day weekend of 1985, came within 80 miles from the mouth of Tampa Bay.
In any event, there is sufficient shelter space through 1995. Although secondary shelter space may be sufficient for awhile, the County will need more shelter space by 2000.
Present estimated clearance times for hurricane evacuation range from 11-16 hours, depending upon the storm and evacuation conditions. After evaluating pre-landfall hazards, such as the inundation of low-lying evacuation routes, the clearance times are increased by 10 hours, so the range is 21-26 hours.
Persons with special needs, which could enlarge the time needed for evacuation, have been encouraged to register with the County. The Data and Analysis inventory the hospitals and nursing homes whose occupants would need to evacuate in the event of a hurricane. Six of the 21 nursing homes and four of the 17 hospitals would be vulnerable to storm surge in a Category 3 storm.
Tampa General, which is a County-operated facility, is subject to storm surge in a Category 1 storm, and the Data and Analysis warn that expansion plans should be carefully reviewed.
Finding that clearance times of 11 and 16 hours are "acceptable," the Data and Analysis caution that the clearance times may increase as population increases in the Tampa Bay region. Options to be considered include exploration of vertical evacuation, discouragement of evacuation by nonvulnerable residents, expansion of road capacity, and imposition of the requirement that mobile home parks construct on-site shelter space.
A variety of public infrastructure is contained in the coastal high hazard area. These public facilities include roads, bridges, and causeways; sanitary sewer facilities; potable water facilities; and shoreline protection structures. Private facilities include electric generating units and substations.
The County does not own a sanitary sewer plant in the coastal high hazard area. But the County uses about 12% of the capacity of Tampa's Hookers Point plant, which is in the coastal high hazard area.
The County owns three potable water facilities in the coastal high hazard area. A pump station and two elevated storage tanks are in the Apollo Beach area.
In view of the vulnerability of parts of the County to a hurricane:
government is responsible for ensuring that human life is protected and property damage is minimized in food-prone and coastal high hazard areas; that land use and development patterns are consistent with the vulnerable nature of the coastal high hazard and inland flood-prone areas; and that natural systems and vegetation that serve to reduce the impacts of severe weather are protected and preserved. In order to accomplish these ends, Hillsborough County must consider available options to reduce or limit exposure in the [coastal high hazard area]; develop guidelines/procedures for development in the [coastal high hazard area]; propose alternatives to reduce clearance times or reduce deficit public shelter space; and develop methods to redirect population concentrations away from the [coastal high hazard area].
Coastal Element, page 42.
The Data and Analysis consider the question of post- hurricane redevelopment, which has not been an issue in the County since 1921, which marked the last time that a hurricane made landfall in Hillsborough County. After addressing the extent to which public funds might be available to assist in rebuilding infrastructure, the Data and Analysis confront the underlying issue whether infrastructure in the coastal high hazard area should be rebuilt in place or relocated outside the coastal high hazard area. The Data and Analysis conclude:
A decision-making framework needs to be established by the County in order to determine if the infrastructure or facilities should be relocated, have structural modifications or be replaced.
Coastal Element, page 45.
The Data and Analysis recommend that decisions concerning redeveloping infrastructure be guided by the following factors: costs, environmental impacts, mitigative impacts, growth management consistency, impacts on the public, timeliness, legal issues, availability of funds, and necessity of infrastructure.
13. Air Quality
The air quality in the Tampa urban area "is among the state's most polluted," but "severe conditions are often localized and short lived, due to prevailing winds and the area's non-confining topography." CARE, page 46. However, the Data and Analysis admit that "[a]ir quality in the Tampa Bay region
. . . is degraded and in need of improvement relative to certain air pollutants." CARE, page 51.
Of the six pollutants for which federal and state attainment standards exist, Hillsborough County is classified as non-attainment for ozone, for which automobile exhausts are indirectly responsible, and particulate matter. But point sources, especially power plants, are also responsible for air pollution. Since the mid 1970's, all criteria pollutants except ozone have decreased in the County. The Data and Analysis recommend "more stringent regulations and better compliance with existing regulations." CARE, page 52.
Urban Sprawl
Planning Strategy
The Data and Analysis disclose that the County has adopted two major planning strategies. The Plan creates nodes and corridors and provides a range of lifestyles from the Urban to the Suburban to the Rural. The specific details of these planning strategies are found in the operative provisions of the Plan, which are set forth in the following section. However, the Data and Analysis offer a brief overview of the County's two major planning strategies.
A node is a "focal point within the context of a larger, contiguous area surrounding it. It is an area of concentrated activity that attracts people from outside its boundaries for purposes of interaction within that area." Future Land Use Element (FLUE), page 8.
The Data and Analysis explain that the Plan contains four types of nodes: high intensity nodes, which are for high intensity commercial uses, high density residential uses, and high concentration of government centers; mixed use regional nodes, which are for regional shopping centers, major office and employment areas, and sports and recreational complexes; community center nodes, which are focal points for surrounding neighborhoods; and neighborhood nodes, which are smaller scale community centers.
Once nodes become established, "corridors" are intended to connect two or more nodes. Presently, the road network is the sole type of corridor. But mass transit may one day offer an alternative type of corridor.
As part of the second major planning strategy, the Plan offers residents a variety of lifestyle options, primarily by varying residential densities. Population growth in Hillsborough County has historically radiated out from the central business district of Tampa. The emergence of nodes outside Tampa has altered this development pattern.
The Plan's treatment of rural areas reflects the philosophy that "[r]ural areas need not be treated only as undeveloped lands waiting to become urban." FLUE, page 9. The Data and Analysis report that the Plan seeks to preserve the pastoral nature of the rural lifestyle by ensuring the availability of large lots for residential development. The size of the lots is in part driven by the absence of central water and sewer, so that individual wells and septic tanks will necessarily serve most rural development. In addition to providing small scale commercial uses at appropriate locations, the Data and Analysis recognize that the Plan must also ensure the preservation of unstructured open space, as well as competing rural uses, such as agriculture, that may not harmonize completely with adjacent residential development.
The Data and Analysis describe the suburban residential option as part of a "gradual transition of land uses from very rural to more suburban blending into the urban environment." FLUE, page 10. Suburban areas would be accompanied by greater intensities of commercial uses and more extensive public facilities, as compared to the commercial uses and public facilities serving rural areas. The Data and Analysis describe densities of two or three dwelling units per acre on outlying suburban areas, gradually increasing to two to six dwelling units per acre on suburban areas closer to urban areas, and finally attaining even higher densities adjacent to the urban areas. Open space remains "quite important" for suburban areas and could be attained partially through clustering dwelling units. Id.
The urban areas facilitate the provision of "very specialized public and private services that could not be justified anywhere else." FLUE, page 11. The Data and Analysis state:
If the urban areas are permitted to increase their concentrations, it will lessen some of the development pressures in other areas of the County. One distinct advantage of intense urban development is that the potential, negative impacts of development upon the natural environment can be controlled more effectively. Additionally, the provision of public facilities is much more cost effective in the intense urban areas.
Id.
The Data and Analysis recognize the role of planning to ensure the
attainment of the planning goals of the County:
Hillsborough County has and will continue to experience a high population growth rate.
Residential, commercial and industrial land development is expanding rapidly, and the County has been unable to keep pace with the demand for public facilities. The rapid rate of development has had many adverse impacts upon the environment, transportation, public facilities, historic resources and community design. . . . An overall, general guide to development outlining basic considerations during the development process is needed to protect the health, safety and welfare of the residents of Hillsborough County.
FLUE, page 12.
The Data and Analysis recognize that "much of the newer residential development is designed as enclaves with little or no functional linkages to the surrounding areas." FLUE, page 22. Addressing the linkage of residential to commercial uses, the Data and Analysis add:
Commercial development has followed the sprawl of residential development into the County. Commercial strip development has been allowed to proceed relatively unchecked along the major arterials in the County creating undue congestion and safety hazards. A strong need was identified to develop a logical and functional method to determine the location and amount of future commercial development without interrupting the market system.
FLUE, page 25.
The Data and Analysis also address industrial and public facility land uses. The identification of specific areas for industrial development "will create a desirable development pattern that effectively maximizes the use of the land." FLUE, page 28. And the requirement that public facilities be available to serve new development "will create greater concentrations of land uses in the future." FLUE, page 27.
2. Existing Land Uses
The Data and Analysis set forth the existing land uses by type and acreage. Using a total acreage for the County of 605,282 acres, the table of existing land uses by acreage, which is at page XVIII-B of the FLUE background document, divides developed land into four general categories: residential, commercial, industrial, and community facilities.
Residential existing land uses total 73,104 acres. The total includes 55,546 acres of single family detached with an average density of 1.7 dwelling units per acre, 9709 acres of mobile home with an average density of 1.3 dwelling units per acre, 3643 acres of mobile home park with an average density of 4.6 dwelling units per acre, and 3006 acres of single family attached and multifamily with an average density of just under 12 dwelling units per acre.
Commercial existing land uses total 8143 acres, consisting of 3613 acres of light commercial, 3029 acres of heavy commercial, 770 acres of transient lodging, and 731 acres of business and professional offices. Industrial existing land uses total 4122 acres, consisting of 1889 acres of heavy industrial, 1178 acres of warehouse and distribution, and 1055 acres of light industrial. Community facilities existing land uses, which consist of utilities, schools, and recreation/open space, total 19,439 acres, including 7981 acres of recreation/open space and 5200 acres of utilities.
The remaining 500,474 acres in the County are divided into Natural, Agriculture, and Mining existing land uses. Natural existing land uses total 182,082 acres, consisting of 133,939 acres of woodlands and wetlands, 26,745 acres of vacant land in urban areas, and 21,398 acres of water. Agriculture existing land uses total 292,129 acres, including 104,870 acres of fenced
pastureland, 103,773 acres of general agriculture, 40,600 acres of groves or orchards, and 38,867 acres of row crops. Mining existing land uses total 26,263 acres, consisting of 10,551 acres of active mines, 8655 acres of unreclaimed mined out areas, 6717 acres of reclaimed mines, and 340 acres of resource extraction.
The County has prepared or obtained numerous existing land use maps (ELUM), either as small-scale maps contained in the two-volume compilation or as Oversized Maps. Most of the ELUM's have been described above. The ELUM's depict the Tampa Bay estuarine system including beaches and shores; rivers, bays, lakes, floodplains, and harbors; wetlands; minerals, soils, and sinkholes; natural systems and land use cover; areas of natural aquifer recharge and potential groundwater contamination; and various public facilities.
ELUM's not previously described include Oversized Map 6, which is dated September, 1988, and is entitled Major Health and Education Facilities. Another Oversized Map dated February 1, 1988, shows the same types of facilities.
Existing land uses are shown by a variety of maps. CARE Figure 20, which is the color map showing vegetative cover, provides some information as to the location of disturbed and undisturbed natural areas. Coastal Figure 1 shows existing land uses, but only for the coastal area. Those parts of the coastal high hazard area shown as vacant or agricultural or that otherwise received designations allowing higher densities or intensities are identified in Paragraphs 772 et seq. Most detailed is Oversized Map 2, which is the 1985 Generalized Land Use map. Oversized Map 2 shows the location of existing land uses by the following categories: agricultural and vacant, low density residential, medium and high density residential, commercial, industrial, major public, mining, and natural.
As noted above, existing, major public supply wells are depicted on CARE Figure 18 and Oversized Map 18. The latter map also depicts 200-foot radii for "well protection areas." Oversized Map 18 also appears to depicts planned water wells, such as a cluster of four wells northeast of Brandon, which were omitted from CARE Figure 18. Other wells are also depicted on Oversized Map 18, but not CARE Figure 18, which thus appears to have been limited to existing wells.
3. Future Land Uses Under Plan
The Data and Analysis accompanying the FLUE acknowledge that "[t]here are very few compact centers where commercial and residential uses interact positively in unincorporated Hillsborough County." FLUE, page 7.
The projected population for unincorporated Hillsborough County in 2010 is 932,800, according to the Bureau of Economic and Business Research at the University of Florida. About 458,236 persons were projected to be residing, in 2010, in housing units existing in 1988.
By land use category, as depicted on the Future Land Use Map, the County has 283,195 vacant acres on which residential development is permitted under the Plan. The following table sets forth, by category, the vacant acreage, permitted maximum density (expressed as a ratio of dwelling units per gross acre), and population capacity. 8/
Land Use Category Density Vacant Acres Pop. Capacity
Agricultural/Mining | 1:20 | 66,122 | 9,092 | |
Agricultural | 1:10 | 20,162 | 5,545 | |
Rural Agricultural | 1:5 | 65,115 | 35,813 | |
Rural Estate | 1:2.5 | 8,617 | 9,479 | |
Rural Residential | 1:1 | 18,533 | 50,968 | |
Rural Residential Plan | 1:5 | 7,325 | 4,029 | |
Low Sub. Density Resid. | 2:1 | 14,388 | 79,134 | |
Low Sub. Density Resid. | Plan | 1:5 | 20,326 | 11,179 |
Suburban Density Resid. | 4:1 | 24,667 | 271,337 | |
Low Density Residential | 6:1 | 10,625 | 175,313 | |
Low Medium Density Resid. | 9:1 | 945 | 16,755 | |
Medium Density Residential | 12:1 | 1,290 | 30,496 | |
High Density Residential | 20:1 | 765 | 30,141 | |
Urban Level 1 | 12:1 | 17,850 | 421,974 | |
Urban Level 2 | 20:1 | 4,495 | 177,103 | |
Urban Level 3 | 50:1 | 1,760 | 173,360 | |
TOTALS 283,195 1,501,718
Dividing the total population capacity of 1,501,718 persons by the projected population of 932,800, the Plan has overallocated density by a factor of 1.61.
Nonresidential uses for which the Plan allocates land include industrial and commercial uses. The industrial uses and respective acreages in the Plan are Light Industrial (12,789), Light Industrial--Planned (746), and Heavy Industrial (4721). The commercial uses and respective acreages in the Plan are Community Commercial (5538), Regional Commercial (678), Community Office (294), and Research Corporate Park (1411).
The industrial uses cover a total of 18,256 acres, or 3.04% of the total of 600,409 acres in Hillsborough County. The commercial uses cover a total of 7921 acres, or a little more than 1% of the total acreage in the County. If the acreage designated as Urban Level 1, 2, and 3 is treated as commercial, then the total commercial acreage equals 8.79% of the County.
The remaining categories on the Future Land Use Map and respective acreages are: Natural Preservation--23,313 acres; Environmentally Sensitive Areas--81,880 acres; Water--6026 acres; Recreation/Open Space--2310 acres;
and Public/Semi- Public--4142 acres. Excluding the Public/Semi-Public category, the remaining four categories, which by varying degrees involve open space, constitute 113,526 acres, or about 19% of the County.
In addition to the matter of density allocations, the use of land involves the places where the County has chosen to locate its densities. CARE Figure 2 shows the location of the population in 1985. For unincorporated Hillsborough County, only about 45,000 persons lived south of the Alafia River with about two-thirds living west of I-75. Roughly 150,000 persons lived in northwest Hillsborough County, and another 150,000 persons lived in central Hillsborough County between the Alafia River and I-4. The remaining (as shown on Figure 2) 50,000 persons lived east of I-75 and north of I-4 in northcentral and northeast Hillsborough County.
Oversized Map 14 shows areas of density changes effected by the Plan and revisions to a pre-1985 Act plan applicable to I-75 and south Hillsborough County that took place shortly before the adoption of the Plan and were incorporated into the Plan. Oversized Map 14 discloses large areas of density increases in the following locations, among others: the part of the coastal high hazard area between Cockroach Bay and the mouth of the Little Manatee River; an area immediately across US 41 from the previously described area and bounded by the Little Manatee River on the north and I-75 on the east; almost the entire I-75 corridor that is designated nearly exclusively Urban Level 1 and Urban Level 3; a large expanse of land designated mostly Low Suburban Density Residential Planned along the railroad right-of-way that is to be converted into a two-lane road, at least part of which is to be known as the Jim Selvey Highway; an area of Medium Density Residential just north of the mouth of the Little Manatee River near Ruskin; the northcentral area from I-75 and I-275 to the Hillsborough River; and relatively large portions of the north and west halves of northwest Hillsborough County, including almost the entire northwest corner of the County to Gunn Highway (east of Keystone Lake).
Oversized Map 13 is the Vacant Land Suitability Analysis, which shows the location of critical lands or soils with very severe limitations, presumably with reference to the location of predominantly vacant lands. The range of soils with very severe limitations includes the entire coastal high hazard area, much of the corridors of the Little Manatee and Alafia Rivers, the Hillsborough River valley, several areas of about 1.5 square miles each in northwest Hillsborough County, much of the land north of the northernmost extent of Tampa and just east of I-275, and an L-shaped area east of I-75 and straddling Big Bend Road, as well as area just to the south of the L-shaped area.
Lands of varying degrees of sensitivity are located throughout the areas of very severely limited soils. Locations of the two most critical classes of land are widely distributed among the phosphate mining area in southeast Hillsborough County and along the major southern tributary of the Alafia River, near Cockroach Bay and the mouth of the Little Manatee River, at the southeast and northwest ends of the coastal high hazard area of northwest Hillsborough County, just east of I-275 and I-75, in the Hillsborough River valley, and along the Alafia River and its northern tributary. Locations of the two less critical classes of land, but nevertheless sensitive or very sensitive, include areas along Big Bend Road at I-75, east of I-75 north of Big Bend Road, and in the northwest corner and northern half of northwest Hillsborough County.
4. Use of Public Facilities Under Plan
Acknowledging that high population growth has contributed to many of Hillsborough County's problems, such as "infrastructure inadequacies," the Data and Analysis concede:
The extension of public facilities has lagged behind the unincorporated County's rapid growth. One of the consequences of growth outpacing the provision of services and facilities is the development of outlying large lot residential with onsite water and sewer facilities (septic tanks, wells). The historic lack of services has continued to strain the county's fiscal ability to respond
to these needs, and there will be a greater need for more intensive functional planning and action by county government.
FLUE, pages 6-7.
Part of the difficulty in matching population growth with public facilities has been due to historic land use patterns. The Data and Analysis note:
There are very few compact centers where commercial and residential uses interact positively in unincorporated Hillsborough County. Threshold population densities needed to support many services do not exist in most parts of the County. The cost of providing services such as water, sewer, roads, mass transit, schools, fire and police protection are much higher per capita in low density areas than in more urban areas.
Concentration of new development in areas with adequate levels of service for public facilities will create a more effective and efficient utilization of man-made and natural resources and encourage the full use and immediate expansion of existing public facilities while protecting large areas of the natural environment from encroachment.
The concentration of new development in areas with adequate levels of service will also fulfill the requirement of subsection 9J-5.006(3)(b)7 to discourage urban sprawl.
FLUE, page 7.
Protection of Natural Resources Under Plan
The Data and Analysis link effective land use planning with the protection of the County's natural resources and preservation of County residents' quality of life:
. . . growth will continue to challenge and threaten the natural environment as daily development decisions confront the long-range need to preserve and protect irreplaceable natural environmental systems. Unplanned, rapid population growth will degrade the unincorporated county's environment.
Development will encroach upon valuable wellfields and wildlife habitat and may further pollute the County's freshwater aquifers. One of the County's major needs is to assure the protection and viability of green open spaces and environmentally
significant areas, which are crucial to the community's quality of life and economic health.
The unincorporated County's potential to maintain and improve the quality of life for its residents will be contingent upon its ability to adequately serve existing and future demands for services.
FLUE, page 7.
6. Protection of Agriculture Under Plan
The Data and Analysis contain a position paper concerning agricultural issues. The paper reports that agriculture is the County's single largest industry, and Hillsborough County is the third largest agricultural county in the state.
According to the position paper, the trend in agriculture in Hillsborough County has been toward increased productivity through improved technology and transition to the production of more profitable commodities.
The position paper argues that the viability of agriculture is not dependent upon the maintenance of low residential densities to discourage the conversion of agricultural land to residential uses. Advocating reliance upon free-market forces to maintain the competitiveness between agricultural and residential uses, the position paper concedes that a density of one dwelling unit per five acres is "not low enough to discourage sale of the property for five acre ranchettes[, which] promote high consumption of land for housing and remove the land for agricultural production." FLUE Background Document, page XLVII.
Plan Provisions
The FLUM
The subject cases present two problems regarding the FLUM. The first problem is to identify what constitutes the FLUM. The second problem is to determine the significance of one of the major designations on the FLUM: Environmentally Sensitive Areas.
In its proposed recommended order, the County asserts that the FLUM consists of a series of maps. 9/ This assertion is groundless. Neither the Plan nor the adoption ordinance provides any basis whatsoever for finding that the FLUM comprises all of the maps and figures contained in Sierra Club Exhibit
A local government must adopt operative provisions, such as a FLUM or goals, objectives, or policies. Hillsborough County did not adopt all of the Oversized Maps or the maps and figures in the two-volume compilation of the Plan.
Hillsborough County adopted the Plan in Ordinance No. 89-28. The ordinance delineates the scope of the operative provisions of the Plan by noting that the Data and Analysis, or "background information," are not part of the operative provisions of the Plan:
Material identified as background information in the Table of Contents for each Element, including data, analysis, surveys and studies, shall not be deemed a part of the Comprehensive Plan as provided in Subsection 163.3177(8), Florida Statutes.
The Plan clearly includes among its operative provisions a FLUM. Several provisions describe the role of the FLUM and, in so doing, help identify what the County adopted as the FLUM.
In the Introduction to the FLUE, the Data and Analysis state: "The policies of [the FLUE] are presented in written form, and they are graphically represented on the Future Land Use Map." FLUE, page 5. The Data and Analysis elaborate:
The [FLUE] consists of two parts: Goals, Objectives and Policies; and a Future Land Use Map (Land Use Graphic), a copy of which is attached, and incorporated hereby by reference.
FLUE, page 11.
Operative provisions of the Plan likewise recognize the FLUM and its role as part of the operative provisions of the Plan. For instance, the Plan Implementation section of the FLUE begins:
The primary tool of implementation for the [FLUE] are the Future Land Use Map and the Land Use Plan Categories. These are followed by other implementation tools that further define the intent of the Future Land Use Map and the Land Use Plan Categories. They include: locational criteria for neighborhood commercial uses; criteria for development within designated scenic corridors; and density credits.
The Future Land Use Map is a graphic illustration of the county's policy governing the determination of its pattern of development in the unincorporated areas of Hillsborough County through the year 2010.
The map is adopted for use as an integral part of the [FLUE]. It depicts, using colors, patterns, and symbols, the locations of certain land uses and man-made features and the general boundaries of major natural features.
The Future Land Use Map shall be used to make an initial determination regarding the permissible locations for various land uses and the maximum possible levels of residential densities and/or non-residential intensities, subject to any special density provisions and exceptions of the [FLUE] text. Additionally, each regulation or regulatory decision and each development proposal shall comply with all applicable provisions within the . . . Plan.
FLUE, page 54.
The Legal Status of the Plan section of the FLUE adds:
The Future Land Use Map is an integral part of this [FLUE], and it shall be used to determine the permissible locations for various land uses and the maximum possible levels of residential densities and/or non- residential intensities. The goals, objectives and policies of this [FLUE] shall provide guidance in making these determinations.
FLUE, page 129.
The FLUM at least includes a multicolor map entitled 2010 Land Use Plan Map. The multicolor map depicts the location of various future land uses, man-made features, and natural resources. The importance of the multicolor map is underscored by its relatively large scale of 1" = 1 mile. The only maps drawn on such a large scale are a black and white copy of the multicolor map and a green map, which is discussed below. The Oversized Maps discussed in this recommended order are drawn to a scale of 1" = 2 miles. The question remains, however, whether the FLUM includes maps or figures in addition to the multicolor map.
The FLUE defines the FLUM as:
The graphic aid intended to depict the spatial distribution of various uses of the land in the County by land use category, subject to the Goals, Objectives, and Policies and the exceptions and provisions of the [FLUE] text and applicable development regulations.
FLUE, page 137.
Consistent with the discussion of the FLUM contained in the Plan Implementation section of the FLUE, the multicolor map is the only map that depicts future land uses by colors, patterns, and symbols. No other map uses colors except for CARE Figure 20, which is the Natural Systems and Land Use Cover Inventory. CARE Figure 20 is obviously an ELUM with no designation of future land uses. With the exception of the green map discussed below, no other map uses any color whatsoever.
The above-cited Plan references to the FLUM are in the singular. The FLUM is identified in the singular throughout the Data and Analysis set forth in the two-volume compilation of the Plan. See, e.g., FLUE pages 55, 56, 69, 70, 75, 94, and 137. 10/ With one exception, operative provisions of the Plan also refer to the FLUM in the singular. See, e.g., FLUE Policies A-3.2, B- 6.2, B- 6.7, B-7.9, and C-31 and Coastal Policy 7.1. But see CARE Policy 19.8, which requires the County to identify "Resource Protection Areas" on the Future Land Use Map "series."
DCA referred to a single FLUM when DCA issued the Objections, Recommendations, and Comments (ORC) concerning the Plan as first transmitted. The County prepared detailed responses to the objections, recommendations, and comments. Three responses refer at length to the FLUM and refer to it in the singular, rather than as a map series. Hillsborough County Exhibit 35, responses 4, 8, and 26.
Response 29 to the ORC answers the objection that the FLUM (in the singular) omits existing and planned waterwells, the cones of influence for such waterwells, and wetlands. The response states:
Cones of influence have not been identified for Hillsborough County. Objective 5 of the [CARE] and its subsequent policies outline the County's strategy with regard to protecting its wellfields. Because of the multitude of wetlands in Hillsborough County and the lack of exact mapping capability, the "E" area on the land use plan map is indicative of major areas of hydric soils (per USDA Soil Conservation Services, Soil Suitability Atlas for Hillsborough County, Florida) of a scale to be seen on the map.
Actual wetlands must be delineated by the Environmental Protection Commission of Hillsborough County prior to site development. Minerals and Soils are indicated on Figures 9 and 10 of the [CARE] of the Plan. The rest of the parameters will all be included on the revised existing land use map.
Despite the confusion in the last two sentences of the response between the nature of ELUM's and FLUM's, the response is consistent in its presumption of a single FLUM, rather than a map series.
Until the commencement of Plan litigation, 11/ the County did not consider the FLUM to be more than the multicolor map. Repeatedly, the County had opportunities--outside of the Plan and adoption ordinance--to identify the FLUM. Repeatedly, the County did not confer the FLUM status upon any map other than the multicolor map.
Oversized Map 18 is an important example of the Plan identifying a map, but not adopting it as part of the FLUM. Describing Oversized Map 18, CARE Policy 5.8 states:
By 1993, the County shall have developed and implemented a comprehensive wellfield protection program, which includes but is not limited to the determination and mapping of zones of contribution (also known as cones of influence) surrounding public wellfields and the adoption and implementation of a wellfield protection ordinance which protects these areas. In the interim, the County shall use the best available information to identify these areas. See map 18, Interim Wellfield Protection Areas . . ..
CARE Policy 5.8 assigns Oversized Map 18 to the Data and Analysis, rather than the operative part of the Plan. The County's intent to relegate Oversized Map 18 to the Data and Analysis is restated in the March 14, 1990, cover letter from the County Planning Director transmitting the settlement amendments to DCA. The letter states: "The documents are incorporated by reference for background for informational purposes only." Oversized Map 18 is the first of the listed documents.
The Plan deals similarly with other maps and figures; as better information becomes available, the graphic aids that are part of the Data and Analysis may change--without the requirement of a Plan amendment. For example, CARE Policy 5.2 mentions the DRASTIC maps, which indicate areas susceptible to groundwater contamination. In language similar to CARE Policy 5.8, Policy 5.2 states that the County will use the "best available information" concerning groundwater contamination areas and then mentions the graphic aid.
Another possible FLUM is a black-and-white map with green and dotted green areas on a scale of 1" = 1 mile. The green colors are overlaid on a black-and-white version of the multicolor map. The green map contains a special legend for the green areas. The solid green areas depict "Environmentally Sensitive Areas." The dotted green areas depict "Environmentally Sensitive Areas Which Are Potentially Significant Wildlife Habitat."
Notwithstanding the many references to the FLUM in the singular, the Plan anticipates the possible amendment of the FLUM or the addition of an overlay to show the location of Environmentally Sensitive Areas. CARE Policy
14.2 states:
By 1991, the County shall identify and map natural plant communities which are determined to provide significant wildlife habitat in Hillsborough County. The natural systems and land use cover inventory map ([CARE] Figure 20), produced by the Florida Game and Freshwater Fish Commission, shall serve as the basis for this effort. Areas of significant wildlife habitat shall be indicated as environmentally sensitive areas on the Future Land Use Map or map overlay.
The green map may be the map or overlay promised by CARE Policy 14.2. 12/ However, for purposes of these cases, the green map is not part of the FLUM. The green map had not been adopted by August 1, 1991, or even by the time of the final hearing. Transcript, pages 1095 and 1105; County's Proposed Recommended Order, Paragraph 180. In view of the considerable confusion surrounding the Environmentally Sensitive Areas designation, as explained below, it would be unfair to overlook this fact and treat the green map as part of the operative provisions of the Plan. Because of the clear understanding that the Plan included only amendments through August 1, 1991, the parties presumably did not take the opportunity to litigate the significance of the designations contained on the green map.
Even though the County did not adopt the green map as part of the FLUM, for the purpose of these cases, it remains necessary to consider the effect of the Environmentally Significant Areas designation. The designation is found on the multicolor map (i.e., the FLUM) as well as the green map. Also, the green map is an important part of the Data and Analysis. The problem is to determine what does it mean for an area to bear the designation of Environmentally Significant Areas.
Part of the confusion surrounding the Environmentally Significant Areas designation is due to its dual nature as an overlay, like Scenic Corridors, and underlying designation, like Suburban Density Residential or Light Industrial. An overlay typically depicts an area that, notwithstanding its underlying designation, is subject to special land use conditions in the Plan. Any underlying designation may and usually is subject to other provisions of a comprehensive plan, but an overlay ensures that these conditions are not overlooked and may elevate them in importance.
The Environmentally Significant Areas designation on the multicolor map is never an overlay. For each area on the multicolor map designated Environmentally Significant Areas, there is no other designation. For this reason alone, the Environmentally Significant Areas designation itself should regulate land uses in some meaningful fashion; otherwise, areas so designated would lack generally applicable guidelines concerning permissible densities and intensities.
However, according to the County Planning Director, the Environmentally Significant Areas does not regulate land uses. The Planning Director prepared a cover letter dated September 4, 1991, to DCA accompanying the first round of Plan amendments in 1991. The letter explains why the County was amending the Plan to redesignate certain County-owned, environmentally sensitive land from Environmentally Significant Areas to Natural Preservation. The letter states:
We still recommend that these areas be changed to Natural/Preservation, since the "E" [Environmentally Significant Areas] designation is an identification only land use category to indicate that environmentally sensitive lands may be located on site.
However, that category in and of itself does not regulate land uses on a site. The Natural/Preservation category is very restrictive and does not permit development on a site.
Sierra Club Exhibit 1.
From the letter, it appears that the County's intent was to use the Environmentally Sensitive Areas designation merely to indicate the general location of critical natural resources, rather than to assign specific densities and intensities. In other words, the Environmentally Sensitive Areas designation was to be merely an overlay showing some of the natural resources required by Chapter 9J-5 to be shown on the FLUM. If any land use restrictions applied to land with an Environmentally Sensitive Areas overlay, the Planning Director's letter implies that the restrictions were not imposed by textual Plan provisions defining land uses under the Environmentally Sensitive Areas designation. Under this interpretation, land use restrictions could be imposed by textual Plan provisions that, although never mentioning Environmentally Sensitive Areas, govern natural resources included within such areas, such as wetlands, wildlife habitat, or sand pine scrub habitat.
Clearly, the Planning Director is correct in writing that one purpose of the Environmentally Significant Areas designation is to indicate the location of environmentally sensitive lands. The real question is whether the Planning Director is correct in his assertion that the Environmentally Sensitive Areas designation is merely locational and not regulatory. This would mean that all of the land designated Environmentally Significant Areas on the multicolor map bears only a designation indicative of the location of certain natural resources, but lacks an effective, generalized land use designation.
The Plan defines Environmentally Sensitive Areas; in fact, it does so twice. The CARE defines "Environmentally Sensitive Areas" as:
Lands which, by virtue of some qualifying environmental characteristic (e.g. wildlife habitat) are regulated by either the Florida Department of Natural Resources, the Florida Department of Environmental Regulation, the Southwest Florida Water Management District, or any other governmental agency empowered by law for such regulation. These include Conservation and Preservation Areas as defined in the [CARE].
CARE, page 97.
The CARE defines "Conservation Areas" as:
Environmentally sensitive areas which include the following:
--Natural shorelines (other than those included in preservation areas);
--Class III Waters;
--Freshwater marshes and wet prairies;
--Sand-pine scrub;
--Hardwood swamps;
--Cypress swamps;
--Significant wildlife habitat.
CARE, page 96.
The CARE defines "Preservation Areas" as:
Environmentally sensitive areas which include the following:
--Aquatic preserves;
--Essential wildlife habitat;
--Class I and II Waters:
--Marine grassbeds;
--Coastal strand;
--Coastal marshes;
--Mangrove swamps; and
--State wilderness areas.
CARE, page 99.
"Significant wildlife habitat" is "[c]ontiguous stands of natural plant communities which have the potential to support healthy and diverse populations of wildlife and which have been identified on the Florida Game and Freshwater Fish Commission natural systems and land use cover inventory map." CARE, page 100. "Essential Wildlife Habitat" is "[l]and or water bodies which, through the provision of breeding or feeding habitat, are necessary to the survival of endangered or threatened species, or species of special concern." CARE, page 97.
The FLUE defines Environmentally Sensitive Areas as:
This land use category is used to designate those major, privately owned lands which are environmentally sensitive. These areas include Conservation Areas and Preservation Areas, as defined in the [CARE]. Development in these areas may be is [sic] restricted by federal, state, and/or local environmental regulations. Development projects will be evaluated for compliance with the [CARE] and [Coastal Element]. The Environmentally Sensitive Area designations on the Future Land Use Plan map are very generalized, and include primarily wetland areas. The designations are not exhaustive of all sites. On-site evaluation will be necessary for specific project review. Development in these areas is subject to the Goals, Objectives and Policies of the [FLUE], [CARE], and [Coastal Element], applicable development regulations, and established locational criteria for specific land use.
FLUE, page 136-37.
The Land Use Plan Categories section of the FLUE 13/ does not repeat the typographical error in the preceding Plan provision, in which the Plan warns that development in Environmentally Sensitive Areas "may be is" restricted by federal, state, or local law. The definition of the Environmentally Sensitive
Areas designation in the Land Use Plan Categories section omits the "is," implying more strongly that some development may take place on Environmentally Sensitive Areas. FLUE, page 126.
The Land Use Plan Categories section of the FLUE equates in two respects the Environmentally Sensitive Areas designation with the Natural Preservation, Scenic Corridors, Major Recreation and Open Space, and Major Public/Semi-Public designations. In each of these five designations, residential densities and commercial or industrial intensities (expressed as maximum floor area ratios) are "not applicable."
For the Natural Preservation, Major Recreation and Open Space, and Major Public/Semi-Public designations, the "not applicable" statement reflects the fact that residential, commercial, and industrial uses are prohibited by the land use designation in question. However, for the Scenic Corridors designation, which operates more as an overlay, the Plan provides no such prohibition, instead requiring special attention to aesthetic features of development in these areas. Thus, the "not applicable" language applicable to the Environmentally Sensitive Areas designation does not answer the question whether the designation is regulatory or merely locational and, if the former, what land uses are thereby regulated and how.
The question whether the Environmentally Sensitive Areas designation operates as a locational overlay, as suggested by the Planning Director's letter of September 4, 1991, seems to be answered by the Table of Residential Densities in the Implementation section of the FLUE. For the Scenic Corridor designation, the Table of Residential Densities indicates that the maximum residential density allowed is, instead of a ratio, "Overlay--Scaled to Area." But for the Environmentally Sensitive Areas designation, the Table of Residential Densities states that "no residential uses [are] allowed" for Environmentally Sensitive Areas. FLUE, page 62. The Table of Residential Densities gives the same response for the Natural Preservation, Major Recreation and Open Space, and Major Public/Semi-Public designations.
The failure of the Table of Residential Densities to assign any residential density to Environmentally Sensitive Areas is not inadvertent. The Data and Analysis indicate that, in calculating density allocations, the vast acreage designated Environmentally Sensitive Areas was not given any residential density. In the FLUE Background Document at page XXVIII, a table listing all of the FLUM designations shows no density for the 81,880 acres of Environmentally Sensitive Areas, which account for 13.64% of acreage of the County and is the second largest designation following 89,267 acres designated Agricultural/Rural. The density allocation table preceding page XXX contains no entry for Environmentally Sensitive Areas, although much if not all of the area so designated is vacant (or as the County classifies land, vacant or agricultural).
The omission of residential uses in Environmentally Sensitive Areas, as contained in the Table of Residential Densities, suggests that the designation carries a regulatory force beyond the locational character identified by the Planning Director in his letter of September 4, 1991. Natural resources included within the definition of Environmentally Sensitive Areas are wetlands, sand pine scrub, wildlife habitat essential for the breeding or nesting of endangered, threatened, or special-concern species, and contiguous stands of natural plant communities with the potential to support healthy and diverse communities of wildlife. Some of these natural resources are not themselves unconditionally protected by textual Plan provisions. But if the Environmentally Sensitive Areas containing these natural resources are not
assigned any residential uses, as the Table of Residential Densities implies, then the designation itself must preclude the conversion of these sensitive areas to residential uses. On the other hand, the textual Plan provisions contemplate some development of Environmentally Sensitive Areas because of various provisions requiring compensatory replacement following the loss of the natural resources to development.
Despite implying that development in Environmentally Sensitive Areas may be permitted, as long as it complies with Plan provisions, the Land Use Plan Categories section of the FLUE states that the typical use of areas designated as Environmentally Sensitive Areas is "Conservation." Although not the same typical use as that set forth for Natural Preservation areas, which are limited to "Open space or passive nature parks," the definition of "Conservation Uses" is restrictive:
Activities within land areas designated for the purpose of conserving or protecting natural resources of environmental quality and includes areas designated for such purposes as flood control, protection of quality or quantity of groundwater or surface water, floodplain management, fisheries management, or protection of vegetative communities or wildlife habitat.
FLUE, page 135.
At times in the Plan, the Environmentally Sensitive Areas designation appears to be merely locational. At times, the Environmentally Sensitive Areas designation appears to be regulatory. In the latter case, portions of the Plan suggest that the designation prohibits development, and portions of the Plan suggest only that the designation, standing alone, carries with it some degree of protection from development. FLUE Policy A-8.2 says as much: "Development shall be required to protect the Conservation and Preservation areas "
But even if the Plan were interpreted to impose a regulatory functional upon the Environmentally Sensitive Areas designation, the failure of the Plan to specify clearly the land use restrictions generally applicable to the designation leaves open to doubt the land uses permitted on over 13% of Hillsborough County. And if some residential development were permitted in areas designated Environmentally Sensitive Areas, then the density allocation ratios have been calculated without regard to the density-bearing capacity of over 13% of the County.
The FLUE definition of Environmentally Sensitive Areas, which states that development "may be is" restricted in such areas, may represent a unique, though inadvertent, disclosure of the County's ambivalence toward the degree of protection to extend to Environmentally Sensitive Areas. Perhaps in the belief that land use restrictions for Environmentally Sensitive Areas would emanate from federal, state, regional, or even other local governmental entities, 14/ the County has left to speculation the meaning of the critically important Environmentally Sensitive Areas designation.
The only clear significance of the Environmentally Sensitive Areas designation is the role of areas bearing such a designation in calculating residential densities or commercial or industrial intensities. The acreage on which residential densities are calculated does not generally include
Conservation or Preservation Areas or water bodies. (As noted above, Environmentally Sensitive Areas designation "include[s]" Conservation and Preservation Areas.) But the calculation of gross residential density may include acreage consisting of certain man-made waterbodies and certain Conservation and Preservation Areas. The qualification for Conservation and Preservation Areas is that the maximum area of such land (or wetland) is 25% of the total residential acreage. FLUE, pages 64-66. A similar provision applies for the calculation of floor area ratios or gross nonresidential intensity.
FLUE, pages 67- 68.
Illustrations in the FLUE apply the density formula described in the preceding paragraph. For example, if the proposed project consists of 80 acres, including 20 acres of land (or wetland) designated Environmentally Sensitive Areas, the total acreage upon which residential densities could be calculated would be 75 acres. This result is reached by starting with the 60 acres of proposed residential use that are not designated as Environmentally Sensitive Areas. Twenty-five percent of 60 acres is 15 acres, which is the maximum acreage designated Environmentally Sensitive Areas that is eligible to be included in the calculation of gross residential density. The designation given the 60 acres would allow a density, such as 4:1, which, when applied to 75 acres, yields 300 dwelling units. The implied presumption of the density
formula--stated nowhere in the Plan--is that areas designated Environmentally Sensitive Areas acquire their actual land use restrictions, in terms of densities or intensities, from the adjoining lands.
The intent of the density credit allowed for areas designated Environmentally Sensitive Areas is to protect the subject natural resources. FLUE Policy A-8.4 provides for density credits for development that is "sensitive to, preserves and maintains the integrity of wetlands [and] significant wildlife habitat." Again, though, the degree and type of protection are unclear.
The density formula may be interpreted to prohibit inferentially any disturbance of Environmentally Sensitive Areas. In other words, the Environmentally Sensitive Areas acreage used in calculating the density bonus or perhaps the entire Environmentally Sensitive Areas acreage (even if some acreage were excluded from the calculation due to the 25% limitation) could not be disturbed by development.
However, another interpretation is possible. The density formula, which is mandatorily imposed on all proposed projects containing Environmentally Sensitive Areas, does not, by its terms, prescribe where the resulting development is to be located. In the example above, the density formula effectively reduced the density of a project by 20 dwelling units (80 acres X 4 vs. 75 acres X 4). But the formula does not explicitly prohibit the location of some of the 300 permitted units in areas designated as Environmentally Sensitive Areas. 15/ If the Environmentally Sensitive Areas designation does not prohibit development, some degree of protection would be theoretically possible by reducing the actual density occupying the parcel containing Environmentally Sensitive Areas while still not actually prohibiting the location of dwelling units on all Environmentally Sensitive Areas.
It is difficult to infer from the density formula whether the Environmentally Sensitive Areas designation is intended to prohibit the development of areas so designated or, if not, to what extent the designation restricts development of such areas. If the Environmentally Sensitive Areas designation does not regulate land uses so as to prohibit the development of
areas so designated, the formula provides some protection to Environmentally Sensitive Areas by increasing the chance that such areas may be less densely populated, but also supplies the basis on which densities or intensities for areas designated Environmentally Sensitive Areas are to be inferred. If the Environmentally Sensitive Areas designation regulates land uses so as to prohibit the development of areas so designated, the formula can be interpreted as providing some compensation by allowing the use of some of the foregone development rights in adjoining areas under common ownership that are not designated as Environmentally Sensitive Areas.
The question whether the density formula, as well as the closely related intensity formula, prohibit the development of Environmentally Sensitive Areas can be approached by considering another density formula. The upland forest density credit incentive, which is identified in FLUE Policy A-8.3, is described in detail in the Implementation section of the FLUE.
The failure of the density formula, as well as the intensity formula, to prohibit the disturbance of Environmentally Sensitive Areas stands in contrast to the protection extended by the upland forest density credit incentive. The upland forest density credit incentive provides a bonus of 25% more density than otherwise allowed by a specific designation to the extent of the upland forest 16/ acreage preserved by the project.
In other words, a 100-acre parcel designated at 1:1 might include 25 acres of upland forests within the single residential designation covering the entire 100 acres. If the proposed project preserved the 25 acres of upland forest from development, the 25 dwelling units attributable to the 25 acres are increased to 31.25 dwelling units and raise the total number of dwelling units to 106.25. Unlike the density and intensity formulas, the upland forest density credit incentive requires the landowner to record a conservation easement for the 25 acres of upland forest, so that this land may never be developed. FLUE, pages 71-73.
The different approaches of the density and intensity formulas, on the one hand, and the upland forest density credit incentive, on the other hand, may arise partly from the fact that the latter formula is an incentive for which a landowner may qualify voluntarily. Upland forests would generally not be preserved by the Plan in the absence of the utilization of the upland forest density credit incentive. Regardless of their effect in preserving Environmentally Sensitive Areas, the density and intensity formulas are not optional; they are imposed whenever a proposed development contains Environmentally Sensitive Areas.
Part of the discussion of the upland forest density incentive credit may shed some light on the meaning of the Environmentally Sensitive Areas designation, especially as it concerns the density and intensity formulas. The upland forest density incentive credit repeatedly refers to the density formula as involving wetlands or the protection of wetlands. Although wetlands make up a substantial part of the Environmentally Sensitive Areas, numerous uplands also qualify as Environmentally Sensitive Areas. Qualifying uplands include significant and essential wildlife habitat, as well as sand pine scrub (which is also included as an upland forest).
Possibly the County incorrectly assumed that the Environmentally Sensitive Areas designation was limited to wetlands, or perhaps the designation was so limited in an earlier draft of the Plan. In either event, the County may have assumed that federal, state, regional, and other local restrictions against
disturbing wetlands would effectively prevent the development of such Environmentally Sensitive Areas, or at least clearly regulate the extent to which such areas could be disturbed. As noted above, however, the Plan itself must supply such regulation through a generalized land use designation.
