STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
HENRY A. WENZ, )
)
Petitioner, )
)
vs. ) CASE NO. 90-3586GM
) VOLUSIA COUNTY and DEPARTMENT ) OF COMMUNITY AFFAIRS, )
)
Respondents. )
) HART LAND & CATTLE CO., INC., )
L. HART, and CLYDE E. )
HART, )
)
Petitioners, )
)
vs. ) CASE NO. 90-3606GM
) VOLUSIA COUNTY and DEPARTMENT ) OF COMMUNITY AFFAIRS, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, final hearing in the above-styled case was held in Deland, Florida, on February 11-13, 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 Henry A. Wenz, pro se
Wenz: 658 Whitemarsh Avenue Deltona, Florida 32725
For Petitioners Dan R. Warren
Hart: Judge & Warren, P.A.
315 Silver Beach Avenue Daytona Beach, Florida 32118
For Respondent Daniel D. Eckert Volusia County: County Attorney
Jamie E. Seamen
Assistant County Attorney
123 West Indiana Avenue Deland, Florida 32720
For Respondent David J. Russ
Department of Assistant General Counsel Community Department of Community Affairs
Affairs: 2740 Centerview Drive
Tallahassee, Florida 32399 STATEMENT OF THE ISSUE
The issue in this case is whether the Volusia County comprehensive plan is not in compliance for the reasons set forth in the petitions of Henry A. Wenz and Hart Land & Cattle Co., Inc., R. L. Hart, and Clyde E. Hart (Petitioners Hart).
PRELIMINARY STATEMENT
On May 4, 1990, the Department of Community Affairs determined that the Volusia County comprehensive plan was in compliance with applicable law. On May 22, 1990, and May 29, 1990, Henry A. Wenz and Petitioners Hart filed their respective petitions challenging the Department's determination of compliance.
On February 1, 1991, the parties filed a Prehearing Stipulation. On February 7, 1991, the undersigned conducted a prehearing conference with all parties participating. Based on the Prehearing Stipulation and Order on Prehearing Conference entered February 8, 1991, the issues are whether:
Volusia County adopted the plan in a manner inconsistent with the criteria of public participation set forth in Rules 9J-5.004(1), 9J-5.004(2)(b) and (e), and 9J-5.004(3)
The analysis accompanying the Traffic Circulation Element is inconsistent with the criteria of Rule 9J-5.007(2)(a) and (b) because the level of service projections unjustifiable rely on the southern segment of the proposed West Volusia Beltway to alleviate roadway congestion.
The Traffic Circulation Element is inconsistent with the concurrency criteria of Rule 9J-5.0055(2)(a)4. and (c)1. and 8.
Capital improvements for transportation are not financially feasible, as reflected by inadequacies in the definition of "regularly evaluate" in Traffic Circulation Element Policy 2.1.4.4 and unjustifiable assumptions as to the contributions of impact fees as sources of revenue.
The plan is inconsistent with the criterion of Rule 9J-5.007(3)(b)1. because the plan lacks an objective to provide for a safe, convenient, and efficient motorized and nonmotorized transportation system.
The plan is inconsistent with the criterion of Rule 9J-5.007(3)(c)5. because the plan lacks a policy to consider bicycle and pedestrian ways in the planning of transportation facilities.
Traffic Circulation Policy 2.2.1.6 is internally inconsistent with language in the Capital Improvement Element providing that the existing level of service standards were used as benchmarks for most of the proposed level of service standards found elsewhere in the plan.
The plan is inconsistent with Policies 64.1, 64.5, 64.8 1.-4., and 64.6(b) and Implementation Policies 64.5 A., B., and J. and 64.6 B. of the East Central Florida Regional Policy Plan
The future land use designations for forestry, agriculture, and environmental system corridors are inconsistent with the criterion of Rule 9J-5.006(1) because they are not supported by the data and analysis, including an accurate population projection.
The plan is inconsistent with the criterion that the maps reflect the goals, objectives, and policies of the plan.
The plan is inconsistent with the criterion of Rule 9J-5.006(2) of land use analyses.
The plan in its entirety is financially unfeasible due to inadequate revenue.
The plan takes property of members of Petitioners Hart without compensation in violation of Article I, Section 2 and Article X, Section 6 of the Florida Constitution.