The Environmentally Sensitive Areas designation is poorly integrated into the Plan. Plan provisions, including the density and intensity formulas, repeatedly address "wetlands" or "Conservation" or "Preservation" Areas, rather than Environmentally Sensitive Areas. If the Environmentally Sensitive Areas designation were not intended to regulate land uses and prohibit all development, but were merely locational as indicated by the Planning Director, then the Plan is deficient in failing to assign a regulatory land use designation to over 80,000 acres, or 13.64%, of the County. For these vast areas, in any event, the Plan provides no direct, and arguably not even any indirect, guidance as to what densities or intensities are permitted on Environmentally Sensitive Areas.
The only conclusion that can be reasonably drawn from the Plan concerning that Environmentally Sensitive Areas designation is that it is, at least, locational. The designation shows where Conservation and Preservation Areas are located. The designation also serves to provide some protection to Environmentally Sensitive Areas through the density and intensity formulas. However, it may not be reasonably concluded that the density and intensity formulas prohibit the destruction of Environmentally Sensitive Areas by development. Nor can it be reasonably concluded that other provisions of the Plan preserve Environmentally Sensitive Areas, as such, from destruction or alteration by development. The full extent of the meaning of the Environmentally Sensitive Areas designation is lost in ambiguity.
The FLUM does not identify existing and future potable water wellfields. The FLUM fails even to show the location of existing major public supply wellfields, as depicted in CARE Figure 18 and Oversized Map 18.
The FLUM does not identify cones of influence for the existing wellfields to the extent known. Figures 32 and 33 of Sierra Club Exhibit 12 pertain to four wellfields located entirely in Hillsborough County and two wellfields located partly in the County. For these wellfields, which are located in the northern part of the County, Figures 32 and 33 respectively portray a wide-ranging decline in water table elevations and potentiometric surface of the Floridan aquifer due to wellfield pumpage. This information corresponds to drawdown depth of the source from which each wellfield draws its water.
Even if these data sources are rejected in favor of the much more limited 200-foot protection zones outlined in Oversized Map 18, the County has failed to adopt Oversized Map 18 as part of the FLUM, as described in the preceding section.
The FLUM does not identify historic resources or historically significant properties meriting protection. Oversized Maps 11 and 12 depict respectively Archaeological Sites and Historic Resources. However, these maps are not part of the FLUM.
The FLUM does not depict the 100 year floodplain. Oversized Map 9 depicts the 100 year floodplain, massive amounts of which lie outside the future land use designations of Environmentally Sensitive Areas and Natural Preservation. But Oversized Map 9 is not part of the FLUM.
The FLUM does not depict the minerals and soils of the County, except to the extent that minerals are contained in a general land use designation. CARE Figure 9 depicts soils and mine pits. Oversized Maps 8 and 10 also depict soils and mine lands. However, these maps are not part of the FLUM.
The FLUM depicts wetlands. The designation of Environmentally Sensitive Areas on the FLUM (i.e., the multicolor map) includes wetlands.
The FLUM depicts public facilities under the category of Major Public/Semi-Public and Electric Power Generating Facilities. The former category shows the location of, among other things, "churches, hospitals, schools, clubs and utility and transportation facilities." FLUE, page 122.
The Plan
Natural Resources
CARE Objective 2 is:
By 1995, the water quality of natural surface water bodies in Hillsborough County which do not meet or exceed state water quality standards for their designated use shall be improved or restored.
CARE Policy 2.1 provides:
The County shall not support the reclassification of any surface water body within County boundaries to acknowledge lower water quality conditions, unless necessary to protect the public health, safety or welfare. Where economically feasible, the County shall support the reclassification of surface water bodies to accommodate higher standards, where it can be demonstrated that improved water quality conditions will prevail in the future.
The CARE defines "economically feasible" as follows: "Where the benefit to the public outweighs
the cost of the action, and is within the County's capability to fund." CARE, page 96.
CARE Policy 2.2 addresses the problem of wastewater discharges:
The County shall require that all domestic wastewater treatment plans discharging effluent into Tampa Bay or its tributaries provide advanced wastewater treatment, or if specific alternative criteria developed by the Surface Water Improvement and Management Program can only be met by removing a surface water discharge, such a program shall be implemented, where economically feasible and in accordance with Policy 2.3 below.
CARE Policy 2.3 requires the County to "continue to develop and promote environmentally acceptable effluent disposal alternatives to surface water discharge, including, but not limited to, reuse for irrigation and industrial purposes."
Dealing with the problem of short-term solutions to sewage disposal, CARE Policy 2.4 states:
To reduce the need for interim domestic wastewater treatment plants, the County shall plan for the construction of regional wastewater treatment facilities to serve areas designated for higher densities in the
. . . Plan.
CARE Policy 2.6 provides that, "where economically feasible," the County "shall provide improved domestic wastewater treatment service to developed areas where persistent water quality problems are clearly attributable to poorly functioning septic treatment systems."
CARE Policy 2.7 further addresses the issue of septic tanks by providing that, by 1990, the County shall "request or initiate" agreements with third parties to develop "scientifically defensible siting criteria, performance standards, and density limitations for septic systems, to ensure protection of surface water quality." The policy adds that the County shall "request . . . special criteria and standards . . . for those septic systems to be located in areas adjacent to Class I and Class II Waters and Outstanding Florida Waters." The policy concludes with the promise that, within one year after the development of the criteria and standards, the County "shall amend appropriate development regulations" accordingly.
CARE Policy 2.8 provides in part:
Where economically and environmentally feasible, [a nutrient monitoring and control program for agriculture to be developed after 1995] shall require the implementation of Best Management Practices for controlling nutrient loadings, including retrofitting if needed to meet specific alternative criteria as established by the Surface Water Improvement and Management Program.
The CARE defines "environmentally feasible" as follows: "Where the physical conditions or the necessity to protect natural resources do not preclude the action." CARE, page 97.
CARE Policy 2.10 states:
By 1991, the County shall require that existing developments planned for expansion, modification or replacement provide or support stormwater treatment improvements within the affected drainage basin where treatment facilities are lacking. Where economically and environmentally feasible,
the County shall require retrofitting of stormwater treatment facilities in urbanized areas lacking such facilities.
CARE Objective 3 is "no net loss of wetland acreage." The objective requires the County to "seek to achieve a measurable annual increase in restored wetland acreage," which shall be achieved by 1995 "through the restoration of degraded natural wetlands, until all economically and environmentally feasible wetland restoration is accomplished."
CARE Policy 3.1 states that the County shall "continue to conserve and protect wetlands from detrimental physical and hydrological alteration and shall continue to allow wetland encroachment only as a last resort when reasonable use of the property is otherwise unavailable."
CARE Policy 3.2 provides in part:
Channelization or hardening (e.g., paving, piping) of natural streamcourses shall be prohibited except in cases of overriding public interest.
The CARE defines "overriding public interest" as: "Actions required by local, state, or federal government, necessary for the promotion of public safety, health or general welfare." CARE, page 99.
CARE Policy 3.6 is for the County to
continue to promote through the development review process the use of desirable native wetland habitat species for the creation of wetland habitat and for biologically enhancing filtration and treatment of pollutants in newly constructed stormwater retention and detention ponds.
CARE Objective 4 is:
The County shall continue to prevent net loss of 100-year floodplain storage volume in Hillsborough County. By 1995, the County shall protect and conserve natural wildlife habitat attributes where they exist within the 100-year floodplains of major rivers and streams.
CARE Policy 4.1 is for the County to amend its floodplain management regulations to "protect natural floodwater assimilating capacity [and] also protect fish and wildlife attributes where they exist within the 100-year floodplains of riverine systems."
CARE Objective 5 is for the County to ensure compliance with state groundwater standards.
CARE Policy 5.2 provides that, until the Southwest Florida Water Management District maps high aquifer recharge/contamination potential areas at a sufficient resolution, the County
shall consider the best available hydrogeological information (e.g. SWFWMD DRASTIC maps), and may require the collection of site specific hydrogeologic data, such as soils borings and differences in head between the upper aquifers, when assessing the impacts of proposed land use changes and developments in areas of suspected high aquifer recharge/contamination potential.
When required, this information shall be used in the determination of land use decisions, on a case-by-case basis.
CARE Policy 5.5 refers to the high resolution mapping of recharge/contamination areas, as well as a study that the County will request the Southwest Florida Water Management District to conduct as to the effect of impervious surfaces on recharge. The policy states that, within one year after these tasks are completed:
The County shall develop a comprehensive set of land use development regulations and performance standards for development activities proposed within areas of high aquifer recharge/contamination potential.
Such regulations and performance standards may include, but not be limited to, control of land use type and densities, impervious surface limitations, and discharge to groundwater controls.
CARE Policy 5.8 focuses on a wellfield protection program, which shall be "developed and implemented" by 1993. The task shall include the "determination and mapping of zones of contribution (also known as cones of influence) surrounding public wellfields and the adoption and implementation of a wellfield protection ordinance which protects these areas."
In the meantime, CARE Policy 5.8 requires the County to use the best available information to
identify these areas [cones of influence].
See map 18, Interim Wellfield Protection Areas for Public Water Supply Wells in Unincorporated Hillsborough County, Florida (Zones of Contribution Map). The County shall also adopt and implement an interim ordinance which sets forth a procedure, using the best available information, for reviewing development proposals which might adversely impact the zones of contribution surrounding public wellfields.
CARE Policy 5.9 states:
Through the land development review process, the County shall continue to regulate activities which would breach the confining layers of the Floridan aquifer by prohibiting land excavations that would breach the confining layers.
CARE Policy 5.11 is identical to CARE Policy 2.7 except that CARE Policy 5.11 deals with groundwater pollution, rather than surface water pollution, and CARE Policy 5.11 provides that the County shall request the development of special septic-tank siting criteria and standards for areas of "demonstrated high recharge/contamination potential."
CARE Policy 5.13 is for the County to "increase requested assistance" from the Southwest Florida Water Management District to ensure that excessive consumptive use of groundwater or excessive drainage does not "significantly lower water tables or surface water levels, reduce base flows, or increase current levels of saltwater intrusion."
CARE Policy 5.15 prohibits the County from supporting the use of deep-well injection of effluent or waste disposal "except where it can be
demonstrated that the capacity for receiving injection is sufficiently large and that such disposal will have no adverse effect upon existing or potential potable water aquifers."
CARE Objective 6 is for the County to meet future water needs through the "conservation, reuse, and enhancement of groundwater and surface water supplies, and shall prevent significant environmental degradation due to excessive groundwater withdrawals."
CARE Policy 6.1 is for the County to request that the Southwest Florida Water Management District and WCRWSA develop a regional water budget to calculate more accurately water supplies and demands.
CARE Policy 6.2 is for the County, by 1992, to "adopt and implement a Water Reuse Ordinance which maximizes the use of treated sewage effluent for residential and recreational irrigation purposes, where such reuse can be demonstrated to be environmentally acceptable and no threat to public health."
CARE Policy 6.4 is:
The County shall require the use of the lowest quality water reasonably and feasibly available, which is safe for public health and the environment and suitable to a given use, in order to reduce the unnecessary use of potable water.
CARE Policy 6.8 is for the County, by 1992, to develop, in cooperation with the Southwest Florida Water Management District, a water conservation program, including enforcement of specific building code requirements for water saving devices. CARE Policy 6.9 is for the County, by 1992, to evaluate the implementation of a user fee rate for potable water in order to discourage nonessential uses of potable water.
CARE Policy 6.10 requires that the County, "through the land development review process, restrict the substantial lowering of the water table to meet stormwater treatment or storage requirements." CARE 6.11 requires that the County, "through the land development review process, . . . promote the use of xeriscape landscaping and low-volume irrigation "
CARE Policy 6.12 is for the County, by 1995, to develop legal and financial mechanisms "to purchase, to the extent reasonably feasible, development or mineral rights, easements and partial or complete title to lands necessary to safeguard the public water supply." Suggested mechanisms include the transfer of development rights and tax benefits.
CARE Policy 6.13 addresses groundwater recharge and stormwater management:
By 1992, a program to improve groundwater recharge through the use of private and public stormwater management facilities will be developed and implemented. This program may require, among other things, that predevelopment groundwater recharge volumes and rates be maintained on site after development, if the site is located in an area of known or identified average annual aquifer recharge potential of at least two surface inches of water; and will include restrictions on the lowering of groundwater levels to meet stormwater management regulations. In the interim, where practical, and where feasible from a water quality standpoint, new development will be encouraged to consider retention of stormwater rather than stormwater detention in these areas.
CARE Objective 7 is for the County to "continue to provide opportunity for and require the prudent operation of mining activities "
CARE Policy 7.1 requires "sequential land use" in mineral-rich areas. The CARE defines "sequential land use" as "[a] practice whereby lands overlaying valuable mineral resources are protected from intensive urban development until such minerals can be mined, and that land reclaimed for a viable economic use."
CARE Policy 7.2 requires the "phasing of mineral extraction to ensure that limited land areas are affected by excavation and settling ponds at one time and that reclamation occurs in the most effective manner."
CARE Policy 8.1 requires the County, by 1991, to "identify environmentally sensitive areas which are not capable of being effectively restored following mineral extraction."
CARE Policy 8.2 provides:
The County shall restrict mining in areas which are ecologically unsuitable for the extraction of minerals, as identified in the natural systems and land use cover inventory, unless it can be demonstrated that such areas can be effectively restored utilizing the best available technology.
CARE Policy 8.3 states:
The County shall continue to prohibit mineral extraction within the 25-year floodplain, and shall restrict mining activities in the 100- year floodplain, of rivers and streams.
CARE Policy 8.4 is:
By 1992, the County shall prohibit mineral extraction in essential wildlife habitats which are documented, in accordance with the terms of Objective 14 and related policies thereunder, to support threatened or endangered species, or species of special concern, and from which such species cannot be effectively relocated.
CARE Policies 8.5 and 8.6 require the use of the best available technology in restoring natural land forms and vegetative communities and minimizing natural resource impacts. CARE Policy 8.8 provides that the County shall continue to require proof of "long-term financial responsibility for the reclamation of mined lands."
CARE Objective 9 requires the County to "protect the public health, safety and welfare from the adverse impacts of mining activities." CARE Policy
9.1 is for the continued requirement of "appropriate setbacks" between mining and adjacent land uses.
CARE Objective 10 is for the County to "continue to regulate the location and operation of land excavation to minimize negative impacts on surrounding properties, ensure that land excavations are appropriately reclaimed, and encourage the productive reuse of such areas."
CARE Policy 10.1 is for the County to "continue to prohibit land excavation activities which adversely impact surface or groundwater levels on surrounding property." CARE Policy 10.2 states that the County "shall require reclamation and reuse plans to ensure environmentally acceptable and economically viable reuses of land excavations." CARE Policy 10.3 demands that the County, by 1993, require the "preparation of wetland/lake management plans for the reclamation of land excavation projects to be reclaimed as lakes to ensure that such areas become viable and productive aquatic systems."
CARE Policy 10.4 is for the County to "encourage" recreational development of reclaimed land excavations. CARE Policy 10.6 states that the County shall require setbacks between land excavations and adjacent land uses to protect the public health, safety, and welfare. CARE Policy 10.7 provides that,
by 1992, the County shall prohibit land excavations in "essential wildlife habitats documented in accordance with the provisions of Objective 14 as supporting endangered, threatened, [or special- concern] species and from which such species cannot be effectively relocated."
CARE Objective 11 is that the County shall "continue to require soil conservation and protection during land alteration and development activities."
CARE Policy 11.1 provides that, during the land development review process, the County shall "recommend" the appropriate use of soils and shall require site-specific analyses when the use appears to be incompatible with the soils.
CARE Policy 11.3 states that, during the land development review process, the County shall "continue to evaluate and utilize, where appropriate, soil capability analyses for flood hazard, stability, permeability, and other relevant soil characteristics when permitting new development."
CARE Objective 14 is for the County to "protect significant wildlife habitat, and . . . prevent any further net loss of essential wildlife habitat .
. .." CARE Policy 14.1 promises the initiation of the development and implementation of a wildlife and wildlife habitat protection and management program. CARE Policy 14.3 requires the County, by 1993, in consultation with the Florida Game and Freshwater Fish Commission, to "identify and map areas of essential wildlife habitat."
CARE Policy 14.5 compels the County, by 1991, to develop and implement a program to "conserve and protect significant wildlife habitat from development activities." The program may include transfers of development rights, clustering and setback requirements, conservation easements, leaseback operations, fee simple purchases, land or mitigation banking, and tax incentives.
CARE Policy 14.6 states:
By 1992, the County shall restrict development activities which adversely affect areas identified and mapped as essential wildlife habitat. Where development activities are proposed in such areas the County may require site-specific wildlife surveys and other field documentation, as needed, to assess potential impacts.
CARE Policy 14.7 provides:
During the land use planning and development review processes, the County shall consider the effects of development on significant wildlife habitat, to protect wildlife corridors from fragmentation. Where necessary to prevent fragmentation of wildlife corridors, the County shall require the preservation of wildlife corridors within developments.
CARE Objective 15 states:
Populations of threatened or endangered species and species of special concern occurring within Hillsborough County shall be maintained. Where feasible and appropriate, the abundance and distribution of populations of such species shall be increased.
CARE Policy 15.1 is for the County, by 1991, to consult with and consider the recommendations of the Florida Game and Freshwater Fish Commission in determining whether to issue development orders and, if so, what conditions to impose where development would impact endangered, threatened, or special- concern species. Conditions "shall ensure the maintenance and, where environmentally and economically feasible, increase the abundance and distribution of populations of such species."
CARE Objective 16 is to "continue existing programs to minimize the spread of exotic nuisance species" and implement management plans for newly acquired natural preserve lands to reduce by 90% the extent of exotic nuisance plants. The objective requires the County to "conserve and use and continue to require the conservation and use of native plant species in the developed landscape." The objective adds that the County shall "continue to protect Conservation and Preservation Areas."
CARE Policy 16.2 is for the County to "continue to require the use of native plant species in the landscaping of new development projects." Respectively addressing Conservation and Preservation Areas, CARE Policies 16.5 and 16.6 provide that, "except in cases of overriding public interest," the County shall, in the land use planning and development review processes, "protect [Conservation/Preservation] Areas from activities that would significantly damage the natural integrity, character, or ecological balance of said areas."
CARE Objective 17 states:
By 1995, the acreage of publicly owned or otherwise protected (through private ownership) natural preserve lands in the County shall be increased by at least 15,000 acres (which is approximately 50% more than 1988 acreage). The County shall seek to continue increasing the acreage of natural preserve lands and to ensure their protection and proper use.
CARE Policy 17.1 is for the County, by 1990, to seek public approval by referendum to continue to levy an ad valorem tax for the acquisition of environmentally sensitive lands. CARE Policy 17.6 requires the County to provide multiple-use opportunities for County-owned natural reserve lands so as to protect and conserve natural resources. CARE Policy 17.8 requires the County, during the land use planning and development review processes, to "restrict incompatible development activities adjacent to publicly owned or managed natural preserves."
CARE Objective 18 provides:
The County shall seek to measurably improve the management of all natural preserves within County boundaries by implementing the following policies[.]
CARE Policy 18.2 is for the County to initiate with the Florida Department of Natural Resources an agreement "to ensure that the Cockroach Bay Aquatic Preserve is maintained in its essentially natural condition and protected from development that would adversely affect the environmental integrity of the Preserve."
CARE Policy 18.3 is for the County to "establish a scientifically defensible protective buffer zone between the Cockroach Bay Aquatic Preserve and adjacent upland land uses to prevent degradation of water quality and aquatic vegetative habitats." CARE Policy 18.8 requires the County to "participate" with the Florida Department of Natural Resources to "fully implement the Cockroach Bay Aquatic Preserve Management Plan "
CARE Objective 19 states:
The County shall continue to amend land development regulations which ensure the protection of the attributes, functions and amenities of the natural environment under all projected growth scenarios.
CARE Policy 19.1 is for the County, by 1991, to initiate agreements with the Southwest Florida Water Management District or appropriate university to
scientifically determine environmentally safe construction setback and buffer distances from wetlands, floodplains and water bodies (e.g. SJRWMD Wekiva River study). Within one year after completion of this study, the County shall use the results of the study to amend the County's Land Alteration and Landscaping Ordinance and Zoning Code, if such setbacks and buffer distances are determined to be warranted by the study.
Until such study is completed and used to amend County ordinances, all current setbacks shall remain in effect.
CARE Policy 19.2 states:
By 1992, the County shall develop a comprehensive program, which may include tax incentives and transfer of development rights, to encourage the clustering of development away from environmentally sensitive areas, essential wildlife habitat or economically important agricultural or mineral resources.
CARE Policy 19.3 provides:
During the development review process, the County shall promote the preservation of representative examples of upland native plant communities by encouraging the use of the upland forest density credit incentive provision of the [FLUE].
CARE Policy 19.4 states that the County will consider developing a review process to provide incentives for planned unit developments that provide environmental benefits beyond what are required by law.
CARE Policy 19.5 provides that the County will review its land development regulations to "better address the cumulative impact [of development] on the environment."
CARE Policy 19.6 is:
The County shall continue to encourage infilling and growth within identified and environmentally acceptable "activity centers," and shall discourage urban sprawl.
CARE Policy 19.7 is for the County, in cooperation with the Southwest Florida Water Management District, to
consider adopting appropriate modifications to current land development regulations which will reduce the removal of natural upland vegetation caused by site filling and will maintain natural drainage patterns and water table levels, where feasible.
CARE Policy 19.8 states:
The County shall identify Resource Protection Areas on the Future Land Use Map series.
Specific policy directives which provide for special protective measures for all Resource Protection Areas, except Lake Thonotosassa, are located in one or more of the following elements: [CARE], Coastal . . ., and [FLUE]. See the definition of Resource Protection areas for both general and specific policy references. Policies which provide for special protective measures specially for Lake Thonotosassa shall be developed and included in the [Plan] after completion and approval of the Surface Water Improvement and Management Plan for Lake Thonotosassa by the Southwest Florida Water Management District.
The CARE defines "Resource Protection Areas" as:
Land or water bodies which are ecologically or economically significant natural resources for which special protective measures have been, or need to be established. Resource Protection Areas include the following [in each case, general citations to applicable elements of the Plan have been omitted]:
--Hillsborough River and major tributaries;
--Alafia River and major tributaries;
--Little Manatee River and major tributaries;
--Tampa Bay and associated tidal wetlands;
--Cockroach Bay Aquatic Preserve;
--Lake Thonotosassa;
--Significant and essential wildlife habitat;
--Areas of high aquifer recharge/ contamination potential;
--Public potable water wellfields and their cones of influence;
--Areas of major phosphate deposits.
CARE, pages 99-100.
Goal A of the Stormwater Element is to "[m]inimize the hazards of flooding attributable to stormwater runoff."
Stormwater Element Objective 1 is to "[e]valuate the storage and discharge characteristics of existing stormwater conveyance, detention and retention systems, and identify existing and potential future flooding concerns." Stormwater Element Policy 1.1 is to complete, by 1996, a comprehensive stormwater management master plan.
Stormwater Element Objective 2 is to "[d]evelop and implement programs to control flooding attributable to, and to maximize the usefulness of, stormwater runoff." Stormwater Element Policy 2.8 states:
Total flood volume compensation will continue to be required for new developments which encroach into and displace 100-year flood storage or floodplain areas. Further, by [fiscal year 19]91, a program to control encroachment within 100-year flood conveyance areas will be developed and implemented.
Stormwater Element Policy 2.10 provides that, by 1992, the County shall develop and implement a program to "improve groundwater recharge through the use of private and public stormwater management facilities." Stormwater Element Policy 2.11 states that new development will
continue to be encouraged, through application of existing local regulations, to maintain, with minimal disturbance to natural characteristics, those streams, lakes
wetlands, and estuaries for which stormwater conveyance and/or attenuation potential is significant.
Stormwater Element Policy 2.15 provides:
The use of detention facilities will be the preferred alternative to improving conveyance to alleviate flooding problems, where physically and environmentally practical and economically feasible. All flood control projects will seek to minimize, to the greatest extent practicable, impacts to wetland habitat, water quality and groundwater recharge functions. Where impacts are unavoidable, the projects will include measures to compensate for these lost functions.
Goal B of the Stormwater Element is to "[m]inimize the degradation of water quality attributed to stormwater runoff."
Stormwater Element Objective 4 is to "[i]dentify and evaluate the sources of water quality degradation which are related to stormwater runoff." Stormwater Element Objective 5 is to "[i]mplement programs that will maintain or improve the quality of stormwater runoff." Stormwater Element Policy 5.1 is to develop and begin to implement, by 1995, a program "to improve, "where economically feasible, the problem areas identified" in stormwater data- collection projects. The County will then require the use of Best Management Practices for "minimizing contributions of poor quality stormwater runoff to both groundwater and surface water bodies."
Stormwater Element Policy 5.5 provides for the use of wetlands for stormwater treatment when effective pretreatment can ensure that the use of the wetlands will maintain or restore their long-term natural viability. Stormwater Element Policy 5.6 states that new stormwater management facilities may not discharge untreated stormwater runoff into the Floridan aquifer and that existing facilities that do so discharge into the Floridan aquifer will be modified where "economically feasible and physically practical."
The goal of the Sewer Element is to "[p]rotect the [public] health, safety and welfare" and "protect and conserve the natural resources of Hillsborough County."
Sewer Element Policy 1.1 is:
Wastewater treatment facilities, prior to discharging to surface waters or natural wetlands, shall meet Advanced Wastewater Treatment standards.
"Advanced Waste Treatment" is defined in the Sewer Element as "defined in Chapter 403.086, Florida Statutes or as amended in the future." Sewer Element, page 26.
Sewer Element Policy 1.2 requires that "[w]astewater treatment facilities, prior to discharging to a managed artificial wetland or an irrigation system, shall meet or exceed Advanced Secondary Treatment Standards." "Advanced Secondary Treatment Standards" are defined as "[s]econdary waste treatment plus deep-bed dual media filtration."
Sewer Element Objective 2 is to "[p]rotect and conserve the potable water resources, both groundwater and surface water, of Hillsborough County and continue to utilize and expand, where viable, existing recovered water reuse systems."
Sewer Element Policy 2.1 requires later phases of developments with recovered water systems to use such systems. Sewer Element Policy 2.3 requires that, by 1992, the County implement by ordinance "mandatory recovered water reuse."
Sewer Element Objective 7 is to "[m]inimize the possibility of existing and future sources of wastewater adversely impacting groundwater, surface waters and quality of life." Sewer Element Policy 7.1 is to "[c]ontinue to require that septic tank systems connect to the County system where a County system is available unless undue hardship is proven."
Sewer Element Policy 7.2 is to "re-examine the maximum allowable density for septic tank systems within various areas of Hillsborough County" not later than one year following completion of a study presently underway pursuant to the Water Quality Assurance Act of 1983. In the same timeframe, Sewer Element Policy 7.3 requires that the County develop a "program to identify existing septic tank systems . . . that have a high potential for contaminating groundwater or the aquifer."
The first goal of the FLUE is to:
Ensure that the character and location of land uses optimizes the combined potentials for economic benefit and the enjoyment and the protection of natural resources while minimizing the threat to health, safety and welfare posed by hazards, nuisances, incompatible land uses, and environmental degradation.
FLUE Objective A-1 is:
Development orders shall not be issued unless development is compatible with the physical conditions of the land, including, but not limited to, topographical and soil conditions, and development mitigates those adverse impacts that it creates upon the physical conditions of the land that may affect the health, safety and/or welfare of the people who live and work within those particular areas.
FLUE Policy A-1.2 states that "[s]oil capability analyses for flood hazards, stability, permeability and other relevant soil characteristics shall be considered when planning for new development." FLUE Policy A-1.3 adds: "Development shall be prohibited in areas where the on-site sewage disposal facilities would be located on soils unsuitable for such uses, unless the soils on the site can be altered to meet state and local environmental land use regulations."
FLUE Policy A-1.4 provides that development within areas designated as "volume or peak sensitive" shall be subject to "higher performance standards to mitigate stormwater runoff." The Plan defines "Peak Sensitive Lands" as "[l]and that is prone to flooding because the outfall is inadequate to handle the water flow." FLUE, page 142. The Plan defines "Volume Sensitive Lands" as:
Lands that drain into areas that do not have a positive outfall. Positive outfall is the condition when the natural or man-made stormwater conveyance system that drains the land is functioning adequately. This includes man-made swales, waterways or other means of conveyance systems. This does not include sheet flow.
FLUE, page 147.
FLUE Policy A-1.5 requires: "All development within the 100 year floodplain shall be in strict conformance with all development regulations that have jurisdiction development regulations."
Certain future land use designations bear directly upon the natural resources of the County. Other future land use designations, although affecting natural resources, will be addressed in the following sections concerning urban sprawl and the coastal high hazard area.
Three designations are especially important in protecting natural resources. They are Natural Preservation, Environmentally Sensitive Areas, and Major Recreation and Open Space.
The Natural Preservation designation is
used to designate major publicly owned or managed lands for primarily conservation purposes. Typically, these lands are environmentally unique, irreplaceable or valued ecological resources. Some of these lands may be suitable for compatible recreational use.
FLUE, page 142.
The Land Use Plan Categories section of the FLUE describes the intent of the Natural Preservation designation as follows:
To recognize public lands of significant environmental importance set aside for primarily conservation purposes. No residential is permitted except for county
facilities determined necessary to serve as a caretaker of the recreational or environmental property. All other development is prohibited in these areas except for compatible recreational development. Educational uses shall be limited to those which utilize the natural amenities found on the site, i.e., the study of flora [or] fauna . . ..
FLUE, page 125.
FLUE Policy A-3.1 promises that the County will study the possibility of adopting land development regulations providing for a transfer of development rights from land that is under consideration for Natural Preservation designation, as well as land under a Rural designation that is in long-term agricultural use.
FLUE Policy A-3.2 prohibits, in Natural Preservation designations, any "new development [or] expansion [or] replacement of existing development[,] unless development is undertaken by federal, State or local government in the public interest, and the impacts are mitigated."
The Environmentally Sensitive Areas designation has been discussed at length in the preceding section. The Land Use Plan Categories section of the FLUE describes the intent of the Environmentally Sensitive Areas designation as follows:
To designate those privately owned lands that are environmentally sensitive and classified as Conservation or Preservation Areas as defined in the [CARE]. Development in these areas may be restricted by federal, state, and/or local environmental regulations.
Development projects will be evaluated for compliance with the [CARE] and Coastal [Element]. The use of Environmentally Sensitive Areas for residential density credits is described in the [FLUE]. The Environmentally Sensitive Area designations on the Land Use Plan Map are very generalized and may not be exhaustive of all sites. On- site evaluation will be necessary for specific project review.
FLUE, page 126.
The Major Recreation and Open Space designation is used to designate, geographically on the
Future Land Use Plan Map and/or textually in the [FLUE], those major existing park, recreation, and/or open space facilities available for public use, including those which may be privately owned, and for which the primary purpose is not conservation. This land use category is not intended for use in
designating those lands used for calculating densities for residential projects as described in the "Density Credits" provision in the "Implementation Section["] of the [FLUE] or in designating those similarly used lands that are accessory to non-residential projects. This future land use plan classification is subject to the Goals, Objectives and Policies and the exceptions and provisions of the [FLUE], each of the other elements in the [Plan], and to all applicable development regulations.
FLUE, page 143.
The Land Use Plan Categories section of the FLUE describes the intent of the Recreation and Open Space designation as follows:
To designate major existing parks and recreational facilities (regional, district, or community level), for which the primary purpose is not conservation. A more complete mapping of existing and proposed or needed parks is a function of the Recreation and Open Space Element. No residential is permitted except for county facilities determined necessary to serve as an employee serving the function of a caretaker of the property.
FLUE, page 123.
FLUE Policy A-3.4 states that "[r]ecreational development must be compatible with and sensitive to the surrounding natural systems."
Numerous provisions in the FLUE address natural resources, without referring to the Natural Preservation, Environmentally Sensitive Areas, and Major Recreation and Open Space designations.
FLUE Objective A-8 provides:
Development must mitigate the adverse impacts upon the natural, environmental systems as described and required within the [CARE] and [Coastal Element].
FLUE Policy A-8.1 states: "The natural environment shall be protected, in part, by encouraging future population growth into existing urbanized areas." FLUE Policies A-8.2, A- 8.3, and A-8.4, which have been discussed above, provide for the protection of Conservation and Preservation Areas and describe the upland forest density credit incentive and density formulas regarding Environmentally Sensitive Areas.
FLUE Policies A-8.5 and A-8.6 promise protection, "by a system of performance standards" left undefined in the Plan, for areas with "high potential for groundwater contamination" and "high aquifer recharge," respectively.
FLUE Policy A-8.8 is to
[r]equire that the littoral zones and photic zones of man-made stormwater management systems be designed to provide physical and chemical filtration of stormwater consistent with adopted levels in the [Plan] and subsequently adopted development regulations, [as well as] provide for wildlife habitat (primarily wading birds).
FLUE Policy A-8.9 offers the use of publicly owned land designated as Major Public/Semi-Public for "appropriate multiple uses, such as parks, stormwater management systems and preservation of natural habitats."
FLUE Policy A-8.10 is to "[e]ncourage the use of pervious pavement" through land development regulations.
FLUE Policy A-8.11 requires the County to identify, during the rezoning process, any land that has been identified for possible acquisition by the Environmental Land Acquisition and Protection Program.
FLUE Policy A-8.12 states the County "shall protect significant wildlife habitat." FLUE Policy A-8.13 provides that the County will "[p]reserve wetlands by discouraging the use of mitigation, dredge and fill and similar development activities by revising the development regulations to strictly limit such practices."
FLUE Objective B-9 is to "[p]rotect environmentally sensitive areas from degradation or damage from agricultural activities by establishing regulatory activities."
FLUE Policy B-9.2 is to "[e]stablish protective controls, which could include animal 'density' limits[,] on those grazing lands having environmentally sensitive areas subject to damage or degradation from over-grazing by pre- identified grazing species."
FLUE Objective B-10 is to "[p]rotect the water supply needed by agriculture through regulatory mechanisms."
FLUE Policy B-10.1 is to "[r]equire adoption or conversion to water conservation techniques that are beneficial for aquifer recharge and the maintenance of near normal water tables." FLUE Policy B-10.2 is to establish a phased-in program of water conservation.
Addressing the County's rivers, the second goal of the FLUE, which appears at the beginning of the River Resources section, is:
To make the rivers of Hillsborough County cleaner, safer and more attractive, protect the natural functions and wildlife habitats in the river corridors and promote the economic and recreational benefits provided by these water bodies.
FLUE Objective C-1 is, by 1995, to "maintain or improve the quality of water in [County] rivers where the water quality does not meet or exceed state water quality standards for [their] designated use."
FLUE Policy C-1.1 states:
The developer of any project along the rivers shall provide stormwater management systems which filter out pollutants before the stormwater enters the rivers, in accordance with the Florida Department of Environmental Regulation and the Southwest Florida Water Management District rules including the exemption provisions of these rules. New drainage outfalls along the rivers shall be designed with stormwater treatment facilities rather than discharging stormwater directly into the rivers. Where environmentally feasible, the stormwater discharge from a detention pond shall flow into the rivers through a vegetated swale.
FLUE Policy C-1.2 "[p]rohibit[s] discharges of raw sewage to the rivers and tributaries." FLUE Policy C-1.3 "[p]rohibit[s] any solid waste landfills and hazardous material facilities in unincorporated Hillsborough County that may adversely affect the rivers and tributaries."
FLUE Objective C-2 is:
By 1990, the County will require the preservation of natural shorelines and reverse the trend toward hardened shores and channelization. . . .
FLUE Policy C-2.1 states: "Shore alteration which would harden riverbanks shall be prohibited, except in cases of overriding public interest." FLUE Policy C-2.2 requires the improvement of publicly owned or controlled lands by the "restoration of vegetated riverbanks." FLUE Policy C-2.3 requires the conservation and preservation of natural riverbanks and natural levees, except in cases of overriding public interest.
FLUE Objective C-4 provides that, by 1992, the County will "establish standards for development in river corridors." FLUE Policy C-4.1 prohibits the construction of new overhead utilities within 250 feet of the rivers unless underground placement is environmentally or technically unsound.
FLUE Objective C-5 provides that, by 1991, the County will "require the preservation and enhancement of wildlife habitats and archaeological resources." FLUE Policy C-5.4 requires the County to "restrict development activities in the river corridors which would adversely affect significant and essential wildlife habitat, in accordance with the terms of Objective 14 and related policies thereunder of the [CARE]."
FLUE Policy C-6.1 prohibits the removal, within 100 feet of the rivers, of healthy, native trees of five inches diameter at breast height unless "reasonable property utilization is not possible without tree removal or in cases of overriding public interest."
The third, fourth, and fifth goals in the FLUE pertain to the Hillsborough, Alafia, and Little Manatee Rivers, respectively.
The third goal in the FLUE is "[t]o make the Hillsborough River cleaner, safer and more attractive."
FLUE Objective C-7 is, by 1995, to "improve the quality of water in the river where it does not meet or exceed state water quality standards for its designated use, and protect this major source of drinking water."
FLUE Policy C-7.2 states:
The construction, reconstruction, extension, or alteration of any privy, cesspool, septic tank, drain field, or other sewage disposal device within . . . 200 feet, measured from the mean annual flood line, of the Hillsborough River and its tributaries from the Pasco County line, to the city limits of the City of Tampa, shall be prohibited. This policy shall not prohibit recommended maintenance of existing septic systems if no alternative means of sewerage treatment is available.
FLUE Policy C-7.3 is to "[p]revent further destruction of desirable natural vegetative buffers along the Hillsborough River and its tributaries."
FLUE Policy C-7.4 is to:
Prevent potential contamination by effluent disposal from a wastewater treatment plant within the drainage basin by requiring advanced treatment and viral reduction of all sewage in the drainage basin which is part of an effluent disposal program.
FLUE Objective C-8 is, by 1990, to "reverse the trend toward hardened shores and channelization." FLUE Policy C-9.1 provides: "New marinas shall be prohibited on the upper Hillsborough River."
"To prevent riverbank erosion, protect wildlife habitat, and ensure public safety," FLUE Policy C-9.6 requires that the part of the Hillsborough River north of 56th Street be posted with "idle speed, no wake" signs.
FLUE Objective C-10 is, by 1992, to "establish standards for development in the river corridor." FLUE Policy C- 10.2 states: "No additional areas shall be designated with industrial land use plan categories within 500 feet of the river."
FLUE Policy C-10.3 requires the County to establish a new future land use designation or zoning classification to be known as "Riverfront." Land use guidelines that "should be addressed" in the new classification include performance standards precluding uses that pollute the river or eliminate visual access by the public, lowering densities for vacant private parcels along the
upper river, and prohibiting heavy activities such as parking lots, truck service roads, loading docks, warehouses, manufacturing plants, ship building and repair, and dredging equipment operators.
FLUE Objective C-11 is, by 1992, to "implement construction and placement standards for ramps, docks, and seawalls." FLUE Objective C-12 is, by 1994, to "manage the Hillsborough River as an important community asset and provide appropriate public access to this valuable natural amenity."
FLUE Objective C-13 is, by 1991, to "preserve and enhance wildlife habitats and preserve archaeological resources." FLUE Policy C-13.1 states: "Draining, clearing or filling wetlands, including hydric hammocks[,] shall be prohibited within 500 feet of the river."
FLUE Objective C-14 states:
By 1990, preserve the rural character of the Upper Hillsborough River by discouraging additional development except for those sites improved or developed that are dedicated to passive recreational pursuits within the river corridor. . . .
FLUE Policy C-14.1 states: "The upper Hillsborough River shall be managed as a wildlife habitat corridor to provide an area for wildlife passage." FLUE Policy C-14.3 prohibits in the upper Hillsborough River "additional boat docks and ramps," but not canoe launches. FLUE Policy C-14.4 prohibits, within
500 feet of the upper Hillsborough River and its tributaries, parking lots and service roads.
The fourth goal in the FLUE addresses the Alafia River. The goal is: "To preserve, protect and promote the Alafia River and its natural resources and recreational benefits."
FLUE Objective C-15 is:
By 1995, to maintain water quality, and improve water quality where it does not meet or exceed State water quality standards for its designated use, thereby protecting and improving the habitat for marine life. . . .
FLUE Objective C-16 is: "By 1991, preserve and restore natural vegetation, and wildlife habitats and preserve archaeological resources."
FLUE Policy C-16.1 states:
Draining, clearing or filling wetlands, including hydric hammocks, which comprise the riverine swamp system shall be prohibited within 500 feet of the river.
FLUE Policy C-16.2 provides:
Encourage the reclamation of mined lands along the Alafia River with native vegetation and encourage public acquisition for wildlife corridors, where appropriate.
FLUE Objective C-17 is, by 1991, to "protect terrestrial and marine wildlife and their habitats." FLUE Policy C-17.1 requires the County to post reduced speed signs in areas of known manatee habitation.
FLUE Objective C-18 is, by 1995, to "minimize river use conflict and mitigate public nuisances that adversely affect inhabitants along the river." FLUE Policy C-18.1 recognizes the river as important for canoeing as well as other recreational pursuits.
FLUE Objective C-19 is, by 1990, to "preserve the natural shoreline and prevent further channelization." FLUE Policy C-19.1 "[p]rohibit[s] backfilling of waterfront properties or extension of these lots through artificial means."
FLUE Objective C-20 is, by 1992, to "establish standards for development within the river corridor." FLUE Policy C-20.3 states:
Septic tank and drainfield installation shall be prohibited within 200 feet of the Alafia River and its tributaries except in such cases where the 200-foot criterion cannot be met because of lot size. In such cases, placement and construction of such facilities shall be in accordance with State law and
shall prevent adverse impact to water quality.
FLUE Policy C-20.4 states: "No additional heavy industrial land use designations shall be located within 500 feet of the river."
The fifth goal in the FLUE pertains to the Little Manatee River. The goal is: "To recognize and maintain this unique water resource which provides economic and recreational opportunities as well as vital wildlife habitat."
FLUE Objective C-21 states:
By 1995, water quality in each appropriate water classification found in the Little Manatee River will be maintained or improved where it does not meet or exceed state water quality standards for its designated use. ...
FLUE Policy C-21.1, which generally prohibits the installation of septic tanks within 200 feet of the Little Manatee River and its tributaries, is otherwise identical to FLUE Policy C-20.3, which applies to the Alafia River.
FLUE Objective C-22 is, by 1991, to "preserve wildlife habitats and archaeological resources."
FLUE Policy C-22.1 provides that the County shall "participate" with the Florida Department of Natural Resources to "fully implement the Cockroach Bay Aquatic Preserve Management Plan." FLUE Policy C-22.2 prohibits "[d]raining, clearing or filling wetlands, including hydric hammocks, . . . within 500 feet of the river."
FLUE Policy C-22.3 states that, until scientifically defensible setbacks and buffers are determined:
clearing or filling of natural plant communities within 50 feet of the Environmental Protection Commission wetland jurisdictional line or within 100 feet of the mean and ordinary high water line, whichever is greater, shall be restricted in urban and suburban land use categories.
FLUE Policy C-22.4 is to protect manatees by "posting reduced speed signs in areas of known manatee habitation."
FLUE Objective C-23 is, by 1990, to:
minimize urban encroachment upon the river bank by encouraging the establishment of a "green" river corridor. River corridor preservation can best be achieved through protection of the shoreline, and associated wetlands and uplands. . . .
FLUE Policy C-23.1 states: "No heavy industrial land use designations shall be located within 500 feet of the river." FLUE Policy C-23.2 provides: "The Little Manatee River shall be recognized as providing important wildlife habitat and managed as a corridor for wildlife passage."
FLUE Policy C-23.3 states: "The Little Manatee River shall be recognized as an important recreational resource." FLUE Policy C-23.4 adds:
Recreation facilities in the Little Manatee River corridor shall be designed to minimize impacts upon essential and significant wildlife habitat. This is to be achieved by encouraging passive river corridor use, such as hiking, picnicking, nature study, photography, fishing, and canoeing.
FLUE Policy C-23.5 prohibits parking lots and service roads within
500 feet of the Little Manatee River and its tributaries east of US 41.
FLUE Objective C-24 is, by 1990, to "develop additional policies and strategies addressing the uniqueness and proper protection and use of the Little Manatee River." FLUE Policy C-24.2 states: "Appropriate provisions from the Cockroach Bay Aquatic Preserve Management Plan shall be considered for incorporation as policies in this plan." Policy C-24.3 promises the evaluation of the need for establishing a new land use category or zoning overlay "to ensure proper protection and use of the Little Manatee River and associated natural resources."
FLUE Objective C-30 provides:
Regulations and performance standards shall be developed to ensure that water quality and quantity, environmentally sensitive areas, wildlife habitats, rivers and creeks are protected from degradation by development.
FLUE Policy C-30.2 states that the County "shall require the location and design of public roads and bridges within stream riverine corridors to minimize impacts adverse to wildlife habitats and vegetative communities."
FLUE Policy C-30.4 provides: Designate as River Corridor Overlay
Districts, riverine corridors within the Urban Level land use categories, which meet the following criteria in addition to the policies related to River Corridor Overlay Districts under the "River Resources" section within the [FLUE].
The qualifying criteria are that the water must be of Class III standards, the water body must provide "ecological benefits," most of the part of the water body proposed for designation must have a natural shore, and a 25 year floodplain map for the part of the water body proposed for designation must be available for public inspection.
FLUE Policy C-30.6 provides:
Restrict clearing or filling of natural plant communities within 50 feet of the Environmental Protection Commission wetland jurisdictional line of rivers and creeks designated as River Corridor Overlay Districts or within 100 feet of the mean and ordinary high water line of such rivers and creeks, whichever is greater. If no beneficial use of the property is possible without clearing or filling within this area, impose conditions which will mitigate the adverse impact of these activities on wildlife habitat, native vegetation and natural stormwater filtration systems.
FLUE Policy C-30.7 is to "[e]ncourage the use of stilted structures rather than fill to meet flood elevation construction requirements within the River Corridor Overlay District." FLUE Policy C-30.8 is to "[r]estrict hardened shores (seawalls) within the River Corridor Overlay district to areas threatened by severe erosion."
The Coastal Element addresses natural resources in the coastal area of the County. Coastal Element Policy 1.3 requires the County to reduce the need for interim wastewater treatment plants by planning for the construction of regional wastewater treatment facilities to serve areas designated for higher densities. Coastal Element Policy 1.4 provides that the County shall "continue to develop and use environmentally acceptable effluent disposal alternatives to surface water discharge to Tampa Bay and its tributaries, including but not limited to reuse for irrigation and industrial purposes."
Coastal Element Policy 1.7 states:
Where economically feasible, the County shall provide improved domestic wastewater treatment service to coastal areas where persistent water quality problems in Tampa Bay are clearly attributable to poorly functioning septic treatment systems.
Coastal Element Policy 1.11 provides:
By 1991, the County shall require that existing developments planned for expansion, modification or replacement in the coastal area provide or support stormwater treatment improvements within the affected drainage basin where treatment facilities are lacking. Where economically and environmentally feasible, the County shall require retrofitting of stormwater treatment facilities in urbanized coastal areas lacking such facilities.
Coastal Element Policy 1.12 states:
Where economically and environmentally feasible and consistent with the Surface Water Improvement Management Plan for Tampa Bay, the County shall consider dredging and removal of polluted estuarine sediments, and clean filling deep dredged areas, as a means of improving adjacent estuarine water quality.
2. Coastal High Hazard Area and Hazard Mitigation
The only FLUE provision addressing the coastal area and coastal hazards is FLUE Policy A-1.6, which promises:
Performance standards for new developments shall be established within coastal areas, as identified in the [Coastal Element], in order to protect the population in the coastal areas, and to minimize property damage in the event of a hurricane.
Capital Improvements Element (CIE) 1.D.2 provides that the levels of service for public facilities, as set forth in the CIE, are subject to overriding conditions and limitations contained in the Coastal Element.
In addition, CIE Objective 5 states: "The County shall protect the coastline and avoid loss of life and property in coastal areas by minimizing land development and public facilities in coastal areas. [Rule] 9J- 5.016(3)(b)2."
CIE Policy 5.A states: "Publicly funded infrastructure shall not be constructed within the coastal high hazard area unless the expenditure is for:
5.A.1: Restoration or enhancement of natural resources or public access;
5.A.2: Land application of treated effluent disposal (irrigation) on public and private open spaces;
5.A.3: Flood-proofing water and sanitary sewer facilities;
5.A.4: The development or improvement of public roads and bridges which are on the Hillsborough County Metropolitan Planning Organization long range plan or the facility will serve a crucial need by ameliorating the evacuation time of residents of the County;
5.A.5: Reconstruction of seawalls that are essential to the protection of only existing public facilities or infrastructure;
5.A.6: A public facility of overriding public concern as determined by the Hillsborough County Board of County Commissioners;
5.A.7: The retrofitting of stormwater management facilities for water quality enhancement of stormwater runoff; or 5.A.8: Port facilities.
Coastal Element Policy 6.1 defines the coastal high hazard area as the part of the County included in the Federal Emergency Management Agency V Zone and the area requiring evacuation during a Category 1 hurricane event. A Category 1 hurricane is characterized by winds of 74-95 miles per hour, which will cause damage primarily to foliage and unanchored mobile homes; storm surge 6-8 feet above normal; and inundation of low-lying coastal roads. Coastal Element, page 85.
Coastal Element Objective 6 is to:
Restrict development of residential population centers in the coastal high hazard area and require all development to meet standards established for the coastal area.
Coastal Element Policy 6.2 requires that "[n]ew development within the coastal high hazard area shall be subject to a formal site plan review process." The process shall require owner-supplied data as to the impact of the proposed development upon existing infrastructure in the coastal high hazard area, evacuation clearance times, and shelter space.
Coastal Element Policy 6.3 states that new development or "substantial expansions" of existing uses, except for government facilities, shall be approved through "a planned unit development process" if the development consists of commercial or industrial development on more than five acres of land or residential development exceeding the requirements of a "minor subdivision," as defined in the land development regulations. Policy 6.3 adds that developments within the coastal high hazard area and the I-75 corridor shall be subject to the more restrictive requirements.
Coastal Element Policy 6.5 prohibits the development of "manufactured home communities" in the coastal high hazard area unless they meet the standards of the Southern Standard Building Code.
Coastal Element Policy 6.6 is that, by 1994, the County shall, by land development regulations, require the underground installation of all utility lines in the coastal high hazard area.
Coastal Element Policy 6.7 is that, except for cases of "undue hardship," "[t]he use of septic tanks for new development shall be prohibited in the coastal high hazard area."
Coastal Element Objective 7 is to ensure the "orderly development and use" of the Port of Tampa by giving "priority to locating water-dependent and water-related land uses along the shoreline of the coastal area." Coastal Element Policy 7.1 provides that the County, by 1993, will amend the "Future Land Use Element and Map" to create a new future land use designation for "marine-related land uses." The designation will include criteria for siting water-dependent and water-related land uses. Coastal Element Policy 7.5 prohibits the development of new sites for heavy industrial uses along the shoreline of the coastal area unless the uses are "water-dependent or water- related or unless an overriding public interest is demonstrated."
Coastal Element Objective 10 is: "Limit public expenditures for infrastructure and facilities in the coastal high hazard area."
Coastal Element Policy 10.3 provides: "Wastewater treatment facilities shall not be constructed within the coastal high hazard area unless the expenditure meets the criteria of Policy 10.2." Coastal Element Policy 10.2 is the same as CIE Policy 5.A.
Coastal Element Policy 13.1 states: "Interim wastewater treatment plants shall not be permitted in the coastal high hazard area except where the County service will be available within five (5) years."
Coastal Element Policy 13.2 provides that the County will not assume jurisdiction for maintaining roadways in the coastal high hazard area unless the roadway is on the future Traffic Circulation Map.
Coastal Element Policy 13.3 states that, by the 1993 hurricane season, the County shall complete an inventory of existing infrastructure in the coastal high hazard area and develop a program to relocate or retrofit such facilities where feasible and as replacement becomes necessary.
Coastal Element Policy 13.4 is that the County "shall ensure" that future development and redevelopment within the coastal high hazard area is "consistent with coastal resource protection and will not increase clearance times along evacuation routes."
Coastal Element Policy 13.6 is that the County shall not approve any "new solid waste or hazardous waste management sites" in the coastal high hazard area.
Coastal Element Policy 12.2 is that the County, by the 1992 hurricane season:
shall prepare a post-disaster redevelopment plan which will address long-term development, repair, and redevelopment activities, and which will include measures to restrict and eliminate inappropriate and unsafe development in the coastal high hazard area.
Coastal Element Policy 12.5 provides that, by the 1992 hurricane season, the County "shall adopt a redevelopment decision-making matrix for deciding whether public infrastructure should be rebuilt, relocated, or structurally modified."
Coastal Element Objective 11 provides:
Through the year 2010 the County shall maintain the clearance times identified in the Tampa Bay Regional Planning Council 1988 Tampa Bay Regional Hurricane Study. Any proposed development shall not increase these clearance times.
Coastal Element Policy 11.2 adopts a level of service standard of 20 square feet per person for shelter space. Coastal Element Policy 11.5 states that, by 1991, the development review process shall consider the effect of a proposed development in the hurricane vulnerability zone, which includes the coastal high hazard area, on evacuation clearance times and the number of persons requiring shelter.
Coastal Element Policy 11.7 provides that each new mobile home park "not located" in the hurricane vulnerability zone shall include a building for use as a hurricane shelter.
3. Urban Sprawl
FLUE Policy A-2.1 states: "Development shall not exceed the densities and intensities established within the [Plan]." According to the Implementation section of the FLUE, "[i]t is the intent of the [FLUE] to permit the maximum densities allowed within each land use plan category." FLUE, page 55.
Many of the future land use categories of the Plan and their densities are set forth at Paragraph 219 above. The remaining categories and any permitted residential densities (expressed as dwelling units per gross acre)
are: Community Commercial (20:1); Commercial--Office (20:1); Regional Commercial (20:1); Electrical Power Generating Facility (1:5); Scenic Corridor Overlay; Research/Corporate Park; Light Industrial; Light Industrial-- Planned; Heavy Industrial; Natural Preservation; Major Recreation and Open Space; Major Public/Semi-Public; and Environmentally Sensitive Areas (uses described in preceding section).
The Land Use Plan section of the FLUE discusses each of the future land use designations in terms of service level, typical uses, density (applicable to residential uses only), maximum floor area (applicable to commercial, office, and industrial uses only), and intent of designation. The densities have been set forth above.
Six designations fall exclusively under the Rural service level. These are Agricultural/Mining, Agricultural, Agricultural/Rural, Rural Estate, Rural Residential, and Rural Residential Planned.
The typical uses of Agricultural/Mining include:
farms, ranches, feed lots, residential uses, rural scale neighborhood commercial uses, offices, industrial uses related to agricultural uses, and mining related activities. Non-residential uses shall meet established locational criteria for specific land use. Agricultural uses may be permitted pursuant to policies in the agricultural objective areas of the [FLUE].
FLUE, page 98.
The maximum floor area for Agricultural/Mining is:
Rural scale neighborhood commercial, office or industrial up to 40,000 sq. ft. or .25 FAR, 17/ whichever is less intense. Actual space footage limit is dependent on functional classification of roadway intersection where project is located.
FLUE, page 98.
The intent of Agricultural/Mining is:
To designate either those areas of long term agricultural character, or those areas currently involved in agricultural productivity, or other rural uses. This category will also permit residential, rural scale neighborhood commercial, office, and industrial uses in those areas meeting established locational criteria. As long as no subdivision of land is involved, group quarters, temporary housing, rehabilitation centers and residential uses for agricultural/rural related activities can be exempt from the density limitations subject
to the [FLUE] and applicable development regulations. In addition, mining activities and commercial and industrial uses directly related to or serving the local mining activities may be permitted in appropriate locations, in conformance with adopted [land development] regulations. Commercial and office above 5000 sq. ft.[,] multi-purpose projects and multi-use projects shall require a planned zoning district.
FLUE, page 98.
The typical uses, maximum floor area, and intent of Agricultural and Agricultural/Rural are the same as those stated for Agricultural/Mining. Densities are the main difference among the Agricultural/Mining (1:20), Agricultural (1:10), and Agricultural/Rural (1:5) designations.
In addition to allowing a density of 1:2.5, the Rural Estate category differs in other respects from the other categories classified as rural in terms of service level. Typical uses for Rural Estate add "multi-purpose projects" and omit "feed lots," "industrial uses related to agricultural uses," and "mining related activities." Maximum floor area substitutes "multi-purpose projects" for "industrial." The intent of Rural Estate is:
To designate areas that are best suited for agricultural development, usually defined as located on Short-Term Agricultural Lands, and for compatible rural residential uses. Other uses including rural scale neighborhood commercial, office and multi-purpose projects may be permitted when complying with the [FLUE] and applicable development regulations and conforming to established locational criteria for specific land use. Commercial and office above 5000 sq. ft., multi-purpose projects and multi-use projects shall require a planned zoning district.
FLUE, page 101.
The typical uses and intent of Rural/Residential and Rural/Residential Planned are the same as those stated for Rural Estate, except the Rural/Residential Planned also allows community commercial uses and clustered mixed use. A planned zoning district is required for the Rural/Residential Planned designation if the proposed commercial or office use is over 3000 square feet.
The densities are different among the three designations. The Rural/Residential allows 1:1. Rural/Residential Planned allows the same density if the project is a Planned Village Concept on at least 160 acres; otherwise, the allowable density is 1:5. The maximum density for Rural/Residential Planned is allowable only if clustering and mixed uses are proposed.
The concepts of mixed use and clustering specified for the Rural/Residential Planned are explained as follows:
Mixed use . . . must demonstrate integration, scale, diversity and internal relationships of uses on site as well as provide shopping and job opportunities, significant internal trip capture and appropriately scaled residential uses. Land development regulations shall specify the thresholds for shopping, job creation and trip capture rates for developments appropriate to the scale of the project. Clustering . . . will be demonstrated through higher than typical residential net densities. Land development regulations shall provide thresholds for net densities required relative to project size and location, and will be used to determine allowable gross density.
FLUE, page 103.
The Suburban service level contains two designations: Low Suburban Density Residential and Low Suburban Density Residential Planned.
The typical uses of Low Suburban Density Residential are:
Residential, suburban scale neighborhood commercial, office uses, and multi-purpose projects. Non-residential uses shall meet locational criteria for specific land use. Agricultural uses may be permitted pursuant to policies in the agricultural objective areas of the [FLUE].
FLUE, page 104. The typical uses of Low Suburban Density Residential Planned are the same except they include suburban scale community commercial and clustered mixed use projects.
The maximum floor area of Low Suburban Density Residential is: Suburban scale neighborhood commercial,
office, or multi-purpose projects limited to
110,000 sq. ft. or .25 FAR, whichever is less intense. Actual space footage limit is dependent on functional classification of roadway intersection where project is located.
FLUE, page 104.
The maximum floor area of Low Suburban Density Residential Planned is the same except the floor area ratio is .5, which governs certain mixed use projects:
Mixed use projects utilizing the Planned Village Concept are not limited by square footages but may develop up to .5 FAR. Square footages will be limited by the scale and relationship within the project. In addition, mixed use projects utilizing the Planned Village Concept shall not be limited by the locational criteria found elsewhere for neighborhood commercial uses. Mixed use projects shall demonstrate internal relationships and pedestrian integration among uses.
FLUE, page 105.
The intent of the Low Suburban Density Residential designation is:
To designate areas that are best suited for non-urban density residential development requiring a limited level of urban services, including in appropriate locations lots large enough to safely accommodate private wells and septic tanks or a combination of septic tanks and public water. Some areas, because of environmental or soil conditions, would be appropriate for only public water and sewer in this designation. In addition, suburban level neighborhood commercial, office and multi-purpose projects serving the non-urban areas may be permitted, subject to the Goals, Objectives, and Policies of the Land Use Element and applicable development regulations and conforming to established locational criteria for such land use.
Commercial and office uses above 3000 sq. ft. and all multi-purpose and mixed use projects shall require a planned zoning district.
FLUE, page 104.
The intent of the Low Suburban Density Residential Planned appears erroneous, as it repeats the intent of the Rural/Residential Planned designation, including "rural residential uses" and "rural scale" commercial uses. The intent of the Low Suburban Density Residential Planned should probably state: "non-urban density residential development requiring a limited level of urban services" and the "suburban scale" commercial uses, which is the intent of the Low Suburban Density Residential. The Implementation section of the FLUE probably should have stated the intent of the Low Suburban Density Residential Planned designation is the same as the intent of the Low Suburban Density Residential designation except to add "suburban level community commercial, clustered mixed use, and multi-purpose projects."
The densities for Low Suburban Density Residential and Low Suburban Density Residential Planned are both 2:1. However, this density is applicable to the Low Suburban Density Residential Planned only if the proposed project is a Planned Village Concept on at least 160 acres. Otherwise, the density for Low Suburban Density Residential Planned is 1:5. The Low Suburban Density Residential Planned density contains the same description of mixed use and clustering as is found in the Rural/Residential Planned designation.
There are 14 designations exclusively within the Urban service level. The two lowest densities, among categories that are predominantly residential, are Suburban Density Residential and Low Urban Density Residential, which are, respectively, 4:1 and 6:1. Each density contains the following condition:
This maximum residential density is provided only as a limit for application in situations which represent an ideal set of circumstances with regard to the compatibility of the proposed development with surrounding land uses, existing and/or approved, and with regard to the adequacy and availability of public facilities.
FLUE, pages 106 and 107.
The typical uses for Suburban Density Residential and Low Urban Density Residential are identical:
Residential, urban scale neighborhood commercial, office uses, multi-purpose and mixed use projects. Non-residential uses shall meet established locational criteria for specific land use. Agricultural uses may be permitted pursuant to policies in the agricultural objective areas of the [FLUE].
FLUE, pages 106 and 107.
Disregarding another apparent typographical error, 18/ the maximum floor area for each designation is identical:
Urban scale neighborhood commercial, office, multi-purpose or mixed use projects limited to 175,000 sq. ft. or .25 FAR, whichever is less intense. Actual square footage limitation is dependent on functional classification of roadway intersection where project is located.
FLUE, pages 106 and 107.
Disregarding two more likely typographical errors, 19/ the intent for each designation is also identical, except for the bracketed notation that applies only to Low Urban Density Residential:
To designate areas that are suitable for low density residential development. In addition, urban scale neighborhood commercial, office, multi-purpose and mixed use projects serving the area may be permitted subject to the Goals, Objectives, and Policies of the Land Use Element and applicable development regulations and conforming to established locational criteria for specific land use. Multi-purpose, mixed use projects and any development above 3.0 [5.0] dwelling units per gross acre on a site larger than 10 acres shall require a planned zoning district.
FLUE, pages 106 and 107.
The next three designations in the Urban service level are Low/Medium Density Urban Residential, Medium Density Urban Residential, and High Density Urban Residential, which provide densities, respectively, of 9:1, 12:1, and 20:1. 20/ Each density is subject to the condition quoted above for Suburban Density Residential and Low Urban Density Residential concerning ideally suited circumstances. Ignoring one typographical error in the case of the High Density Urban Residential designation, 21/ the typical uses for each of the three designations are also identical, except for a minor distinction in language, with those stated for Suburban Density Residential and Low Urban Density Residential.
The maximum floor areas for each of the three designations are identical to those stated for Suburban Density Residential and Low Urban Density Residential except that the floor area ratio for High Density Urban Residential is 0.75, not 0.25.
The intent of each of the three designations is the same as the intent of the Suburban Density Residential and Low Urban Density Residential designations with a minor change in language. The only differences are that the primary intent in each case is to designate an area suitable for the type of residential development suggested by the category's name, such as low-medium density. Also, a planned zoning district is required for each of the three designations if the proposed development is denser than 8:1 for Low/Medium Density Urban Residential, 10:1 for Medium Density Urban Residential, and 16:1 for High Density Urban Residential.
The last three designations exclusively within the Urban service classification that are projected to contain significant residential uses are Urban Levels 1, 2, and 3 with respective densities of 12:1, 20:1, and 50:1. Each density contains the following condition:
The maximum residential density is provided only as a limit for application in situations in which all Goals, Objectives, and Policies
and applicable development regulations are being complied with, especially those regarding compatibility of the proposed development with surrounding land uses, existing and/or approved, and with regard to the adequacy and availability of public facilities.
FLUE, pages 111, 112, and 113.
The typical uses for Urban Levels 1, 2, and 3 are identical:
Mixed use development. Agricultural uses may be permitted pursuant to policies in the agricultural objective areas of the [FLUE].
FLUE, pages 111, 112, and 113.
The maximum floor area ratios are 0.5, 1.0, and 2.5 for Urban Levels 1, 2, and 3, respectively.
The intent of the Urban Level 1 designation is:
The UL1 category may be located within three miles of I-75, bounded at the limits of the urban level category by existing or proposed arterial roads. This category of land use shall serve as a transitional area which emphasizes compatibility with adjacent plan categories. The UL1 area shall be more suburban in intensity and density of uses, with development occurring as the provision and timing of transportation and public facility services necessary to support
these intensities and densities become available. Commercial uses shall be clustered at arterial and collector intersections. Strip development with separate driveway access for commercial uses shall be prohibited. Rezonings shall be approved through a planned unit development rezoning process which requires, at a minimum, integrated site plans controlled through performance standards to achieve developments which are compatible with surrounding land use patterns and the Goals,
Objectives and Policies of the Land Use Plan.
FLUE, page 111.
The intent of the Urban Level 2 designation is:
The UL2 category shall be compatible with adjacent urban land use categories such as UL1, UL3, research corporate park, and medium density residential. The UL2 areas shall be urban in intensity and density of uses, with
development occurring as the provision and timing of transportation and public facility services necessary to support these intensities and densities are made available. Commercial uses shall be clustered at arterial and collector intersections. Strip development with separate driveway access
for nonresidential uses to arterials shall be prohibited. Rezonings shall be approved through a planned unit development rezoning process which requires, at a minimum, integrated site plans controlled through
performance standards to achieve developments which are compatible with surrounding land use patterns and the Goals, Objectives and Policies of the Land Use Plan.
FLUE, page 112.
The intent of the Urban Level 3 designation is:
The UL3 category shall form a regional activity center which incorporates internal road systems, building clustering and mixing of uses, with development occurring as the provision and timing of transportation and public facility services necessary to support these intensities and densities are made available. Commercial uses shall be clustered at arterial and collector intersections. Strip development with separate driveway access for nonresidential uses to arterials shall be prohibited. The UL3 category should be surrounded by other urban level plan categories and be located at high level transit lines. Rezonings shall be approved through a planned unit development rezoning process which requires, at a minimum, integrated site plans controlled through performance standards to achieve developments which are compatible with surrounding land use patterns and the Goals, Objectives and Policies of the Land Use Plan.
FLUE, page 113.
Three commercial designations in the Urban service classification that are not expected to contain substantial residential development are Community Commercial, Commercial Office, and Regional Commercial. Each of these designations carries a density of 20:1 and contains a condition similar to that contained in Urban Level 1, 2, and 3 regarding compatibility with surrounding land uses and availability of adequate public facilities.
The typical uses of Community Commercial are:
Sale of convenience goods and personal services, general merchandising, furniture, sales restaurants, bars, offices, hotels, motels, banks, theaters, auto sales, compatible residential uses, multi-purpose projects, and mixed use developments.
Agricultural uses may be permitted pursuant to policies in the agricultural objective of the [FLUE].
FLUE, page 114.
The maximum floor area of the Community Commercial is 300,000 square feet or .35 FAR, whichever is less intense.
The intent of Community Commercial is:
To designate areas typically located within low density residential, low-medium density residential, medium density residential and/ or high density residential land use categories in order to provide a variety of commercial and office uses to serve large areas and which are oriented to auto traffic. Neighborhood commercial and office activities will be allowed provided they meet the applicable development regulations. Due to potential intensity of activities, planned grouping [is] strongly encouraged. Compatible residential development up to 20.0 dwelling units per gross acre, multi-purpose projects, and mixed use developments may be permitted in this category in appropriate locations according to applicable development regulations.
FLUE, page 114.
The typical uses of Commercial Office are:
Community Commercial type uses, office uses, mixed use developments, and compatible residential uses. Agricultural uses may be permitted pursuant to policies in the agricultural objective areas of the [FLUE].
FLUE, page 115.
The maximum floor area of Commercial Office is:
General--0.75 FAR up to a maximum of 600,000 square feet, however, the commercial component cannot exceed 300,000 square feet, subject to applicable land development regulations.
FLUE, page 115.
The intent of Commercial Office is: "To recognize existing commercial and office centers and provide for future development opportunities." FLUE, page 115.
The typical uses of Regional Commercial are:
Shopping malls to include one or more major department stores. Community Commercial type uses, office uses, mixed use developments, and compatible residential uses. Agricultural uses may be permitted pursuant to policies in the agricultural objective areas of the [FLUE].
FLUE, page 116.
The maximum floor area of Regional Commercial is "1.0 FAR, subject to applicable land development regulations." FLUE, page 116. The intent of Regional Commercial is: "To recognize existing regional commercial centers and provide for future development opportunities." Id.
The three remaining designations exclusively in the Urban service level do not permit any residential uses. They are Research/Corporate Park, Light Industrial, and Light Industrial Planned.
The typical uses of Research/Corporate Park are:
Research and development activities, related educational facilities, electronic components production, light restricted manufacturing and warehousing, offices, corporate headquarters, and related uses such as hotels, motels, restaurants, recreational facilities, and rural scale retail establishments. Rural scale neighborhood commercial uses limited to 30,000 sq. ft. or 20% of the project's land area. Agricultural uses may be permitted pursuant to policies in the agricultural objective areas of the [FLUE].
FLUE, page 117.
The maximum floor area of Research/Corporate Park is "1.0 FAR."
The intent of Research/Corporate Park is:
To provide opportunity for research and high technology and similar manufacturing and light warehousing uses to serve Hillsborough County and the Tampa Bay region. Development in this category has integrated internal and external design requirements including heavy buffering and landscaping, high visibility
linear footage on arterials, interstates, and expressways, and locations adjacent to
employment markets. Research/Corporate Parks will be permitted to be developed throughout the county provided they meet the requirements of the Goals, Objectives, and Policies of the Land Use Element, and applicable development regulations. Proposed developments at locations not shown on the Land Use Plan Map may be considered through the Plan amendment process. Support neighborhood commercial uses may be permitted for up to 20% of the total land area. The development of the neighborhood commercial uses shall be integrated and appropriately scaled to other project uses. All development in this category shall require a planned zoning district.
FLUE, page 117.
The typical uses for Light Industrial and Light Industrial Planned
are:
Food products storage, furniture or apparel manufacturing (except plastics or fiberglass), packaging plants, wholesaling, storage of nonhazardous materials, offices, research/corporate parks as the predominant uses and subordinate uses or services such as hotels, motels, restaurants, rural scale retail establishments, and recreational facilities. Rural scale neighborhood commercial uses limited to 30,000 sq. ft.
Agricultural uses may be permitted pursuant to policies in the agricultural objective areas of the [FLUE].
FLUE, pages 118 and 119.
The maximum floor area of Light Industrial and Light Industrial Planned is ".5 FAR." FLUE, pages 118 and 119.
The intent of Light Industrial is:
This land use category is used to designate, geographically on the Land Use Plan Map and/ or textually in the Land Use Element, those areas in the County potentially suitable for industrial activities that create a minimal degree of impact to the surrounding environment, particularly in terms of non- objection[able] levels of noise, vibration, dust, and/or odor. Development in these areas is subject to the Goals, Objectives, and Policies and land use category descriptions related to industrial
activities. [Convenience] commercial uses shall be limited to same criteria of size and location as rural scale neighborhood commercial. Any industrial development
above a .4 FAR shall require a planned zoning district.
FLUE, page 118.
The intent of Light Industrial Planned restates the first sentence of the intent of the Light Industrial and adds:
This land use plan category will be used in high volume transportation corridors that have high visibility where impacts to adjacent development need to be minimized. The adjacent use compatibility issues are a major concern, and new development and substantial expansion of existing uses shall be approved through a planned unit development rezoning process which requires, at a minimum, integrated site plans controlled through performance standards to achieve developments which are compatible with surrounding land use patterns and the Goals, Objectives and Policies of the Land Use Plan.
FLUE, page 119.
The remaining seven designations are in a service level identified as "Urban or Rural." Two of them involve industrial uses. They are Heavy Industrial and Electric Power Generating Facility.
The Heavy Industrial designation allows no residential uses. The typical uses of Heavy Industrial are:
Phosphate and other chemical plants, plastics and fiberglass products processing, port related uses, storage of hazardous materials and liquids, offices, existing electric generating plants and expansions thereof,
and related uses such as hotels, motels, restaurants, establishments, recreational facilities and rural scale retail establishments. Rural scale neighborhood commercial uses limited to 30,000 sq. ft. maximum. Agricultural uses may be permitted pursuant to policies in the agricultural objective areas of the [FLUE].
FLUE, page 120.
The maximum floor area of Heavy Industrial is:
.5 FAR. FAR's not to be applied to processing, storage and other uses characterized by outdoor storage.
FLUE, page 120.
The intent of Heavy Industrial is the same as the intent of the Light Industrial except that, in the case of Heavy Industrial, the activities "may have objectionable accompanying effects such as noise, vibration, dust, and/or odor." FLUE, page 120.
The Electric Power Generating Facility designation allows a residential density of 1:5. The typical uses are: "All new Electrical Power Generating Facilities and related uses and all uses allowed in the Agricultural/Rural (A/R) land use plan classification." FLUE, page 121.
The maximum floor area of the Electrical Power Generating Facility
is:
0.5 FAR. FAR's not to be applied to processing, storage and other uses characterized by outdoor storage. Development permitted in this designation is subject to the Goals, Objectives and Policies of the [Plan], applicable development regulations and established locational criteria for specific land uses.
FLUE, page 121.
The intent of Electrical Power Generating Facility is:
This land use category is used to designate geographically on the Future Land Use Map and textually in the [FLUE] those areas that are potentially suitable for the construction and operation of future electric power generating facilities consistent with the infrastructure needs of the population and subject to the requirements of the [Plan] and all other Federal, State and Local Laws, policies and permits. The uses authorized in the Agricultural/Rural (A/R) land use plan category are also authorized. New development of uses associated with an electrical power generating facility shall be approved through a planned unit development rezoning process. An application to rezone land for an Electrical Power Generating Facility may only be filed after submission of an application to the State under the Power Plant Siting Act. If the Siting Board
denies the Siting, then the zoning shall revert to the underlying Zoning in existence at the time of application.
FLUE, page 121.
The five remaining designations are Major Public/Semi- Public, Major Recreation and Open Space, Scenic Corridor, Natural Preservation, and Environmentally Sensitive Areas.
The typical uses of Major Public/Semi-Public, which is intended to "recognize major existing and programmed public facilities," are "[m]ajor government-owned facilities and other public uses [and] semi-public uses generally available for public use, [such as] churches, hospitals, schools, clubs and utility and transportation facilities." However, "[t]he Land Use Plan Map only shows major existing facilities." FLUE, page 122.
The typical uses of Major Recreation and Open Space are "[m]ajor parks and recreational facilities which are publicly or privately owned and operated for recreational uses and are available to the public." However, the designation shows only "major existing parks and recreational facilities" as the Recreation and Open Space Element contains maps of "existing and proposed or needed parks." FLUE, page 123.
The intent of the Scenic Corridor is to create a designation "applied to road corridors . . . determined to have scenic qualities of local or countywide significance." FLUE, page 124. In addition to preserving or enhancing the aesthetic appearance of roads through buffering, landscaping, and control of nonresidential uses, the Scenic Corridor designation is intended to preserve or expand a
system of roadways that will begin to form a boulevard system to connect different communities within unincorporated Hillsborough County. The boulevard system will also form a system of connections between parks and recreational areas of the county.
FLUE, page 92.
The typical uses of Natural Preservation are "[o]pen space or passive nature parks." The intent of the designation is to "recognize public lands of significant environmental importance set aside for primarily conservation purposes." The Natural Preservation designation excludes other uses except residential sufficient for a caretaker, "compatible recreational development," and limited educational uses. FLUE, page 125.
FLUE Policy A-3.2 states:
No new development nor expansion nor replacement of existing development shall be permitted within areas designated on the Future Land Use Map as Natural Preservation Areas, unless development is undertaken by
federal, State or local government in the public interest, and the impacts are mitigated.
The Environmentally Sensitive Areas designation has been discussed above. 22/
The Implementation section of the FLUE describes the locational criteria and development standards for Rural-, Suburban-, and Urban-scale neighborhood commercial uses, which may be approved in various land use categories. Different development standards also apply for community commercial uses.
The development standards for neighborhood commercial uses require, among other things, a location within a commercial node at the intersection of least one collector or higher planned roadway and maximum square footage based on a matrix focusing on land use designation and roadway classification. FLUE, pages 75- 76. Additional requirements are imposed based on whether the use is Urban-, Suburban-, or Rural-scale.
The relationship of the land use categories to the FLUM is explained in the Implementation section:
The land use plan categories shown on the Future Land Use Map are named according to their predominant land use or maximum level of intensity intended for that category of land use. Other uses may be permitted in any land use category as described within the individual plan category descriptions. Specific locations for other such uses are not shown graphically because to do so would predetermine locations of individual uses, particularly neighborhood-related uses, at a level of detail beyond the scope of the Future Land Use Map. All uses shall be reviewed for conformance with all applicable provisions contained within the [Plan] and with applicable development regulations.
FLUE, page 55.
Various policies pertain to designated densities in the Plan and FLUM. FLUE Policy A-3.3 states: "Gradual transitions of intensities and between different land uses shall be encouraged." FLUE Policy A-3.1 provides in part: "Land development regulations shall be studied to determine whether to include provisions for the transfer of development rights which ... provide for the transfer of development rights to receiving zones where infill is indicated."
The Implementation section of the FLUE provides a density credit for certain in-fill development. FLUE, page 69. The Implementation section also contains various density and intensity bonuses for the development of affordable housing. FLUE, pages 73a-73b. FLUE Policy B-3.6 pursues infilling by treating as a single dwelling unit "an accessory residential unit associated with an owner occupied single family residence."
Several provisions in the FLUE concern the provision of public facilities. FLUE Objective A-5 is:
All new development and redevelopment shall be serviced with potable water, sewerage, stormwater management facilities, solid waste disposal and parks that meet or exceed the adopted levels of service established by Hillsborough County.
FLUE Policy A-5.2 establishes the concurrency requirement as follows:
The public facilities that are needed to serve future development shall be provided
by the applicant seeking a development permit and/or the County, in a timely manner that is concurrent with the impacts of development as defined in the [CIE].
FLUE Objective C-29 provides:
Public facilities and services that meet or exceed existing or established County levels of service shall be provided in advance of, or concurrent with, the impacts of development.
FLUE Policy C-29.1 is to:
Ensure that public facilities operating at adopted levels of service are available when Certificates of Occupancy are issued by:
Anticipating development and planning the Capital Improvements Program accordingly;
Requiring conditions on development approvals that phase development with the availability of facilities;
Allowing developers to improve or provide public facilities at their own expense;
Entering into public-private partnerships, when appropriate, to provide public facilities.
CIE Policy 3.C states:
The Board of County Commissioners find that the impacts of development on public facilities within Hillsborough County occur at the same time as development authorized by a final development order as defined in Policy 1.A.3.a. The County shall determine, prior to the issuance of final development orders, whether or not there is sufficient capacity of Category A and Category B 23/ public facilities to meet the standards for Levels of Service for existing population and
the proposed development concurrent with the proposed development. For the purpose of this policy, "concurrent with" shall be defined as follows:
3.C.1: No final development order shall be issued by the County after January 31, 1990, unless there shall be sufficient capacity of Category A and Category B public facilities to meet the standards for Levels of Service for the existing population and for the proposed development according to the following deadlines:
a: Prior to the issuance of the Certificate of Capacity for the following public facilities:
3.C.1.a.(1): Potable water.
3.C.1.a.(2): Sanitary sewer.
3.C.1.a.(3): Solid waste. 3.C.1.a.(4): Stormwater management.
3.C.1.b: Prior to the completion of the same County fiscal year as the issuance of the Certificate of Capacity for arterial and collector roads.
3.C.1.c: For parks and recreation facilities, prior to the issuance of the Certificate of Capacity or within a year of the issuance of the Certificate of Capacity if the necessary facilities are the subject of a binding executed contract or are guaranteed in an enforceable development agreement which requires the commencement of actual construction of the facilities within one (1) year of the issuance of the Certificate of Capacity.
CIE Policy 3.C.2 states that a favorable capacity determination, following mandatory review of a development order, remains valid for two years.
CIE Policy 3.C.4 indicates that the levels of service determinations shall be applied on a County-wide basis for solid waste disposal and regional parks. Levels of service determinations for facilities involving arterial and collector roads and mass transit shall be made by "[a]djoining sites and areas affected by the project based on individual analysis of the proposed development." Levels of service determinations for stormwater management systems shall be by major drainage basin. Levels of service determinations for district or neighborhood parks shall be by the relevant planning area. Levels of service determinations for potable water systems and sanitary sewer systems shall be by treatment plant service area, except that individual transmission (water) or collection (sewer) system limitations shall not result in closing the entire area to development if plant capacity remains.
CIE Policy 1.C.1.a adopts level of service standards for all County arterial and collector roads by listing road segments and maximum volume-to- capacity ratios.
CIE Policy 1.C.1.b adopts level of service standards for stormwater management systems, which include "significant canals, channels, ditches, pipeline/culvert enclosures of open systems, and appurtenant structures at crossings/control points." CIE Policy 1.C.1.b.(1) sets the adopted level of service for any existing system as the existing level of service until the system is physically upgraded and the Plan is amended to reflect the upgrade. CIE Policy 1.C.1.b.(2) states that the ultimate level of service for major stormwater conveyance systems is generally the 25 year/24-hour duration storm at flood level B except the more rigorous flood level A applies to new development and a less rigorous five year storm event applies for systems discharging into Tampa's stormwater conveyance system, which is designed to meet the demands of only the five year storm event. CIE Policy 1.C.1.b.(6) sets stormwater level of service standards based on flood capacity for other stormwater systems--i.e., sewer/swales and detention ponds/lakes/storage areas.
CIE Policy 1.C.1.c sets the potable water level of service standard at 140 gallons daily per person. CIE Policy 1.C.1.d sets the sewage level of service standard at 100 gallons daily per person plus 23.8% for nonresidential sewage.
CIE Policies 1.C.1.f-1.C.2 set level of service standards for solid waste, parks and recreation facilities, mass transit, and non-County maintained public facilities.
FLUE Policy A-5.3 addresses the concurrency monitoring system:
Areas that have excess and deficient capacities for public facilities in unincorporated Hillsborough County shall be identified, and this information shall be updated no less than once a year. Development will be encouraged in areas with excess capacities for public facilities, and discouraged in areas with deficient capacities for public facilities unless
these facilities can be provided concurrently with development and consistent with the [Plan], County Regulations and adopted levels of service for public facilities.
The monitoring and enforcement aspects of the concurrency management system are detailed in the CIE's Implementation section, which is part of the adopted Plan. The Implementation section assures: "no final development order shall be issued which results in a reduction in the Levels of Service below the standard adopted in Policy 1.C.1 for Category A public facilities and Policy
1.C.2 for Category B public facilities." CIE, page 25.
The concurrency determination is based on a monitoring program that calls for, among other things, annual reports on the capacity and actual levels of service of public facilities for which concurrency is required. The monitoring program requires a separate record of the cumulative impacts of all development orders approved year-to-date. CIE, page 27.
FLUE Policy A-5.6 states:
Public facilities and utilities shall be located to consider: (a) maximizing the efficiency of services provided; (b) minimizing their cost; and (c) minimizing their impacts upon the natural environment.
FLUE Policy A-5.7 identifies procedures, such as development phasing and utility oversizing, "so that the location and timing of new development can be closely coordinated with local government's ability to provide public facilities." FLUE Policy A-5.8 adds that the County shall promote partnerships among governmental and private entities "to identify and build needed public facilities among the partners in proportion to the benefits accruing to each of them."
Specifically addressing transportation facilities, FLUE Objective A-6 states:
All new development and redevelopment shall be serviced with roads that meet or exceed the adopted levels of service established by Hillsborough County.
FLUE Policy A-6.1 is to:
Coordinate land use and transportation plans to provide for locally adopted levels of service consistent with the Transportation and Capital Improvements Elements . . ..
FLUE Objective A-7 is:
The concept plan is the overall, conceptual basis for the long range, Comprehensive Plan, and all plan amendments must be consistent with, and further the intent of the concept plan, which advocates nodal clusters of growth connected by corridors that efficiently move goods and people between each of the nodes.
FLUE Policy A-7.3 states:
The development of a variety of employment centers shall be encouraged at adopted locations, as defined by the concept plan and applicable development regulations, to provide employment opportunities throughout existing and planned development areas.
The Implementation section of the FLUE describes the concept plan involving nodal development. The purpose of the nodal activity centers is to "begin to form an urban structure that encourages the cohesiveness of the neighborhood unit while facilitating the connection and interdependence of the region as a whole." FLUE, page 57.
The Implementation section describes four types of nodes. The most intense is the high intensity node, which is limited to the Central Business District of Tampa. The next most intense is the mixed use regional node, which designates existing and future regional shopping centers, major office and employment areas, higher education institutions, and professional sports and recreation complexes. The mixed use regional nodes include the West Shore Business District, Urban Level 3 Regional Activity Center in the I-75 corridor west of Brandon, University of South Florida area, and Tampa Palms at CR 581 and I-75.
Less intense than the mixed use regional node is the community center node, which "will designate and emphasize a focal point for surrounding neighborhoods that will include a variety of public facilities and services including commercial and office development." FLUE, page 57. The community center nodes include numerous named areas. Least intense is the neighborhood node, which designates areas "appropriate for some higher intensity residential development with the density tied to a relationship with the scale of existing surrounding development." FLUE, page 58. There are numerous existing and potential neighborhood nodes.
FLUE Policy A-7.6 states:
Scattered, unplanned, low density development without provisions for facilities and services at levels adopted in the [Plan] in locations not consistent with the overall concepts of the [Plan] shall be prohibited.
To qualify for densities in excess of 1:5 in areas designated Low Suburban Density Residential Planned and Rural Residential Planned, FLUE Policy A-7.7 requires residential development to conform to the requirements contained in the FLUE Implementation section, such as clustering, on-site job opportunities, internal trip capture, and shopping opportunities.
FLUE Policy A-7.8 explains that the clustering and mixed use requirements imposed upon development in areas designated Low Suburban Density Residential Planned and Rural Residential Planned are intended:
to prevent urban sprawl, provide for the efficient provision of infrastructure, and preservation of open space and the environment. Clustering and Mixed Use shall be encouraged in the other suburban and rural plans categories.
FLUE Policy A-7.10 states that developments in areas designated as Low Suburban Density Residential Planned and Rural Residential Planned and involving at least 160 acres, if proceeding under the Planned Village concept, "shall be served by a central wastewater system (i.e. franchise, interim plant, community plant, county/municipal regional or sub-regional service, or other privately owned central systems)."
Housing Element Objective 1.3 states:
By 1992, establish guidelines for locating low and moderate income housing accessible to employment centers, mass transit systems, shopping and cultural, educational, medical and recreational facilities.
Housing Element Policy 1.3.5 provides:
By 1992, proactive public land investment initiatives along with incentives for private developments shall be explored, and implemented which include but are not limited to the following: disposition of surplus public land with developer incentives, public land assembly, disposition, and developer incentives in a comprehensive redevelopment framework and/or neighborhood rehabilitation plans; supplementary public initiatives to support private land assembly and affordable housing development; and the creation of a public-private partnership corporation to undertake land investment and facilitate private development of affordable housing in desirable locations.
Housing Element Policy 1.3.6 states: "The County shall pursue federal and state funding sources for infrastructure improvements and for the construction or rehabilitation of low and moderate income housing."
FLUE Objective B-4 addresses the locational criteria by which commercial uses will be permitted under the Plan. The objective states:
Locational criteria for neighborhood serving commercial uses shall be implemented to scale development consistent with the character of the areas and to the availability of public facilities and the market.
FLUE Policy B-4.1 states that the
amount of neighborhood-serving commercial uses permitted in an area shall be consistent with the table adopted in the Implementation Section of the [FLUE] relating to land use density and the functional classification of the road network.
FLUE Policy B-4.6 is: "Scattered, unplanned commercial development shall be discouraged, and commercial concentration shall be encouraged." FLUE Policy B-4.7 adds: "Commercial development should be designed to decrease the need for motorized vehicle trips by designing convenient, safe, non- motorized access."
FLUE Policy B-4.8 provides:
The expansion of existing strip commercial areas shall be prohibited, except in accordance with infill provisions in existing neighborhood commercial areas, and office or higher density residential development shall be considered as a viable alternative when in accordance with applicable development regulations.
FLUE Policy B-5.1 addresses the redevelopment of commercial areas: "The redevelopment or revitalization of rundown strip commercial areas shall be encouraged through incentives such as the use of residential density credits for infill development that could include mixed use development." Further refining the guidelines for commercial redevelopment, FLUE Policy B-5.3 states:
The redevelopment of appropriate commercial areas to include residential and/or office development that will reduce the number of transportation trips by increasing a project's internal capture rate shall be encouraged through incentives such as the use of residential density credits for infill development.
FLUE Objective B-6 promises ongoing studies to identify the areas suitable for different types of industrial uses. FLUE Policy B-6.2 states that light industrial uses-- specifically, research and development--shall be encouraged to locate within the I-75 corridor, adjacent to the Tampa International Airport, and within the I-4 corridor.
FLUE Policy B-6.5 provides:
Expansion or new development of non- industrially designated land uses in industrially designated areas shall be prohibited unless the use is determined to be an accessory and complementary use to the industrial area. Applicable development regulations shall contain standards and/or criteria for location and intensity of these types of non-industrial uses. The intent is to ensure the availability of lands for industrial development, and to ensure that such subordinate uses will be in conjunction with the surrounding industrial area, as long as the industrial uses in the area are the predominant uses.
FLUE Policy B-6.7 states: "Future industrial development shall be concentrated within industrial and mixed use areas as defined on the Future Land Use Map."
Addressing agriculture, FLUE Objective B-7 states:
Hillsborough County shall take active measures to foster the economic viability of agricultural activities by recognizing and providing for [their] unique characteristics in land use planning and land development regulations.
FLUE Policy B-7.1 is to "[p]romote the development and maintenance of Plant City and Ruskin as agricultural market centers that strengthen the agricultural economy, encouraging agricultural uses within and around both communities."