At the hearing, Petitioner Wenz called fifteen witness, Petitioners Hart called two witnesses, Respondent Volusia County called three witnesses, and Respondent Department of Community Affairs called no witnesses. Petitioners Hart offered into evidence two exhibits, and Volusia County offered into evidence 14 exhibits. Additionally, three exhibits were marked as Hearing Officer exhibits. All of these exhibits were admitted. Petitioner Wenz offered into evidence 11 exhibits, of which Wenz Exhibits 10 and 11 were admitted.
No transcript was ordered. Each of the parties filed a proposed recommended order. Treatment of the proposed findings is detailed in the appendix.
FINDINGS OF FACT
Parties
Petitioner Henry A. Wenz (Wenz) is a resident of Volusia County and submitted oral or written objections during the review and adoption proceedings.
Petitioners Hart Land & Cattle Co., Inc., R. L. Hart, and Clyde E. Hart are residents of, own property in, or own or operate businesses in Volusia County and submitted oral or written objections during the review and adoption proceedings.
Respondent Department of Community Affairs (DCA) is the state land planning agency charged with the responsibility of reviewing plans under Chapter 163, Part II, Florida Statutes.
Respondent Volusia County, which is a charter county, is a local government required to adopt a revised comprehensive plan under Sections 163.3164(12) and 163.3167, Florida Statutes. Volusia County is a charter county.
Volusia County is located on the Atlantic Coast and is bounded by Flagler and Putnam Counties to the north, Brevard and Seminole Counties to the south, and Lake County to the west. The east boundary runs about 47 miles along the coastline, and the west boundary includes about 75 miles along the St. Johns River before running along lakes to the north and south.
Volusia County contains 14 incorporated areas. Only four of these incorporated areas are in west Volusia County: DeLand, which is the County seat; Lake Helen; Orange City; and Pierson. The coastal area contains the remaining
10 incorporated areas, including the county's principal city, Daytona Beach.
Public Participation
By Resolution No. 86-105 adopted August 7, 1986, Volusia County established various requirements for notice and public hearings in the comprehensive planning process. Acknowledging that the Volusia County Planning and Land Development Regulation Commission serves as the local planning agency (LPA), pursuant to Volusia County Ordinance 80-8, as amended, Resolution No. 86-
105 directs the Volusia County Planning and Zoning Department to accept, consider, preserve, and respond to written public comments.
Following the adoption of Resolution No. 86-105, the LPA commenced a process designed to ensure that citizens with a wide range of interests could make substantial contributions to the comprehensive planning process. The LPA formed five citizens' committees, known as Citizen Resource Committees, to consider planning questions corresponding to each of the elements required to be included in the comprehensive plan. Each committee comprised about 20 members, and the chair of each committee was a member of the LPA. 1/
Membership of each Citizen Resource Committee was diverse. For instance, members of the land use committee included homeowners, developers, and environmentalists. The diversity of membership was the result of the LPA's efforts to solicit nominations for membership from a broad range of civic, trade, or professional associations. In all, the LPA asked 150 organizations to make nominations and 62 organizations did so. In the case of the land use committee, for example, members were nominated by, among others, such groups as the League of Women Voters, Association of Condominiums, West Volusia Home Builders Association, and Volusia-Flagler Environmental Political Action Committee, Inc.
Each Citizen Resource Committee met about nine times from July, 1988, to May, 1989. Prior to these series of meetings, the LPA conducted a meeting to explain the comprehensive planning process. Each meeting of the LPA or Citizen Resource Committee was open to the public and announced by news releases published in numerous local news media.
During the nine months that the Citizen Resource Committees met, Volusia County amended Resolution No. 86-105 to require that all planning materials given to the Citizen Resource Committees, LPA, or County Council be available for review by the public. Adopted February 2, 1989, Resolution No. 89-27 made planning documents available for copying by the public at cost.
Following the completion of the work of the Citizen Resource Committees, the LPA then conducted six public workshops between June 14 and June 27, 1989. Large display advertisements were published in local newspapers of general circulation preceding at least some of these meetings, including the June 14 and 19 meetings where it was announced that the LPA would consider certain named elements for recommendation to the County Council. The LPA ultimately recommended the draft elements to the County Council.