FLUE Policy B-7.2 is to "[a]llow agriculture as a viable use both prior and subsequent to the mining of land designated or approved for mining purposes."
FLUE Policy B-7.5 warns:
Anyone seeking the maximum long-term protection for long-term agricultural activities either should locate these activities on land in the Agricultural, Agricultural/Mining, Agricultural/Rural, Rural Estate and Rural Residential designated land use categories or should seek having these designations placed on their current location.
FLUE Policy B-7.6 advises: "Anyone seeking to farm until it is more feasible to develop the property non- agriculturally should locate and remain in non-rural designated areas."
FLUE Policy B-7.7 guarantees, for areas designated Agricultural, Agricultural/Mining, and Agricultural/Rural, that minimum acreages needed for viable agriculture will remain after clustering is approved.
FLUE Policy B-7.9 is to defer charging an on-going agriculturally used property designated Agricultural, Agricultural/Mining, Agricultural/Rural, Rural Estate, or Rural Residential for public water or sewer tie-ins until actual connections are made or the designation is changed to a non- rural land use category.
FLUE Objective B-8 deals with the question of compatibility between agricultural and nonagricultural uses in areas designated other than Agricultural, Agricultural/Mining, Agricultural/Rural, Rural Estate, and Rural Residential.
FLUE Policy B-8.4 is to "[d]iscourage the location of new non- agricultural uses adjacent to pre-existing agricultural uses in rural land use categories."
FLUE Objective C-25 addresses the need for "urban level densities" to encourage single and mixed uses in the I-75 corridor. FLUE Policy C-25.2 is to: "Encourage provision of affordable housing within mixed use developments through public and private sector initiatives."
FLUE Policy C-25.3 is to limit the maximum density to 8:1 in the Urban Level 1 area between Tampa and the Pasco county line. FLUE Policy C-25.5 is to encourage access to urban level development on county arterials rather than state highways.
FLUE Objective C-27 states:
Employment centers shall be planned throughout the I-75 corridor, and residential opportunities shall be permitted in each of the plan categories within the
I-75 corridor in order to promote opportunities for all segments of the population to live and work within the corridor, regardless of age, sex, race and income.
FLUE Policy C-27.2 is to: "Encourage the provision and integration of low and moderate income housing dispersed throughout the urban level categories."
FLUE Objective C-28 states: "Mass transit opportunities shall be expanded within the I-75 corridor."
FLUE Objective C-31 is:
By 1991, the County shall pursue the Regional Activity Center designation for the area within the I-75 corridor defined as that area consisting of the Urban Level 3 land use plan category on the Future Land Use Plan Map.
FLUE Policy C-31.2 is for the County to develop incentives for development to locate within the Regional Activity Center. Suggested incentives are transferable development rights, increased densities and intensities, priority public facility funding, and special taxing districts.
FLUE Objectives C-32 and C-33 establish corridors for I-4 and North Dale Mabry, respectively. In the I-4 corridor, light industrial uses are encouraged. In the North Dale Mabry corridor, clustered commercial, such as shopping centers, are encouraged over "scattered unplanned commercial development."
4. Funding and Financial Feasibility 615. CIE Objective 2 is:
Provide needed public facilities that are within the ability of the County to fund the facilities. . . from County revenues, development's proportionate share contributions, and grants or gift[s] from other sources. [Rule] 9J-5.016(3)(b)5.
CIE Policy 2.A states:
The estimated costs of all needed capital improvements shall not exceed conservative estimates of revenues from sources that are available to the County pursuant to current statutes, and which have not been rejected by referendum, if a referendum is required to enact a source of revenue. [Rule] 9J- 5.016(3)(c)1.f.
CIE Policy 2.B provides: "Existing and future development shall both pay for the costs of needed public facilities."
CIE Policy 2.B.1.a states:
Existing development shall pay for some or all of the capital improvements that reduce or eliminate existing deficiencies, some or all of the replacement of obsolete or worn out facilities, and may pay a portion of the cost of capital improvements needed by future development.
CIE Policy 2.B.1.b adds: "Existing development's payments may take the form of user fees, special assessments and taxes."
Addressing future development, CIE Policy 2.B.2.a provides:
The County will allocate the costs of new public facilities on the basis of the benefits received by existing and future residents so that current residents will not subsidize an urban sprawl pattern of new development.
CIE Policy 2.B.2.b states:
Future development's payments may take the form of, but are not limited to, voluntary contributions for the benefit of any public facility, impact fees, capacity fees, dedications of land, provision of public facilities, and future payments of user fees, special assessments and taxes. Future development shall not pay impact fees for the portion of any capital improvement that reduces or eliminates existing deficiencies.
The Five-Year Schedule of Capital Improvements contained in the CIE discloses planned capital expenditures, as they were known in June and July, 1989. The Five-Year Schedule indicates that, for the five-year period ending with fiscal year end 1994, the following capital costs are projected by public facility type: roads--$273,668,000; parks--$28,611,000; water--$10,798,000; sewer--$55,848,000; stormwater-- $29,345,000; and solid waste--$16,250,000. The total of these capital expenditures is $414,520,000. For each project, the Five-Year Schedule describes the general funding source.
The CIE contains a section entitled Costs and Revenues by Type of Public Facility, which is an adopted part of the Plan. The Costs and Revenues section, which was prepared in December, 1990, states:
The [CIE] is 100% financed by revenue sources that are available to the County under current law, therefore the Element is financially feasible, as required by the Florida Administrative Code. There is no "unfunded" portion of the Schedule of Capital Improvements.
The Costs and Revenues section identifies each of the public facilities for which concurrency is required, the total expenditures planned for each public facility for the five-year capital planning period, and general sources of revenue by facility type. The costs and revenues by public facility type are: roads--$193,684,000; parks--$17,865,000; water-- $9,265,000;
sewer--$76,179,000; drainage--$25,000,000; and solid waste--$16,250,000. The total of these capital expenditures is $362,097,000. Evidently, budget cutbacks took place in the 18 months between the adoption of the Five Year Schedule in mid 1989 and the adoption of the Costs and Revenues section in December, 1990.
5. Transportation Level of Service Standards
Transportation Element Policy 1.1.1 sets minimum peak hour level of service standards for County roads, subject to lower standards for certain roads listed in CIE Policy 1.C.1.a.
Transportation Element Policy 1.1.4 sets minimum peak hour level of service standards for State roads, subject to lower standards for certain roads listed in Transportation Element Table 2. 24/ Transportation Element Tables 1 and 2 show that 58 of the 147 state road segments in Hillsborough County are operating below the level of service standards generally adopted in Policy
1.1.4. These standards are D for all Urban state roads except for minor arterials, which are E, and C for all Rural state roads except for minor arterials, which are D. Table 1 shows that, by 1995, an additional 33 state road segments will be operating below the generally adopted level of service standard.
Transportation Element Policy 1.1.4 concludes: "No development orders will be issued that would further reduce the current level of service on those roads listed in Table 2 of this element except where the development is vested under law."
Transportation Element Figure 4 shows the location of all roads operating at level of service F. None is south of the Alafia River. The impaired roads are entirely in northwest and northcentral Hillsborough County. Among the road segments operating below the generally applicable level of service standards for state roads are four of the 11 segments of SR 574 (Buffalo/King), 10 of the 15 segments of SR 597 (Dale Mabry Highway), four of the five segments of SR 580 (Hillsborough Ave.), seven of the 10 segments of I- 275, seven of the eight segments of I-4, and four of the five segments of US 41 (Nebraska Ave. portion only). Much less impacted state road segments include I- 75, which has no segment operating below its adopted level of service standards;
US 301, which has two of nine segments operating below its adopted level of service standards; and US 41 (southern sections), which has no segment operating below its adopted level of service standards.
Transportation Element Policy 1.1.4 states that state roads operating below adopted level of service standards are "backlogged" or "constrained" and shall have a level of service standard established by the volume-to-capacity ratio listed for each road on Table 2.
The Data and Analysis discuss the transportation problems confronting Hillsborough County. Many of the impaired road segments are scheduled for capital improvements in the Florida Department of Transportation five year work program. One key exception is Dale Mabry Highway, which will remain at level of service F even after planned work is completed. Transportation Element, page 24.
Transportation Element Policy 1.1.7 promises that, within one year after adoption of the Plan, the County will enter into an agreement with the Florida Department of Transportation to identify actions that the County will take to "maintain the existing average operating conditions" on backlogged or constrained state roads.
Transportation Element Policy 1.1.14 provides that Hillsborough County will, by 1990, initiate studies to identify State and County road corridors not capable of undergoing further capacity-increasing improvements and are thus suitable for designation as constrained corridors.
6. Vested Rights and Developments of Regional Impact
The Legal Status of the Plan, which is part of the FLUE, addresses vested rights. The Legal Status section requires the County to develop an administrative process by which vested rights can be determined.
The Legal Status section preconditions a finding of vested rights upon the following:
That the person owned the parcel proposed for development at the date of the adoption of this [Plan], or the person had a contract or option to purchase the parcel on such date, or that it would be inequitable, unjust or fundamentally unfair to deny an application for vested rights where the person acquired ownership prior to
February 1, 1990; and
That there was a valid, unexpired act of any agency or authority of Hillsborough County government upon which the person reasonably relied in good faith; and
That the person, in reliance upon this act of government, has made a substantial change in position or had incurred extensive obligations or expenses; and
That it would be inequitable, unjust or fundamentally unfair to destroy the rights acquired by the person. In making this determination, the County may consider a number of factors, including but not limited to consideration of whether actual construction has commenced and whether the expense or obligation incurred is unique to the development previously approved and is not reasonably usable for a development permitted by the [Plan] and land development regulations.
FLUE, page 128.
Ensuing provisions of the Legal Status section identify various vested rights based on whether a development is exempted from concurrency.
The Legal Status section also addresses certain development orders under developments of regional impact (DRI). Between the Plan adoption date and February 1, 1990, the County will approve buildout of not more than a "limited stage" of the total proposed DRI. Generally, the buildout approval will be limited to the part of the proposed development that has received Site Development Approval within two years following the expiration of the development order's initial appeal period.
The Legal Status section authorizes the approval of additional development stages beyond the two-year limit if the development application had been received by the County prior to the Plan adoption date, the developer made substantial expenditures before Plan adoption in conducting a transportation analysis, and the transportation analysis focused on impacts occurring beyond the two-year limit. Development activity following the approved initial stage shall be subject to the Plan, including the concurrency requirements.
The Legal Status section also recognizes the practice of "pipelining." The Legal Status section states: "While 'pipelining' will remain a permitted transportation mitigation option, the Board of County Commissioners will closely scrutinize its use." FLUE, page 129.
Miscellaneous
Intergovernmental Coordination
Intergovernmental Coordination Element (ICE) Objective 1 states:
By 1990, Hillsborough County shall establish new and review existing coordination mechanisms that will evaluate and address its comprehensive plan and programs and their effects on the comprehensive plans developed for the adjacent local governments, school board, and other units of local government providing services but not having regulatory authority over use of land and the State, by an annual county-wide forum sponsored by The Planning Commission. Assistance for this
effort shall be requested from regional and state agencies by The Planning Commission, as needed.
ICE Objective 3 requires the County, by 1991, "to address through coordination mechanisms the impact of development proposed in the [Plan] upon development in adjacent jurisdictions, the region and the state."
Dual Planning Timeframes
The Plan contains dual planning timeframes. Overall, the Plan contains a 20-year planning timeframe. However, shorter planning periods are addressed, such as the five-year period covered in the Five-Year Schedule of Capital Improvements.
Regional Plan Provisions
The Tampa Bay Regional Planning Council has adopted a regional plan known as the Future of the Region: A Comprehensive Regional Policy Plan for the Tampa Bay Region dated July 1, 1987 (Regional Plan). The Regional Plan, which applies to unincorporated Hillsborough County, is divided into goals and policies.
Regional Goal 8.1 is: "By 1990, there will be an ample supply of water to meet all projected reasonable and beneficial uses in the Tampa Bay region." Policy 8.1.4 states: "Land use planning and development decisions shall consider the impact on surface and groundwater quality."
Regional Goal 8.5 is: "By 1991, the region will increase the protection of major public water supplies and wellfields." Policy 8.5.1 states: "Prime groundwater recharge areas and cones of influence of existing and future major public water supplies and well fields shall be identified and mapped."
Regional Goal 8.7 is: "By 1991, new developments in the region will be required to use the best management practices and/or procedures to reduce pollutants in stormwater runoff." Policy 8.7.1 requires the development of programs to ensure water reclamation and reuse with respect to wastewater and stormwater.
Regional Goal 8.8 is: "By 1995, existing developments will be required to make measurable progress toward meeting stormwater standards." Policy 8.8.1 provides: "Local governments should upgrade or retrofit drainage systems in urbanized areas to include stormwater treatment for water quality." Policy 8.8.4 requires that agricultural runoff "shall be handled with Best Management Practices to minimize its impact upon receiving waters."
Regional Goal 8.9 is: "By 1995, there shall be an increase in the effectiveness of programs protecting or enhancing the ecological function of natural systems (aquatic, wetland and terrestrial systems)." Policy 8.9.1 is to develop regional and local programs "to identify, protect and conserve the natural character and function of area lakes, streams, estuaries, wetlands, floodplain areas, and upland areas."
Policy 8.9.2 directs that local government comprehensive plans
shall incorporate the following: a) adoption of criteria for work in lake, riverine and wetland systems which will protect water quality, wildlife habitat and natural hydrological functioning of these areas;
b) conservation of valuable upland habitat and wetland systems; c) preservation of habitat for endangered and threatened species; d) establish ecological minimum flow criteria and hydroperiod for surface waters; e) utilization of biological treatment methods and natural areas, such as wetlands, for stormwater treatment in areas of development/redevelopment to the maximum feasible extent.
Regional Goal 8.10 is: "By 1991, land use practices will reduce the disruption of natural floodplain functions." Policy 8.10.1 states: "Regulations should be developed to promote appropriate land use practices compatible with floodplain areas and provide for performance standards for these land uses."
Regional Goal 9.1 is: "By 1990, coastal zone areas will have increased vegetation, enhanced beach systems and improved environmental quality." Policy 9.1.2 provides: "The protection of coastal vegetative communities, coastal wildlife habitats, and dune systems from the adverse effects of development shall be required."
Regional Goal 9.3 is: "By 1995, aquatic preserves in the Tampa Bay region will be more productive than 1985 levels and have a significant improvement in quality over 1985 measurements." Policy 9.3.3 requires buffer zones or other appropriate protection "between pristine aquatic preserves and adjacent upland uses to prevent degradation of water quality, shoreline and marine habitats."
Regional Goal 9.4 is: "By 1991, all marine resources will be protected from contamination from human-induced processes." Policy 9.4.1 states:
To protect sensitive marine resources from immediate and near future degradation resulting from improper development practices and recreational misuse, priority shall be given to water dependent uses or other types of shoreline development such as marina, light industry, ports and shoreline compatible commerce.
Policy 9.4.2 states that the exploration and development of mineral resources "shall only proceed in an ecologically sound manner which does not threaten marine, aquatic, and estuarine resources." Policy 9.4.5 provides: "Dredging or spoiling of undisturbed bay bottom shall be prohibited. "
Regional Goal 9.5 is: "By 1995, there will be at least a 5 percent increase in productivity of marine fisheries habitat and other aquatic resources." Policy 9.5.1 states: "Long-term productivity of marine fisheries habitat and other aquatic resources shall be increased and restored through estuary and intertidal protection."
Regional Goal 9.6 is: "By 1990, coastal area will be protected by local government controls and other building regulations that will enhance the character and function of barrier islands and other environmentally sensitive areas." Policy 9.6.1 states: "Land and water uses shall be compatible with the protection of sensitive coastal resources."
Policy 9.6.2 provides: "The use of government funds to subsidize development should be prohibited in high-hazard coastal areas." Policy 9.6.3 is to identify coastal high hazard areas "where the expenditure of public funds to subsidize development shall be prohibited." Policy 9.6.4 states: "The use of public funds to rebuild public facilities damaged by hurricanes or other storms shall be limited to facilities essential only for public health and safety."
Regional Goal 10.1 is: "By 1995, the Tampa Bay region's conservation areas will have increased environmental quality and functional characteristics that provide suitable habitat to all wildlife and flora indigenous to the region." Policy 10.1.1 states: "Protect the habitats and plant communities that tend to be least in abundance and most productive or unique."
Policy 10.2.2 states:
The hydrologic continuity and water quality of identified isolated wetlands shall be protected. Development activities or other land disturbances in the drainage area of the wetlands shall minimize alterations to the surface or subsurface flow of water into and from the wetland and shall not cause impairment of the water quality or the plant and wildlife habitat value of the wetland.
Policy 10.2.3 requires "water users, such as agriculture and mining," to prepare mitigation plans "to minimize unavoidable impacts to nearby wetlands."
Policy 10.2.4 requires:
Mitigation measures shall be developed to provide water quality benefits and plant and animal habitat equivalent to the wetland destroyed or altered. Newly created wetlands should include at least 1:1 mitigation using the same type or more productive vegetation with at least an 80-85 percent natural cover rate, over a 2 to 5 year period.
Regional Goal 10.3 is: "By 1993, regional preservation areas will be protected by regulations or practices from further development and will be preserved and/or restored to their natural state." Policy 10.3.1 states, in part: "Preservation areas, such as marine grass beds . . . and other vital or critical natural systems, shall be protected from any further development except
in cases of overriding public interest." Policy 10.3.3 provides: "Unique upland communities and habitats in identified preservation areas should be protected from development that would significantly alter their character. Preservation and restoration of these communities shall be required."
Regional Goal 10.4 is: "By 1991, development in the 100 year floodplains should be strictly regulated." Policy 10.4.1 allows new channelization only as a "last resort" in flood protection for existing development. Policy 10.4.4 prohibits channelization solely to create new lands for development. Policy 10.4.2 prohibits locating new development in river floodways (i.e., the area of highest velocity during flow) except in cases of overriding public interest. Policy 10.4.3 requires that new development in the flood fringe (i.e., the area of the floodplain outside the floodway) meet flood hazard construction requirements.
Regional Goal 10.5 is: "By 1991, new or rebuilt development within the 25 year floodplain will not contribute adverse water quality impacts from stormwater runoff." Policy 10.5.2 states: "Development along all river floodplains shall be low density with adequate setbacks to maintain existing areas of natural habitat."
Regional Goal 10.6 is that, by 1995, there shall be "measurable indications" of greater commitment from local governments and private parties to "conserve, protect, and enhance" populations and habitats of endangered, threatened, and special-concern species. Policy 10.6.1 recommends the adoption of incentives to encourage the preservation of native habitats. Policy 10.6.2 states:
Identified areas that contain viable populations of, or suitable habitats for, species listed as endangered, threatened, or of special concern . . . shall be classified as environmentally sensitive, preservation, or conservation areas with future development limited to land uses compatible with the listed species.
Regional Goal 10.8 is: "By 1991, there will be marked changes in land rearrangement and vegetation clearing practices that do not degrade the region's natural drainage and percolation patterns." Policy 10.8.1 requires the use of buffer zones between agricultural lands and water bodies.
Regional Goal 10.9 is: "By 1995, the region's forested and woodland areas will not have decreased in size by more than 3 percent, or have any less characteristics than present in 1988." Policy 10.9.1 requires the addition to local government comprehensive plans of forest preservation plans for significant woodlands or forests. Policy 10.9.2 states that the forest preservation strategy shall consist of mapping of forests and woodlands, identifying those forest or woodland areas that are wetlands or habitat protection areas, and providing incentives for the conversion of other land uses to forested conditions. Policy 10.9.3 states that wildlife corridors should be maintained.
Regional Goal 16.8 is: "As an ongoing goal, all dredge and fill activities shall be carried out only when necessary and in a manner least harmful to the surrounding environment." Policy 16.8.1 provides:
Any project including unavoidable destruction of habitat shall mitigate all lost wetland habitat on a 1:1 in-kind basis, at minimum.
Mitigation shall include monitoring with assurance of an 80-85% natural cover area after 2-5 years.
Policy 16.8.2 states: "Unique and irreplaceable natural resources shall be protected from adverse effects." This policy is intended to apply to dredge and fill projects, as is clear from the standard by which compliance is to be measured, which is the "amount of dredging or filling within unique and irreplaceable natural resources."
Regional Goal 13.6 is: "By 1995, groundwater contamination due to inappropriately located or improperly used septic tanks shall be eliminated." Policy 13.6.2 provides: "Permitting process criteria for septic tanks and their fields shall take into consideration adverse impacts on water quality and aquatic resources." Policy 13.6.4 requires a survey locating "septic tanks associated with all commercial and industrial activities" and an "evaluation . .
. concerning potential adverse effects on groundwater resources, water supply wells, and ground water recharge potential."
Regional Goal 13.9 is: "By 1995, water quality will be improved by the control of point and non-point discharges into surface waters." Policy
13.9.2 states: "Domestic sewage and industrial discharges shall be required to achieve best practical technological standards and to implement reuse systems to minimize pollution discharge."
Regional Goal 13.10 is: "By 1995, the number of project-specific 'package plants' shall be reduced from 1988 levels." Encouraging private cost- sharing in the construction of regional wastewater facilities and the development of requirements for connecting package-plant systems to regional systems when available, Policy 13.10.1 also provides:
When necessary, project-specific "package plants" shall be allowed but only where a detailed hydrogeological analysis of the site determines low potential for groundwater contamination from hazardous wastes or other pollutants.
Regional Goal 14.4 is: "By 1991, mining practices will be designed to fully protect the natural environment from the adverse effects of resource extraction." Policy 14.4.1 states: "There shall be no mining in areas which are geographically or hydrologically unsuitable for the extraction of minerals or in areas which are crucial to the provision of essential public services." Policy 14.4.2 provides: "There shall be no mining in the 25-year floodplain."
Policy 14.4.3 states:
The mining of environmentally sensitive areas shall be avoided unless it can be demonstrated that technology associated with reclamation and restoration can restore those areas.
Mining and reclamation procedures shall minimize permanent changes in natural systems and the permanent loss of environmental resources.
The best available technology and practices shall be used to re-establish the land forms, land uses, and natural vegetation associations that existed prior to mining of the land to the extent feasible and desirable.
Policy 14.4.4 provides that the portion of mining areas that contain endangered or threatened wildlife species shall be protected. Policy 14.4.5 states that mining and processing shall be conducted so as to "protect, manage and more efficiently utilize water resources."
Regional Goal 16.1 is for ten percent of DRI's to be located in designated regional activity centers between 1986 and 1990.
Regional Goal 16.2 is: "As an ongoing goal, new urban development, including in-fill, will occur on land which has the capacity to accommodate growth in terms of environmental and infrastructural impacts." Policy 16.2.1 states: "Contiguous development and the orderly extension and expansion of public facilities are necessary." Policy 16.2.2 encourages the location of higher density developments within existing urban areas where public facilities are available.
Regional Goal 16.5 is:
By 1991, the integrity and quality of life will be maintained in existing residential areas and will be required of new residential developments through the continued revision and adoption of local government comprehensive plans, environmental and land use regulations.
Policy 16.5.1 provides that residential areas shall be located and designed to protect from "natural and manmade hazards such as flooding, excessive traffic, subsidence, noxious odors and noise." Policy 16.5.2 states: "Residential land uses shall be encouraged in a manner which is compatible with the type and scale of surrounding land uses." Policy 16.5.4 encourages local governments to locate high density residential areas near regional activity centers and reduce densities elsewhere to "facilitate the restriction of urban sprawl [and] use of mass transit." Policy 16.5.5 encourages mixed use developments with buffering of residential areas. Policy 16.5.6 recommends the location of shopping facilities, recreation areas, schools, and parks within high density residential areas.
Regional Goal 16.6 is:
By 1991, commercial development, compatible with environmental and economic resources, will occur in a planned and orderly fashion through the continued revision and adoption of local government comprehensive plans, environmental and land use regulations.
Policy 16.6.1 states:
Commercial land uses shall be located in a manner which ensures compatibility with the type and scale of surrounding land uses and where existing or programmed public facilities will not be overburdened.
Policy 16.6.2 is to locate regional commercial areas in planned centers to ensure compatibility and "efficiency of economic and natural resources." Policy 16.6.3 "strongly discourage[s]" strip commercial development, which "compounds traffic and land use conflicts."
Regional Goal 16.7 is the same as Regional Goal 16.6, except that Goal 16.7 applies to industrial uses. Policy 16.7.1 is to locate industrial areas near adequate transportation for materials, labor, and products. Policy
16.7.5 encourages the redevelopment of urbanized industrial locations near major transportation facilities, such as ports and airports.
Regional Goal 22.1 is: "By 1991, the Tampa Bay region shall balance the needs of agricultural and nonagricultural land uses." Policy 22.1.1 encourages the "preservation and utilization of agriculture land for agriculture uses." Policy 22.1.3 provides: "The recognition of agriculture as a form of land use and a category on land use plan maps, not simply as a holding zone, is encouraged, where appropriate." Policy 22.1.6 recommends: "Agriculture should be recognized as a major contributor to the region's economic base, and should be retained where possible to maintain the diversification of the region's economy."
Regional Goal 22.2 is: "By 1991, agricultural practices will be implemented to reduce the amount of pesticides and other agriculturally based pollutants in surface waters, groundwater and sediments."
Policy 17.1.1 states:
To relieve pressure on existing public facilities, programs such as temporary density bonuses, special zoning designations and public acquisition of tax-delinquent property should be developed to encourage infilling of vacant urban lands.
Policy 17.1.5 provides: "Capital improvements programs should maximize the development of existing systems before allocating funds to support public facilities in undeveloped areas."
Regional Goal 17.2 is: "By 1991, the planning of public facilities will serve as a proactive growth management tool." Policy 17.2.1 requires that the location of public facilities "shall be used to guide urban development" and the "rate of private development should be commensurate with a reasonable rate of expansion of public and semi-public facilities." Policy 17.2.2 recommends the advance acquisition of sites for potential public and semi-public facilities.
Regional Goal 19.1 is:
As an ongoing goal, planning for and maintenance of an integrated transportation system including highway, air, mass transit, rail, water, and pipeline systems, which efficiently services the need for movement of all people and goods within the region and between the region and outside world[,] will continue to be implemented.
Policy 19.1.2 is to reduce dependency upon the private automobile by providing an adequate mass transit system. Policy 19.1.3 states: "The transportation system should promote the efficient use of energy resources and improvement of the region's air quality."
Policy 19.8.8 states:
An operational Level of Service (LOS) D peak hour shall be maintained on all regionally significant roadways in urbanized areas. An operational LOS C peak hour shall be maintained on all regionally significant roadways in rural areas.
However, Policy 19.8.9 provides:
An operation Level of Service (LOS) E peak hour shall be maintained on all regionally significant roadways in Special Transportation areas as agreed upon by the FDOT, the appropriate MPO, the regional planning council, and the local government.
Policy 19.8.14 states:
Pipelining shall be an acceptable and sufficient DRI transportation impact mitigation for existing and future DRIs provided that all the following provisions are met:
Project approvals shall be phased and shall not exceed five years. Subsequent approvals shall be subject to further analysis and additional pipeline mitigation.
Roadway improvement to be pipelined shall:
be selected from the list of existing or proposed regional transportation facilities substantially affected by the development identified by the [regional planning council] during the DRI review.
preferably be consistent with MPO and FDOT long-range plans.
receive concurrence from the local government and [regional planning council] with review and comment by MPO and FDOT.
The developer fair share pipeline contribution shall be equalto or exceed an amount calculated pursuant to DCA pipeline transportation policy.
The developer shall receive credit against impact fees, pursuant to law.
Local government, based upon traffic analysis or studies, and/or long range planning, may authorize alternative pipelining approaches and conditions, to those established in subparagraph 1 above, provided that such variations are technically appropriate and that the basis for, and the conditions of, such variations
are specifically set forth in the Development Order.
Regional Goal 11.1 is: "By 1995, land use-related airborne contaminants will be reduced within the region by a measurable percentage." Policy 11.1.1 is for each local government to develop procedures to assess air quality impacts from non-DRI development, such as strip shopping centers, that have a cumulative impact on traffic flow. Policy 11.1.4 is to "[i]nitiate control measures where construction, mining and other activities where heavy vehicular traffic and/or meteorological conditions result in significant air pollution."
Regional Goal 11.2 is: "By 1992, the regional will maintain ambient sulfur dioxide, carbon monoxide, nitrogen dioxide, lead, ozone, and total suspended particulate levels that are equal to or better than the state and federal standards."
Regional Goal 11.6 is: "By 1992, transportation related air quality impacts that adversely impact ambient air quality will be reduced." Policy
11.6.1 states that the metropolitan planning organizations and others entities involved in transportation planning "shall give priority to traffic flow improvements that reduce air pollution, particularly in areas that exceed ambient standards."
Regional Goal 12.3 is: "As an ongoing goal, the most energy efficient and economically feasible means shall be utilized in construction, operation and maintenance of the region's transportation system." Policy 12.3.1 recommends consideration of incentives such as development or expansion of mass transit, "park and ride" programs, and public awareness of mass transit options.
Regional Goal 20.2 is: "By 1990, the region's governments shall increase their efficiency and effectiveness."
State Plan Provisions
The state comprehensive plan is set forth at Sections 187.201 et seq., Florida Statutes.
Section 187.201(8)(b)12 states: "Eliminate the discharge of inadequately treated wastewater and stormwater runoff into the waters of the state."
Section 187.201(10)(b)5 provides: "Promote the use of agricultural practices which are compatible with the protection of wildlife and natural systems."
Section 187.201(23) states the goal of agricultural policies as follows:
Florida shall maintain and strive to expand its food, agriculture, ornamental horticulture, aquaculture, forestry, and related industries in order to be a healthy and competitive force in the national and international marketplace.
Section 187.201(16) states the goal of land use policies as follows:
In recognition of the importance of preserving the natural resources and enhancing the quality of life of the state, development shall be directed to those areas which have in place, or have agreements to provide, the land and water resources, fiscal abilities, and service capacity to accommodate growth in an environmentally acceptable manner.
Section 187.201(18)(b)1 and 3 provides:
Provide incentives for developing land in a way that maximizes the uses of existing public facilities.
Allocate the costs of new public facilities on the basis of the benefits received by existing and future residents.
Section 187.201(16)(b)2 states: "Develop a system of incentives and disincentives which encourages a separation of urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats."
Section 187.201(20)(b)2 provides: "Coordinate transportation investments in major travel corridors to enhance system efficiency and minimize adverse environmental impacts."
Section 187.201(20)(b)9 states: "Ensure that the transportation system provides Florida's citizens and visitors with timely and efficient access to services, jobs, markets, and attractions."
Section 187.201(11) states the following goal: "Florida shall reduce its energy requirements through enhanced conservation and efficiency measures in all end-use sectors, while at the same time promoting an increased use of renewable energy resources." Section 187.201(11)(b)2 adds: "Ensure that developments and transportation systems are consistent with the maintenance of optimum air quality."
Section 187.201(12)(b)4 provides: "Ensure energy efficiency in transportation design and planning and increase the availability of more efficient modes of transportation." Section 187.201(12)(b)5 states: "Reduce the need for new power plants by encouraging end-use efficiency, reducing peak demand, and using cost-effective alternatives."
Section 187.201(5)(b)4 states: "Reduce the cost of housing construction by eliminating unnecessary regulatory practices which add to the cost of housing."
Section 187.201(21)(b)4 and 12 provides: "Eliminate regulatory activities that are not tied to specific public and natural resource protection needs" and "Discourage undue expansion of state government and make every effort to streamline state government in a cost effective-manner.
Ultimate Findings of Fact
Minimum Criteria of Data and Analysis
Sufficiency of Data and Analysis (Issues 1-9)
As to Issue 1, the ELUM's show existing and planned water wells, their cones of influence, historic resources, floodplains, wetlands, minerals, and soils. The ELUM's show many important existing public facilities, such as roads, potable water facilities, sanitary sewer facilities, and schools. The depiction of power line rights of way and power generating facilities is less clear, although major public and industrial uses are indicated.
As to Issues 2 and 3, the Data and Analysis describe at length the fisheries, wildlife, marine habitats, and vegetative communities that are found in Hillsborough County. The text and CARE Table 11 identify endangered, threatened, or special-concern species associated with each habitat.
As to Issue 3, for each of the vegetative communities or habitats found in Hillsborough County, the Data and Analysis identify various uses, known pollution problems, and potential for conservation, use, or protection.
As to Issue 4, the Data and Analysis discuss the suitability of soils for septic tanks. The discussion notes the problems associated with the placement of septic tanks on poorly drained soils, as well as excessively drained soils. The Data and Analysis identify the parts of the County with such soils, especially the poorly drained coastal soils of the coastal high hazard area.
As to Issues 4 and 5, the Data and Analysis acknowledge that septic tank failures have adversely affected the water quality of Cockroach Bay. The discussion of the impact of septic tanks in other parts of the Tampa Bay estuary is less specific geographically. But the Data and Analysis generally recognize the role of inadequately treated domestic wastewater and inadequately treated stormwater runoff in the eutrophication of Tampa Bay.
As to Issue 6, the Data and Analysis consider the potential for conservation, use, and protection of all surface waters in Hillsborough County, including Tampa Bay.
As to Issue 7, the Data and Analysis identify and analyze existing and future water needs and sources and natural groundwater recharge areas.
Although Hillsborough County contains no areas of prime recharge to the Floridan aquifer nor of high natural recharge to any aquifer, the Data and Analysis identify locations of very low to moderate natural aquifer recharge and areas of high susceptibility to groundwater contamination.
As to Issue 8, the Data and Analysis contain land use suitability analyses in which various land uses are correlated to natural features, including natural resources.
Oversized Map 13 locates very severely limited soils and critical and sensitive lands in relation to vacant lands. Other ELUM's more specifically locate and analyze vacant lands, floodplains, wetlands, historic resources, minerals, soils, rivers, bays, lakes, harbors, estuarine systems, recharge areas, areas highly vulnerable to groundwater contamination, water wells, vegetative communities, wildlife habitat, and other natural resources appropriately considered in analyzing potential land uses for vacant land.
The Data and Analysis textually analyze the suitability of various types of land for different land uses. In some cases, the analysis is incomplete, such as with respect to suitable land uses within the cones of influence of water wells or adjacent to wellfields. Even for such resources, however, the Data and Analysis support the inference that activities involving considerable water consumption or wastewater production, like traditional phosphate mining operations, should not be located in close proximity to water wellfields. The Data and Analysis explicitly identify the risk to groundwater posed by impervious surfaces and groundwater contamination such as from septic drainfields and leaking underground storage tanks. Thus, suitable land uses may at least be inferred with respect to areas of natural moderate aquifer recharge or artificially high aquifer recharge due to wellfield drawdowns.
As to Issue 9, Coastal Element Figure 18 identifies the coastal high hazard area in Hillsborough County.
2. Supporting Data and Analysis (Issues 10-14)
As to Issue 10, the failure of the Plan to require retrofitting of existing, deficient stormwater management systems is supported by the Data and Analysis. In the first place, the Plan addresses retrofitting to a significant extent. Coastal Element Policy 13.3, which deals with all infrastructure in the coastal high hazard area, commits the County to preparing, by the 1993 hurricane season, a program to relocate or retrofit public facilities where feasible.
Where economically and environmentally feasible, CARE Policy 2.10 and Coastal Element Policy 1.11 provide for the retrofitting of urbanized areas lacking
stormwater management facilities. CARE Policy 2.8 contains similar provisions regarding agricultural runoff.
The Plan provisions cited in the preceding paragraph are supported by the Data and Analysis. Existing stormwater problems are sufficiently serious that the Data and Analysis question whether water quality problems can be corrected without retrofitting stormwater management systems. Stormwater Element, page 20. However, the Data and Analysis recognize that economic reality may limit retrofitting to redevelopment. The failure of the Plan to require retrofitting of stormwater systems generally is supported by the Data and Analysis, at least in the absence of stronger evidence that, without retrofitting in unincorporated Hillsborough County, the water quality problems in Tampa Bay cannot be effectively addressed.
The other part of Issue 10 concerns the failure of the Plan to set a stormwater level of service standard in terms of water quality. This part of Issue 10 addresses the means by which the performance of stormwater management systems will be evaluated, regardless whether the systems are installed at the time of development or redevelopment. The failure of the Plan in this regard is dramatic.
First, the Plan provides for a stormwater level of service standard strictly in terms of flood control. The stormwater level of service standard, which is stated in CIE Policy 1.C.1.b, defines storm events and their duration and then specifies the extent to which the stormwater facilities may flood in such events. Other Plan provisions address aspects of stormwater management other than mere flood control--even mentioning water quality. But these provisions lack the measurable and enforceable performance standards characteristic of level of service standards. 25/
The Data and Analysis offer no support for the Plan's preoccupation, when setting a level of service standard, with stormwater solely in terms of flood control, to the exclusion of other factors that affect the quality of receiving waters, such as runoff rate, quality, and hydroperiods. To the contrary, the stormwater level of service standard in the Plan is repugnant to the Data and Analysis.
The Data and Analysis clearly identify the role of inadequately treated stormwater runoff in the eutrophication of Tampa Bay. One quarter of the biological oxygen demand and 35% of the suspended solids discharged into the bay are attributable to stormwater runoff. Important gains have been made in reducing the nutrient loading of the bay by inadequately treated domestic and industrial wastewater, such as through the enhancement of treatment levels at wastewater treatment plants or the implementation of wastewater reuse programs. But the Data and Analysis concede that nutrient loading from stormwater runoff will remain a more intractable program. Coastal Element, page 24. The problem is exacerbated by inadequate compliance with existing stormwater regulations.
CARE, page 54.
For areas within the substantial floodplains of Hillsborough County, and even to a certain extent for areas outside the floodplains, the stormwater issue is best approached from the perspective of floodplain management. The natural drainage of floodplains regulates the timing, velocity, and levels of flood discharges, as well as water quality through the processes of sediment detention and chemical filtration. CARE, pages 14-15.
Stormwater management systems using only a structural approach to effect flood control destroy the natural drainage function of the floodplain. Structural improvements include such projects as channelizing natural watercourses (like the Palm River) and constructing new channels, dams, levees, and other structures to hold back floodwaters or rapidly convey them elsewhere. Consequently, flood discharges tend to peak more quickly. By increasing maximum flow, the flood-control structures decrease filtration, groundwater recharge, habitat maintenance, detrital production and export, maintenance of base flow (as minimum flows during later dry periods cannot draw upon water previously stored in the unaltered floodplains), and estuarine salinity regulation. CARE, pages 15-17.
In short, the Data and Analysis disclose that a stormwater management program whose performance is evaluated exclusively in terms of flood control, such as that contained in the Plan, has systemic environmental implications whose economic costs are probably incalculable.
The Data and Analysis identify the obvious planning considerations that underlie the establishment of a viable stormwater level of service standard. The third guideline for floodplain management is to avoid alterations to the natural rate, quality, and pattern of surface waters. Expressly applying the guideline to floodplains and "more upland sites," the Data and Analysis advise that the "rate, volume, timing and location of discharge of surface water should generally not be altered from predevelopment conditions." CARE, page 19. See also Stormwater Element, page 20. Yet, the best that the County offers, after acknowledging its preoccupation with flood control in setting the stormwater level of service standard, is to promise that a stormwater management program--deferred to land development regulations--will eventually address stormwater runoff in terms of quality, not merely quantity. Stormwater Element, page 43.
As to the part of Issue 10 addressing the level of service standard, the Plan's stormwater standard is, to the exclusion of fair debate, not supported by the Data and Analysis because it fails to require that, for new development, redevelopment, and expansions of existing development, as "development" is defined in the Plan, postdevelopment stormwater urban and agricultural runoff shall be the same as (or, where appropriate, better than) predevelopment runoff in terms of volume, quality, rate, hydroperiod, and drainage basin.
If the Plan fails to amend its stormwater level of service standard in the manner set forth in the preceding paragraph, many future land use designations, in addition to those discussed below, are, to the exclusion of fair debate, unsuitable and lack support from the Data and Analysis. The permitted densities and intensities, especially in the 100 year floodplain, will contribute dramatically to the degradation of natural drainage patterns in the County and ultimately to the degradation of Tampa Bay. Absent modification of the stormwater level of service standard to address urban and agricultural runoff in terms of volume, quality, rate, hydroperiod, and drainage basin, the Data and Analysis would not support Plan provisions that allowed any development, as that term is defined in the Plan, in the 100 year floodplain if such development's urban or agricultural runoff altered predevelopment drainage conditions in terms of its rate, volume, quality, timing, or location of discharge.
As to Issues 11-14, assuming that the Plan is amended to broaden the scope of the stormwater level of service standard in the manner set forth in the preceding paragraph, the Plan is generally supported by the land use suitability analysis. However, there are 11 exceptions.
First, in terms of urban sprawl, the overall densities in the Plan are supported by the Data and Analysis, at least to the extent that there is no indication of urban sprawl.
The density allocation ratio of 1.61:1 is not an especially strong indicator of sprawl in this case. 26/ Several factors are important in evaluating a density allocation ratio, such as whether historic buildouts have been considered (not in this case) and the duration of the planning timeframe (20 years). Probably the most important consideration, though, is the location of the residential uses. A density allocation ratio of 3:1 generated by 100,000 acres of 1:1 residential is far more suggestive of inefficient use of land than the same ratio generated by 5000 acres of 20:1 residential in an existing or planned mixed use urban area, assuming the provision of adequate public facilities, protection of natural resources, and protection of agriculture.
The Plan's two planning strategies involve the concentration of density in the I-75 corridor, with decreasing densities radiating outward, and the development of nodes where suitably scaled commercial uses are located in close proximity to residential uses. These two strategies have been effectively implemented in the Plan to counter urban sprawl.
There is no plausible evidence in the record that the allocated intensities or acreage, in terms of commercial or industrial uses, are indicative of urban sprawl. As the Data and Analysis note, commercial development has historically followed residential development, not preceded it. An underallocation of commercial and industrial future land uses arguably invites sprawl by interfering with the development of functionally related land uses. There is no place for commercial, industrial, institutional, and recreational land uses once residential development has consumed the entire landscape, with respect to which adequate commercial, industrial, recreational, and institutional uses have not been timely reserved.
In addition, allocation ratios for commercial and industrial uses are problematic, regardless whether expressed in acreage, which is necessarily a very gross measure of the intensity that is eventually built out, or floor area ratios, which are more precise but much more difficult to predict based on designated acreages of vacant land. Therefore, the overallocation of commercial and industrial uses does not serve as a useful beginning point for analysis, at least in the absence of proof of historic overbuilding with resulting disruption in the efficient use of land or public facilities or loss of natural resources or agriculture.
As noted above, the key factor with respect to commercial and industrial uses is location. Through various devices, the Plan effectively pursues mixed land use patterns that will encourage the location of residential, commercial, and industrial, as well as institutional and recreational, uses in a functionally related manner.
Notwithstanding the finding that the Plan designations are supported by the Data and Analysis in terms of urban sprawl, the Data and Analysis do not support specific designations involving considerable acreage, even assuming that the stormwater level of service standard will be broadened to include the above- cited factors in addition to flood control.
The Data and Analysis recount the consequences of years of land use decisions based "primarily on socio-economic and demographic factors, with little consideration given to preserving or conserving the natural attributes of the land." But the Data and Analysis promise that, "[w]ith a better understanding of the ecological impacts of land uses, it has become clear that the natural carrying capacity of the land must be carefully considered in land use decisions . . .." CARE, page 73.
For the 11 areas described below, socio-economic and demographic factors have again outweighed the natural carrying capacity of the land. The 11 areas have received unsuitable designations for which the Data and Analysis offer no or inadequate support. For each of these areas, the Plan has assigned designations whose excessive densities and/or intensities generally jeopardize important natural resources or life and property in the coastal high hazard area.
A future land use is suitable if the designation is supported by the Data and Analysis. For the vast majority of areas, the Data and Analysis would support designations assigning a range of densities and/or intensities. The question whether a designation is supported by the Data and Analysis requires consideration of, among other factors, the nature of the density or intensity inherent in the designation of the subject area, the data and analysis concerning the nature of the natural resources affected by the subject designation (including off-site resources), the data and analysis concerning when and what type of public facilities will be available to service the subject area, the data and analysis indicating how the designated uses may impact natural resources, and operative Plan provisions that may or may not offer protection to the natural resources in question. 27/
The Plan assigns unsuitable designations to five areas in northwest and north Hillsborough County. The Data and Analysis fail to support two of these designations to the exclusion of fair debate and three of the designations by a mere preponderance of the evidence.
One relatively small area whose designation is, to the exclusion of fair debate, unsupported by the Data and Analysis is designated Low Suburban Density Residential (2:1) at the southeast end of Keystone Lake. The extent of the subject area corresponds to the area designated Low Suburban Density Residential on the FLUM. This area is immediately north and west of Gunn Highway at Van Dyke Road. Shown as largely agricultural or vacant on Oversized Map 2, the area received an increase in density in the Plan, according to Oversized Map 14. The only area designated at a Suburban density in the northwest corner of northwest Hillsborough County, the area is the site of one or more major public supply water wells.
By contrast, areas containing groups of wells just south of Keystone Lake and at the extreme northwest corner of the County are designated Natural Preservation, as is an area at the southwest corner of SR 597 and Van Dyke Road, about four miles east of the area in question.