On July 7, 1989, the County Council held its first public workshop on the proposed plan. Over the next two months, the County Council conducted nine such workshops, at least some of which were announced by large display advertisements in local newspapers of general circulation. Minutes and notes of these workshops indicate that Council members regularly solicited comments from members of the public in attendance. The County Council conducted nine public workshops or hearings from July 7, 1989, through August 29, 1989.
The County Council workshops culminated in the transmittal hearing, which took place on September 7, 1989. The hearing was announced by large newspaper display advertisements that satisfied all requirements of law.
After transmittal of the proposed plan and receipt of the Objections, Recommendations, and Comments of DCA, the County Council announced by large display newspaper advertisements that a hearing would be conducted on February 22, 1990, to receive public comments and adopt the comprehensive plan. The notice satisfied all requirements of law.
The County Council received extensive public comments at the February
22 hearing and continued the hearing to March 8. Again receiving extensive public comment at the March 8 hearing, the County Council continued the hearing to March 15. The County Council adopted the comprehensive plan at the March 15 hearing, although Ordinance No. 90-10, which adopts the plan, indicates that the plan was adopted at a public hearing on March 10, 1990. 2/ Ordinance No. 90-10 adopts the goals, objectives, and policies, but not the supporting data and analysis.
Traffic Circulation Element
Data and Analysis
In preparing the Traffic Circulation Element (TCE), the County first inventoried the existing road system to determine capacity, demand, and overall system performance. To assist in this effort, the County Council retained (Kimley-Horn and Associates, Inc., which issued a report in September, 1989, analyzing the availability of transportation facilities and services to serve existing and future demands (Kimley-Horn Report). The Kimley-Horn Report serves as part of the data and analysis on which the plan was based.
Beginning with 1987 conditions, Kimley-Horn noted that the County required nearly $68.2 million of road improvements to attain level of service C on all roads. 3/ To evaluate future needs, Kimley-Horn used a standard traffic forecasting formula and socio-economic data provided by the County Planning
Department. After identifying numerous traffic analysis zones and validating the model for the subject forecasting purposes, Kimley-Horn ran ten model runs.
In designing various network alternatives, Kimley-Horn considered level of service standards in light of factors such as the requirement of concurrency, the goal of urban in-fill, and the "[d]irect correlation between urban size and acceptance of some highway congestion as a trade off for other urban amenities and cost considerations." Kimley-Horn Report, page 17.
The West Volusia Beltline would be located in southwest Volusia County between U.S. 17/92 and 1-4. Comprising several segments, the beltway's southernmost segment is from Graves Avenue to Saxon Boulevard.
Apparently while Kimley-Horn was preparing its report, Volusia County adopted a Five-Year Road Program, which includes certain projects from a 2010 financially feasible plan for the coastal area. The Five-Year Road Program, which will cost $94.7 million for right-of-way acquisition and construction, will require $52 million from the County, or $59.3 million after taking into consideration the effect of inflation.
From north to south, the Five-Year Road Program includes the following segments of the West Volusia Beltway, which are all under County jurisdiction: Kepler Road to Taylor Road (1.0 mile)--construction of two lanes; Taylor Road to State Route 472 (2.3 miles)--construction of two lanes; and State Route 472 to Graves Avenue (1.0 mile)--addition of two lanes to the two existing lanes.
The Kimley-Horn Report estimates that, during the five-year road program, the County will have revenues of only $49.2 million available for road construction without regard to inflation but assuming increases in population and tourism. The report discusses various options, such as raising impact fees, raising the share of gas taxes devoted to construction versus maintenance, and accelerating road projections to negate the effect of inflation. The County- estimated revenues are 6-17% short of estimated costs.
In any event, the projected revenue shortfall during the Five-Year Road Program should have no effect on the three West Volusia Beltway projects. The Kimley-Horn Report ranks all of the five-year projects based on relative importance. All three beltway projects are in the top ten, and the cumulative construction costs expended through the first ten projects is $28.8 million, which is well within available revenues of $49.2 million.
Assuming that the Five-Year Road Program is timely completed, Kimley- Horn calculated 1995 levels of service by applying County-supplied socioeconomic data to existing traffic models. The result, displayed on Figure 11 in the Kimley-Horn Report, discloses an insignificant segment of U.S. 17/92 in the downtown area at level of service F and, especially relative to east Volusia County, little system mileage at level of service E.
Based on the analysis described in the preceding paragraphs, the Kimley-Horn Report concludes that
county-wide roadway operating conditions in 1995 are excellent in that, out of 895.3 system miles, only 21.4 miles are predicted to operate at Level of Service F. This represents 2.39 percent of the county's system miles. In the same light, 52.86 miles
fall at Level of Service E condition representing 5.9 percent of the total system miles. Overall, approximately 92 percent of the county-wide roadway system-miles is predicted to operate at Level of Service D or better in 1995.
Kimley-Horn Report, pages 58-60.
Table 28 of the report, which divides the County into 11 geographic areas, prioritizes road segments for construction after 1996 based on volume-to- capacity ratios projected for 1995 after completion of the base network. 4/ Table 28 projects no excessive use of segments in west Volusia County.
The average volume-to-capacity ratios in west Volusia County are projected as follows: for the area north of DeLand--0.40; for the area south of DeLand--0.60; and for the area west of Deltona--0.75. Although the last area contains three segments with ratios over 0.90, the West Volusia Beltline would, in 1995, have a volume-to-capacity ratio of only 0.44.
Designing a 2010 network, Kimley-Horn analyzed additional highway segments selected from a financially feasible plan and various alternatives previously considered in the report. These segments, which are listed in Table
19 of the report, exclude all of the roads contained in the Five-Year Road Program. The total cost, including right-of-way acquisition, construction, and inflation, is $1.38 billion, with the County's share at $510 million.
From north to south, the 2010 network contains the following segments of the West Volusia Beltway, which are all projected to remain under County jurisdiction: State Route 44 to State Route 472 (5.6 miles)--addition of four lanes to two lanes in the existing or base network; State Route 472 to Graves Avenue (1.0 mile) --addition of two lanes to four lanes in the existing or base network; and Graves Avenue to Saxon Boulevard (3.0 miles)--construction of four lanes where none exists in the 1995 network.
However, the 1995 level of service projections properly ignore those segments of the West Volusia Beltway included in the 2010 network, including the new four lanes south of Graves Avenue, because these segments are not part of the existing or base network.
The Kimley-Horn Report estimates that gas taxes and impact fees available to the County to fund the County's system improvements from 1996 through 2010 will total only about $278 million. Assuming that future state contributions will equal past contributions, the Kimley-Horn Report estimates that state revenues for system improvements will total about $272 million from 1996 through 2010. The total County and state contributions are projected to be about $550 million for 1996 through 2010, which would leave a projected combined state/County deficiency of $338 million.
The Kimley-Horn Report recommends that the County update the TCE once the projected revenue shortfall materializes following the construction of the base network in 1995. Specific items to be considered include the adjustment of level of service standards, identification of new revenue sources, and
adjustment of permitted densities and intensities in the affected areas. The Kimley-Horn Report concludes that the plan
updating process should be viewed as an on- going, iterative process whereby road needs, available revenues and finally financial analysis merge... This process is
designed to provide a dynamic and on-going planning tool that can be used to provide an on-going monitoring and updating program for the transportation system in Volusia County.
Kimley-Horn Report, page 83.
Goals, Objectives, and Policies
1. Bicycles and Pedestrians
TCE Objective 2.1.1 states that, prior to 1996, the County "shall implement programs to provide a safe, convenient, and efficient motorized transportation system." TCR Objective 2.1.2 states that, prior to 1995, the County "shall implement programs to provide a safe, convenient, and efficient non-motorized transportation system."
TCE Policies 2.1.1.4 and 2.1.2.2 state that, prior to October 1, 1990, the County "shall develop regulations for the safe and efficient movement of pedestrians within all new development proposals" [sic]. TCE Policy 2.1.2.1 states that, prior to 1993, the County "shall coordinate with the MPO to develop a County-wide bicycle facilities plan."
The Capital Improvement Program schedules all significant capital projects to be undertaken for the six years between 1990-1995. An adopted part of the plan, the Capital Improvement Program contains a summary of road projects beginning at page C-243. The table shows, by year and amount, expenditures for all capital road projects, including the above-described segments of the West Volusia Beltway without significant alterations. Also included are $1.17 million for constructing bike paths in fiscal year ending 1990 and $180,000 for constructing bike paths in the following year. Beginning in fiscal year ending 1991 and through the end of the covered period, the table shows that the County intends to spend about $370,000 annually constructing bike paths/sidewalks and, in the first two years, $860,000 in widening bike paths.