The area designated Low Suburban Density Residential occupies an area of relatively good natural aquifer recharge and is very susceptible to groundwater contamination. The subject area is included in the 1995 central water service area, but excluded from even the 2010 central sewer service area, according to Sewer Element Figure 1 and Potable Water Element Figure 1.
The absence of effective Plan provisions protecting wellfields, cones of influence, and recharge areas further undermines the Low Suburban Density Residential designation of an area in such close proximity to a major public supply water well and in an area of relatively good natural aquifer recharge.
The increased density for this area threatens a major wellfield with encroaching development, as predicted in the Data and Analysis. FLUE, page 7.
A mere preponderance of the evidence shows that the Data and Analysis do not support the density and intensity assigned by the Plan to two, much larger areas in the northern half of northwest Hillsborough County. The extent of the subject areas corresponds to the areas whose densities were increased, according to Oversized Map 14 (excluding only the above-described Low Suburban Density Residential area).
The western area of the two is a contiguous block surrounding Keystone Lake and proceeding east and west of the major public supply water wells about 1-2 miles south of Keystone Lake. This area extends to the northwest corner of Hillsborough County, except for the very corner, which is Natural Preservation.
The eastern area is a contiguous block almost entirely west of SR 597, but crossing SR 597 at the southeast corner. This area abuts Pasco County on the north and an area of density decrease on the south.
These two areas of increased density and intensity surround (or in some cases slightly encroach upon) the four largest collections of major public supply water wells in northwest Hillsborough County, as shown on Oversized Map
Representing perhaps half of such collections of major public supply water wells in the entire County, these wells represent a very important source of potable water, especially for a County in which demand is now exceeding supply.
The two areas in question are in areas of relatively good natural aquifer recharge and areas of high vulnerability to groundwater contamination. The Plan supplies no performance standards for activities that may introduce contaminants into the portion of the aquifer from which a major public supply water well draws. As the Data and Analysis note, increasing areas of impervious surface may reduce recharge and groundwater supplies.
A considerable amount of the eastern area lies in the 100 year floodplain, which runs throughout both areas. The eastern area also includes a significant section of soils with very severe limitations, according to Oversized Map 13 and CARE Figure 9. The green map indicates two overlay areas of Environmentally Sensitive Areas which are potentially significant wildlife habitat. One of these areas is in the southwest corner of the eastern area, and the other covers the part of the eastern area designated Regional Commercial.
The western area contains numerous sites described by Oversized Map
13 as Very Sensitive Lands and most of one significant section of soils with very severe limitations, according to Oversized Map 13 and CARE Figure 9. According to CARE Figure 20, the western area contains significant amounts of dry prairie and cypress swamps. According to the green map, the western areas's
potentially significant wildlife habitat takes the form of two narrow corridors running east-west, although the northern one may have been excluded from the area receiving increased density. As noted above, contiguous wildlife corridors receive firm protection under the Plan.
The designations are completely different for the two areas. The western area contains entirely Rural Residential (1:1) and Rural Estate Residential (1:2.5), except for small areas of Environmentally Significant Areas. The more densely designated eastern area contains mostly Low Suburban Density Residential (2:1) and smaller, but significant, amounts of Suburban Density Residential (4:1). Each of these areas would, under the Plan, host commercial uses scaled to their respective Rural and Suburban densities. But the southeast corner of the eastern area is designated Regional Commercial (20:1) and contains major natural systems according to Oversized Map 8. The natural systems appear to be dry prairie and cypress swamps on CARE Figure 20. According to Oversized Map 2, this corner is agricultural or vacant with natural area in its center.
The unsuitability of the designations given both the eastern and western areas is about equal. Although the western area received less density, according to Sewer Element Figure 1, the western area is almost entirely outside the area that will be served by central sewer, even by 2010. Most of the western area will be served by central water by 2010, with a substantial area to be served by 1995, according to Potable Water Element Figure 1. By contrast, the eastern area already has some central sewer lines and what little area will not be within the 1995 central sewer boundary will be included in the 2010 boundary. The situation is identical with respect to central water.
The unsuitability of the designations of the eastern and western areas is unaffected by the fact, as shown by Oversized Map 15, that the Plan brought portions of these areas into conformance with existing zoning. Zoning conforms to Plan designations. The Plan provides, where appropriate, for vested rights. The remedy for nonconforming zoning is to recognize vested rights, not to increase densities and intensities over wide areas to an extent not supported by the Data and Analysis.
The key fact is that, for both the western and eastern areas, the Plan has designated excessive densities and intensities in areas containing sensitive and much-needed groundwater resources. And while increasing these densities and intensities, the County has not, at the same time, adopted effective Plan provisions ensuring the protection of wellfields, their cones of influence, natural recharge areas, and the natural functions of floodplains from the adverse impacts of development.
Another area whose designation is, to the exclusion of fair debate, unsupported by the Data and Analysis is an area of about 2.5 square miles designated Urban Level 1 Limited (8:1) immediately east of I-275 and I-75. The extent of the subject area corresponds to the area designated Urban Level 1 Limited on the FLUM.
The 2.5 square mile area is the only Urban Level designation that is not contiguous to the Urban Level designations constituting the I-75 corridor, except for a small Urban Level-1 "island" surrounded by Natural Preservation. 28/ The 2.5 square mile area designated Urban Level 1 Limited is separated from the remainder of the I-75 corridor by several miles of area designated Natural Preservation. Nor is the 2.5 square mile area bounded by existing or proposed arterial roads, as is required of Urban Level 1 areas. According to Oversized
Map 4, the only arterial or higher roads in or near the 2.5 square mile area are I-75 on the west boundary (to which access is limited) and an arterial on the east boundary. There are no roads on the north and south boundaries, nor will there be by 2010, according to Oversized Map 4.
Almost the entire 2.5 square mile area is overlaid with Environmentally Sensitive Areas which are potentially significant wildlife habitat, according to the green map. The northern half of the 2.5 square mile area is in the 100 year floodplain. The eastern and western thirds of the area consist of very poorly drained soils. The northern two-thirds of the area occupy an area of very low to moderate recharge, which is the highest recharge in Hillsborough County. Most of the western half of the area is in the area most susceptible to groundwater contamination. The eastern third appears to be entirely dry prairie and cypress swamps, through which a major tributary of the Hillsborough River runs. Oversized Map 8 shows nearly the entire parcel (less a small area at the western end) to be part of major natural systems.
Oversized Map 2 shows that the 2.5 square mile areas is entirely agricultural or vacant. Despite this unusual confluence of natural features, the 2.5 square mile area, which is permanently separated from Tampa by a Natural Preserve protecting the Hillsborough River, received a density increase in connection with the I-75 and South County plan amendments that were incorporated into the Plan. The 2.5 square mile area is entirely omitted from even the 2010 central water and sewer service areas, according to Sewer Element Figure 1 and Potable Water Element Figure 1.
The failure of Plan provisions to ensure the protection of the natural functions of floodplains and recharge areas exacerbates the unsuitability of the Urban designation for the 2.5 square mile area. The meaning of Urban Level 1 Limited is explained by FLUE Policy C-25.3, which limits the density in the 2.5 square mile area to 8:1. But even this "reduced" density fails to indicate that this remote area will undergo development suitable for the unusual range of natural resources present in the area. The circumstances suggest that the Urban Level 1 Limited designation cannot facilitate the development in this remote area of the kind of viable mixed uses for which Urban designations are intended.
A mere preponderance of the evidence shows that the Data and Analysis do not support the density assigned by the Plan to a much larger L-shaped area designated Suburban Density Residential (4:1) extending from the 2.5 square mile area to just across CR 579. The extent of the subject area corresponds to the area designated Suburban Density Residential on the FLUM.
The Suburban Density Residential L-shaped area, which is about 12 square miles, contains three major public supply water wells at its southeast corner. The green map overlays more than three quarters of the 12 square mile area with Environmentally Sensitive Areas which are potentially significant wildlife habitat. The 12 square mile area abuts the above- described 2.5 square mile area on the northwest, Tampa on the southwest and nearly all of the south, Pasco County and Agricultural/Rural (1:5) on the north, and Agriculture (1:10) on the east.
According to CARE Figure 20, the portions of the 12 square mile area overlaid with the designation of Environmentally Sensitive Areas which are potentially significant wildlife habitat are dry prairie and cypress swamps, as is almost two- thirds of the land south of the subject area under the jurisdiction of the City of Tampa. According to CARE Figure 14, the western
half of the 12 square mile area is in an area of relatively good natural aquifer recharge, but only a very small part of the subject area is in an area of high vulnerability to groundwater contamination. However, a large collection of major public supply water wells is in the Natural Preservation area just south of the extension of Tampa abutting the south boundary of the 12 square mile area. The closest wells are about one mile south of the southern boundary of the 12 square mile area.
According to Oversized Map 13, the only part of the 12 square mile parcel with poor soils is the extreme northwest corner. Oversized Map 2 shows that the entire 12 square mile area that is not shown as natural areas is agricultural or vacant, as is the area of Tampa immediately south of the subject area. According to Sewer Element Figure 1 and Potable Water Element Figure 1, the 12 square mile area is not scheduled to receive central water or sewer by 2010.
The remaining areas whose designations are not supported by the Data and Analysis are in the vicinity of the coastal high hazard area in south Hillsborough County and in the Urban designations and one Light Industrial designation along the I-75 corridor south of the Alafia River. The Plan assigns designations to two areas in or near the coastal high hazard area that, to the exclusion of fair debate, are not supported by the Data and Analysis. The Plan also assigns designations to four areas in (or adjoining, in the case of the Light Industrial area) the I-75 corridor south of the Alafia River that are not supported by the Data and Analysis to the exclusion of fair debate, in one area, and by a mere preponderance of the evidence in the other three areas.
The coastal high hazard area begins at the Manatee County line and runs along US 41. At a point due east of Cockroach Bay, the line turns toward the bay and continues to run in a more northerly direction until it approaches the Little Manatee River. At this point, the coastal high hazard line follows the winding river to the east, then south, crossing US 41 before proceeding again north. The line runs along US 41 until, at the north end of Ruskin, the line cuts again toward the bay. After running north again for about one mile, the line returns to US 41, then proceeds west of US 41, in a north-northeasterly direction, until it almost intersects the bay at Apollo Beach. North of Apollo Beach, the line mostly follows US 41 to the Alafia River at Gibsonton.
Oversized Map 14 discloses density increases in part of the coastal high hazard area between Cockroach Bay and the Little Manatee River. Initiated by the I-75 and South County plan amendments that were incorporated into the Plan, an irregularly shaped area about three square miles west of US 41 received a density increase. The Plan then increased the density of a smaller portion of the eastern end of the three square mile area.
The extent of the subject area, which is only partly in the coastal high hazard area, corresponds to the area whose density was increased, according to Oversized Map 14, and that is presently designated, in the FLUM, as Low Suburban Density Residential Planned (2:1 if certain clustering and mixed use requirements are met; otherwise 1:5). Oversized Map 2 shows that the entire area so designated is entirely agricultural or vacant, except for a shell mine, three small, isolated areas of low density residential, and some small commercial uses along US 41.
The density increase for the portion of the three square mile area lying in the coastal high hazard area is clearly unsupported by the Data and Analysis, which acknowledge the need to reduce, not raise, densities in this
critical area in order to save lives and property. However, much of the three square mile area is outside of the coastal high hazard area and the unsuitability of the designation lies in the assigned density, not in the increase of density.
About a third of the three square mile area is in the 100 year floodplain. Relatively little of it contains major natural systems or Environmentally Sensitive Areas which are potentially significant wildlife habitat, according to Oversized Map 8 and the green map. And none of the area is subject to recharge or significantly vulnerable to groundwater contamination.
However, the three square mile area is bordered on three sides by three critical resources that remain in relatively pristine condition:
Cockroach Bay, the Little Manatee River, and the portion of Tampa Bay connecting the river and Cockroach Bay. The entire shoreline along the three square mile area joins Hillsborough County's only aquatic preserve.
Coastal Figure 11 indicates that the coast from just south of Apollo Beach to the Manatee County line, and especially from the Little Manatee River to Cockroach Bay, is the only location where seagrass meadows remain along the waters of unincorporated Hillsborough County, except for a smaller expanse of interspersed meadows along the shore of northwest Hillsborough County. These are also Class II waters.
CARE Figure 9 shows that the western half of the three square mile area is dominated by very poorly drained soils. The Data and Analysis note that area septic tank failures have contributed to the pollution of Cockroach Bay and possible loss of the last shoreline location in the County at which shellfish harvesting is approved, although only conditionally.
Significantly, in view of the poorly drained soils and history of septic tank failures, Sewer Element Figure 1 shows no existing or proposed sewer lines for the three square mile area, which inexplicably is nonetheless included in the 2010 central sewer service area. The area is due to receive central water lines by 2010. Given the critical and fragile nature of the area of Cockroach Bay and the Little Manatee River, as described by the Data and Analysis, the Low Suburban Density Residential Planned designation, which, with the I-75 and South County plan amendments, represented an increased density for the three square mile area, is not, to the exclusion of fair debate, supported by the Data and Analysis.
The failure of the Plan to direct population concentrations away from the coastal high hazard area and ensure the protection of the natural functions of the 100 year floodplain exacerbates the unsuitability of the Low Suburban Density Residential Planned designation for the three square mile area.
Just north of the Little Manatee River at Ruskin, Oversized Map 14 discloses another area of density increase, again initiated by the I-75 and South County plan amendments that were incorporated into the Plan. This area is designated Medium Density Residential (12:1) and extends two miles east-west by an average of one-half mile north-south. The southwest corner of the one square mile area abuts a portion of the Little Manatee River, and nearly the entire south boundary of the area abuts a tributary of the Little Manatee River. The extent of the subject area corresponds to the area designated Medium Density Residential on the FLUM.
The entire square mile area lies west of US 41 and in the coastal high hazard area. The designation is, to the exclusion of fair debate, unsupported by the Data and Analysis for this reason alone.
According to Oversized Map 2, the southern half of the square mile area is already in low and medium density residential, except for the western end that is agricultural or vacant. However, most of the northern half is agricultural or vacant.
According to Oversized Map 13, the entire square mile area contains soils with very severe limitations and some critical lands. The entire area occupies the 100 year floodplain. And the area is not due to receive central sewer until 1995 or central water at all, although it is in the 1995 central water service area. Even absent the fact that the square mile area is in the coastal high hazard area, the Medium Density Residential designation is, to the exclusion of fair debate, unsupported by the Data and Analysis.
The remaining four areas in the County whose designations are unsupported by the Data and Analysis are in the I-75 corridor, except for one of the areas that extends into an adjoining Light Industrial area. Nearly the entire contiguous corridor received higher densities as a result of the I-75 and South County plan amendments that were incorporated into the Plan. However, the four areas in question all lie south of the Alafia River.
The first area is about 3.25 square miles at the southernmost end of the I-75 corridor, south of SR 674. Triangularly shaped, this area, which is Urban Level 1 (12:1), is bounded on the east and north by I-75. The extent of the subject area corresponds to the area designated Urban Level 1 south of SR 674 and I-75.
The southern boundary of the triangular area represents an anomaly for the I-75 corridor; it abuts Rural Residential (1:1). Except for the portion of the north end of the I-75 corridor surrounding a Rural Residential "island" and the northernmost end of the I-75 corridor, which abuts the vast Natural Preservation area of the Hillsborough River valley, no other part of the I-75 corridor abuts land that is not designated at least Suburban. Contrary to the requirements for Urban Level 1 designations, the triangular area is not bound by existing or proposed arterials.
The triangular area also abuts a Natural Preservation area at its southeast corner. The Little Manatee River is less than one-half mile from the southern boundary of the subject area. The southernmost mile of the subject area encompasses tributaries of the Little Manatee River. The northern half of the subject area adjoins Suburban Density Residential (4:1) and Low Medium Density Residential (9:1) on the east and Low Urban Density Residential (6:1) and Urban Level-2 (20:1) across I-75 on the west. The northern point of the subject area is in the vicinity of the I-75/SR 674 interchange.
The triangular area is free from major natural systems or Environmentally Significant Areas which are potentially significant wildlife habitat, according to Oversized Map 5 and the green map. However, most of the southernmost mile of the subject area is within the 100 year floodplain.
Oversized Map 2 reports that the subject area is predominantly agricultural or vacant, although it has interspersed, isolated low density and some medium density residential uses, mostly in the northeast portion.
The triangular area is not scheduled for any central sewer lines until after 1995, and then the line will be limited to about one-half mile south of SR 674 along I-75. The area will be better served, by 2010, by central water.
Given the Plan's failure to protect adequately floodplains and the proximity of the Little Manatee River, the evidence shows, to the exclusion of fair debate, that the Urban Level-1 designation of the southernmost mile of the triangular area is not supported by the Data and Analysis. The designation given to the remainder of the triangular area is not unsupported by the Data and Analysis.
A mere preponderance of the evidence shows that the Data and Analysis do not support predominantly Urban Level 1 densities and intensities in two areas in the vicinity of I-75 and Big Bend Road.
One of the areas in question is a Z-shaped linear area that largely tracks, but is not limited to, a strip of Environmentally Sensitive Areas. The strip begins at US 301 and a proposed westerly extension of SR 672. The area, which is limited to the Urban I-75 corridor, proceeds in a west- northwesterly direction to just east of I-75, runs north along the east side of I-75 to a point about one mile south of the Alafia River, and, now becoming Bullfrog Creek, turns west and crosses I-75 until it leaves the I-75 Urban Level corridor. The extent of the subject area corresponds to the areas in the vicinity of the Z-shaped area that are within any of the three following categories: the 100 year floodplain according to Oversized Map 9, Environmentally Sensitive Areas on the FLUM, or Environmentally Sensitive Areas on the green map.
The lower half of the Z-shaped area occupies very severely limited soils. The upper half contains critical and very sensitive lands. According to Oversized Map 14, almost the entire Z-shaped area received increased densities due to the I-75 and South County plan amendments that were incorporated into the Plan. According to Oversized Map 2, existing uses of considerable portions of the Z-shaped area are natural areas and agricultural or vacant. CARE Figure 20 indicates that Bullfrog Creek is largely open water until it turns south just east of I-75, at which point a series of hardwood swamps extend through the remainder of the Z-shaped area to the south.
The Z-shaped area, which runs about eight miles, has long been recognized as environmentally sensitive and generally unsuitable for development. 29/ The narrow band of Environmentally Sensitive Areas is afforded uncertain protection under the Plan. Moreover, the Urban Level 1 designation extends to portions of the Z-shaped area that are in the 100 year floodplain and the Environmentally Sensitive Areas which are potentially significant wildlife habitat, according to the green map. In the absence of stronger Plan provisions protecting the 100 year floodplain, as well as Environmentally Sensitive Areas, the Urban Level 1 designation given the Z-shaped area is, by a mere preponderance of the evidence, unsuitable and unsupported by the Data and Analysis. The unsuitability of the designation is underscored by the operation of the density and intensity formulas, which would allow even more intense and dense uses in close proximity, even assuming that development were prohibited in the Environmentally Sensitive Areas themselves.
Two other areas bearing unsuitable designations are also in the vicinity of Big Bend Road and I-75. Unlike the remainder of the contiguous I-75 corridor, these areas mark significant expanses of Environmentally Sensitive Areas which are potentially significant wildlife habitat. One area runs from the southeast corner of the interchange along I-75 south past a proposed extension of Balm-Picnic Road or SR 672, where the area expands to an area of about one mile north-south by two miles east-west, with the western end crossing I-75. The extent of the subject area corresponds to the area shown on the green map as Environmentally Sensitive Areas which are potentially significant wildlife habitat. The subject area is designated exclusively Urban Level 1 except for a small area designated Environmentally Sensitive Areas.
The upper portion of the subject area overlaps the part of the Z- shaped area running north-south just south of Big Bend Road. According to CARE Figure 20, the remainder of the narrower part of the subject area is wetlands. The wider portion of the subject area is predominantly dry prairie. According to Oversized Map 14, the entire subject area received increased density in the I-75 and South County plan amendments that were incorporated into the Plan.
According to Oversized Map 2, the existing uses of the entire subject area are natural areas and agricultural or vacant.
The Urban Level-1 designation given the subject area is, by a mere preponderance of the evidence, unsuitable and unsupported by the Data and Analysis. The allowable densities and intensities contradict the acknowledgement in the Data and Analysis of the need to protect these natural resources and frustrate other Plan provisions that extend some protection to these natural resources.
The other area extends northwest of the intersection of Big Bend Road and I-75. The subject area runs about 1.5 miles north of the intersection, then widens to the west to encompass a portion of the Light Industrial designation between the I-75 corridor on the east and, on the west, Tampa Bay and the large Heavy Industrial area north of Apollo Beach. The extent of the subject area corresponds to the area shown on the green map as Environmentally Sensitive Areas which are potentially significant wildlife habitat.
Except for the Light Industrial designation, the entire subject area is designated Urban Level 1 with a small area of Urban Level 2. According to CARE Figure 20, almost all of the subject area is wetlands, possibly with some pine flatwoods. Part of the subject area received a density increase by the I-75 and South County plan amendments that were incorporated into the Plan.
According to Oversized Map 2, the existing uses of all of the subject area are natural area and agricultural or vacant, with a narrow corridor of major public area.
The Urban Level 1 and 2 designations assigned to the subject area are, by a mere preponderance of the evidence, unsuitable and unsupported by the Data and Analysis for the same reasons set forth with respect to the preceding area.
General Minimum Criteria
Public Participation (Issue 15)
As to Issue 15, the County adopted the Plan, including all amendments, in a manner consistent with the requirements of public participation.
Contents of FLUM and Plan (Issues 16-36)
FLUM (Issue 16)
As to Issue 16, the FLUM depicts minerals in the Agricultural/Mining designation and various public uses in the Major Public/Semi-Public designation. Regardless of the ambiguity surrounding the significance of the designation, the Environmentally Sensitive Areas designated on the FLUM (i.e., the multicolor map) adequately show the location of wetlands. However, to the exclusion of fair debate, the FLUM is not consistent with the criterion of the depiction of existing and planned waterwells, cones of influence, historic resources or historically significant properties meriting protection, floodplains, or soils. All of these resources are depicted on ELUM's, but the County elected not to include these resources on the FLUM as part of the operative provisions of its Plan.
Plan Provisions Regarding Natural Resources (Issues 17-22)
As to Issue 17, the Plan contains objectives coordinating future land uses with topography, soils, and the availability of public facilities.
Regarding topography and soils, FLUE Objective A-1 prohibits the issuance of development orders unless the development is "compatible with the physical conditions of the land, including, but not limited to, topographical and soil conditions . . .." FLUE Objective A-8 requires development to mitigate adverse impacts to natural systems.
Regarding topography, FLUE Objective 4 is to protect the 100 year floodplain's storage volume. Somewhat vaguely, CARE Objective 19 is to amend land development regulations to "ensure the protection of the attributes, functions and amenities of the natural environment "
Regarding the stormwater management aspects of topography, Stormwater Element Objective 4 is to identify and evaluate the sources of water quality degradation attributable to stormwater runoff. Stormwater Objective 5 is to maintain or improve the quality of stormwater runoff.
Regarding soils, CARE Objective 11 requires soil conservation during land alteration and development activities. Although not objectives, two policies address the suitability of soils. CARE Policy 11.1 provides that, during the land development review process, the County shall "recommend" the appropriate use of soils and shall require site-specific analyses when land uses
appear incompatible with soils. CARE Policy 11.3 states that, during the land development process, the County shall use soil capability analyses for flood hazard, stability, permeability, and other soil characteristics.
Regarding mining, CARE Objective 7 requires the "prudent operation" of mining activities. CARE Objective 9 is to protect the public health, safety, and welfare from the adverse impacts of mining. CARE Objective 10 requires the County to regulate the location and operation of land excavation to minimize negative impacts on surrounding land uses and ensure the reclamation and productive reuse of excavated lands.
Regarding public facilities, FLUE Objective A-5 is that all development and redevelopment shall be serviced at the adopted level of service standards by all public facilities for which concurrency is required. FLUE Objective C-29 requires that the needed public facilities be provided concurrent with the impacts of development.
Although there are several instances where specific land use designations are unsuitable in terms of, among other factors, topography, soils, and the provision of public facilities, the Plan contains sufficient provisions to attain consistency with the criterion of an objective coordinating future land uses with topography, soils, and public facilities.
As to Issue 18, numerous Plan provisions address numerous natural resources, as well as water sources. The rules cited in Issue 18 require one or more objectives ensuring the protection of natural resources, such as Tampa Bay and its tributaries, and one or more objectives conserving, appropriately using, and protecting water sources. 30/
For the purpose of Issue 18, natural resources have been identified as Tampa Bay, Cockroach Bay, rivers (primarily the Hillsborough, Alafia, and Little Manatee Rivers), surface waters generally, floodplains, wetlands, rare upland habitats, and wildlife habitat. Findings concerning soils are set forth above.
The water sources have been divided into the following categories: wellfields and cones of influence, aquifer recharge, groundwater, water conservation, and septic tanks. Obviously, wellfields, cones of influence, and aquifer recharge areas are natural resources, and floodplains, wetlands, and the Hillsborough River (whose surface waters are an important potable water source) are related to water sources. There is thus considerable overlap in the following discussion of these categories.
Regarding surface water generally, including Tampa Bay, Cockroach Bay, and the rivers, CARE Objective 2 promises that the water quality of natural surface water bodies shall be improved or restored if they do not at least meet state water quality standards. Unfortunately, CARE Objective 2 is not operative until 1995. If the objective had assured compliance with water quality standards, a deferred date of 1995 would have been suitable because the entire improvement cannot take place instantaneously. However, the intermediate end of CARE Objective 2 is much more modest; the water quality of substandard water bodies must only be improved. And the improvement--any improvement--is not required until 1995.
The main threats to Tampa Bay also apply to surface water quality generally: inadequately treated wastewater and inadequately treated stormwater. The Plan does not generally ensure the protection of surface water through the objectives and relevant policies concerning stormwater. Stormwater Objective 5 is to implement programs to maintain or improve stormwater. The natural resources in question are not protected by maintaining the water quality of stormwater; they are not even protected by improving the water quality of stormwater absent a measurable goal. The failure of the stormwater objectives is exacerbated by the Plan's failure to set stormwater level of service standards in terms other than flood control.
The Plan addresses to a much greater extent the protection of surface water through the objectives and relevant policies concerning wastewater. Sewer Element Objective 1 is for all wastewater treatment facilities to produce effluent of sufficiently high quality to meet or exceed all regulatory standards. Sewer Element Policy 1.1 requires that all wastewater discharged into surface waters or wetlands meet Advanced Wastewater Treatment standards.
Sewer Element Objective 2 promises to assist in the wastewater problem by continuing to require the use and expansion of existing recovered water reuse systems. Sewer Element Objective 4 requires that central sewer facilities be provided to remedy current deficiencies in the system and to meet projected demands, based on the sewer level of service standard.
Sewer Element Objective 7 is to "[m]inimize the possibility" that existing and future wastewater adversely impacts surface waters. The objective is not especially amenable to measurement. Sewer Element Policy 7.1 is useful, though, because it requires that septic tank users hook up to the County system when it becomes available, except in cases of undue hardship. Sewer Element Policy 4.8 also prohibits septic tanks in the coastal high hazard area except in cases of undue hardship. CARE Policy 2.6 promises better wastewater treatment in areas where septic tanks fail, at least where economically feasible. And CARE Policy 2.4 indicates that the County plans to supply regional wastewater treatment in the more densely populated areas.
However, other policies under Sewer Element Objective 7 are less effective. Sewer Element Policy 7.2 promises that, within one year after the completion of a pending septic tank study, the County will reexamine the maximum usable density for septic tanks. Sewer Element Policy 7.3 promises, in the same timeframe, a program to identify existing septic tank systems with a high potential for contaminating groundwater.
Regarding Tampa Bay, Coastal Element Objective 3 is to "maintain, and enhance where environmentally and economically feasible, the abundance and diversity of living marine resources in Tampa Bay." FLUE Objective C-30 requires the County to adopt land development regulations and unspecified performance standards to ensure that "water quality and quantity" are protected from degradation from development.
CARE Objective 19 promises that the County shall continue to amend its land development regulations to "ensure the protection of the attributes, functions and amenities of the natural environment." In addition to relegating the regulatory mechanism to land development regulations, CARE Objective 19 does not state a specific, measurable, intermediate end that can be achieved.
Coastal Element Policy 2.1 is to conserve and protect tidal wetlands from detrimental physical and hydrological alteration and prohibit unmitigated encroachment into tidal wetlands. Coastal Element Policy 2.2 prohibits channelization or hardening of natural coastal shorelines and tidal creeks except in cases of overriding public interest. Coastal Element Policy 2.6 prohibits development activities on submerged lands containing significant seagrass habitat and seeks the restoration of seagrass coverage. Coastal Element Policy 2.7 requires land developments within the coastal area to preserve those portions of native upland plant communities necessary to provide an effective buffer for coastal wetlands. Coastal Element Policy 2.9 is to review and "restrict as appropriate" proposed development adjacent to the Cockroach Bay Aquatic Preserve to ensure that water quality, shoreline, or estuarine habitat degradation does not occur due to development.
Coastal Element Policy 6.7 prohibits the use of septic tanks for new development in the coastal high hazard area. Coastal Element Policy 7.4 forbids the development of water- related uses by dredging and filling wetlands or the natural shoreline.
CARE Policy 19.8 requires the County to identify Resource Protection Areas on the FLUM. Resource Protection Areas include Tampa Bay, Cockroach Bay, the three main rivers, significant and essential wildlife habitat, areas of high aquifer recharge/groundwater contamination potential, public supply wellfields and their cones of influence, and areas containing major phosphate deposits.
CARE, pages 99-100.
For Tampa Bay, the CARE definition of Resource Protection Areas refers the reader to the Coastal Element. Coastal Element Objective 1 is identical to CARE Objective 2. Coastal Element Objective 1 addresses only the water quality of those parts of Tampa Bay and its tributaries not meeting state standards. By 1995, these waters will be improved or restored. In addition to failing to address the protection of those parts of Tampa Bay meeting or exceeding state standards, this objective promises only, as to substandard waters, that some improvement is to take place starting in 1995.
As is the case with surface waters generally, the Plan contains various provisions adequately addressing wastewater. CARE Policy 2.2 and Coastal Element Policy 1.2 require Advanced Wastewater Treatment for all surface water discharge from all domestic wastewater treatment plants discharging into Tampa Bay or any of its tributaries. Coastal Element Policy 1.4 is to continue to develop and use effluent-disposal alternatives, such as reused water for agricultural and industrial uses, rather than surface water discharge into Tampa Bay and its tributaries. Coastal Element Policy 1.7 provides that, where it is economically feasible, the County shall provide improved domestic wastewater treatment in areas where persistent water quality problems in Tampa Bay are clearly attributable to poorly functioning septic tank systems.
Again, the Plan offers less protection to Tampa Bay from inadequately treated stormwater runoff. However, addressing another source of excessive nutrients in Tampa Bay, Coastal Element Policy 1.12 provides for the dredging and removal of polluted estuarine sediments and their replacement with clean fill, where economically and environmentally feasible.
Regarding the Hillsborough, Alafia, and Little Manatee Rivers, numerous goals, objectives, and policies in the FLUE provide protection for these resources.
FLUE Goal 3 is to make the Hillsborough River cleaner. FLUE Objective C-7 is to protect the Hillsborough River as a major source of drinking water.
Somewhat less effective are FLUE Objectives C-10 and C-12. Objective C-10 requires the County, by 1992, to establish development standards for the river corridor. Objective C-12 requires the County, by 1994, to manage the Hillsborough River as an important community asset. FLUE Policy C-9.1 prohibits new marinas in the upper Hillsborough River.
FLUE Objective C-14 is to discourage additional development on the upper Hillsborough River. FLUE Policy C-14.1 requires the County to manage the upper Hillsborough River as a wildlife corridor. FLUE Objective C-13 requires the County to preserve and enhance wildlife habitats associated with the Hillsborough River. Because of the Hillsborough River's status as a source of surface potable water, it receives additional protection from CARE Objective 6, which requires the conservation, reuse, and enhancement of surface water supplies.
Various policies add to the protection extended the Hillsborough River. FLUE Policy C-7.2 prohibits new septic tanks within 200 feet of the Hillsborough River, although, unlike similar provisions concerning the Alafia and Little Manatee Rivers, this prohibition is not extended to tributaries.
FLUE Policy C-7.4 requires Advanced Wastewater Treatment for wastewater treatment discharging anywhere in the Hillsborough River drainage basin.
FLUE Policy C-7.3 prevents further destruction of the natural vegetative buffers along the Hillsborough River. FLUE Policy C-10.2 prohibits the designation of new industrial land uses within 500 feet of the river. FLUE Policy C-13.1 prohibits the alteration of wetlands within 500 feet of the river.
Regarding the Alafia River, FLUE Goal 4 is to preserve, protect, and promote the Alafia River and its natural resources and recreational benefits.
FLUE Objective C-15 requires the County to maintain the water quality of this already impaired waterbody, but only by 1995.
FLUE Objectives C-16 and C-17 require the County, by 1991, to preserve and restore native vegetation and wildlife habitats and protect wildlife, presumably along the Alafia River. FLUE Policy C-16.1 prohibits the alteration of wetlands within 500 feet of the river. FLUE Policy C-16.2 requires the County to "encourage" the reclamation of mined lands along the river with native vegetation.
FLUE Objective C-20 requires the County, by 1992, to establish development standards for the corridor of the Alafia River. FLUE Policy C-20.4 prohibits the designation of "heavy" industrial land uses within 500 feet of the river. FLUE Policy C-20.3 prohibits the location of septic tanks within 200 feet of the Alafia River or its tributaries, except when required due to lot size and adverse impacts can be prevented.
Regarding the Little Manatee River, FLUE Goal 5 is to recognize and maintain the river as a unique water resource, which provides vital wildlife habitat. As in the case of FLUE Objective C-15 regarding the Alafia River, FLUE Objective C-21 defers until 1995 the objective of maintaining or improving water quality where it does not meet state standards.
FLUE Objective C-22 is to preserve wildlife habitats, presumably in association with the Little Manatee River. FLUE Objective C-23 is, by 1990, to establish a green river corridor for the river, although whatever protection is
to be afforded by these provisions, if adopted in the Plan, appears already to be included in the Plan, given that the deadline in Objective C-23 had already passed by the time of the final hearing. The same is true for FLUE Objective C- 24, which is, by 1990, to develop additional policies addressing the uniqueness of the Little Manatee River.
FLUE Policy C-21.1 prohibits the installation of septic tanks within
200 feet of the Little Manatee River unless required due to lot size and adverse impacts to the water can be prevented. FLUE Policy C-22.2 prohibits alteration of the wetlands within 500 feet of the river. FLUE Policy C-23.1 prohibits the designation of "heavy" industrial within 500 feet of the river.
FLUE Policy C-22.3 only "restricts" the clearing or filling of natural plant communities within 50 or 100 feet of the river in Urban or Suburban designations. However, FLUE Policy C-23.2 is to manage the Little Manatee River as a wildlife corridor.
Various Plan provisions apply to rivers generally. Some of these provisions restate objectives or policies adopted for one of the three major rivers. For instance, FLUE Objective C-1 is, by 1995, to maintain or improve the water quality of rivers not meeting state standards. FLUE Objective C-4 is, by 1992, to set standards for development in river corridors.
Other provisions provide additional protection. FLUE Objective C-2 is to preserve natural shorelines and reverse the trend toward hardened shores and channelization. FLUE Objective C-30 requires the County to adopt land development regulations and unspecified performance standards to ensure that rivers are protected from degradation from development. FLUE Policy C-30.6 is to "restrict" the clearing or filling of natural plant communities within 50 or
100 feet of rivers. FLUE Policy C-6.1 generally prohibits the removal, within
100 feet of rivers, of any trees of at least five inches diameter at breast height. FLUE Policy C-1.3 prohibits the siting of solid waste or hazardous landfills that would adversely affect any river. Significantly, FLUE Policy C-
1.1 requires that development along the rivers install stormwater management systems to filter pollutants, although the extent of filtration is not specified.
Regarding Cockroach Bay, the Plan offers some protection because, as an aquatic preserve, the bay is an Environmentally Sensitive Area. However, regardless of the extent of protection afforded by this designation to land- based areas, it is relatively unimportant as a regulatory mechanism over a water preserve, except to the extent that the designation is extended over adjacent land areas. Much of the land around the bay is designated Natural Preservation, which is afforded effective protection, and Environmentally Sensitive Areas, which is not.
However, as noted above, Coastal Element Objective 3 requires the County at least to maintain the abundance and diversity of living marine resources in Tampa Bay. Underscoring the relationship between Cockroach Bay and Tampa Bay, Coastal Element Policy 3.1 is for the County to resist proposals to close permanently the Cockroach Bay Aquatic Preserve to shellfishing and to improve water quality to maintain the viability of shellfishing by implementing Coastal Objective 1 and its policies. However, as noted above, Coastal Objective 1 addresses only waters not meeting state standards and requires only that, by 1995, these water be improved.
Cockroach Bay may receive some protection from FLUE Objective C-30, which requires the County to adopt land development regulations and unspecified performance standards to ensure that water quality and quantity are protected from degradation from development. In somewhat vague terms, CARE Objective 18 is for the County to "seek to measurably improve" the management of natural preserves, which include Cockroach Bay. Rather than exercise its jurisdiction, however, the County, in CARE Policy 18.2, promises only to initiate an agreement with the Florida Department of Natural Resources to ensure that Cockroach Bay is maintained in its natural condition. Equally ineffective, CARE Policy 18.3 is for the County, at no specified time, to establish a scientifically defensible buffer zone to prevent degradation of water quality and aquatic vegetative habitats in Cockroach Bay. CARE Policy 18.8, FLUE Policy C-22.1, and Coastal Element Policy 4.5 promise that the County will "participate" with the Florida Department of Natural Resources to implement the Cockroach Bay Aquatic Preserve Management Plan.
Regarding floodplains, CARE Objective 4 is no "net loss of 100-year floodplain storage volume." CARE Policy 4.1 promises, by 1995, land development regulations to "not only protect natural floodwater assimilating capacity but also protect fish and wildlife attributes where they exist within the 100 year floodplains of riverine systems." CARE Policy 4.2 explains that the County shall prohibit "unmitigated" encroachment into the 100 year floodplain. CARE Policy 8.3 "prohibit[s]" mining in the 25 year floodplain and "restrict[s]" mining in the 100 year floodplain. Although still in terms of storage volume of the floodplain, Stormwater Element Policy 2.8 promises, by 1991, a "program to control encroachment into the 100 year floodplain."
Regarding wetlands, CARE Objective 3 is "no net loss of wetland acreage." The objective states further that the County shall seek to achieve a "measurable annual increase in restored wetland acreage." CARE Policy 3.1 requires the County to continue to "conserve and protect" wetlands from "detrimental physical and hydrological alteration" and "allow wetland encroachment only as a last resort when reasonable use of the property is otherwise unavailable."
CARE Objective 16 is to continue to protect and conserve Conservation and Preservation Areas, which include a variety of wetland habitats.
Regarding rare upland habitats, CARE Objective 16 offers some protection, as sand pine scrub is a Conservation Area and significant and essential wildlife habitat are, respectively, Conservation and Preservation Areas. CARE Policies 16.5 and 16.6 are to protect Conservation and Preservation Areas, respectively, from activities that would "significantly damage the natural integrity, character or ecological balance of said areas, except in cases of overriding public interest." CARE Objective 17 is to increase the amount of acreage designated as Natural Preservation by 15,000 acres by 1995.
Also, the upland forest density credit incentive assists in promoting the preservation of rare upland habitats.
Despite the ambiguity surrounding the types of land uses allowed by the Environmentally Sensitive Areas designation, the Plan protects the wetlands and rare upland habitats.
Regarding wildlife habitat, CARE Objective 14 is to "prevent any further net loss of essential wildlife habitat" and to "protect significant wildlife habitat." CARE Objective 15 is to maintain existing populations of endangered, threatened, and special-concern species and, where "feasible and
appropriate," to increase the "abundance and distribution" of such species. FLUE Objective C-5 is, by 1991, to "require the preservation and enhancement of wildlife habitats." CARE Objective 4 is, by 1995, to protect wildlife habitat in the 100 year floodplain.
CARE Policy 14.7 is to require the preservation of wildlife corridors within developments when necessary to prevent fragmentation. CARE Policies 8.4 and 10.7 prohibit mining and land excavation, respectively, in essential wildlife habitats unless relocation of the affected species is feasible.
On balance, despite the noted shortcomings, the Plan is consistent with the criterion of one or more objectives to ensure the protection of natural resources.
Regarding the conservation, appropriate use, and protection of existing and planned water sources, the resources and functions generally involve wellfields and their cones of influence, aquifers and recharge, groundwater contamination, water conservation and reuse, and wastewater discharges including septic tanks.
Regarding wellfields and their cones of influence, the Plan fails to include an objective providing for the conservation, appropriate use, and protection of these water sources. CARE Policy 5.8 promises wellfield protection by 1993, and even then only through land development regulations. In the meantime, CARE Policy 5.8 provides for an interim land development regulation establishing a procedure for reviewing the impact of land development proposals on cones of influence. The policy fails even to suggest any standards to guide this procedural ordinance.
The Plan contains no objectives addressing aquifers and their recharge. Stormwater Element Policy 5.6 prohibits new discharge of untreated stormwater to the Floridan aquifer, and existing stormwater facilities so discharging into the Floridan aquifer will be modified if economically feasible and physically practical. The remaining policies are largely ineffective in protecting natural aquifer recharge function. CARE Policy 6.13 suggests that, by 1992, a program will be implemented to improve groundwater recharge through stormwater management, and the program "may require" that predevelopment groundwater recharge volumes and rates be maintained postdevelopment. CARE Policy 5.2 notes the need for additional information regarding areas of relatively high natural recharge and allows the County to require developers to provide site-specific hydrogeological information. But the policy does not suggest what standards would be applied in making ensuing land use decisions on what it concedes is a "case-by-case" basis.
CARE Policy 5.5 promises that, within a year after the completion of high-resolution mapping of areas of high aquifer recharge/contamination potential, the County will develop land development regulations and performance standards that "may include" such strategies as "control of land use types and densities, impervious surface limitations, and discharge to groundwater controls." Whatever regulation may eventually be imposed has no guidance from the Plan and will be relegated to the land development regulations. Similarly lacking regulatory provisions, Sewer Element Policy 7.3 promises that, within a year after completion of a pending study, the County will develop a "program" to identify areas with septic tanks with the potential to contaminate groundwater. CARE Policy 5.9 at least prohibits activities that would breach the confining beds of the Floridan aquifer. 31/
Though lacking as to the conservation, appropriate use, and protection of the recharge process, the Plan addresses more adequately groundwater. CARE Objective 6 is to conserve, reuse, and enhance groundwater and prevent excessive withdrawals from groundwater. CARE Objective 5 is to ensure compliance with state groundwater standards.
Like CARE Policy 2.7, which applies to surface water protection, CARE Policy 5.11 says that the County will ask other agencies to develop septic tank siting criteria and then will add the criteria to County land development regulations. CARE Policy 5.15 indicates that the County will not support deep well injection of effluent unless the process will have no adverse effect upon existing or potential potable water aquifers. More effective, Sewer Element Objective 7 is to "[m]inimize the possibility of existing and future sources of wastewater adversely impacting groundwater." Also, Sewer Element Policy 7.1 requires septic tank users to connect to central sewer when it becomes available, in the absence of undue hardship. And FLUE Policy A-1.3 prohibits development dependent upon on-site sewage disposal systems, if the soils are unsuitable, unless the soils can be altered to comply with state law.
Regarding water conservation, Sewer Element Objective 2 is to "protect and conserve the potable water resources, both groundwater and surface water" and expand recovered water reuse systems. As noted above, CARE Objective
6 requires the "conservation, reuse, and enhancement of groundwater and surface water supplies" to meet potable water demands. CARE Policies 6.2 and 6.4 require the use of recovered water under certain circumstances. FLUE Objective B-10 is to protect the agricultural water supply through regulations.
As compared to whether the Plan is consistent with the criterion of one or more objectives to ensure the protection of natural resources, the question is closer as to whether the Plan is consistent with the criterion of one or more objectives conserving, appropriately using, and protecting water sources. The Hillsborough River is adequately protected. Groundwater is directly addressed, although aquifer recharge receives little direct attention. Wellfields and cones of influence are not directly addressed. However, on balance, the Plan is consistent with the criterion of one or more objectives conserving, appropriately using, and protecting the quality and quantity of current and projected water sources.
As to Issue 19, however, the Plan is, to the exclusion of fair debate, not consistent with the criterion of one or more policies addressing implementation activities to protect water quality by restricting activities known to affect adversely the quality and quantity of identified water sources, including cones of influence, water recharge areas, and water wells. As discussed in the preceding paragraphs, the Plan does not address in any detail water wells, cones of influence, or water recharge areas. Although the Plan is nevertheless able to attain consistency with a criterion of an objective to protect, conserve, and appropriately use water sources, the Plan's relevant provisions are too vague to attain consistency with a criterion of policies to restrict activities affecting adversely cones of influence, water wells, and aquifer recharge areas.
As to Issues 20-21, the Plan contains policies addressing implementation activities restricting activities known to affect adversely the survival of endangered and threatened wildlife and protecting native vegetative communities. It is unnecessary to consider the extent to which the Environmentally Sensitive Areas designation protects native vegetative communities and the habitat that some of these communities provide to endangered
and threatened species. Other Plan provisions, including the density and intensity formulas and the upland forest density credit incentive, offer sufficient protection to these vegetative communities for the Plan to attain consistency with the criteria requiring specific policies.