2. Level of Service Standards for Roads
The objectives and policies under TCE Goal 2.2 set the level of service standards applicable to roads in the County. TCE Objective 2.2.1 states:
Upon adoption of the Comprehensive Plan, Volusia County shall establish peak hour level of service standards and prior to 1996, Volusia County shall achieve and maintain standards for peak hour levels of service on the thoroughfare system.
TCE Policies 2.2.1.3 through 2.2.1.6 establish the peak hour level of service standards for state-and County-maintained roads. The level of service standards for state-maintained freeways and principal arterials, in the urbanized and nonurbanized areas, are D and C, respectively. The level of service standards for state-maintained minor arterials and collectors, in the urbanized and nonurbanized areas, are E and D, respectively. TCE Policy 2.2.1.6 sets the level of service standards for County-maintained arterials and collectors, in the urbanized and nonurbanized areas, at E and C, respectively.
With respect to the reduced level of service standard allowed on County roads in urbanized areas, TCE Policy 2.1.1.7 explains that the County "shall expend County transportation funds in a manner which encourages compact urban development."
TCE Policies 2.2.1.3 through 2.2.1.6 permit certain exceptions to the general level of service standards. A major exception is that the level of service standards apply only to road segments that are neither backlogged nor constrained. By means of this exception, the County distinguishes between roads operating at or above 5/ their adopted level of service standards and capable of widening, which are subject to the general level of service standards, and roads that are, at the time of plan adoption, operating below their adopted level of service standards or are incapable of widening, which are backlogged or constrained, respectively.
The plan defines a backlogged road as one operating at a level of service standard below the minimum adopted by the County Council. However, a road operating below its designated level of service standard is not a backlogged road if it is a constrained facility or if it is scheduled for capacity improvements in the five-year road program of the Florida Department of Transportation or the County Council. 6/ Plan Element 20, Paragraph 14. A constrained road is one to which two or more lanes cannot be added due to physical or policy barriers. Plan Element 20, Paragraph 41.
TCE Policies 2.2.1.7 through 2.2.1.9 identify backlogged road segments. TCE Policy 2.2.1.10 requires that the actual level of service standard for each identified backlogged road segment be raised by one standard by 1996. TCE Policy 2.2.1.11 requires that the level of service standards for each identified backlogged road segment attain, by 2001, the general standards set forth in TCE Policies 2.2.1.3 through 2.2.1.6.
For constrained roads presently at their adopted level of service standards, TCE Policy 2.2.1.22 provides that, barring acceptable mitigation, the County shall not allow further development after the constrained road reaches the applicable level of service standard.
3. Concurrency Requirements
The introduction to the Capital Improvements Element (CIE) links the concepts of level of service and concurrency. The introduction, which is not an adopted part of the plan, notes: "The existing service level was used as a benchmark for most of the proposed service level standards found in this draft [sic] element." The introduction acknowledges:
Adjusting service levels [and] facility costs to projected revenue allocated to capital facilities is part of the [planning] process. If revenue allocated to pay for capital costs
is insufficient, then either service levels have to be reduced or additional revenue raised or created to support the desired level of service.
CIE Policy 15.1.1.3 prohibits the issuance of a development order for development that would degrade the level of service standard below the adopted standard, unless the plan specifically permits such a degradation. CIE Policy
15.3.1.1 states that the level of service standards adopted in the plan apply to all development orders issued after October 1, 1990.
The issue of vested rights, which is generally reserved for land development regulations, is addressed to some degree in the plan. CIE Policy
15.1.1.7 requires orders for developments of regional impact, if issued after October 1, 1990, to be subject to the plan's concurrency requirements.
CIE Policy 15.3.4.3 contemplates the reduction of level of service standards due to the effect of vested development; however, a plan amendment is required in such cases. Recognizing the importance of vested development in terms of demand on public facilities, CIE Policies 15.5.4.6, 15.5.5.1, and
15.5.5.2 require a study of reserved capacities and inventory and analysis of capacity remaining after the demands of vested development have been met.
CIE Objective 15.5.1 states that the concurrency provisions adopted as part of the plan will become effective October 1, 1990. Other concurrency provisions are to be included in land development regulations.
CIE Policy 15.5.1.1 identifies those facilities, including roads, for which concurrency is required. CIE Policy 15.5.1.3 states:
The required facilities shall be in place and operating or estimated to be operating at a minimum service level established in this Comprehensive Plan at the time a building permit is issued, or a building permit is issued subject to the condition that the required facilities shall be in place prior to issuing of that final development order.
A final development order is a building permit. Plan Element 20, Paragraph 52.
CIE Policy 15.5.1.4 states that the required facilities shall be deemed concurrent "if they are under construction or under contract for acquisition at the time a building permit is issued." CIE Policy 15.5.1.5 adds that the required facilities shall be deemed concurrent "if they are the subject of a binding contract executed for the construction or acquisition of the required facilities at the time a building permit is issued."
CIE Policy 15.5.1.6 states:
New developments may meet the test for capacity and concurrency if they can be supported by the construction of specific facilities and the expansion of facility capacity by specific projects contained in the first year of the Capital Improvements five year schedule of programmed improvements
(Capital Budget), following the issuance of a final development order. This policy shall pertain to the following facility categories:
roads ... Specific conditions for the timing of private development and completion of the above facility categories shall be part of an enforceable development agreement
and shall be part of the County's development review process when land uses and their densities/intensities are first proposed.
Specific timing and phasing of these facilities in relationship to the issuance of building permits and other final development orders shall be delineated in [various land development regulations].
However, CIE Policy 15.5.2.2 requires:
The following facilities shall be available to coincide 7/ with approval of building permits for developments that are to be built during a single phase: roads ... It
shall be the intent of this policy to ensure that the above-mentioned facilities and services needed to support such development are available concurrent with impacts created by such developments... Specific timing
and phasing conditions related to the above concurrency facilities shall be identified in greater detail in [various land development regulations].
Dealing with development projects designed to take place over several years, CIE Policy 15.5.2.3 provides in part:
In these cases, programmed improvements from the Five Year Schedule of Improvements shall be included as part of the concurrency determination as long as their availability coincides with the impact of such a multi- year, multi-phase development.
CIE Policy 15.5.2.4 addresses the situation in which necessary public or private facilities are delayed. If the delayed facility "may imperil the public health, welfare and safety," the County "may impose delay requirements on any permits it has issued so that public facility availability may be approximately concurrent with the impact of new development."
Just as the backlogged and constrained roads are subject to special level of service standards, so too are they subject to special concurrency provisions. These provisions are contained in the policy cluster under CIE Objective 15.5.3.
CIE Policy 15.5.3.1 describes the process by which the County will monitor levels of service on backlogged roads. The process begins with documenting as a benchmark the traffic counts on these roads prior to the adoption of the plan. CIE Policy 15.5.3.1.b provides that each backlogged road
"shall not be allowed to degrade its operational service standards ... by ... more than twenty (20) percent of the peak hour bench mark [traffic] counts ... " 8/ The monitoring provisions require the County to use generally accepted traffic modeling procedures to project the number of trips generated by proposed developments and the likely distribution of these trips.
Regarding backlogged roads, CIE Policy 15.5.3.1.e states:
The County shall not approve any additional final local development orders, (excluding vested properties) including building permits, once the percent threshold for projects within urban/urbanized area center(s) including municipalities is reached from final development orders only if such local development orders would generate trips in excess of ten/fifteen/twenty percent on a peak hour basis, unless a final development order is subject to the adoption and implementation of an Area-wide Traffic Action Mitigation Plan. An Area-wide Traffic Action Mitigation Plan shall include, but not be limited to, the following activities:
turn lanes
signalization
incentives for employees to use mass transit where available
van/car pooling programs
staggered work hours
CIE Policy 15.5.3.1.f states that the "goal" of the Area-wide Traffic Action Mitigation Plan is to achieve "100 percent mitigation of the impacts of a proposed development" and that, where applicable, the plan shall include participants besides the developer, such as "adjacent property owners, business establishments and homeowner associations."