Coastal Hazards (Issues 22-23)
As to Issue 22, the Plan is not, to the exclusion of fair debate, consistent with the criterion of an objective directing population concentrations away from coastal high hazard areas. Coastal Element Objective 6 is to "[r]estrict development of residential population centers" in the coastal high hazard area. CARE Objective 5 is to avoid loss of life and property by "minimizing land development" in coastal areas.
As used in the Plan, "restrict" does not mean "prohibit." 32/ Restrict appears to mean merely regulate. And without standards to guide regulation, an objective to restrict, or minimize, is vague and undefined. The meaning of the criterion is clear and its importance is indisputable for one of the most hurricane vulnerable regions in the United States.
Obviously, the County itself does not interpret Plan language to "restrict" and "minimize" development as synonymous with the criterion to "direct population concentrations away from." Allowing higher densities in the coastal high hazard area and new intense uses in vacant or agricultural areas within the coastal high hazard area, the Plan reflects the County's reasonable interpretation of Coastal Element Objective 6. The language of Objective 6 and the apparent interpretation of the language by the County mean that the County is required only to attempt to restrain the rate of growth in intensity and density in the coastal high hazard area. This is not tantamount to directing population concentrations away from this hazardous area.
Plan provisions to maintain hurricane evacuation times may not direct population concentrations from the coastal high hazard area because evacuation times can be reduced by other means, such as road and bridge capacity improvements. The missing objective must reduce densities and labor-intensive and capital-intensive intensities in the coastal high hazard area.
As to Issue 23, the Plan contains a policy identifying regulatory techniques for septic tanks as part of general hazard mitigation to reduce the exposure of life and property in part of the coastal area to natural hazards. Coastal Element Policy 6.7 prohibits, except in cases of "undue hardship," the use of septic tanks for new development in the coastal high hazard area.
There is no similar provision governing septic tanks in the larger coastal area, of which the coastal high hazard area is only a part. However, Coastal Element Policy 1.3 requires the County to plan for the construction of regional wastewater treatment facilities for coastal areas planned for higher densities, thereby reducing the use of interim wastewater treatment alternatives. Coastal Element Policy 1.7 provides, where economically feasible, the County shall provide improved domestic wastewater treatment service to coastal areas where persistent water quality problems in Tampa Bay are attributable to malfunctioning septic tanks.
Public Facilities (Issues 24-31)
As to Issue 24, the Plan establishes peak hour level of service standards for state roads and explains why the adopted level of service standards for certain roads are below the generally applicable standards.
As to Issue 25, the Plan appears to govern all action taken by Hillsborough County concerning development and development orders. The four major provisions concerning vesting are reasonable and do not extend unnecessarily the recognition of vested rights.
As to Issue 26, the Plan contains a policy addressing programs and activities for the provision of public facilities for development authorized by development orders issued prior to the adoption of the Plan. CIE Policy 1.D.1 requires the County, in determining the scope of capital improvements needed for concurrency, to take into account "demand that is likely to occur from previously issued development orders as well as future growth."
As to Issues 27 and 28, the Plan's allowance of pipelining road impact fees in connection with DRI development orders does not necessarily violate concurrency. The Regional Plan allows pipelining, although the County's Plan fails to incorporate the restrictive conditions set forth in Regional Plan Policy 19.8.14. CIE Policy 3.C.4 already provides for considerable flexibility in the selection of affected areas when making concurrency determinations for roads.
Reasonable flexibility in identifying the range of roads impacted by a DRI and applying DRI road impact fees does not mean that the resulting developments will violate concurrency. Nonvested DRI's remain subject to the Plan, including the concurrency monitoring and enforcement provisions, and their failure to satisfy these provisions should result in the denial of a development order.
As to Issue 29, the Plan contains policies providing for concurrency with respect to developments for which development orders were issued prior to the adoption of the Plan and new developments that are to be assessed a pro rata share of the costs of public facility improvements necessitated by the new development.
As noted above, CIE Policy 1.D.1 takes into account the demand for public facilities from development orders issued before the adoption of the Plan. CIE Policy 2.B.1.a provides further that existing development shall pay for at least some of the capital improvements to reduce or eliminate existing deficiencies.
CIE Objective 2 addresses the sources of funds for infrastructure, including "County revenues, development's proportionate share contributions, and grants or gift[s] from other source[s]." CIE Policy 2.B.2.a provides that the County will "allocate the cost of new public facilities on the basis of the benefits received by existing and future residents so that current residents will not subsidize an urban sprawl pattern of new development."
As to Issue 30, the above-described Plan provisions, together with the five year schedule of capital improvements, establish funding mechanisms to correct existing deficiencies in required public facilities.
As to Issue 31, the Plan is consistent with the requirement of financial feasibility based on the schedules of capital improvements and sources of revenues. The $52.4 million discrepancy between the cost of capital improvements in the Five Year Schedule and the Table of Costs and Revenues, which were prepared 18 months apart, does not prove lack of financial feasibility. In the absence of additional evidence, it is equally likely that the County displayed financial prudence in scaling back capital outlays to meet emerging revenue shortfalls.
Urban Sprawl (Issues 32-35)
As to Issue 32, the FLUM generally depicts urban and rural land uses with one major exception. To the exclusion of fair debate, there is no clear indication as to what land uses are permissible on lands designated Environmentally Sensitive Areas.
As to Issue 33, the Plan contains provisions to discourage urban sprawl. The Plan generally provides for a viable mixture of residential and commercial uses in the concept underlying the Plan and the use of nodes. With the exception of the areas whose designations are not supported by the Data and Analysis, urban and rural land uses are separated. Regarding urban sprawl, various Plan provisions, such as FLUE Policies A- 7.6 and B-4.6, discourage urban sprawl and encourage the efficient use of land and provision of public facilities and the protection of natural resources and agriculture.
As to Issue 34, the Plan contains provisions, regarding the protection of rural and agricultural lands, designating agricultural uses on the FLUM; setting objectives to conserve, appropriately use, and protect soils and natural vegetative communities; and setting policies to protect and conserve the natural functions of soils, wildlife habitats, rivers, bays, floodplains, harbors, and wetlands. The agricultural uses are primarily assigned to Rural designations, and the Rural designations generally specify densities that are low enough to promote agricultural uses. Plan provisions describe the extent to which agricultural uses may be located in Urban and Suburban designations. Some of the natural resources receive more protection than others, such as floodplains, but in general, and especially in the context of protecting rural and agricultural lands, the Plan is consistent with the cited criteria.
Miscellaneous (Issues 35-36)
As to Issue 35, the Plan contains provisions adequately addressing intergovernmental coordination.
As to Issue 36, the Plan contains dual planning timeframes. One timeframe, as shown on the five year schedule of capital improvements, is five years, and the other, as shown on the FLUM, is 20 years.
Minimum Criterion of Internal Consistency (Issues 37-38)
As to Issue 37, the Plan is, to the exclusion of fair debate, internally inconsistent with respect to, on the one hand, Plan provisions to protect natural resources, which are identified as Conservation and Preservation Areas in the Plan, and, on the other hand, the failure to provide Environmentally Sensitive Areas with a designation that regulates land uses.
The Plan is generally internally consistent with respect to the permitted densities and intensities and Plan provisions to protect natural resources. However, there are two major exceptions to this finding. First, if the stormwater level of service standard is not expanded in the manner described above, all designations allowing further development within the 100 year floodplain are, to the exclusion of fair debate, internally inconsistent with Plan provisions to protect natural resources, unless the development in the 100 year floodplain is prohibited from altering predevelopment drainage conditions in terms of rate, volume, quality, timing, or location of discharge.
Second, even if the stormwater level of service standard is appropriately broadened, the densities and intensities determined, to the exclusion of fair debate, to be unsuitable or unsupported by the Data and Analysis are, to the exclusion of fair debate, internally inconsistent with Plan provisions to protect natural resources. This applies to the second and third clauses of Issue 37.
The Plan is internally consistent with respect to the discouragement of urban sprawl and the adopted level of service standards for roads and the use of dual planning timeframes.
As to Issue 38, the Plan is internally consistent with respect to the discouragement of urban sprawl and the Plan provisions requiring developers to pay a pro rata share of the cost of public facilities necessitated by their development.
Minimum Criterion of Consistency with Regional Plan (Issue 39)
As to Issue 39, the Plan is consistent, under either evidentiary standard, with the Regional Plan, construed as a whole, with respect to the Regional Plan's provisions requiring the discouragement of urban sprawl, identification of the coastal high hazard area, prohibition against publicly subsidized development in the coastal high hazard area (the Regional Plan lacks a provision requiring the direction of population away from the coastal high hazard area), adoption of road level of service standards, achievement of energy-efficient design of transportation facilities, enhancement of governmental efficiency, and attainment of compliance with national air quality standards.
With respect to the Regional Plan's provisions for the protection of environmentally sensitive areas, the Plan is consistent in some respects and, to the exclusion of fair debate, inconsistent in other respects. The inconsistencies have all been addressed above in connection with inconsistencies with other criteria of Chapter 9J-5. These inconsistencies are the inadequate stormwater level of service standard, which conflicts with Regional Plan Goal 8.7; in the absence of the expanded stormwater level of service standard discussed above, the inadequate protection of the 100 year floodplain, which conflicts with Regional Plan Goals 8.10, 10.4, and 10.5 and related policies; the inadequate protection extended to public supply potable water wellfields and their cones of influence and aquifer recharge, which conflicts with Regional Plan Goals 8.1 and 8.5 and related policies.
Minimum Criterion of Consistency with State Plan (Issues 40-41)
As to Issue 40, the Plan is consistent, under either evidentiary standard, with the State Plan, construed as a whole,
with respect to the State Plan's provisions as to the discouragement of urban sprawl, promotion of agricultural activities that are compatible with the protection of natural resources, reduction of the cost of housing construction by the elimination of costly regulatory practices, coordination of transportation improvements to enhance system efficiency and minimize environmental impacts, assurance that transportation improvements are consistent with the maintenance of optimum air quality and efficient use of energy and transportation modes, elimination of regulatory activities not tied to the needs of specific public and natural resource protection, reduction of the need for new power plants by encouraging end-use energy efficiency, and attainment of compliance with all national air quality standards.
With respect to the State Plan's provisions as to the elimination of the discharge of inadequately treated stormwater runoff and wastewater into the waters of the state, the Plan is consistent with respect to wastewater, but, to the exclusion of fair debate, inconsistent with respect to stormwater due to the above-noted deficiencies concerning the stormwater level of service standard.
As to Issue 41, the Plan is consistent, under either evidentiary standard, with the State Plan, construed as a whole, with respect to the State Plan's provisions as to the development of a system of incentives and disincentives to encourage a separation of urban and rural uses while protecting water supplies, resource development, and fish and wildlife habitats (notwithstanding general shortcomings regarding the protection of water supplies and specific unsuitable designations jeopardizing potentially significant wildlife habitat), promotion of agriculture, provision of incentives for developing land so as to maximize the uses of existing public facilities, allocation of the costs of new public facilities on the basis of the benefits received by existing and future residents, and assurance that the transportation system provides Florida's residents and visitors with timely and efficient access to services, jobs, markets, and attractions.
With respect to the State Plan's provisions as to the direction of growth into areas that already have or will soon have the land and water resources, fiscal abilities, and service capacity to accommodate growth in an environmentally acceptable manner, the Plan is generally consistent. However, the Plan is inconsistent with this provision of the State Plan, to the exclusion of fair debate, with respect to those five areas for which unsuitable designations were demonstrated to the exclusion of fair debate, and the Plan is inconsistent with this provision of the State Plan, by a mere preponderance of the evidence, with respect to those six areas for which unsuitable designations were demonstrated by a mere preponderance of the evidence..
CONCLUSIONS OF LAW
Jurisdiction and Standing
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Sections 120.57(1) and 163.3184(10)(a), Florida Statutes. (All references to Sections or the Chapters corresponding to Sections are to Florida Statutes. All references to Rules or the Chapters corresponding to Rules are to the Florida Administrative Code.)
Participation as a party in a Section 163.3184(9) or (10) proceeding is limited to "affected persons" and DCA. In relevant part, Section 163.3184(1)(a) provides:
"Affected person" includes the affected local government [and] persons owning property, residing, or owning or operating a business within the boundaries of the local government whose plan is the subject of the
review . . .. Each person . . . shall also have submitted oral or written objections during the local government review and adoption proceedings.
Sierra Club and Big Bend Area Group have standing. Nothing in Section 163.3184(1)(a) prohibits an affected person from raising issues in a Section 163.3184 proceeding that he did not raise in his oral or written objections submitted during the local government review and adoption proceedings. Once an affected person establishes standing by showing that he submitted timely objections, there is no basis for estopping him from raising additional issues in the Section 163.3184 proceeding. 33/
Rights of Intervenors and Standards of Proof
In a Section 163.3184(10) proceeding, plan challengers must prove by a preponderance of the evidence that the plan or plan amendment is not in compliance, except that internal inconsistency must be shown to the exclusion of fair debate. Section 163.3184(10)(a). In a Section 163.3184(9) proceeding, plan challengers must prove to the exclusion of fair debate that the plan or plan amendment is not in compliance.
Section 163.3184(9) and (10) create two types of proceedings to determine if a plan or plan amendment is in compliance with the Act and Chapter 9J-5. If DCA "issues a notice of intent to find . . . the plan . . . in compliance ....," Section 163.3184(9) gives affected persons 21 days within which to file petitions challenging the determination of compliance and seeking an administrative hearing under Section 120.57(1). If DCA "issues a notice of intent to find the . . . plan or plan amendment not in compliance . . .," Section 163.3184(10) requires DCA to transmit the notice of intent to the Division of Administrative Hearings to initiate an administrative hearing under Section 120.57(1).
Several important procedural differences exist between Section 163.3184(9) and (10). The standard of proof in the Section 163.3184(9) case is more favorable to the local government. Because DCA has tentatively determined that the plan or plan amendment is in compliance, the affected person in the Section 163.3184(9) proceeding must prove to the exclusion of fair debate that the plan or plan amendment is not consistent with the Act or Chapter 9J-5. The standard of proof in the Section 163.3184(10) proceeding is a mere preponderance of the evidence, except that proof of internal inconsistency must be to the exclusion of fair debate.
The agency issuing the final order may be different in the two proceedings. The Administration Commission issues all final orders in Section 163.3184(10) proceedings. In Section 163.3184(9) proceedings, the hearing officer's recommended order is sent to DCA. Regardless of the hearing officer's
recommendation, if DCA determines that the plan or plan amendment is in compliance, DCA issues the final order. If DCA determines that the plan or plan amendment is not in compliance, DCA forwards the recommended order to the Administration Commission, which then issues the final order determining whether the plan or plan amendment is in compliance.
Another difference between the two proceedings is that Section 163.3184(10) expressly mentions intervenors. In the case commenced by DCA, such as DOAH Case No. 89-5157GM, the parties include "any affected person who intervenes." Section 163.3184(9) does not expressly provide for affected persons to intervene in proceedings commenced by other affected persons.
These cases present the recurring situation in which DCA finds a plan not in compliance and commences a Section 163.3184(10) proceeding. Affected persons intervene. DCA and the local government enter into a settlement agreement, but at least one intervenor declines to enter into the agreement or is dissatisfied with the resulting settlement amendments. In the subject cases, in an abundance of caution, the intervenor challenging the plan filed a petition challenging the plan amendments under Section 163.3184(9).
If the local government fails to adopt the agreed- upon plan amendments or the settlement amendments do not satisfy DCA, then the case is reactivated and the intervenors participate as they would have if the tentative settlement had never taken place. If, as here, the settlement amendments satisfy DCA, it issues a notice of intent publishing its determination to find the plan or plan amendments in compliance.
In the absence of statutory authority to the contrary, an intervenor normally takes a case as he finds it and is unable to raise new issues or survive a settlement between the original parties. 34/ However, a party with an interest that, by statute, entitles him to a hearing may not, after timely intervening, be denied his right to a hearing even though the original parties settle. 35/
A balanced reading of the Act requires that affected persons who have intervened timely in a Section 163.3184(10) proceeding must be allowed to raise issues not raised by DCA and survive the settlement of the original dispute between DCA and the local government. In other words, the Act demands that the timely filing intervenor in a Section 163.3184(10) proceeding be allowed to participate with all the rights of the original parties. 36/
To deny such intervenors full party status would defeat substantive rights given affected persons by the Act. 37/ Several practical reasons justify this conclusion.
Except for areas of critical state concern, a plan or plan amendment is effective from the date of its adoption, regardless whether DCA or an affected person files a challenge. Sections 163.3184(14) and 163.3194(1). This means that a local government may issue development orders based on a plan, notwithstanding pending challenges. Affected persons in a Section 163.3184(9) proceeding may of course raise any issue under the Act or Chapter 9J-5. And they may raise these issues immediately upon the publication of a notice of intent as to the plan or plan amendment.
It is unreasonable to deny affected persons the same timely opportunity to challenge a plan or plan amendment when DCA initiates the challenge under Section 163.3184(10), especially because DCA may not have raised
the issues that the affected persons may wish to raise. If conventional principles of intervention were to deny affected persons a chance to intervene and raise new issues, the challenged plan or plan amendment is spared the scope of review that is accorded those plans or plan amendments that DCA has tentatively determined to be in compliance. Affected-person challenges to plans or plan amendments that have failed their initial DCA review should not be postponed while the main DCA case is litigated, especially while the plan or plan amendment that the affected person seeks to challenge typically remains in effect.
The Act discloses the legislative intent to provide affected persons with a meaningful opportunity to challenge plan provisions. This opportunity is the final phase of public participation in the planning process, which includes plan litigation.
In the subject cases, the full-party status of Sierra Club entitles it to litigate the subject issues even if different from those raised by DCA or, if in common with DCA's issues, even after the adoption of settlement plan amendments have satisfied DCA as to the matters that it raised. The next question is whether Sierra Club is entitled to the preponderance standard of proof as to all issues except internal consistency.
Section 163.3184(10) refers to a single "proceeding" involving DCA and affected-person intervenors. The statute does not differentiate among the parties with respect to the standard of proof. The standard of proof is preponderance of the evidence for all issues except internal consistency. This standard governs the entire proceeding. Nothing in the Act justifies the replacement of the clear provision of Section 163.3184(10) as to the preponderance standard with the fairly debatable standard of Section 163.3184(9). 38/
If intervening affected persons in a Section 163.3184(10) proceeding are entitled to the preponderance standard, then it should not matter that DCA and the local government settle the original dispute, as took place here.
Entitled to full party status, the intervenor cannot be dismissed nor can some of its claims. Nothing in the Act justifies transferring the fairly debatable standard of Section 163.3184(9) proceedings to the remaining Section 163.3184(10) proceeding simply because the original dispute has ended. If the intervenor has full party status, then the settlement of the original dispute is irrelevant.
Sierra Club is thus entitled to litigate the issues in DOAH Case No. 89-5157GM (other than internal consistency) under the preponderance standard of proof, amending its pleadings where necessary to address Plan provisions that have been amended while Sierra Club has awaited the outcome of settlement negotiations between Hillsborough County and DCA. The commencement of DOAH Case No. 90-6639GM was therefore unnecessary.
Effective April 8, 1992, Section 163.3184(16) was amended. The new statute changes the procedures for local governments to adopt settlement amendments and for the notices of intent that DCA issues concerning the settlement amendments. The statutory changes do not apply to these cases.
Sierra Club's rights in terms of the issues it could raise in DOAH Case No. 89- 5157GM and the applicable standards of proof had been fixed long before even the enactment of the statutory changes. These changes could no more apply retroactively to alter Sierra Club's posture in the original case than they
could somehow apply retroactively to allow Hillsborough County to take advantage of the new shorter plan amendment procedure available for the adoption of settlement amendments.
However, even if the new statutory language applied, it would not alter the fact that Sierra Club is entitled to the preponderance standard on all issues except for internal consistency. This right extends to issues for which amendments to the pleadings might be necessary in order to reflect Plan amendments that were adopted as part of the settlement process. In the subject cases, by agreement of the parties, the Plan that is the subject of these cases includes amendments adopted independent of the settlement process, so amendments to the pleadings would be appropriate with respect to these matters as well.
The point is that Sierra Club was a party with full rights at the time of the abatement due to a settlement between DCA and Hillsborough County.
The abatement of entire case--prior to Section 163.3184(16), with the indulgence or over the protest of the intervenor challenging the plan--provides no justification for depriving the intervenor of its rights to continue to prosecute the case once, if the settlement is successful, the role of DCA has been reduced to interested spectator. The Act does not cast affected persons in secondary roles or imply that their participation as plan challengers is subordinate to that of DCA.
To the contrary, the Act invests considerable responsibility in affected persons to ensure that their local governments comply with the various planning criteria. The presence of DCA in a case does not necessarily guarantee the affected person that his local government's comprehensive plan will conform to the Act prior to DCA's withdrawal as an active party. In these cases, for instance, DCA withdrew its challenge despite startling omissions from the FLUM of such key natural resources as floodplains and major public supply water wells and their cones of influence and obvious deficiencies in the Plan, such as the stormwater level of service standard pertaining only to flood control, serious ambiguities within the Plan concerning the meaning of the Environmentally Sensitive Areas designation, and highly unsuitable designations given areas in critical regions of Hillsborough County, such as the coastal high hazard area and the water-rich northwest part of the County.
As noted above, Section 163.3184(16) streamlines the settlement amendment adoption process and provides for a cumulative notice of intent concerning the settlement amendment and the plan or plan amendment that is the subject of the administrative proceeding to which the settlement relates. These are important provisions. For example, the cumulative notice of intent further recognizes the central role of affected persons by giving them a second point of entry to challenge the plan or plan amendment that is the subject of the underlying litigation to which the settlement relates.
But Section 163.3184(16) does not restrict the rights of affected persons, such as Sierra Club, who have timely intervened in a Section 163.3184(10) proceeding, aside from subjecting them to the abatement of the case, as was Sierra Club in DOAH Case No. 89-5157GM. Section 163.3184(16)(f) provides only that the underlying proceeding "shall be dismissed by the hearing officer as to the department" after DCA has issued a cumulative notice of intent to find the settlement amendment and underlying plan or plan amendment in compliance. The required abatement allows the parties time to try to narrow the issues (or at least the number of parties raising certain issues) and, if successful, to realign their positions and prepare for final hearing accordingly.
Aside from the abatement provision, Section 163.3184(16) does not directly affect intervenors with full party status in the underlying administrative proceeding under Section 163.3184(10). Nothing in the law prevents such parties, after the abatement is lifted, from continuing to exercise their rights under the Act and prosecute the underlying Section 163.3184(10) proceeding to a conclusion. Pleadings, evidence, and arguments of all parties may have to be revised. But this typically is not an inordinate burden, and arises routinely as a local government amends its plan, during the pendency of plan litigation, in the normal course of business without regard to any settlement. The amendment of a plan--whether by settlement or otherwise-- cannot result in the involuntary dismissal of pending plan challenges or even claims affected by the amendment, but rather must give rise to opportunities to amend pleadings. Otherwise, effective challenges may never be maintained because plans will be routinely amended during the extensive period of time it takes to prepare, try, and resolve a plan challenge.
Meaning of "Fairly Debatable" and "In Compliance"
The Act does not define what is meant by "fairly debatable." In zoning cases, "'[t]he fairly debatable' test asks whether reasonable minds could differ as to the outcome of a hearing" (citations omitted). Norwood-Norland Homeowners' Association, Inc. v. Dade County, 511 So. 2d 1009, 1012 (Fla. 3d DCA 1987). The element of reasonableness imposes certain requirements upon the persons differing as to the outcome. The fairly debatable test requires that the persons reaching different conclusions are informed by relevant facts and law and are capable of analyzing this information in a reasonable manner in order to reach a logical conclusion based exclusively on the applicable facts and law.
"In compliance" is "consistent with the requirements of ss. 163.3177, 163.3178, and 163.3191, the state comprehensive plan, the appropriate regional policy plan, and rule 9J-5 . . ., where such rule is not inconsistent with chapter 163, part II."
The Act does not define what is meant by consistency with the general criteria of the Act and Chapter 9J-5.
One approach to determining consistency with the other criteria of Sections 163.3177 and 163.3178 and Chapter 9J-5 is to emphasize the "minimum criteria" 39/ language. Under this approach, the failure to satisfy any single requirement of Sections 163.3177 and 163.3178 or criterion of Chapter 9J-5 results in a finding of inconsistency.
Another approach to determining consistency with the criteria of Sections 163.3177 and 163.3178 and Chapter 9J-5 is to emphasize the "consistency" language. Under this approach, the plan is first examined under the "minimum criteria" approach. If no criterion is left unsatisfied, then the plan is consistent with Sections 163.3177 and 163.3178 and Chapter 9J-5. If, as is often if not invariably the case, the plan fails to satisfy one or more of these criteria, further analysis must be undertaken before determining that the plan is not consistent with applicable statutory and regulatory criteria.
Borrowing the statutory definition of consistency as applied to comparisons with state and regional plans, the "consistency" approach would permit a finding of consistency if the plan as a whole were not in conflict with, and took action in the direction of, realizing the criteria unsatisfied by
the plan. The "consistency approach" would require, among other things, consideration of the purposes of the unsatisfied criteria in light of the entire plan, the Act, and Chapter 9J-5.
The stricter "minimum criteria" approach is supported by several references in the Act and Chapter 9J-5 to these criteria as "minimum requirements" or "minimum criteria." See Sections 163.3161(7) and 163.3177(9) and Rule 9J-5.001, although Section 163.3177(9) also refers to "criteria" without the modifier, "minimum." Rule 9J-5.001 adds: "[a]s minimum criteria, these criteria are not intended to prohibit a local government from ... adopting
. . . a ... plan which is more . . . strict." The rule says nothing about adopting a plan less strict than the minimum criteria.
The more flexible "consistency" approach is supported by the language in the Act and Chapter 9J-5 that a plan must be "consistent with the requirements" of Sections 163.3177 and 163.3178 and Chapter 9J-5. Section 163.3184(1)(b). Similarly, Rule 9J-5.002(1) requires consistency merely with Sections 163.3177 and 163.3178 and Chapter 9J-5, and not with any "minimum criteria."
In one instance, the Act expressly endorses more flexibility than exists in the "minimum criteria" approach. The determination whether the plan is consistent with the criteria requiring certain detailed data must be based on such factors as the local government's "complexity, size, [and] growth rate." Rule 9J-5.002(1). Expressly approving this rule, Section 163.3177(10)(i) provides:
[DCA] shall take into account the factors delineated in rule 9J-5.002(2) . . . as it ... applies the rule in specific
situations with regard to the detail of the data and analysis required.
If truly "minimum criteria," the requirements of the Act and Chapter 9J-5 should be "satisfied" or "met." But these words are generally not used in the Act or Chapter 9J-5 with reference to the criteria of Sections 163.3177 and 163.3178 and Chapter 9J-5. The lone exception is Rule 9J-5.0055, which uses the word "satisfy" four times and the word "met" three times, with respect to the concurrency requirement, which is the issue involved in the present case.
The language of the Act favors the "consistency" approach over the "minimum criteria" approach. The "consistency" approach derives its support from the critical provision of the Act defining "in compliance." By contrast, the "minimum criteria" approach derives its support from less operative sources within the Act--a legislative declaration 40/ and a legislative directive to DCA regarding rulemaking. 41/ The flexibility of the "consistency" approach is implicitly endorsed by Section 163.3177(10)(a), which expressly provides for similar flexibility in the determinations of consistency with the state and regional plans.
Under the "consistency" approach to Sections 163.3177 and 163.3178 and Chapter 9J-5, each unsatisfied criterion must be carefully considered to determine its function in light of the Act and Chapter 9J-5 as a whole. Then the relationship between the plan as a whole and the unsatisfied criterion, in light of its role within the Act and Chapter 9J-5, must be examined to determine whether, among other things, the plan conflicts with the unsatisfied criterion,
the plan takes action in the direction of realizing the unsatisfied criterion, and the plan is related to, coordinated with, and, ultimately, consistent with the unsatisfied criterion.
Minimum Criteria of Data and Analysis
Sufficiency of Data and Analysis (Issues 1-9) 935. As to Issue 1, Rule 9J-5.006(1) provides:
The following generalized land uses shall be shown on the existing land use map or map series:
Residential use;
Commercial use;
Industrial use;
Agricultural use;
Recreational use;
Conservation use;
Educational use;
Public buildings and grounds;
Other public facilities;
Vacant or undeveloped land; and
Historic resources.
The following natural resources shall be shown on the existing land use map or map series:
Existing and planned water wells and cones of influence, where these exist;
Beaches and shores, including estuarine systems;
Rivers, bays, lakes, floodplains, and harbors;
Wetlands; and
Minerals and soils.
* * *
If determined by the local government to be appropriate, Subparagraphs (1)(a)7, (1)(a)8, and (1)(a)9 may be shown as one land use category on the existing land use map or map series.
If the local government has determined it necessary to utilize other categories of the public and private use of land, such categories of land use shall be shown on the existing land use map or map series, and clearly identified in the legend.
The Plan is consistent with the criteria of depicting on an ELUM or series of ELUM's existing and planned water wells, cones of influence, historic resources, floodplains, wetlands, minerals, soils, and public facilities.
As to Issue 2, Rule 9J-5.013(a)5 states that the Data and Analysis shall identify and analyze: "Fisheries, wildlife, marine habitats, and vegetative communities including forests, indicating known dominant species present and species listed by federal, state, or local government agencies as endangered, threatened or species of special concern."
The Plan is consistent with the criterion of the identification and analysis of vegetative communities, indicating known dominant species and endangered, threatened, or special- concern species.
As to Issue 3, Rule 9J-5.013(1)(b) provides: "For each of the above natural resources, existing commercial, recreational or conservation uses, known pollution problems including hazardous wastes and the potential for conservation, use or protection shall be identified."
The Plan is consistent with the criterion of the identification of the potential for conservation, use, or protection of vegetative communities containing endangered, threatened, or special-concern species.
As to Issue 4, Section 163.3177(6)(c) provides that the Data and Analysis shall contain "soil surveys . . . which indicate the suitability of soils for septic tanks." Rule 9J-5.011(1)(f)4 states that the Data and Analysis shall contain: "An analysis of soil surveys for areas served by septic tanks and an explanation of suitability of those soils for such facilities shall be included, based upon best available data from the United States Department of Agriculture, Soil Conservation Service." Rule 9J-5.012(2)(d) provides:
An inventory and analysis shall be prepared of estuarine pollution conditions and actions needed to maintain estuaries including: an assessment of general estuarine conditions and identification of known existing point and non-point source pollution problems; an assessment of the impact of the development and redevelopment proposed in the future land use element and the impacts of facilities proposed in the traffic circulation and general sanitary sewer, solid waste, drainage, potable water, and natural groundwater aquifer recharge elements upon water quality, circulation patterns, and accumulation of contaminants in sediments; identification of actions needed to remedy existing pollution problems; and identification of existing state, regional and local regulatory programs which will be used to maintain or improve estuarine environmental quality.
The Plan is consistent with the criteria of analysis of the suitability of soils for septic tanks, including the possible impact of septic tanks on estuaries.
As to Issue 5, Rule 9J-5.013(1)(a) and (b) provide:
The following natural resources, where present within the local government's boundaries, shall be identified and analyzed:
Rivers, bays, lakes, wetlands including estuarine marshes, and air, including information on quality of the resource available from and classified by the Florida Department of Environmental Regulation;
Floodplains;
Known sources of commercially valuable minerals;
Areas known by the local soil and water conservation district to have experienced soil erosion problems; and
Fisheries, wildlife, marine habitats,
and vegetative communities including forests, indicating known dominant species present and species listed by federal, state, or local government agencies as endangered, threatened or species of special concern.
For each of the above natural resources, existing commercial, recreational or conservation uses, known pollution problems including hazardous wastes and the potential for conservation, use or protection shall be identified.
The Plan is consistent with the criteria of the identification and analysis of water quality problems related to stormwater and domestic wastewater discharges.
As to Issue 6, Rule 9J-5.013(1)(b) has been set forth above. The Plan is consistent with the criterion of analysis of the potential for conservation, use, or protection of Tampa Bay, its tributaries and estuaries, and Lake Thonotosassa, including the identification of known pollution problems from inadequately treated stormwater and domestic wastewater.
As to Issue 7, Rule 9J-5.011(1)(g) requires the identification of "[m]ajor natural drainage features and natural groundwater aquifer recharge areas within the local government's jurisdiction" and the preparation of a topographic map "depicting any areas adopted by the regional water management districts as prime groundwater recharge areas for the Floridan or Biscayne aquifers." Rule 9J-5.013(1)(c) requires that the Data and Analysis include analysis of:
Current and projected water needs and sources for the next ten-year period based on the demands for industrial, agricultural, and potable water use and the quality and quantity of water available to meet these demands shall be analyzed. The analysis shall consider existing levels of water
conservation, use and protection and applicable policies of the regional water management district.
The Plan is consistent with the criteria of identification and analysis of existing and future water needs and sources and natural groundwater recharge areas. There are no areas of prime groundwater recharge to the Floridan aquifer in Hillsborough County.
As to Issue 8, Rule 9J-5.006(2)(a) and (b) provides:
An analysis of the availability of facilities and services as identified in the traffic circulation and sanitary sewer, solid waste, drainage, potable water and natural groundwater aquifer recharge elements, to serve existing land uses included in the data requirements above and land for which development orders have been issued;
An analysis of the character and magnitude of existing vacant or undeveloped land in order to determine its suitability for use, including where available:
Gross vacant or undeveloped land area, as indicated in Paragraph (1)(b);
Soils;
Topography;
Natural resources; and
Historic resources.
The Plan is consistent with the criterion of analysis of land use suitability.
As to Issue 9, Rule 9J-5.012(2)(e)3 states:
Coastal high-hazard areas shall be identified and the infrastructure within the coastal high-hazard area shall be inventoried. The potential for relocating threatened infrastructure shall be analyzed.
The Plan is consistent with the criterion of the identification of the coastal high hazard area.
Supporting Data and Analysis (Issues 10-14) 952. As to Issue 10, Rule 9J-5.005(2) provides:
All goals, objectives, policies, standards, findings and conclusions within the comprehensive plan and its support documents shall be based upon relevant and appropriate data. Data or summaries thereof shall not be subject to the compliance review process. However, the Department will review each comprehensive plan for the purpose of
determining whether the plan is based on the data described in this Chapter and whether the data were collected and applied in a professionally acceptable manner. All tables, charts, graphs, maps, figures and data sources, and their limitations shall be clearly described where such data occur in the above documents.
This Chapter shall not be construed to require original data collection by local government; however, local governments are encouraged to utilize any original data necessary to update or refine the local government comprehensive plan data base so long as methodologies are professionally accepted.
Data are to be taken from professionally accepted existing sources, such as the United States Census, State Data Center, State University System of Florida, regional planning councils, water management districts, or existing technical studies. The data used shall be the best available existing data, unless the local government desires original data or special studies. Where data augmentation, updates, or special studies or surveys are deemed necessary by local government, appropriate methodologies shall be clearly described or referenced and shall meet professionally accepted standards for such methodologies.
* * *
The Plan is consistent with the criterion of supporting data and analysis in terms of the Plan's failure to require generally the retrofitting of existing, deficient stormwater management systems.
However, to the exclusion of fair debate, the Plan is not consistent with the criterion of supporting data and analysis in terms of the Plan's failure to set a stormwater level of service standard requiring that, for all "development," as that term is defined in the Plan, all urban and agricultural runoff shall be the same as (of, if appropriate, better than) predevelopment runoff in terms of volume, quality, rate, hydroperiod, and drainage basin.
As to Issues 11-15, Rule 9J-5.005(2) has been cited above. The Plan designations are generally consistent with the criterion of supporting data and analysis, including land use suitability analysis.
However, 11 designations are not consistent with the criterion of supporting data and analysis and are therefore unsuitable. The identify of the areas bearing unsuitable designations, the means by which to identify the extent of the areas, and the standard of proof underlying the determination of unsuitability are as follows:
To the exclusion of fair debate, the Low Suburban Density Residential area at the southeast corner of Keystone Lake bears a designation that is not supported by the Data and Analysis. The extent of the subject area corresponds to the area designated Low Suburban Density Residential on the FLUM.
By a preponderance of the evidence, the western area of increased density in the northern half of northwest Hillsborough County bears designations that are not supported by the Data and Analysis. The extent of the subject area corresponds to the contiguous area surrounding Keystone Lake, ranging from the Pasco County line to the Pinellas County line, and south to either side of the wellfield south of Keystone Lake, and shown on Oversized Map 14 as having received a density increase.
By a preponderance of the evidence, the eastern area of increased density in the northern half of northwest Hillsborough County bears designations that are not supported by the Data and Analysis. The extent of the subject area corresponds to the contiguous area running from the Pasco County line south to an area of density decrease and east to a location just across SR 597 and shown on Oversized Map 14 as having received a density increase.
To the exclusion of fair debate, the Urban Level 1 Limited area just east of I-75 and I-275 in northcentral Hillsborough County bears a designation that is not supported by the Data and Analysis. The extent of the subject area corresponds to the area designated Urban Level 1 Limited on the FLUM.
By a preponderance of the evidence, the L-shaped Suburban Density Residential area immediately south of the Urban Level 1 Limited area bears a designation that is not supported by the Data and Analysis. The extent of the subject area corresponds to the area designated Suburban Density Residential on the FLUM.
To the exclusion of fair debate, the three square mile area south of Cockroach Bay that is partly in the coastal high hazard area bears a designation that is not supported by the Data and Analysis. The extent of the subject area corresponds to the area that is west of US 41 and both shown on Oversized Map 14 as having received a density increase and on the FLUM as Low Suburban Density Residential Planned.
To the exclusion of fair debate, the Medium Density Residential area of one square mile just north of the mouth of the Little Manatee River at Ruskin bears a designation that is not supported by the Data and Analysis. The extent of the subject area corresponds to the rectangular area that is designated Medium Density Residential on the FLUM.
To the exclusion of fair debate, the southernmost mile of the triangular Urban Level 1 area east of I-75 and south of SR 674 bears a designation that is not supported by the Data and Analysis. The extent of the subject area corresponds to the a band measuring one mile to the north from the south boundary of the southernmost end of the triangular area that is designated Urban Level 1 on the FLUM.
By a preponderance of the evidence, the Z-shaped area that approaches I-75 from the east at a point just south of Big Bend Road, runs north just east of I-75, and then crosses I-75 about one mile south of the Alafia River bears a designation that is not supported by the Data and Analysis. The extent of the area corresponds to any area within any of the following areas:
the areas designated Environmentally Sensitive Areas on the FLUM and tracking all or part of the Z-shaped area; the areas shown as Environmentally Sensitive Areas which are potentially significant wildlife habitat on the green map and tracking all or part of the Z-shaped area; and the areas shown as part of the
100 year floodplain on Oversized Map 9 and tracking all or part of the Z-shaped area.
By a preponderance of the evidence, the area running south of the intersection of Big Bend Road and I-75 and expanding just south of the proposed extension of Balm-Picnic Road or SR 672 bears a designation that is unsupported by the Data and Analysis. The extent of the subject area corresponds to the Urban Level 1 designation in the above-described area and shown on the green map as Environmentally Sensitive Areas which are potentially significant wildlife habitat.
By a preponderance of the evidence, the area running northwest of the intersection of Big Bend Road and I-75 and then widening to capture a part of the Light Industrial designation west of the I-75 corridor and south of Gibsonton bears designations that are not supported by the Data and Analysis. The extent of the subject area corresponds to the Urban Level 1 and 2 and Light Industrial designations within the above-described area shown on the green map as Environmentally Sensitive Areas which are potentially significant wildlife habitat.
General Minimum Criteria
Public Participation (Issue 15)
As to Issue 15, Rule 9J-5.004 requires public participation in the planning process. The adoption process in the subject cases was consistent with the criterion of public participation.
Contents of FLUM and Plan (Issues 16-36)
1. FLUM (Issue 16)
As to Issue 16, Rule 9J-5.006(4) states:
The proposed distribution, extent, and location of the following generalized land uses shall be shown on the future land use map or map series:
Residential use;
Commercial use;
Industrial use;
Agricultural use;
Recreational use;
Conservation use;
Educational use;
Public buildings and grounds;
Other public facilities; and
Historic district boundaries and designated historically significant properties meriting protection.
The following natural resources shall be shown on the future land use map or map series:
Existing and planned water wells and cones of influence, where these exist;
Beaches and shores, including estuarine systems;
Rivers, bays, lakes, floodplains, and harbors;
Wetlands; and
Minerals and soils.
The Plan is consistent with the criterion of the depiction on the FLUM of minerals, public facilities, and wetlands.
However, to the exclusion of fair debate, the Plan is not consistent with the criterion of the depiction on the FLUM of existing and planned waterwells, cones of influence, historically significant properties meriting protection, floodplains, and soils.
2. Plan Provisions Regarding Natural Resources (Issues 17-21)
As to Issue 17, Rule 9J-5.006(3)(b)1 states that the Plan shall contain an objective to "[c]oordinate future land uses with the appropriate topography, soil conditions, and the availability of facilities and services."
The Plan is consistent with the criterion of one or more objectives to coordinate future land uses with topography, soils, and available public facilities.
As to Issue 18, Rule 9J-5.006(3)(b)4 states that the Plan shall contain an objective to "[e]nsure the protection of natural resources and historic resources." Rule 9J-5.013(2)(b)2 states that the Plan shall contain an objective to "[c]onserve, appropriately use and protect the quality and quantity of current and projected water sources and waters that flow into estuarine waters or oceanic waters."
The Plan is consistent with the criteria of one or more objectives to ensure the protection of natural resources and to conserve, appropriately use, and protect the quality and quantity of current and projected water sources and waters that flow into estuarine waters, subject to findings elsewhere of specific inconsistencies.
As to Issue 19, Rule 9J-5.013(2)(c)1 states that the Plan shall contain a policy to "address implementation activities for the . . . [p]rotection of water quality by restriction of activities known to adversely affect the quality and quantity of identified water sources including existing cones of influence, water recharge areas, and water wells."
To the exclusion of fair debate, the Plan is not consistent with the criterion of a policy to address implementation activities for the protection of water quality by the restriction of activities known to affect adversely the quality and quantity of identified water sources, including existing cones of influence, water recharge areas, and water wells.
As to Issue 20, Rule 9J-5.013(2)(c)5 states that the Plan shall contain a policy to address implementation activities for the "[r]estriction of activities known to adversely affect the survival of endangered and threatened wildlife."
The Plan is consistent with the criterion of a policy to address implementation activities for the restriction of activities known to affect adversely the survival of endangered and threatened wildlife.
As to Issue 21, Rule 9J-5.013(2)(c)3 states that the Plan shall contain a policy to address implementation activities for the "[p]rotection of native vegetative communities from destruction by development activities."
The Plan is consistent with the criterion of a policy to address implementation activities for the protection of native vegetation from destruction from development.
3. Coastal Hazards (Issues 22-23)
As to Issue 22, Rule 9J-5.012(3)(b)6 states that the Plan shall contain an objective to "[d]irect population concentrations away from known or predicted coastal high-hazard areas."
To the exclusion of fair debate, the Plan is not consistent with the criterion of an objective to direct population concentrations away from the coastal high hazard area.
As to Issue 23, Rule 9J-5.012(3)(c)3 states that the Plan shall contain a policy to "identify regulatory or management techniques" to address:
General hazard mitigation including regulation of building practices, floodplains, beach and dune alteration, stormwater management, sanitary sewer and septic tanks, and land use to reduce the exposure of human life and public and private property to natural hazards; and incorporating the recommendations of the hazard mitigation annex of the local peacetime emergency plan and applicable existing interagency hazard mitigation reports.
The Plan is consistent with the criterion of a policy to identify regulatory or management techniques addressing general hazard mitigation in the coastal area.
Public Facilities (Issues 24-31)
As to Issue 24, Rule 9J-5.007(3)(c)1 states that the Plan shall contain a policy to address implementation activities for the "[e]stablishment of level of service standards at peak hour for all roads within the local government's jurisdiction as provided by [Rules] 9J-5.005(3) and 9J- 5.015(3)(b)3." Rule 9J-5.016(3)(c)4 provides that the Plan shall contain a policy to address "programs and activities" for
The establishment of level of service standards for public facilities which are within the local government's jurisdiction, as provided by [Rules] 9J-5.005(3) and 9J- 5.015(3)(b)3. These standards shall be those found in the other ... plan elements.
The Plan is consistent with the criteria of policies of setting level of service standards for roads. Assuming that the cited rules require some justification for citing lower standards, the Plan is consistent with such criteria.
As to Issue 25, Rule 9J-5.005(6) states:
Recognizing that the intent of the Legislature is that local government comprehensive plans are to be implemented, pursuant to Subsection 163.3161(5), and Sections 163.3194, 163.3201, and 163.3202,
Florida Statutes, the sections of the comprehensive plan containing 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 Chapter to require the inclusion of implementing regulations in the comprehensive plan 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 goals, objectives, and policies that describe how the programs, activities, and land development regulations will be carried out consistent with Section 163.3201, Florida Statutes. This Chapter does not mandate the creation, limitation, or elimination of regulatory authority for other agencies nor does it authorize the adoption or require the repeal of any rules, criteria, or standards
of any local, regional, or state agency.