CIE Policy 15.3.4.8 states:
The adopted Volusia County Five Year Road Program, reflected in the Capital Improvements Element's five year schedule of capital improvements[,] will provide the capacity necessary to relieve backlogged State roads. In the event that revenues collected from transportation (road) impact fees fall short of projections and the need arises to delay any of the identified capacity projects, Volusia County shall amend this element and the Traffic Circulation Element through coordination with the Florida Department of Transportation and performing [sic] speed delay studies to more accurately evaluate the level of service on the effected [sic] backlogged road. The County shall temporarily defer the issuance of development orders having direct impact on the facility which cannot be corrected through
implementation of a Traffic Action Mitigation Plan as identified in 15.5.3.1(e) of this element, until such time that the level of service has been improved to the acceptable level. Any change in service level standards as a result of speed delay studies shall be done through a plan amendment. 9/
Awkward grammar in the first sentence of CIE Policy 15.5.3.2 precludes a finding as to what constrained facilities are addressed by this policy, but in general the policy provides that the County "may allow development to occur [on these constrained facilities] which will not increase peak hour traffic volumes by more than five or ten percent." Five-percent degradation is allowed for physically constrained state roads, and ten-percent degradation is allowed for policy constrained state roads.
CIE Policy 15.5.3.2 requires the developer of the development impacting a constrained road to prepare a Traffic Analysis and implement an Area-wide Traffic Action Mitigation Plan, but only after an urbanized constrained state road has degraded to its minimum level of service, as set forth in the plan. At this point, "no further degradation will be permitted below the minimum approved local service levels set for constrained roads, that in 1989 were operating at or above the desired minimum service level."
CIE Policy 15.5.3.2.d prohibits the County from denying a development order if the developer
demonstrates a willingness to maintain service levels by entering into an enforceable development agreement including the implementation of either an Individual or Area-Wide Traffic Action Mitigation Plan, where the developer has demonstrated good faith to achieve 100 percent mitigation of the impact of such development. Payment of the road impact fee may not necessarily meet the 100% mitigation desired.
For constrained County roads, the County "shall closely monitor" traffic volumes. Once the constrained road reaches its minimum acceptable level of service (C if nonurbanized, E if urbanized), TCE Policy 2.2.1.22 provides: "the County may not allow further development which cannot provide acceptable mitigative measures to the adverse traffic impacts of the proposed development."
For development impacting either a backlogged or constrained road, TCE Policy 2.2.1.23 requires the developer to prepare an "Area-wide Traffic Action Mitigation Plan" covering those geographic areas specified as affected by relevant land development regulations. Other policies describe the traffic impact model in detail and procedural processes by which persons denied development orders may challenge the factual bases underlying the denial.
CIE Policy 15.5.4.1 limits to two years the life of the concurrency determination for all public facilities for which concurrency is required, unless the County and applicant agree otherwise. In the latter case, however, the applicant must guarantee his financial obligations for public facilities by providing a cash escrow deposit, irrevocable letter of credit, prepayment of
impact fees, prepayment of connection charges, or Community Development District, pursuant to Chapter 190, Florida Statutes.
CIE Policy 15.5.4.4.1 provides that "if concurrency and facility capacity is not available or cannot be made available through Policy 15.5.4.1(2)(a) ..., these findings shall be reasons for denial of such development orders."
CIE Policies 15.5.5.7-15.5.5.9 add detailed requirements to the land development regulations concerning the concurrency management system and specifically the evaluation and monitoring necessary for the successful operation of a concurrency management system.
4. Financial Feasibility of Road Projects
The final section of the CIE, although not formally adopted as part of the plan, is entitled, "An Introduction to the [CIE] Six Year Program: Fiscal Year 1989-90 to Fiscal Year 1994-95." This section begins: "The proposed [CIE]'s Five Year Program is feasible only to the extent that certain actions can be implemented prior to October 1, 1990." These actions include the following: approval of the one cent optional sales tax by May, 1990; increase of road impact fees to cover an estimated $6 million shortfall; and restriction of the funding of road safety and other road projects to sources other than existing gas tax revenues, such as the one cent optional sales tax, increased ad valorem taxes, or other sources.
The introduction to the CIE concedes that the one cent optional sales tax is a
key future revenue source to pay for improvements for facilities that either have no dedicated revenue source or that have revenue sources that have been used in the past but are no longer adequate to maintain or improve service levels into the future.
Clearly without the One