The Plan is consistent with the criteria of provisions granting vested rights only when development has commenced pursuant to a final local development order issued prior to the adoption of the Plan and has continued in good faith.
As to Issue 26, Rule 9J-5.016(3)(c)5 states that the Plan shall contain a policy to address "programs and activities" to provide "for the availability of public facilities to serve developments for which development orders were issued prior to the adoption of the comprehensive plan."
The Plan is consistent with the criterion of a policy to address programs and activities to provide public facilities to serve development authorized by development orders issued prior to the effective date of the Plan.
As to Issue 27, Section 163.3177(10)(h) states:
It is the intent of the Legislature that public facilities and services needed to support development shall be available concurrent with the impacts of such development. In meeting this intent, public facility and service availability shall be deemed sufficient if the public facilities and services for a development are phased, or the development is phased, so that the public facilities and those related services which are deemed necessary by the local government to operate the facilities necessitated by that development are available concurrent with the impacts of the development. The public facilities and services, unless already available, are to be consistent with the capital improvements
element of the . . . plan . . . or guaranteed in an enforceable development agreement. ...
Rule 9J-5.005(6) has been cited above. Rule 9J-5.016(4)(b) states:
The plan shall identify those programs to be adopted which will ensure that the goals, objectives and policies established in the capital improvements element are met or exceeded. These programs shall include provisions that facilities and services at least meet the standards established and are available concurrent with the impacts of development. At a minimum the programs related to concurrency shall meet the requirements of Rule 9J-5.0055 . . ..
The Plan is consistent with the criteria of concurrency provisions, notwithstanding the authorization of pipelining for DRI's.
As to Issue 28, Section 163.3177(10)(h) has been cited above. Rule 9J-5.006(3)(c)3 states that the Plan shall contain a policy to address implementation activities to provide:
that facilities and services meet the locally established level of service standards, and are available concurrent with the impacts of development, or that development orders and permits are specifically conditioned on the availability of the facilities and services necessary to serve the proposed development; and that facilities that provide utility service to the various land uses are authorized at the same time as the land uses are authorized.
The Plan is consistent with the criteria of concurrency provisions, notwithstanding the allowance of pipeline by DRI's.
As to Issue 29, Rule 9J-5.016(3)(c)5 has been cited above. Rule 9J- 5.016(3)(c)6 and 8 provide that the Plan shall contain policies to address "programs and activities" for:
6. Provisions for the availability of public facilities and services needed to support development concurrent with the impacts of such development subsequent to the adoption of the local comprehensive plan. Public facility and service availability shall be deemed sufficient if the public facilities and services for a development are phased, or the development is phased, so that the public facilities and those related services which are deemed necessary by the local government to operate the facilities necessitated by that development, are available concurrent with the impacts of the development.
8. Assessing new developments a pro rata share of the costs necessary to finance public facility improvements necessitated by development in order to adequately maintain adopted level of service standards.
The Plan is consistent with the criteria of policies to provide for concurrency, including developments for which development orders were issued prior to Plan adoption and new developments that are to be assessed their pro rata share of the cost of public facilities necessitated by the development.
As to Issue 30, Section 163.3177(3)(a)1 states that the Plan shall contain "a component which outlines principles for correcting existing public facility deficiencies, which are necessary to implement the comprehensive plan."
The Plan is consistent with the criterion of a provision to establish funding mechanisms to correct existing funding deficiencies with respect to public facilities for which concurrency is required.
As to Issue 31, Section 163.3177(2) states that the Plan shall be "economically feasible."
The Plan is consistent with the criterion of financial feasibility.
5. Urban Sprawl (Issues 32-35)
As to Issue 32, Rule 9J-5.006(4) has been cited above.
In general, the FLUM is consistent with the criterion of showing the "proposed distribution, extent, and location" of the specified future land uses. However, to the exclusion of fair debate, the FLUM is inconsistent with this criterion with respect to the Environmentally Sensitive Areas designation on the FLUM (i.e., the multicolor map). As discussed at length above, it remains unclear whether the designation is regulatory or merely locational. If the latter, areas designated Environmentally Sensitive Areas have no future land use
designation. If the designation is regulatory, the extent of the densities and intensities, or whether development is flatly prohibited, is never clarified in the Plan, so the designation fails to specify effective future land use restrictions for areas designated Environmentally Sensitive Areas.
As to Issue 33, Rule 9J-5.006(3)(b)7 states that the Plan shall contain an objective to "[d]iscourage the proliferation of urban sprawl." Rule 9J-5.011(2)(b)3 states that the Plan shall contain an objective addressing "maximizing the use of existing facilities and discouraging urban sprawl."
The Plan is consistent with the criteria of objectives to discourage urban sprawl.
As to Issue 34, Rule 9J-5.006(4)(a)4 has been cited above. Rule 9J- 5.013(2)(b)3 states that the Plan shall contain an objective to "[c]onserve, appropriately use and protect minerals, soils and native vegetative communities including forests." Rule 9J-5.013(2)(c)6 states that the Plan shall contain a policy to address implementation activities for the "[p]rotection and conservation of the natural functions of existing soils, fisheries, wildlife habitats, rivers, bays, lakes, floodplains, harbors, wetlands including estuarine marshes, freshwater beaches and shores, and marine habitats."
Regarding the protection of rural and agricultural lands, the Plan is consistent with the criteria of an objective and policy to designate agricultural uses on the FLUM; set objectives to conserve, appropriately use, and protect native vegetative soils and communities; and set policies to protect and conserve the natural functions of existing soils, wildlife habitats, rivers, bays, floodplains, harbors, and wetlands.
6. Miscellaneous (Issues 35-36)
As to Issue 35, Section 163.3177(4)(a) and (6)(h) provide, in relevant part:
Coordination of the local comprehensive plan with the comprehensive plans of adjacent municipalities, the county, adjacent counties, or the region; . . . and with the state comprehensive plan shall be a major objective of the local comprehensive planning process. . . .
6.h. An intergovernmental coordination element [shall show] relationships and [state] principles and guidelines to be used in the accomplishment of coordination of the adopted comprehensive plan with the
comprehensive plans of adjacent municipalities, the county, adjacent counties, or the region, and with the state comprehensive plan, as the case may require and as such adopted plans or plans in preparation may exist. This element of the local comprehensive plan shall demonstrate consideration of the particular effects of the local plan, when adopted, upon the development of adjacent municipalities, the
county, adjacent counties, or the region or on the state comprehensive plan, as the case may require.
Rule 9J-5.015 adds additional criteria to intergovernmental coordination.
1000. The Plan is consistent with the criteria of intergovernmental coordination.
1001. As to Issue 36, Rule 9J-5.005(4) provides that the Plan shall "include at least two planning periods: one for at least the first five-year period subsequent to the plan's adoption and one for at least an overall ten- year period."
1002. The Plan is consistent with the criterion of dual planning timeframes.
Minimum Criterion of Internal Consistency (Issues 37-38)
1003. As to Issues 37 and 38, Rule 9J-5.005(5) states that:
the "elements . . . shall be consistent with each other." In addition, "[e]ach map depicting future conditions must reflect goals, objectives, and policies within all elements and each such map must be contained within the comprehensive plan."
1004. To the exclusion of fair debate, the Plan is internally inconsistent with respect to Plan provisions to protect natural resources, such as Conservation and Preservation Areas, and the failure to assign a clear regulatory significance to the Environmentally Sensitive Areas designation.
1005. To the exclusion of fair debate, the Plan is internally inconsistent with respect to Plan provisions to protect natural resources and future land use designations that allow development, as the term is defined in the Plan, in the
100 year floodplain that alters predevelopment drainage conditions in terms of rate, volume, quality, timing, or location of discharge. However, this internal inconsistency is eliminated by the adoption of a stormwater level of service standard that addresses the issues described above in addition to flood control.
1006. To the exclusion of fair debate, even if the stormwater level of service standard were expanded, the designations assigning densities and intensities to the five areas, for which the designations were found to be unsuitable to the exclusion of fair debate, are inconsistent with Plan provisions to protect natural resources.
1007. The Plan is otherwise internally consistent as to the matters pleaded by Sierra Club.
Minimum Criterion of Consistency with Regional Plan (Issue 39)
1008. As to Issue 39, Section 163.3184(1)(b) states that the Plan shall be consistent with the Regional Plan. Section 163.3177(10)(a) provides, in relevant part:
for the purpose of determining whether local comprehensive plans are consistent with the state comprehensive plan and the appropriate regional policy plan, a local plan shall be consistent with such plans if the local plan is "compatible with" and "furthers" such plans. The term "compatible with" means that the local plan is not in conflict with the state comprehensive plan or appropriate regional policy plan. The term "furthers" means to take action in the direction of realizing goals or policies of the state or regional plan. For the purposes of determining consistency of the local plan with the state comprehensive plan or the appropriate regional policy plan, the state or regional plan shall be construed as a whole and no specific goal and policy shall be construed or applied in isolation from the other goals and policies in the plans.
1009. To the exclusion of fair debate, the Plan is inconsistent with the Regional Plan, construed as a whole, in the following respects: the inadequate stormwater level of service standard is not consistent with Regional Plan Goal 8.7; in the absence of an effective stormwater level of service standard, the inadequate protection of the 100 year floodplain is not consistent with Regional Plan Goals 8.10, 10.4, and 10.5 and related policies; and the inadequate protection extended to public supply water wellfields and their cones of influence and aquifer recharge is not consistent with Regional Plan Goals 8.1 and 8.5 and related policies.
1010. The Plan is otherwise consistent with the Regional Plan as to the matters pleaded by Sierra Club.
Minimum Criterion of Consistency with State Plan (Issues 40-41)
1011. As to Issues 40 and 41, Section 163.3184(1)(b) states that the Plan shall be consistent with the State Plan. The preceding conclusions concerning the requirements of the Act apply equally to the State Plan.
1012. To the exclusion of fair debate, the Plan is inconsistent with the State Plan, construed as a whole, in the following respects: the inadequate stormwater level of service standard is not consistent with Section 187.201(8)(b)12; and the designations given the five areas that were, to the exclusion of fair debate, unsuitable are not consistent with Section 187.201(16). By a preponderance of the evidence, the Plan is inconsistent with the State Plan, construed as a whole, with respect to the designations give the remaining six areas, which are not consistent with Section 187.201(16).
1013. The Plan is otherwise consistent with the State Plan as to the matters pleaded by Sierra Club.
RECOMMENDATION
Based on the foregoing, it is hereby
RECOMMENDED that the Administration Commission enter a final order determining that the Hillsborough County comprehensive plan, as amended through August, 1991, is not in compliance with the Act with respect to all of the matters noted above, regardless of the evidentiary standard noted in the findings and conclusions. It is further
RECOMMENDED that the Administration Commission either exercise pendent jurisdiction and enter a final order dismissing DOAH Case No. 90-6639GM or remand the case to the Department of Community Affairs for entry of such a final order.
ENTERED on December 8, 1992, in Tallahassee, Florida.
ROBERT E. MEALE
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings on December 8, 1992.
ENDNOTES
The sole exception is that questions of internal inconsistency are always determined by the fairly debatable standard, regardless whether the proceeding is under 163.3184(9) or (10).
Two issues raise questions implicitly addressed in the discussion of several issues and will not be discussed separately. These two issues are:
Whether the data supporting the Future Land Use Map densities and intensities were collected and applied in a professional acceptable manner, as required by Rule 9J- 5.005(2)(a). (Sierra Club 6.a)
Whether the plan is consistent with the criterion of objectives that are specific, measurable, and intermediate ends that are achievable and mark progress toward goals and policies that are ways in which programs and activities are conducted to achieve an identified goal, as required by Rules 9J- 5.003[(36)], [(61)], and [(68)] and 9J- 5.005(6). (Sierra Club 6.k)
The two-volume compilation of the Plan identified as Sierra Club Exhibit 1 contains all of the relevant amendments. However, the August 28, 1991, amendments are enclosed separately, as pages to be inserted into the remainder of the Plan text. The August 28 amendments are located in the inside cover of the first volume of the Plan.
Chapter 17-25, Florida Administrative Code.
The coastal high hazard area is identified in Paragraphs 182 and 771 et seq.
The Rural, Suburban, and Urban designations are described in Paragraphs 495 et seq.
The suburban and urban areas south of the Alafia River may be divided into quarters by US 301 running north and south and Big Bend Road (with the extended water line) running east west. There are no existing water lines in the southeast quadrant except for five miles of line running along US 301 south of Big Bend Road and ending two and one-half miles north of the Little Manatee River and about six miles of line running along Big Bend Road and east of its present terminus. In the northeast quadrant, about six miles of water lines run through the northwest corner, five miles of lines run along the scenic corridor forming the east boundary of the suburban area, and five miles of line running along US 301 between the Alafia River and Big Bend Road.
The southwest quadrant is served by the same line along US 301 south of Big Bend Road that serves the southeast quadrant. The southwest quadrant is also served by the lines described above in the Ruskin area, three miles of line running along Big Bend Road west of US 301 and ending just over one mile from the Tampa Bay, about one and one-half miles of line extending south along US 41 from the west terminus of the line running along Big Bend Road, and almost three miles of line running west from US 301, about two miles north of the terminus of the line running along US 301.
The Data and Analysis contain a table entitled, "Plan with DCA Agreement-- Maximum Buildout of Existing Vacant Land (Not Supported by Historical Trends). This is the table from which the calculations in the recommended order are derived. Various assumptions are implicit in the use of this table or the calculations contained in the recommended order.
First, historic buildout figures are ignored. Historic buildout densities are typically lower than permitted densities. The calculation of permitted densities requires consideration of what a plan permits, not what a local government has historically experienced in terms of actual built-out densities. Built-out densities will not likely attain the maximum permitted density. But the difference between higher designated densities and lower built-out densities is accounted for in the fact that the density allocation ratio does not begin to indicate sprawl as soon as the ratio exceeds 1:1.
Second, although the densities are expressed in terms of gross acreage, no allowance is made for nonresidential uses in each category. Some allowance is appropriate. Maximum residential buildout of an area obviously requires roads and utilities and, if expansive enough, parks, schools, and possibly other mixed uses, such as commercial. However, the Data and Analysis, including the above- identified table, fail to differentiate between such uses, which inevitably accompany residential development, and other uses, most importantly agricultural, which are not a necessary adjunct to residential development of the land. The purpose of calculating a ratio of population capacity as permitted by plan designations versus projected population capacity is to determine roughly how much land the local government has made available to residential development. To the extent that the local government may expect a certain amount of such land to be used for nonresidential purposes, such as agriculture, the situation is similar to that involving the historic buildout adjustment.
Third, the population per household is estimated at 2.75 persons for all categories except Low Medium Density Residential, Medium Density Residential, High Density Residential, and Urban Levels 1, 2, and 3. For these categories, the population per household is estimated at 1.97 persons. The above-identified table uses these figures. In all but two cases in which the single family estimate is used, the table projects no multifamily use. (In the two exceptions, Suburban Density Residential and Low Density Residential, the table projects only 5% multifamily.) In the cases in which the multifamily estimate is used, the table projects more multifamily use than single family use.
Fourth, three commercial categories also allow residential uses. The categories are Community Commercial, Commercial-- Office, and Regional Commercial. The allowed density in each of the three categories is 20:1. These densities have not been used in the density allocation calculations for two reasons. First, the primary use in these areas is commercial. The incidental residential uses are ignored, just as incidental commercial uses in numerous residential categories have also been ignored. Second, the allowance of residential uses in these commercial categories implies a mixture of uses and, to a lesser extent, a concentration of residential uses in close proximity to commercial nodes and, thus, jobs and shopping. The overallocation calculations are rough guides. Overallocations of residential density in central business districts or elsewhere in close proximity to sources of employment and retail commercial may actually prove helpful in obtaining more compact, mixed development patterns, especially when compared to overallocations of residential density in sparsely populated outlying areas.
See, e.g., Proposed Findings 109 et seq., Hillsborough County's Proposed Recommended Order.
The only reference in the Data and Analysis to a FLUM series, as opposed to a single FLUM, is in the FLUE Background Document, which is part of Sierra Club Exhibit 1. Appendix C of the FLUE Background Document contains a matrix demonstrating the consistency of the Plan with Chapter 9J-5. The analysis accurately distinguishes between existing and future land uses.
Evidently prepared at an early stage in the Plan-preparation process, the matrix explains that various existing land uses would be addressed graphically in an "existing land use map series," which is also identified as a "Comprehensive Plan Map Atlas." FLUE Background Document, Appendix C, page 1. The same response is given to explain how the County would address various future land uses and natural resources, although the "Comprehensive Plan Map Atlas" would contain the "future land use map series." FLUE Background Document, Appendix C, page 11.
Appendix C also contains a matrix showing the consistency of the Plan with the State and Regional Plans. The matrix refers to maps only three times in addressing consistency with the State and Regional Plans. Twice, the matrix identifies the "Future Land Use Map" and notes that the map's location as "Attachment" or "Appendix." It appears that the portion of the matrix addressing consistency with the State and Regional Plans may have been completed at a later stage, after the multicolor FLUM had been prepared.
Once litigation began, the County took the position that many, if not all, maps were part of its FLUM. An early illustration of this argument was the County's response to Interrogatories 1 and 2 of the Sierra Club's Second Set of Interrogatories, which is Sierra Club Exhibit 51. The interrogatories ask the
County to identify its ELUM's and FLUM's. The single response is an exhibit listing the same maps, except the vacant land use suitability map, as ELUM's and FLUM's. In response to the portion of the interrogatory asking where in the Plan or adoption ordinance the designation is made as to the FLUM, the County's response is: "the Plan speaks for itself." Another response elaborates: "Although the adoption ordinance does not specifically reference the adoption of the FLUM, the adoption of the [Plan] resulted in the adoption of the FLUM since the map is part of the Comprehensive Plan, pursuant to Rule 9[J]- 5.005(1), F.A.C." Claiming the request was burdensome and the Plan speaks for itself, the County refused to identify the parts of the Plan adopting the FLUM as part of the operative provisions of the Plan. The County's proposed recommended order does not explain the basis for its assertion that all maps are FLUM's.
The green map actually does not fit the description of the map identified in Policy 14.2. The green map does not identify "natural plant communities which are determined to provide significant wildlife habitat . . .." The green map principally identifies "potentially significant wildlife habitat."
The statement of the intent of the Environmentally Sensitive Areas designation is quoted at Paragraph 397.
The local Environmental Protection Commission was formed by special act of the Florida legislature prior to the enactment of Chapter 163, Part II, Florida Statutes, in its present form. In the discussion of several natural resources, the Data and Analysis state:
The Environmental Protection Commission of Hillsborough County is the local environmental regulatory agency charged with controlling water pollution throughout Hillsborough County. . . . The Environmental Protection Commission also implements its own programs regulating activities which are reasonably expected to cause or contribute to water pollution. The Environmental Protection Commission is created by Florida State, and is not administered by, nor directly responsible to, the Board of County Commissioners or the County Administrator. For that reason, language in the Plan does not mandate the Environmental Protection Commission to implement the Plan's provisions, but rather seeks a cooperative agreement between the County and the Environmental Protection Commission to ensure that the Plan is implemented and enforced.
CARE, p. 54.
Similar provisions apply with respect to the enforcement of air quality regulations, jurisdiction over wetlands, and jurisdiction over discharges to groundwater. CARE, pp. 52, 56, and 58.
The existence of the Environmental Protection Commission is irrelevant to these cases for several reasons. First, the Plan provisions determined to be inconsistent with Chapter 9J-5 involve regulatory aspects of land use planning, not failures to enforce otherwise adequate provisions. In other words, the deficient Plan provisions are themselves inadequate without regard to whether they would be enforced or, if so, by whom.
Second, nothing in the special act creating the Environmental Protection Commission purports to give the entity exclusive jurisdiction over the adoption of laws regulating land uses in Hillsborough County. See letter from Hillsborough County attorney dated October 28, 1991, with attachments consisting
of special acts of legislature and rules of Environmental Protection Commission. The undersigned agreed at the final hearing to take official notice of these materials.
Chapter 163, Part II, Florida Statutes, requires local governments to exercise their powers to engage in effective land use planning, or else risk certain sanctions. Any theoretical concerns that Hillsborough County's Board of County Commissioners lacked the necessary authority to adopt laws dealing with all the criteria of Chapter 9J-5 and Chapter 163, Part II, should be dispelled by a review of the special acts. These laws disclose, on a theoretical level, no basis to conclude that the Board of County Commissioners' planning jurisdiction has been divested by the creation of the Environmental Protection Commission and, on a more practical level, that the Commissioners of the Environmental Protection Commission are the Commissioners of the Board of County Commissioners of Hillsborough County. Chapter 84-446, 4.
Lastly, the Florida legislature has resolved any theoretical conflict between the County's planning responsibilities and the jurisdiction of the Environmental Protection Commission. 163.3211 provides in relevant part:
Where this act [Chapter 163, Part II] may be in conflict with any other provision or provisions of law relating to local governments having authority to regulate the development of land, the provisions of this act shall govern unless the provisions of this act are met or exceeded by such other provision or provisions of law relating to local government . . ..
The Plan states: "the location or clustering of [the dwelling] units on the project site need not conform to the land use category boundary on the site as long as the maximum number of dwelling units permitted for the project are not exceeded." FLUE, p. 66. However, this Plan provision may only mean that the clustered dwelling units may be located without regard to density limitations among each area designated for different residential densities, such as Suburban Density Residential and Medium Density Residential.
These upland forests, which "include Pine Flatwoods, Sandhill, Sand Pine Scrub, Xeric Hammock and Mesic Hammock," are eligible for a density credit provided they do not fall within an area designated Agricultural/Mining, Agricultural, or Agricultural/Rural and meet other requirements.
FAR is Floor Area Ratio, which the Plan defines as:
The floor area ratio is a measure of development intensity, and it equals the amount of permitted, developable floor area of a building to the area of the lot. For example, a FAR of 3 on a 20,000 square foot lot would allow a three story building with 20,000 square feet on each floor or a variety of similar combinations as long as the total floor area did not exceed 60,000 square feet. This concept is used for regulating the intensity of commercial development in the same way that density is used to measure residential development.
FLUE, p. 137.
The Maximum Floor Area for Low Urban Density Residential omits "mixed use" projects, which are included for this designation under typical uses and intent.
The intent of the Low Urban Density Residential designation inadvertently omits in the second sentence the reference to "multi-purpose" and the language, "conforming to".
Sometimes "Urban" is dropped from these designations, but the designation is the same.
The typical uses for the High Density Urban Residential designation inadvertently omits the qualifier, "urban scale."
The Environmentally Sensitive Areas designation is discussed at length at Paragraphs 252 et seq. and 397.
CIE Policies 1.A.2.a and 1.A.2.b indicate that Category A and B public facilities are those facilities owned by Hillsborough County or other parties, respectively. In both cases, the public facilities are the facilities for which concurrency is required.
Inadvertently omitted from the two-volume compilation, Table 2 can be found in the inside pocket in the front of one of the volumes.
Stormwater Element Objectives 4 and 5 are to identify sources of water quality degradation from stormwater and maintain or improve the quality of stormwater. Stormwater Element Goal B is to minimize the degradation of water quality attributable to stormwater runoff. Although these provisions may be appropriately general as goals or objectives, they of course no more set a stormwater level of service standard--of any kind-- than would similar Transportation Element provisions setting the goal of improving traffic.
Stormwater Element Policy 5.1, which requires the use, by 1995, of Best Management Practices to minimize contributions of poor quality stormwater to groundwater and surface water, fails to set a stormwater level of service standard that is measurable and enforceable. After doing nothing for years about degraded water quality in runoff, Policy 5.1 introduces Best Management Practices, which, as defined in the Plan, constitute the methods determined to achieve water quality goals after assessment of the problem, examination of alternatives, and appropriate public participation--stages of data collection, analysis, and public participation common also to the comprehensive planning process. The only difference is that Stormwater Policy 5.1 tries to defer to 1995 planning activities involving the stormwater component of comprehensive planning that were required to be undertaken several years earlier.
Numerous other Plan provisions likewise address water quality aspects of stormwater management, but fail to set a specific level of service standard. For example, Stormwater Element Policy 2.15 states a preference for stormwater detention and requires that impacts to wetlands be minimized. Although deferring the regulatory mechanism to land development regulations, Stormwater
Element Policy 2.11 similarly encourages new development to minimize destruction to natural systems capable of conveying or attenuating stormwater. Stormwater Element Policy 5.5 provides for the use of wetlands for pretreatment of stormwater, but does not impose any requirements in this regard. Likewise, FLUE Policy C-1.1 encourages the use of vegetated swales in stormwater facilities.
Somewhat better in terms of measurability and enforceability, Stormwater Element Policy 5.6 prohibits new stormwater facilities from discharging untreated stormwater into the Floridan aquifer. But the provision ignores the level of treatment--or, more importantly, the quality, rate, and timing of the
surface runoff. FLUE Policy A-8.8 requires that the physical and chemical filtration performed by artificial stormwater management systems be consistent with the stormwater level of service--a provision that becomes meaningless when the stormwater level of service standard is expressed exclusively in terms of quantitative flood control.
To some extent, the 1.61 factor is understated. The density formula allows the use of some part of Environmentally Sensitive Areas for the calculation of residential densities. But the 1.61 factor is based on data that assign no residential development to areas designated Environmentally Sensitive Areas, which account for over 13% of the County. Notwithstanding the confusion as to whether the residential development can be placed on Environmentally Sensitive Areas, such areas clearly can be used in calculating densities.
There is no way to calculate an alternative density allocation ratio. The density formula does not allow a calculation of how much acreage of Environmentally Sensitive Areas will yield densities (due to the 25% limitation) or of the actual densities attributable to Environmentally Sensitive Areas (due to the provision by which densities are borrowed from adjoining land).
But even if 80,000 acres of Environmentally Sensitive Areas increased available population capacity by an additional 600,000 persons, the density allocation ratio would be 2.14:1. Although a stronger indicator of sprawl, the factor of 2.14 is outweighed by the remainder of the Plan, which precludes a finding of sprawl by employing such strategies as providing for an effective mixture of uses. The Plan does not generally assign land uses that encourage an inefficient use of land or inefficient provision of public facilities or jeopardize natural resources or viable agriculture. The only general exception is the above- described failure concerning the stormwater level of service standard.
However, the fact that the Plan does not otherwise assign unsupported or unsuitable densities or intensities, from a generalized sprawl perspective, does not mean that all future land use designations are suitable or supported by the Data and Analysis.
The suitability of a future land use designation also depends on the textual Plan provisions governing land uses, protecting natural resources, and providing infrastructure. For example, a high-density or -intensity designation for a particular area may be inconsistent with data showing that a prime recharge area is located throughout the entire area and analysis showing that high-density or
-intensity land uses would destroy the aquifer recharge function. However, the designated intensity or density might be appropriately qualified. A plan provisions could absolutely prohibit, despite anything to the contrary elsewhere in the plan or future land use map, any land use in the prime recharge area unless the landowner demonstrates that the land use will not alter any factor of hydrological significance, such as the amount or quality of recharge, the seasonal timing of the recharge, the hydraulic conductivity of the beds separating aquifers, or the head difference between or among aquifers.
This "island" of Urban Level 1 contains disturbed land cover, according to CARE Figure 20. According to Oversized Map 2, a considerable amount of the "island" has already been developed at low density residential, so the Urban designation does not appear unsuitable.
See, e.g., Proposed Master Plan and Implementation Program for the I-75 Corridor, which is Sierra Club Exhibit 28. Figure 12 and text at p. 20 indicate that development may be impossible in all but the northern portion of the Z- shaped area where Bullfrog Creek runs east-west. The Proposed Master Plan acknowledges the presence of wetlands, hydric soils, and floodplain in the area.
Objectives are "specific, measurable, intermediate end[s] that [are] achievable and mark. . . progress toward a goal." Rule 9J-5.003(61). Policies are the "way in which programs and activities are conducted to achieve an identified goal." Rule 9J-5.003(68). Findings addressing this and other issues will emphasize objectives when the cited rules specify objectives and policies when the cited rules specify policies. However, certain policies, such as those setting intermediate goals or imposing specific performance standards, may provide the basis for finding that a comprehensive plan is consistent with a criterion of a specified objective, even if the Plan does not contain the required objective. Likewise, certain objectives, such as those containing programs or imposing specific performance standards, may provide the basis for finding that a comprehensive plan is consistent with a criterion of a specified policy, even if the Plan does not contain the required policy.
This may represent the "high potentiometric surface" mark of Plan provisions directly protecting, conserving, and appropriately using aquifer recharge.
Cf. CARE Policy 8.3:
The County shall continue to prohibit mineral extraction within the 25-year floodplain, and shall restrict mining activities in the 100- year floodplain . .
..
Activities in the less critical 100 year floodplain are only restricted, but those in the more critical 25 year floodplain are prohibited.
See Hiss v. Department of Community Affairs, Case No. ACC- 90-104 (Admin. Cmn. 1991). Cf. 163.3184(8), which generally limits the Notice of Intent issued by DCA on a plan or plan amendments to the issues that DCA has earlier raised in its Objections, Recommendations, and Comments report. In this situation, the Legislature has clearly expressed its intent that the issues in the Notice of Intent not enlarge the issues earlier set forth in the Objections, Recommendations, and Comments report. For standing, the Legislature has imposed no such requirement.
See, e.g., National Wildlife Federation, Inc. v. J.T. Glisson, 531 So. 2d 996 (Fla. 1st DCA 1988).
See, e.g., Florida Medical Center v. Department of Health and Rehabilitative Services, 484 So. 2d 1292, 1296 (Fla. 1st DCA 1986).
A recent amendment, effective April 8, 1992, adds the following provision to 163.3184(10)(a):
No new issue may be alleged as a reason to find a plan or plan amendment not in compliance in an administrative pleading filed more than 21 days after publication of notice unless the party seeking that issue establishes good cause for not alleging the issue within that period. Good cause shall not include excusable neglect.
By negative implication, the new language recognizes the right of intervenors and DCA to raise issues not set forth in DCA's petition. However, the provision also appears to limit the ability of DCA and intervenors to expand the scope of the issues set forth by DCA in its petition. In any event, the provision became effective long after the final hearing in these cases and is not applicable.
There are some factual settings in which conventional intervention principles may be applicable. For instance, 163.3184(9) gives affected persons
21 days within which to challenge a notice of intent to find a plan or plan amendment in compliance. An affected person who fails to avail himself of this opportunity may be allowed to intervene, after the expiration of the 21-day period, in a 163.3184(9) proceeding timely commenced by another affected person. But if the timely filing affected person settles and no other timely filing affected persons remain as petitioners, the intervenor's case should be dismissed as well. See Rudloe v. Department of Environmental Regulation, 517 So. 2d 731 (Fla. 1st DCA 1987) and Humana of Florida, Inc. v. Department of Health and Rehabilitative Services, 500 So. 2d 186 (Fla. 1st DCA 1986).
There is also a significant practical difficulty in attempting to employ such dual standards in a single proceeding. The differentiation of issues would be a daunting task that, after considerable effort, would produce imprecise and arbitrary results.
For example, if DCA were to allege that the designation of a coastal high hazard area was inconsistent with a criterion of Chapter 9J-5, could an affected person allege, within the same issue, that a hurricane-evacuation provision is inconsistent with the regional and state plan?
The Act refers to "requirements," and Chapter 9J-5 refers to "criteria." As used in the Act and Chapter 9J-5, the two words are synonymous. For simplicity, all references in this Recommended Order to "criteria" or "minimum criteria" include "requirements" or "minimum requirements," as used in the Act.
40 163.3161(7).
41 163.3171(9).
APPENDIX
Treatment Accorded Sierra Club's Proposed Findings
Adopted or adopted in substance: 1-30; 32; 56-58 (if the overallocation is large enough); 62; 64 (ideally); 67-68; 70; 72-75; 77-81; 88; 96; 110;
112 (however, the utility of all density allocation ratios, including the two identified in the recommended order, is doubtful because of the absence of meaningful ranges for suitable ratios and meaningful adjustments for various factors, such as the duration of the planning timeframe and whether the calculation includes only vacant land or also tries to account for redevelopment; the density allocation ratio in the subject cases is, based on the present record, suitable only as a rough indicator of sprawl and nothing more, so that only very gross overallocations, such as 3:1 or 4:1, should trigger close scrutiny of a plan's strategy for accommodating growth--namely, in one or more viable mixed use centers (whether already existing or proposed) or merely formless low density residential development scattered through a landscape devoid of functional relationships among residential, commercial, industrial, recreational, and institutional uses); 117-19; 121; 127-29; 133;
136-38; 142; 144-45 (first sentence); 146-47; 149-50; 155-57 (first sentence); 167; 171 (to the extent and for the areas addressed in the recommended order); 178-79; 181- 84 (except to the extent of the implication that, despite the use of inferior information, the designation of wildlife habitat is unsupported by the Data and Analysis; the criteria for a successful challenge to a local government's data and analysis are rigorous and have not been met in these cases); 187-89 (although existing designations, except for the 11 unsuitable designations, would be supported if the stormwater level of service standard is modified in the manner indicated in the recommended order); 200-01; 205 (except last sentence; this issue has been addressed with respect to the duration planning timeframe when addressing density allocation ratios); 220; 222- 24; 225 (except as to financial feasibility, which will be addressed
by concurrency provisions); 231; 239; 241-43 (first sentence); 244; 257-61;
269-72 (except as to minerals); 274 (except last sentence); 282-83; 289 (however, the vagueness in the Plan's wetlands provisions should be clarified when the County amends the Plan regarding the regulatory meaning of the Environmentally Sensitive Areas designation); 290; 292-306 (however, these findings do not overrule the ultimate finding that the Plan is consistent with the criterion of an objective ensuring the protection of natural resources; these findings pertain more to the necessity of clarifying the Environmentally Sensitive Areas designation); 307-10; 314-16 (except last sentence); 317; 319; 321-24; 326-27 (due to the overall inadequacy of the stormwater level of service standard); 343- 46; 362-85; 389-90; 392-94; 396-98; 406; 413;
415; 417; 435; 460-62 (although subordinate to the overall inadequacy of the stormwater level of service standard); 470; 474 (to the extent of the 11 areas assigned unsuitable designations and, unless the stormwater level of service standard is modified, the unsuitable designations given the entire 100 year floodplain); 475; 476 (to the extent of inadequate stormwater level of service standard, designations given the floodplains in absence of modification of stormwater level of service standard, and the 11 areas assigned unsuitable designations); 477 and 479 (to the extent that this issue needs to be clarified in connection with the ambiguity of the Environmentally Sensitive Areas designation); 478 (to the extent of the 11 unsuitable designations); 479 (second) (to the extent of inadequate stormwater level of service standard, designations given the floodplains in absence of modification of stormwater level of service standard, and the 11 areas assigned unsuitable designations); 480-82; 483 (to the extent addressed in the recommended order); 484-87; 492, 494, and 495 (to the extent of inadequate stormwater level of service standard, designations given the floodplains in absence of modification of stormwater level of service standard, and the 11 areas assigned unsuitable designations); 493; 516; 519; 549; 554-56; 574; 577; 599- 601; 605; 613-14 (as to
discharge of inadequately treated stormwater only); 627-30 (to the extent of inadequate stormwater level of service standard, designations given the floodplains in absence of modification of stormwater level of service standard, and the 11 areas assigned unsuitable designations); 636-38; 643-45; 646-47;
650-59; 662-63; 669-70; 675-76; 678-83 (to the extent of the 11 areas assigned unsuitable designations and, if the stormwater level of service standard is not modified, then the entire 100 year floodplain); 684-85; 688- 90; 692 (to the extent addressed in the recommended order); 693-94; 696;
698- 700; 702; 707-15 (which will be addressed by modification of stormwater level of service standard and clarification of Environmentally Sensitive Areas designation); and 719-20 and 729 (which will be addressed by clarification of Environmentally Sensitive Areas designation).
Rejected as unsupported by the appropriate weight of the evidence: 31 and 33 (the evidence is overwhelming that the FLUM is not a map series); 54-55; 59;
69 (as discussed at length in the recommended order, it is impossible to
determine exactly what land uses are allowed on Environmentally Sensitive Areas); 71 (see 69; this factor does make it more difficult to calculate the density allocation formula); 76; 93; 109; 113-16 (with respect to the implication of urban sprawl; the Data and Analysis do not support 11 designations, the general absence of an effective stormwater level of service standard, or (absent an effective stormwater level of service standard, development in the 100 year floodplain unless the above-noted standards are imposed); 120 and 122 (despite the arguments presented in the Data and Analysis concerning 1:5, the record in the present cases suggests that many agriculture uses are practical at this high a density); 130-32; 135; 139-41; 143; 145 (second sentence); 148; 153 (although there is a substantial possibility that the UL designations south of the Alafia River will never achieve the designated densities due to the County's inability to provide central water and especially sewer in a timely fashion; however, the record is insufficient to preclude the possibility that such infrastructure will not be developer-provided--perhaps, in the case of sewer, by interim package plants); 154 (notwithstanding the several instances of unsuitable densities and intensities, it would be a distortion of the record to find ultimately sprawl on the basis of density allocation ratios in view not of the efficiency of land use or public facilities evidenced by the I- 75 corridor or Plan provisions protecting natural resources or agriculture, but of the effective Plan provisions for a viable mixture of uses; as the "pin- exercise" graphically demonstrated, the 2010 population must locate somewhere and, after addressing locations featuring critical natural resources, noncoastal central and southern Hillsborough County remained as the best choices for population concentrations outside Tampa); 157 (except first sentence)-58; 159 (nothing in Chapter 163, Part II requires the elimination of socio-economic factors from local land use planning); 185-86 (CARE Policy 14.2 in no way prohibits residential uses on either Environmentally Significant Areas of significant wildlife habitat and the record does not support the assertion that non-Urban Level densities are incompatible with the protection of significant wildlife habitat or potentially significant wildlife habitat); 204; 226; 252 (the identification of wildlife habitats was sufficient, particularly given the green map, which is an ELUM); 253-55; 262; 267-68 (the depiction of public facilities is generally consistent with the regulatory criterion); 274 (last sentence); 275-76; 278- 80; 284-85; 318 (the Environmentally Sensitive Areas designation is hopelessly ambiguous and any attempt to interpret it, beyond the density and intensity formulas, is unsupported by the appropriate weight evidence, although the Table of Residential Densities do not show a residential density for this designation); 320; 330 (but the sufficiency of the 200-foot radii versus the evidence presented by Sierra Club is mooted by the failure of the County to place any cone of influence on its FLUM); 386-87; 388 (only to the extent that rate and timing are implicated in the flood-control effectiveness of existing stormwater management systems; nothing in the Plan addresses-- on an individual project basis--an effective stormwater level of service standard addressing the full range of stormwater considerations, which if effectively addressed on the basis of individual projects would correspondingly relieve the County's financial burden in handling the runoff from the project); 391 (the recommended modification to the stormwater level of service standard would adequately address the floodplain issues; absent the modification, 391 is adopted and the recommended order accordingly has a provision identical to 391); 395; 402-05 (also irrelevant as not pleaded);
409-12 (also irrelevant as not pleaded); 418-21 and 425-26 (also irrelevant as not pleaded); 428-34 (except as to the unsuitability of the LSDR-P designation given the area west of US 41 between Cockroach Bay and the Little Manatee River); 488 and 491 (as to inconsistency); 512 and 515 (as to inconsistency); 513-14 (presumably, the County will rely on interim package plants, which in the cited areas pose relatively little threat to sensitive environmental resources);
550-53; 559; 562-65; 578; 582; 587-88; 589-91 (as to inconsistency); 595-
97; 606; 639; 645; 648; 660; 664; 671; 677; 686; 691 (data were
available to map areas of relatively high natural aquifer recharge); 695 (although this will be addressed by the adoption of policies regulating activities affecting adversely waterwells, cones of influence, and water recharge areas); 697 (although this will be addressed by the clarification of the meaning of the Environmentally Sensitive Areas designation); 701; (except to the extent of 11 areas assigned unsuitable designations, stormwater level of service standard, and 100 year floodplain if stormwater level of service standard is unmodified); 703-05; and 706 (except to the extent of 11 areas assigned unsuitable designations, stormwater level of service standard, and 100 year floodplain if stormwater level of service standard is unmodified).
Rejected as subordinate: 34-38; 40-42; 82-87; 89-92; 94-95; 97-108; 123-26;
134; 152; 160-66; 180; 212-19; 227; 277; 286; 287 (the extent of the
protection extended to wetlands inclusive of mitigation, is encompassed in the "no net loss" Plan provision; the extent of protection extended to wetlands, exclusive of mitigation, will be clarified when the County amends the Plan to provide regulatory meaning to the Environmentally Sensitive Areas designation); 311; 325; 328-29; 333-42; 472- 74; 520-29; 531; 598; and 721-28.
Rejected as irrelevant: 39; 63; 66; 111; 151 (designations are not mechanically driven by data and analysis, but are invariably policy decisions; the requirement introduced by Chapter 163, Part II, is "only" that these policy decisions must be supported by data and analysis); 168-70; 172-77; 190-99 (barring a remand from the agency with final-order authority or from a court, the addressing of remedies is beyond the scope of the recommended order in a Section 163.3184(9) or (10) proceeding, except in limited cases, such as the contingency presented with respect to the modification of the stormwater level of service standard and development in the 100 year floodplain); 202 (except first sentence); 203 (except first sentence); 205 (although it is true that a five-year FLUM superimposed over a 20-year FLUM would necessarily identify an urban expansion area, the requirement of dual planning timeframes is not so rigorous); 206; 207-11 (due to concurrency and ability to revisit scheduled capital expenditures and revenues); 221; 228-30 (without implying whether schools are a public facility for which concurrency is required, the inclusion of schools must be specifically pleaded because schools have not previously been the subject of Chapter 9J-5 to the same extent as roads, parks, sewer, water, solid waste, and drainage); 232-35; 243 (second sentence); 244-49; 251 (not pleaded, although the proposed finding is accurate and, if properly pleaded, would represent an inconsistency with Rule 9J-5.006(1)(a), as such a combined existing land use category was in part the cause of a determination of noncompliance in the Administration Commission's final order in Hiss v.
Department of Community Affairs, Case No. ACC-90-104 (Admin. Cmn. 1991) (DOAH Case No. 89-3380GM); 252 (not pleaded); 264-66; 273; 316 (last sentence); 347-61 (although largely accurate, these proposed findings are remedial and moot due to the failure of the Plan to locate wellfields and cones on the FLUM or contain policies addressing activities known to affect adversely the quality and quantity of identified water sources, such as cones, waterwells, and aquifer recharge areas); 427; 436-55; 457-58 (not pleaded); 464-66 (not pleaded; general concurrency pleaded only); 467; 500-11 (without implying whether schools are a public facility for which concurrency is required, the inclusion of schools must be specifically pleaded because schools have not previously been the subject of Chapter 9J-5 to the same extent as roads, parks, sewer, water, solid waste, and drainage); 517; 532; 570; 579- 80; 583; 592; 602; 607; 608-12 (not pleaded); 615-26 (not pleaded, except as to promotion of agricultural activities, which recommended order addresses); 631-35 (not
pleaded); 640-42 (not pleaded); 649 and 661 (not pleaded); 665-68 (not
pleaded); 672-73 (not pleaded); 674; 687; 716-18 (not pleaded); 731-38 (not
pleaded); and 739
Rejected as legal argument: 43-53; 65; 202 (first sentence); 205 (last
sentence); 236-38; 240; 250; 253; 256; 263; 312- 13; 331-32; 399-402;
407-08; 414; 416; 422-424; 456; 459; 463; 468-69; 471; 489-90; 496-99;
518; 530; 533-48; 557- 58; 560; 561; 566-69; 571-73; 575-76; 581; 584-
86; 593- 94; 603-04; and 608.
Rejected as vague: 281 and 288;
Rejected as recitation of evidence: 291.
Rejected as repetitious: 740-79 (appropriate standard of evidence is implicit in above rulings).
Treatment Accorded County's Proposed Findings
Adopted or adopted in substance: 1-16; 70 (to the extent that the issues correspond to the 41 Issues set forth in the Recommended Order); 71-73; 75-79; 83-84; 86; 88; 91 (as to the motivation, but not to imply that the resulting densities are thereby rendered suitable; see findings in recommended order regarding vesting as option in northern half of northwest County); 94-95; 100 (although other areas south of the Alafia River experienced density increases, as did most of the I-75 corridor); 105-06; 107 (except as to the 11 areas indicated in the recommended order and, in the absence of the modification of the stormwater level of service standard, the 100 year floodplain); 133-34; 136; 138 (as to Issue 18); 139 (except as to the 11 areas for which the designations have been found to be unsuitable and, in the absence of the modification of the stormwater level of service standard, the designations assigned to the 100 year floodplain; 142-44; 145-46 and 151-52 (except as to the implication that the designations assigned to the 11 areas are suitable or, in the absence of the modification of the stormwater level of service standard, that the designations of the 100 year floodplain are suitable); 147-50; 153 (except as to the implication that the County's "Future Land Use Map" [singular] contains floodplains, wellfields, cones of influence, soils, or historically significant properties meriting protection); 154; 157-62; 170 (although not as to relative weight of FLUM as opposed to other operative provisions); 171- 79; 181-85 (first sentence); 186-87; 191-92; 193-96; 207; 214-17; 219 (as
to some wells); 247-51; 265-270; 272; 275 (generally); 276-77 (but this does not imply that all designations are supported by Data and Analysis in terms of the protection if endangered and threatened wildlife; the FLUM is not supported by the Data and Analysis as to the 11 areas discussed in the recommended order); 278-285; 286; 287 (but maps are not adopted part of Plan); 288-95; 297 (except data were substantial; the problem has been studied for years); 298; 300; 303-06; 309; 311-22; 326-33; 337-38; 340-
50; 353; 356-57; 365; 367-71; 372 (although the threshold density allocation ratio must be lowered accordingly); 375-76; 379 (if the proposed finding means to say that there is no rigid formula for determining urban sprawl); 383-92; 394-96; 416-32; 433- 35 (except for the inconsistencies with the Regional Plan concerning the stormwater level of service standard, floodplains (if the stormwater level of service standard is not modified), and water wells, cones of influence, and aquifer recharge areas; and except for inconsistencies with the State Plan concerning the discharge of stormwater and 11 areas receiving unsuitable designations); 436 (except for internal inconsistencies between the
protection of natural resources and failure to define the Environmentally Sensitive Areas designation; the protection of natural resources and designations for the 100 year floodplain (if the stormwater level of service standard is not modified); and the protection of natural resources and the six areas whose designations are, to the exclusion of fair debate, unsuitable); 439- 48; 452-53; 457-68; and 469-71.
Rejected as subordinate: 17-68 (although Plan provisions cited are part of the Plan; 74; 80-82; 85; 87; 89-90; 101-02; 135; 137; 163-69; 218; 221;
224-25; 227-31; 242; 323-25; 334-37; 351; 358-62; 363 (additionally,
densities, such as west of US 41 between Cockroach Bay and the Little Manatee River, are not always rendered suitable by clustering and mixed uses; the Data and Analysis sometimes support only very low densities for certain areas); 364; 366; 373-74; 377; 380-81; 469; and 471.
Rejected as repetitious: 69; 252-64; and 354.
Rejected as unsupported by the appropriate weight of the evidence: 92; 93 (as to areas where designations determined to be unsuitable); 98 (until the resolution of ambiguities concerning the meaning of the Environmentally Sensitive Areas on the FLUM); 109 (as to a series of FLUM's and as to an effective designation give to Environmentally Sensitive Areas); 110 (as to waterwells, cones of influence, floodplains, and soils); 111; 113-14 (to the extent of the implication of the existence of a series of FLUM's or of DCA's treatment of the FLUM as consisting of anything more than the multicolor map);
116 (there is absolutely no evidence whatsoever that the County adopted Oversized Map 18; to the contrary the cover letter from the Planning Director accurately warns that the map is merely part of the "background information"); 117-18 (as to floodplains, soils, historic resources or historically significant properties meriting protection, wellfields, and cones of influence); 120- 23; 124-31 (to the extent of the implication that the County could not timely prepare adequate maps of the resources in question); 140; 141 (to the extent of the implication that the County's planning responsibilities under Chapter 163, Part II, can be delegated to the Environmental Protection Commission or the Army Corps of Engineers; 155-56; 185 (second sentence); 188-90 (as to implication that County is thereby relieved from any of its planning obligations under Chapter 163, Part II); 197-99; 200 (with respect to the designations assigned to 11 areas unsuitably designated and, in absence of modification of stormwater level of service standard, the designations assigned to the 100 year floodplain; also the FLUM identifies but does not effectively regulate the Environmentally Sensitive Areas); 201-03 (as to the internal inconsistencies between the protection of natural resources and ambiguous Environmentally Sensitive Areas designation and, if the stormwater level of service standard is not modified, between the protection of natural resources and designations for the 100 year floodplain); 204- 05; 206 (includes Oversized Map 18 as part of the Data and Analysis, as is clear from the cover letter of the Planning Director); 208 (only for agriculture); 209-10 (no protection without performance standards in Plan); 211; 213; 220; 226; 231-32; 233 (not the FLUM, but it is not required to); 235-38; 240-41; 243; 244 (to the extent that the failure of the County to show soils on the FLUM was justified); 245- 46; 271; 273; 296 (this ignores the reality of serious water quality problems in Old Tampa Bay, threats to water quality in the Cockroach Bay Aquatic Preserve, insufficient wastewater treatment in one County plant and numerous package plants (which are expressly permitted to be placed in the coastal high hazard area), the impact of phosphate mining on the Alafia and Little Manatee Rivers and ultimately Tampa Bay, the impact of ongoing harbor maintenance and dredging in connection with the port, the problem of nutrient-rich bottom
sediments, and the more intractable problem of stormwater); 299; 301-02; 306- 07 (to the extent of relevant issues); 310; 339; 352 (not the entire
corridor); 355; 393; and 449-51. Rejected as unclear: 99.
Rejected as irrelevant: 103-05; 112 (see ruling as to DCA's proposed findings as to the irrelevance of the submission of a map series in terms of tending to prove whether the maps have been adopted as part of a FLUM or FLUM series); 115 (given the County's failure to show even its 200-foot radii on the FLUM); 180 (except as to when the map was to be considered for adoption); 239; and 397- 415.
Rejected as not finding of fact: 119.
Rejected as vague: 132 (sufficient for a finding of consistency with criterion set forth in Issue 20, but not sufficient for a finding that the designations are suitable for the three areas in vicinity of Big Bend Road and I-75 that contain Environmentally Significant Areas which are potentially significant wildlife habitat, according to the green map); 437-38; and 456.
Rejected as recitation of evidence: 212 and 308.
Rejected as legal argument: 222-23; 234; 274; 378; and 454- 55.
Treatment Accorded Big Bend's Proposed Findings
Adopted or adopted in substance: 1-5; 17; 18-19; 37; 40-41; 43-44; 47; 48 (more accurately, Sierra Club failed to prove the opposite); 51; 52 (see 48); 53-54; 56-60; 61 (although the density allocation ratio is higher); 63 (see
48); 64; 71; 77- 78; 79 (at least a potentially efficient use of land with a relatively good chance to protect natural resources); 81-84; 103; 105-06;
120; 136-37; 149-51; 152 (a polynucleated development pattern is susceptible
to many characterizations); 153; 155; 157-59; 161-75; 176 (at least as to roads); 177 (although the factor deterring development involves more directly the protection of critical, potable water-oriented natural resources than it involves the discouragement of sprawl generally); 178; 179 (see 177); 180
(see 176); 183; 189-90; 193 (at least with respect to potential threats to potable groundwater); 205; 211-12 and 214 (to the extent of proving a basis for noncompliance other than those determined in the recommended order); 215; 219-20 (except for speculation as to party's concerns about democracy); 223; 227; 230-32; 234 (sufficient for a finding of consistency); 235 (inadequate for a finding of consistency); 241-46; 248; 250-51 (except as to unsuitable future land use designations or threat to wellfields, cones of influence, and natural aquifer recharge areas); 252; 253; 255 (as in all ultimate findings, the issue is consistency with the relevant criteria); 277-82; 296-98; 299 (although not without an adjustment to the range of nonindicator density allocation ratios); 301-03; 312; 313 (more to the point, Sierra Club has not met its burden of proof on any Issue alleging that the data were insufficient, although the depiction of the cones of influence, where Sierra Club offered better data for a limited number of wellfields than the County's arbitrary 200- foot radii was mooted by the failure of the County even to show the 200-foot radii on the FLUM as cones of influence); 316 (except for implication of "at best"); 317 (and the exception is not possible, but actual--and mooted by the failure of the County to show in the FLUM even the 200-foot radii); 318 (but see 316 and 317 regarding the cones of influence); 319-26; 328; 330- 32 (both
sets); 334-36; 338-40; 342; 347-48; 350-52; 356- 59; 369-70 (regarding
natural resources); 377-78; 387-88 (except as to any implication as to the sufficiency of the stormwater level of service standard); 388-89 (except for assertion that Sierra Club presented no evidence); 393-94; 407- 08; 412 (more specifically, wellfields, cones of influence, and natural aquifer recharge areas); 417; 418 (except for implication of unlawfulness of urban sprawl criteria); 419 (wastewater); 420-23; 425; 438; 440 (although not as to the five areas designated in the Urban Limited categories for which the designations are unsuitable and unsupported by the Data and Analysis); and 452.
Rejected as irrelevant: 6-16; 20-29; 45-46; 123-25; 132-35; 156; 221;
315; 353-55; 365-68; 369-70 (regarding the protection of historic resources; the only issue addressing historic resources is Issue 16, which alleges that the FLUM fails to depict historically significant properties meriting protection); 372-74 (not to be confused with Issue 22, which alleges that the Plan is not consistent with the criterion of an objective to direct population concentrations away from the coastal high hazard area); 375-76; 379-82; 385- 86; 399-400; 448-49; 453-54; 458-59; 461-62; and 465-68.
Rejected as subordinate: 30-35; 38; 49-50; 55; 62; 66-69; 73; 80; 98-99; 104; 107-10; 113 (and irrelevant if the calculation, concededly ignoring redevelopment, focuses only on the densities assigned to vacant land); 114 (the same adjustment may be achieved by a higher range of nonindicator density allocation ratios); 116-19; 182; 184-86; 217-18; 257-76; 285-95; 310-11;
444; and 471-74.
Rejected as unsupported by the appropriate weight of the evidence: 36; 65 (as to six unsuitable designations noted south of Alafia River); 70 and 72 (although there is evidence as to discontinuity, Sierra Club has failed to prove the existence of urban sprawl); 74-75 (although there is considerable evidence that central sewer and water are not planned for the south end of the I-75 corridor, and some evidence that the County cannot afford to provide such service, Sierra Club has failed to prove the existence of urban sprawl); 76 (not as to areas near Little Manatee River, although clearly there are serious environmental constraints in north Hillsborough County, especially northwest Hillsborough County, and in the coastal areas); 85 (not as to Cockroach Bay and Little Manatee River); 86 (not as to maximization of available infrastructure capacity in the area south of the Alafia River); 111; 112 (unless the range of nonindicator density allocation ratios is adjusted downward so that a lower ratio triggers an indicator); 122; 160; 187-88; 204; 206-10; 216; 226;
233 (notably absent from the plethora is an effective stormwater level of service standard and effective stormwater provisions generally); 236-40; 247; 254; 283 (this is not one of the factors militating in favor of a consistency determination regarding the Plan's treatment of agriculture); 284 (although the contrary finding is not implied by this ruling); 300; 308-09; 314 (except as to whether the Plan is in compliance); 327; 329; 333 (both of them); 337; 341; 343-46 (although the issue in 346 is unclear); 349; 363- 64; 371; 390-
92 (to the extent of the implication of the sufficiency of the stormwater level of service standard or, absent its modification, provisions restricting development in the 100 year floodplain); 395-98; 401 (the evidence is overwhelmingly to the contrary); 402 (as to Environmentally Sensitive Areas and historically significant properties meriting protection; presumably the County has no historic districts to display on the FLUM); 403-04; 405-06 (as to floodplains and soils); 411 (but not determinative); 413-16 (to the extent relevant, given the proposed recommendation of Big Bend that the Plan be determined to be in compliance); 419 (stormwater); 424; 426-28; 429-31; 433- 34; 435-37; 439 (and even if the Low Suburban Density Residential Planned
designation in the coastal high hazard area between Cockroach Bay and the Little Manatee River and the Medium Density Residential designation at Ruskin did not raise densities, they would nevertheless remain unsuitable and unsupported by the Data and Analysis); 441-43; 445; 446-47 (as to presenting no evidence); 463; 469-70; and 478-79.
Rejected as recitation of evidence: 39; 100-02; 115; 121 (and inaccurate, as testimony focusing on the locational aspect of densities could serve as a basis to justify higher density allocation ratios in central business districts and lower density allocations ratios in outlying rural areas, if the disaggregated population data and analysis were available and sufficiently reliable); 126-28; 154; 222; 256; and 432.
Rejected as unclear: 42.
Rejected as repetitious: 87-97; 129-31; 139-48; 181; 191- 92; 194-203;
213; 224; 228; and 362.
Rejected as legal argument: 138; 304-07; 409-11; 413; 450- 51; 455-57;
460; 464; and 474-77.
Rejected as scandalous and impertinent: 220 (speculation as to party's concerns about democracy).
Rejected as speculation: 225.
Rejected as vague: 229; 360 (the specific Plan provisions not based on the Data and Analysis have been identified in the recommended order); 361 (although adopted as to Issue 17); and 383-84 (many Issues raise many questions concerning whether the Plan is consistent with criteria requiring various policies-- these Issues cannot be resolved in the abstract; see e.g., Issue 19).
Treatment Accorded DCA's Proposed Findings
Adopted or adopted in substance: 1-12; 14-16 (first sentence); 20; 22; 23 (first sentence); 24; 26; 30-36 (although the Suburban Density Residential Planned designation given the area west of US 41, north of Cockroach Bay, and south of the Little Manatee River is unsuitable despite the relative environmental protection afforded by the designation; as 36 suggests, the Suburban Density Residential Planned designation is transitional between more urban and more rural categories, and the Data and Analysis will support only a more rural designation for this area); 39; 43; 46 (although the motivation for adopting the CARE Policy 5.8 is irrelevant); 53; 56; 57-60 (except that these maps were never adopted as part of the FLUM); 64; 66; 72-73; 76-79;
81-82; 84-88; 89; 91-94; 95 (except first sentence); 96; 97 (although not as to policies discussed in Issue 19); 98 (the element addresses stormwater);
103 (except first sentence); and 105-10.
Rejected as legal argument: 13; 18; 25; 44; 52; 55; 61; 75; and 83.
Rejected as recitation of evidence: 16 (second sentence)-17; 19; 40 (although accurate); 41; and 63 (accurate as to the multicolor map, which is the FLUM; inaccurate as to the green map, which is merely an ELUM).
Rejected as unsupported by the appropriate weight of the evidence: 21; 23 (second sentence; the same density allocation ratio is a stronger indicator of sprawl if it applies the beginning of a 5 year planning period than if it applies to the beginning of a 20 year planning period); 38 (the designations might tend to discourage urban sprawl when applied to suitable areas, but when applied to unsuitable areas the designations do not necessarily discourage urban sprawl); 42 (the testimony of Mr. Pennock clearly did not establish any sort of foundation for admitting the submitted maps as part of the FLUM; Hillsborough County, like most local governments submitted a FLUM and ELUM's, so the mere fact of submission is not probative of whether the County actually adopted these maps as part of its FLUM); 47 (although the County prepared Oversized Map 18, the map, as part of the Data and Analysis, does not serve as an operative provision, so that it could "establish. . . wellfield protection areas--subject to modification or withdrawal at anytime without notice to affected persons or review by DCA, the map is consistent only with the criteria of Chapter 9J-5 requiring certain data and analysis); 49; 54 (although the factual issue is mooted by the fact that the County failed to include on the FLUM even the arbitrary, more limited 200-foot radii around its wells); 62 (the proposed findings concerning the wellfield mapping overlook that Oversized Map 18 and its counterpart in the CARE are part of the ELUM's; the proposed findings concerning wetlands are adopted because the Environmentally Sensitive Areas designation on the FLUM (i.e., the multicolor map) largely depicts wetlands); 65; 67-68; 71; 99 (not adequately due to the deficient stormwater level of service standard); 100-02 (rejected for implication of sufficiency of this exclusively structural approach to setting stormwater level of service standard); and 104.
Rejected as subordinate: 27-29; 37; 45; and 80.
Rejected as irrelevant: 48 (the settlement agreement does not supersede Chapter 163, Part II, or even Chapter 9J-5, at least as far as Sierra Club is concerned); 50; 51 (it is difficult to evaluate a plan, which is the purpose of a Section 163.3184(10) proceeding, based on DCA's willingness to allow a local government to relegate water wellfield provisions to land development regulations, a local government's "understanding" of the importance of wellfield protection, or a local government's progress in preparing land development regulations for material required to be included in its plan; the County had sufficient data to locate its wellfields and even cones of influence on the FLUM); and 69.
Rejected as vague: 70 (the commitment, which may exist in the Plan as well as the FLUM, must be expressed in goals, objectives, policies, or other operative Plan provisions, none of which is cited in this proposed finding); 71; 74 (specific resources and the degree of protection are addressed in the recommended order); 90 (as noted in recommended order, degree of protection of natural resources and water sources by objectives is consistent, but degree of restriction of activities affecting water wellfields, cones of influence, and recharge areas by policies is not consistent); 95 (first sentence); and 103 (first sentence).
COPIES FURNISHED:
David J. Russ Michael P. Donaldson
Assistant General Counsel Department of Community Affairs 2740 Centerview Drive
Tallahassee, FL 32399-2100
Attorney Thomas W. Reese
123 Eighth Street North St. Petersburg, FL 33701
John J. Dingfelder Robert R. Warchola
Assistant County Attorney
P.O. Box 1110 Tampa, FL 33601
David L. Smith Neil A. Sivyer
Smith & Williams, P.A. 712 South Oregon Avenue Tampa, FL 33606
David K. Coburn, Secretary Administration Commission Executive Office of the Governor Attn: Kelly Tucker
Room 426
311 Carlton Building Tallahassee, FL 32399-0001
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in these cases concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in these cases.
| Issue Date | Proceedings |
|---|---|
| Apr. 01, 1998 | (Admin Commission) Notice of Commission Meeting filed. |
| Sep. 16, 1994 | Notice of Voluntary Dismissal (from David L. Smith) filed. |
| Aug. 24, 1994 | Motion to strike the Department of Community Affairs' response to motion to supplement the record filed. |
| Jun. 10, 1994 | Notice of Substitution of Counsel for Department of Community Affairs filed. |
| May 18, 1994 | Department of Community Affairs Reply To Big Bend Area Group's MotionTo Strike filed. |
| May 06, 1994 | Department of Community Affairs Request for An Extension of Time to Respond to BBAG's Motion to Strike filed. |
| Apr. 06, 1994 | Department of Community Affairs Response to Big Bend Area Group's Motion for Stay Pending Appeal filed. |
| Mar. 31, 1994 | (Admin Comm) Order filed. |
| Mar. 23, 1994 | Hillsborough County's Response to BBAG's Motion for Stay Pending Appeal filed. |
| Mar. 23, 1994 | Department of Community Affairs Request for an Extension of Time to Respond to BBAG'S Motion for Stay Pending Appeal filed. |
| Feb. 28, 1994 | (Live Oak Realty, N.V.,) Directions to the Clerk filed. |
| Jan. 18, 1994 | AGENCY APPEAL, ONCE THE RETENTION SCHEDULE OF -KEEP ONE YEAR AFTER CLOSURE- IS MET, CASE FILE IS RETURNED TO AGENCY GENERAL COUNSEL. -ac |
| Dec. 17, 1993 | Final Order filed. |
| Aug. 24, 1993 | Hillsborough County's Motion to Set Hearing Date and Response to Sierra Club, Inc.'s Motion to Set Hearing Date filed. |
| Dec. 08, 1992 | Recommended Order sent out. CASE CLOSED. Hearing held 9/23-27/91. |
| Nov. 12, 1992 | Letter to REM from David Lisle Smith (re: request for copy of Final Order) filed. |
| Nov. 02, 1992 | Request for Copy of RO filed. (From Thomas Reese) |
| Sep. 21, 1992 | Map 18 (indvertently excluded from materials supplied as Sierra Club Exhibit-1) filed. |
| Jun. 26, 1992 | Order sent out. (motion denied) |
| Jun. 22, 1992 | Sierra Club, Inc.'s Motion for Rehearing of Motion to Strike May 28 Letter filed. |
| Jun. 17, 1992 | Order sent out. (Sierra Club, Inc.'s Motion to Strike County's May 28 Letter is DENIED) |
| Jun. 05, 1992 | Sierra Club, Inc.'s Motion to Strike County's May 28 Letter filed. |
| Jan. 22, 1992 | Second Errata to Sierra Club, Inc.'s Proposed Recommended Order filed. |
| Jan. 02, 1992 | Corrected Pages for Proposed Recommended Order of Hillsborough County; & Cover Letter to REM from J. Dingfelder filed. |
| Dec. 30, 1991 | Proposed Recommended Order of Hillsborough County ; Appendix ; Disk ; & Cover letter from J. Dingfelder filed. |
| Dec. 26, 1991 | CC Letter to Neal A. Snyder et al from Michael P. Donaldson (re: filing date of PRO) filed. |
| Dec. 26, 1991 | Sierra Club, Inc.'s Proposed Recommended Order filed. |
| Dec. 26, 1991 | Sierra Club, Inc.'s Proposed Recommended Order filed. |
| Dec. 24, 1991 | Errata to Sierra Club, Inc.'s Proposed Recommended Order filed. |
| Dec. 24, 1991 | Petitioner, Department of Community Affairs' Proposed Recommended Order filed. |
| Dec. 24, 1991 | Proposed Recommended Order of Hillsborough County filed. |
| Dec. 24, 1991 | Intervenor's Big Bend Area Group, Inc. Proposed Recommended Final Order filed. |
| Dec. 24, 1991 | Intervenor's Big Bend Area Group, Inc. Proposed Recommended Final Order filed. |
| Dec. 23, 1991 | Several Pages to Update Hillsborough County Comprehensive Plan (Sierra Club Exhibit-1) filed. |
| Nov. 15, 1991 | Letter to REM from John J. Dingfelder (re: no objection to Motion fora thirty day extension) filed. |
| Nov. 08, 1991 | (Petitioner) Motion for Extension of Time to File Proposed Recommended Order filed. |
| Nov. 01, 1991 | CC Letter to Thomas Reese from John J. Dingfelder (re: ltr to Neal Sivyer dated October 25, 1991) filed. |
| Oct. 30, 1991 | Statutes and Regulations filed. (From John J. Dingfelder) |
| Oct. 28, 1991 | CC Letter to Neil Sivyer from Thomas W. Reese (re: PRO) filed. |
| Oct. 28, 1991 | Transcript (Vols 1&2 of day 4) & Vols 1&2 of day 5) filed. |
| Oct. 24, 1991 | Transcript (Vols 1-6) filed. |
| Oct. 18, 1991 | Hillsborough Countyt's Exhibit 14 (Sierra Club ltr dated January 19, 1990) filed. |
| Oct. 14, 1991 | (one box) Hillsborough's Exhibits 1-7,12,19-34,36,38-58 w/cover ltr filed. |
| Oct. 07, 1991 | CC Letter to Peggy Huffman from Neal A. Sivyer (re: Big Bend Area Group Wishes to Transcribe the entrie hearing) filed. |
| Oct. 07, 1991 | CC Governor's Task Force Report filed. |
| Sep. 27, 1991 | CASE STATUS: Hearing Held. |
| Sep. 23, 1991 | Response to Sierra Club, Inc.`s Motion to Amend; Bbag`s Objections to the Documents of the Sierra Club filed. (From Neal A. Sivyer) |
| Sep. 23, 1991 | Hillsborough County Amended Expedite List filed. (From John J. Dingfelder) |
| Sep. 20, 1991 | Hillsborough County`s Motion to Disqualify Sierra Club, Inc.`s Counsel of Record; Hillsborough County`s Motion in Opposition to Sierra Club, Inc.`s Motion For Leave to Amend Second Amended Complaint filed. (From John J. Dingfelder) |
| Sep. 20, 1991 | Sierra Club Response to Motion to Exclude Witness; Sierra Club Inc.'sResponse to Motion in Limine; Notice to Produce Documents at Final Hearing filed. (From Thomas Reese) |
| Sep. 19, 1991 | Hillsborough County Amended Witness List filed. (From John J. Dingfelder) |
| Sep. 19, 1991 | Motion to Exclude Witness; Motion for Disclosure of Ex Parte Communications filed. (From David L. Smith) |
| Sep. 18, 1991 | Order Denying Motion to Determine Standard of Review sent out. |
| Sep. 17, 1991 | Sierra Club, Inc.'s Motion for Leave to Amend Second Amended Complaint w/Atts; Witness List; Sierra Club, Inc.'s Exhibit List and Objections to Other Parties Exhibits filed. |
| Sep. 17, 1991 | Joint Pre-Trial Stipulation; Second Amended BBAG Witness List; Witness and Exhibit Lists filed. |
| Sep. 16, 1991 | (BBAG) Motion to Determine Standard of Review; Motion in Limine; Notice of Taking Deposition DT filed. |
| Sep. 16, 1991 | (Intervenors) Notice of Withdrawal as a Party filed. |
| Sep. 16, 1991 | (Respondent) Notice of Taking Deposition DT; Motion in Limine; Motion to Determine Standard of Review filed. |
| Sep. 16, 1991 | (Intervenors) Sierra Club, Inc.`s Motion for Protective Order; Notice of Taking Deposition Duces Tecum filed. |
| Sep. 13, 1991 | Re-Notice of Taking Deposition Duces Tecum w/Exhibit-A; Notice of Taking Deposition Decus Tecum filed. (From Neal A. Sivyer) |
| Sep. 12, 1991 | Witness List filed. (From Neal A. Sivyer) |
| Sep. 11, 1991 | Letter to John J. Dingfelder from Thomas W. Reese (re: pending Sierra Club`s Public Record and Discovery Requests) filed. |
| Sep. 11, 1991 | CC Letter to Neal A. Sivyer from Thomas W. Reese (re: ltr dated August 14, 1991) filed. |
| Sep. 10, 1991 | Joint Motion For Telephonic Pre-Hearing Conference filed. |
| Sep. 09, 1991 | Notice of Taking Deposition Duces Tecum (3) filed. (From Neal A. Sivyer) |
| Sep. 09, 1991 | Department of Community Affairs Response to Sierra Club, Inc.`s Fourth Request for Admissions & attachments filed. (From Stephanie P. Donaldson) |
| Sep. 06, 1991 | Joint Motion For Telephonic Pre-Hearing Conference filed. |
| Sep. 06, 1991 | Order Denying Request for Prehearing Conference and Denying In Part and Granting in Part County's Motion for Protective Order sent out. |
| Aug. 28, 1991 | Page 2 of the Hillsborough County`s Amended Response to Sierra Club`s Fourth Set of Reequest for Admissions filed. (From John J. Dingfelder) |
| Aug. 26, 1991 | Hillsborough County`s Motion For Protective Order w/Exhibit-A filed. (From John J. Dingfelder) |
| Aug. 26, 1991 | Hillsborough County`s Motion For Protective Order w/Exhibit-A filed. (From John J. Dingfelder) |
| Aug. 21, 1991 | Intervenor BBag's Request for Production of Documents; Notice of Service of Interrogatories; Witness Interrogatories to Sierra Club, Inc. filed. |
| Aug. 16, 1991 | (Sierra Club) Notice of Deposition filed. (From Thomas W. Reese) |
| Aug. 12, 1991 | Order on Second Amended Motion to Intervene and Discovery Dispute Between Hillsborough County and Sierra Club, Inc. sent out. (Big Bend Area Group 2nd amended petition to intervene granted). |
| Aug. 12, 1991 | CC Letter to Thomas Reese from Mcihael P. Donaldson (re: discovery requests) filed. |
| Aug. 12, 1991 | (Sierra Club) Notice of Deposition filed. |
| Aug. 08, 1991 | Sierra Club, Inc.'s Fourth Set of Requests For Admission to Hillsborough County and Departmnet of Community Affairs filed. (From Thomas W. Reese) |
| Aug. 07, 1991 | Sierra Club, Inc.`s Response to Hillsborough County`s Motion for Protective Order filed. (From Thomas Reese) |
| Aug. 05, 1991 | Notice of Deposition filed. (From Thomas W. Reese) |
| Aug. 05, 1991 | Sierra Club, Inc.`s Motion to Impose Sanctions Against Hillsborough County For Failure to comply With Order Concerning Answering Requests for Admission & attachments filed. (From Thomas W. Reese) |
| Jul. 31, 1991 | Big Bend Area Group, Inc.`s Reply to Sierra Club, Inc.`s Response to Second Amended Motion to Intervene filed. (From David L. Smith) |
| Jul. 31, 1991 | Big Bend ARea Group, Inc.`s Reply to Sierra Club, Inc.`s Response to Second Amended Motion to Intervene filed. (From David Lisle Smith) |
| Jul. 29, 1991 | Notice of Deposition filed. (From Thomas W. Reese) |
| Jul. 29, 1991 | Notice of Service of Manaota-88, Inc.`s First Set of Interrogatories and Request for Production of Documents (#1-4) filed. (from Thomas W. Reese) |
| Jul. 26, 1991 | Sierra Club, Inc.`s Response to Big Bend Area Group, Inc.`s Second Amended Motion to Intervene filed. (From Thomas Reese) |
| Jul. 22, 1991 | Sierra Club, Inc.`s Motion to Determine Sufficiency of County`s Interrogatory Answers w/Exhibits 1-6 filed. (From Thomas Reese) |
| Jul. 17, 1991 | (Sierra Club) Notice of Deposition filed. |
| Jul. 15, 1991 | Big Bend Group, Inc.'s Second Amended Motion for Leave to Intervene as Petitioner-In-Intervention and Response and Request for Clarification filed. |
| Jun. 25, 1991 | Sierra Club, Inc.`s Notice of Service of Responses to the County`s Second Set of Interrogatories and Request for Production filed. (From Thomas W. Reese) |
| Jun. 21, 1991 | (Petitioner) Notice of Substitution of Counsel filed. (From Michael P. Donaldson) |
| Jun. 20, 1991 | Order on Requests to Intervene, to Resolve Discovery Disputes and to Clarify sent out. |
| Jun. 11, 1991 | Letter to REM from John J. Dingfelder (re: Clarification of Order) filed. |
| Jun. 06, 1991 | Hillsborough County`s Notice of Service of Amended Response filed. (from Bonnie E. Allen) |
| Jun. 05, 1991 | Respondent Hillsborough County`s Reply to Sierra Club Inc.`s Response to County`s Motion For Leave to File Additional Interrogatories filed. (From Bonnie E. Allen) |
| Jun. 05, 1991 | Notice of Substitution of Counsel filed. (From Bonnie E. Allen) |
| Jun. 03, 1991 | Sierra Club, Inc.`s Response to County`s Motion For Leave to File Additional Interrogatories filed. (From Thomas Reese) |
| Jun. 03, 1991 | Big Bend Area Group, Inc.'s Memorandum of Law in Support of Its Amended Motion For Leave to Intervene and In Opposition to Sierra Club, Inc.'s Response in Opposition to Big Bend Area Group, Inc.'s Amended Motion For Leave to Intervene filed. (From David |
| May 29, 1991 | Hillsborough Countys Notice of Service filed. |
| May 29, 1991 | Hillsborough Countys Notice of Service filed. |
| May 28, 1991 | CC Letter to Bonnie E. Allen from T W. Reese (re: May 20, 1991 ltr concerning misindetified discovery requests) filed. |
| May 28, 1991 | Sierra Club, Inc. Response in Opposition to Big Bend Area Group, Inc.`s Amended Motion For Leave to Intervene filed. (From T. W. Reese) |
| May 24, 1991 | Respondent Hillsborough County's Motion For Leave to File Additional Interrogatories; Hillsborough County's Second Set of Interrogatories and Requests For Production; Notice of Service of Respondent Hillsborough County's Second Set of Interrogatories an |
| May 21, 1991 | Sierra Club, Inc.`s Response to "Motion For Protective Order or, In the Alternative, Inc Limine filed. (From Thomas Reese) |
| May 20, 1991 | Corrected Page 30 & cover ltr filed. (From Thomas W. Reese) |
| May 17, 1991 | Big Bend Area Group, Inc.'s Amended Motion for Leave to Intervene as Petitioner-in-Intervention filed. |
| May 16, 1991 | Big Bend Area Group, Inc.`s Amended Motion For Leave to Intervene as Petitioner-in-Intervention filed. (from David L. Smith) |
| May 15, 1991 | Hillsborough County`s Motion For Protective Order Or, in The Alternative, In Limine w/(TAGGED) Exhibits A-C filed. (From Bonnie E. Allen) |
| May 01, 1991 | Order Denying Motion to Intervene (for Big Bend Area Group, Inc) sentout. |
| Apr. 25, 1991 | Notice of Service of Interrogatories filed. (From Thomas W. Reese) |
| Apr. 24, 1991 | Big Bend Area Group, Inc.'s Memorandum of Law in Suport of Its Motionto Intervene and In Opposition to Sierra Club, Inc.'s Response in Oposition filed. (From David Lisle Smith) |
| Apr. 18, 1991 | Respondent Hillsborough County`s Second Amended Response to Sierra Club, Inc.`s Second Set of Requests For Admissions filed. (From Bonnie E. Allen) |
| Apr. 17, 1991 | Hillsborough County`s Notice of Service filed. (From Bonnie E. Allen) |
| Apr. 17, 1991 | Sierra Club, Inc.`s Response in Opposition to Motion For Leave to Intervene by Big Bend Area Group, Inc. filed. (from Thomas W. Reese) |
| Apr. 15, 1991 | Big Bend Area Group, Inc.`s Motion For Leave to Intervene as Petitioner-in-Intervention filed. (From David Lisle Smith) |
| Apr. 15, 1991 | Big Bend Area Group, Inc.`s Motion For Leave to Intervene as Petitioner-in-Intervention filed. (From David Lisle Smith) |
| Apr. 15, 1991 | Sierra Club, Inc.`s Fourth Set of Requests For Admission to Hillsborough County (#1-303) (PartI) filed. (from Thomas Reese) |
| Apr. 10, 1991 | Sierra Club's Response to Williams Accquisition Holding Company, Inc.'s Amended Motion to Intervene filed. |
| Apr. 09, 1991 | Order Denying Motion to Strike or in the Alternative, for Protective Order sent out. |
| Apr. 08, 1991 | Sierra Club`s Response to Hillsborough County`s Motion to Strike, Or In the Alternative, For Protective Order, and Sierra Club`s Motion For Leave to File Additional Interrogatories filed. (from Thomas W. Reese) |
| Apr. 08, 1991 | Sierra Club, Inc.`s Reply to Hillsborough County`s Response to Sierra Club, Inc.`s Motion to Determine the Sufficiency of Objections filed. (from Thomas W. Reese) |
| Apr. 08, 1991 | Order Denying Motion to Intervene sent out. |
| Apr. 08, 1991 | Order on Objections to Requests for Admissions sent out. |
| Apr. 05, 1991 | Williams Acquisition Holding Company, Inc.'s Response to Sierra Club,Inc.'s Reponse in Opposition to The Motion to Intervene filed. |
| Apr. 05, 1991 | Respondent Hillsborough Countys Motion to Strike or, In The Alternative, for Protective Order filed. |
| Apr. 04, 1991 | Notice of Hearing sent out. (hearing set for Sept 23-27, 1991; 9:00am; Tampa) |
| Apr. 04, 1991 | Letter to REM from T. Reese (Re: Enclosed Pages 2 and 3 of Exhibit Band Last page of The Motion) filed. |
| Apr. 02, 1991 | Hillsborough Countys Response to Sierra Club, Inc.'s Motion to Determine The Sufficiency of Objections filed. |
| Apr. 01, 1991 | (Intervenors) Notice of Service of Interrogatories filed. |
| Mar. 29, 1991 | Sierra Club, Inc.'s Motion to Set Final Hearing filed. |
| Mar. 29, 1991 | Respondent Hillsborough Countys Motion to Schedule Final Hearing filed. |
| Mar. 25, 1991 | Motion to Determine The Sufficiency of Hillsborough Countys Objections to Sierra Club, Inc.s Second Set of Requests for Admission (#1-32) and Request for Attorneys Fees filed. |
| Mar. 15, 1991 | Sierra Club, Inc.'s Response in Opposition to the Motion to Interveneby the Williams Acquisition Holding Co., Inc. filed. |
| Mar. 12, 1991 | (Petitioner) Motion to Intervene (for Williams Acquisition Holding Company, Inc.) filed. |
| Feb. 11, 1991 | Department of Community Affairs' Response to Request for Admissions filed. (From David J. Russ) |
| Feb. 08, 1991 | Hillsborough County`s Notice of Service & cover ltr filed. (From Bonnie E. Allen) |
| Feb. 04, 1991 | Order to Show Cause sent out. |
| Jan. 16, 1991 | Stipulated Order of Voluntary Dismissal (Petition in Intervention by Tom Traina is dismissed) sent out. |
| Jan. 14, 1991 | Letter to REM from Thomas W. Reese (re: New Hearing Date) filed. |
| Jan. 14, 1991 | (unsigned) Stipualted Order of Voluntary Dismissal & Settlement Agreement filed. (From Bonnie E. Allen) |
| Jan. 07, 1991 | (Sierra) Notice of Service of Interrogatories; Sierra Club, Inc.`s Second Set of Requests For Admission to Hillsborough County and Department of Community Affairs (#1-32) filed. (from Thomas Reese) |
| Jan. 02, 1991 | (Sierra Club) Notice of Service of Interrogatories filed. |
| Dec. 31, 1990 | (Respondent) Amended Notice of Appearance; & cover letter from B. Allen filed. |
| Dec. 21, 1990 | (Sierra Club, Inc) Notice of Deposition filed. |
| Dec. 13, 1990 | Letter to REM from B. E. Allen (re: County's Appeal) filed. |
| Dec. 10, 1990 | Order Granting Request to Vacate Stay sent out. |
| Dec. 10, 1990 | (Intervenor) Notice of Filing; Intervenor Tom Traina Responce to Hillsborough County`s First Set of Interrogatories filed. (from T. Traina) |
| Dec. 10, 1990 | Intervenor tom Traina Production of Documents to Hillsborough County w/exhibits D&E filed. |
| Dec. 07, 1990 | Letter to REM from B. E. Allen (re: Order denying Hillsborough County's Motion For Reconsideration) filed. |
| Dec. 07, 1990 | Sierra Club, Inc.`s Response to Hollborough County`s Motion For Reconsideration filed. (From T. W. Reese) |
| Dec. 06, 1990 | Order Denying Motion for Reconsideration sent out. |
| Dec. 03, 1990 | Respondent Hillsborough County`s Motion For Reconsideration w/exhibits A&B + Cover ltr filed. (from B. E. Allen) |
| Nov. 26, 1990 | Sierra Club's Response to Hillsborough County's Request for Production of Documents filed. |
| Nov. 26, 1990 | Sierra Club's Notice of Service of Answers to Interrogatories filed. |
| Nov. 26, 1990 | (Hillsborough County) Notice of Appearance & cover letter from B. Allen filed. |
| Nov. 19, 1990 | Notice of filing; & cover letter from B. Allen filed. |
| Nov. 09, 1990 | Manasota-88, Inc.'s Response to Hillsborough County's Request for Production of Documents filed. |
| Nov. 09, 1990 | Manasota-88, Inc.'s Notice of Service of Interrogatory Answers filed. |
| Nov. 07, 1990 | Tampa Bay Regional Planning Council`s Notice of service of Answers to Interrogatories filed. (From Linda M. Hallas) |
| Nov. 05, 1990 | Tampa Bay Retional Planning Council`s Response to First Request to Produce By Hillsborough County filed. (From Linda M. Hallas) |
| Oct. 31, 1990 | (Respondent) Notice of filing filed. (From Emeline C. Action) |
| Oct. 30, 1990 | Order Granting Leave to File Second Amended Petition in Intervention and Consolidating Cases for Hearing sent out. Consolidated case are: 89-5157GM and 90-6639GM |
| Oct. 17, 1990 | Sierra Club, Inc.'s Motion For Leave to File Second Amended Petition-in-Intervention; Sierra Club, Inc.'s Second Amended Petition-in-Intervention filed. (from Thomas W. Reese) |
| Oct. 16, 1990 | Notice of Service of Respodnent Hillsborough County's First Set of Interrogatories and First Request For Production on Intervenor Tom Traina filed. (from James J. Porter) |
| Oct. 16, 1990 | Notice of Service of Respondent Hillsborough County's First Set of Interrogatories and First Request For Production on Tampa Bay Regional Planning Council filed. (from James J. Porter) |
| Oct. 15, 1990 | Notice of Service of Interrogatories; Sierra Club, Inc.'s First Set of Request For Admission w/exhibits A&B filed. (From Thomas W. Reese) |
| Oct. 10, 1990 | Respondent Hillsborough County's Notice of Appearance filed. (From Bonnie E. Allen) |
| Oct. 10, 1990 | Notice of Service of Respondent Hillsborough County's First Set of Interrogatories and First Request For Production on Sierra Club, Inc.,; Notice of Service of Respondent Hillsborough County's First SEt of Interroatories and First Request For Production o |
| Sep. 27, 1990 | Hillsborough County's Comprehensive Plan and Background Documents (1Box) filed. |
| Sep. 26, 1990 | Ltr. to J. Selvey from R. Nave filed. |
| Sep. 25, 1990 | Amended Notice of Hearing sent out. (hearing set for Dec. 17-21, 1990: 9:00 am: Tampa) |
| Sep. 19, 1990 | Order on Motion to compel and Motion for Protective Order sent out. |
| Sep. 19, 1990 | Ltr. to REM from T. Reese re: schedule for hrg. filed. |
| Sep. 18, 1990 | Respondent Hillsborough County's Motion for Protective Order filed. |
| Sep. 17, 1990 | Respondent Hillsborough County's Motion For Protective Order filed. (From Bonnie E. Allen) |
| Sep. 12, 1990 | Sierra Club, Inc.'s Motion to Compel Discovery filed. (from Thomas W.Reese) |
| Aug. 27, 1990 | Order on Status of Case sent out. |
| Aug. 24, 1990 | (Petitioner) Notice of Substitution of Counsel filed. (from D. Russ). |
| Aug. 24, 1990 | Department's Memorandum of Law filed. |
| Aug. 24, 1990 | Manasota-88, Inc. and Sierra Club, Inc.'s Memorandum of Law on Statusof Plan Amendments and Standard of Proof Issues filed. |
| Aug. 24, 1990 | Respondent Hillsborough County's Memorandum of Law Regarding Standardof Proof at Final Hearing and Subject Matter of Final Hearing; & cover letters to REM & DOAH Clerk filed. |
| Aug. 24, 1990 | Letter to REM from L. Hallas (re: amended plan) filed. |
| Aug. 23, 1990 | Joint Motion of Respondent Hillsborough County and Petitioner Department of Community Affairs For Abatement of Proceedings and Supporting Memorandum of Law filed. (From Bonnie E. Allen) |
| Aug. 20, 1990 | (Sierra Club) Amended Notice of Deposition filed. (From Thomas W. Reese) |
| Aug. 17, 1990 | Notice of Deposition; Notice of Status Hearing (TCH 8-20-90; 1:30) filed. |
| Aug. 16, 1990 | Order Grantig Motion to Intervene sent out. |
| Jul. 30, 1990 | Tampa Bay Regional Planning Council's Motion to Intervene As Petitioner-In-Intervention filed. (from Linda M. Hallas) |
| Jul. 27, 1990 | CC of Subpoena Duces Tecum filed. (from T. Reese). |
| Jun. 14, 1990 | Order Granting Leave to File an Amended Petition sent out. |
| May 29, 1990 | Sierra Club, Inc.'s Motion for Leave to File Amended Petition in Intervention; Sierra Club, Inc.'s Amended Petition in Intervention filed. |
| Mar. 07, 1990 | Amended Notice of Hearing sent out. (hearing set for Sept. 17-21, 1990; 10:00; Tampa) |
| Mar. 05, 1990 | Order Granting Continuance sent out. (hearing rescheduled for Sept. 17-21, 1990) |
| Jan. 30, 1990 | (Respondent) Memorandum of Law Filed in Support of Respondent Hillsborough County's Amended Motion For Abatement of Proceedings filed. |
| Jan. 26, 1990 | (Respondent) Memorandum of Law Filed in Support of Respondent Hillsborough County's Amended Motion For Abatement of Proceedings filed. |
| Jan. 11, 1990 | Sierra Club Inc's Response in Opposition to Amended Motion for ABatement of Proceedings filed. |
| Jan. 08, 1990 | Manasota-88, Inc.'s Response in Opposition to Amended Motion for Abatement of Proceedings filed. |
| Jan. 03, 1990 | Order Granting Intervention sent out. |
| Dec. 29, 1989 | (respondent) Amended Motion for Abatement of Proceedings and Notice of Filing Stipulated Settlement Agreement filed. |
| Dec. 26, 1989 | Letter to REM from J. McKirchy (re: correction on motion) filed. |
| Dec. 22, 1989 | Request for Oral Argument of Motion filed. |
| Dec. 19, 1989 | Notice of Hearing sent out. (hearing set for April 9-13, 1990; 10:00; Tampa) |
| Dec. 08, 1989 | Sierra Club, Inc.'s Motion for Leave to Intervene as Petitioner-in-Intervention filed. |
| Oct. 26, 1989 | Order Granting Intervention and Extending Time to Answer sent out. (Resp. has until 11-20-89 to file responsive pleadings)(Both petitions to Intervene are granted Tom Traina and Manasota-88) |
| Oct. 19, 1989 | Order Publishing Ex Parte Communications sent out. |
| Oct. 10, 1989 | CC Letter to DOAH from T. Traina & attachment filed. |
| Oct. 10, 1989 | Motion for Extension of Time to Answer filed. |
| Oct. 06, 1989 | Manasota-88, Inc.'s Motion for Leave to Intervene As Petitioner-In-Intervention filed. |
| Sep. 29, 1989 | Order sent out. (Re: Standard filing procedures, Hearing dates, Location) |
| Sep. 28, 1989 | Ltr to DOAH from T. Traina filed.. |
| Sep. 20, 1989 | Petition of the Department of Community Affairs; Exhibit A and B filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 16, 1993 | Agency Final Order | |
| Dec. 08, 1992 | Recommended Order | Plan not in compliance due to failure to depict on Future Land Use Map floodplains, historic propertiess, wells and cones of influence, inadequate stormwater loss standard, etc. |
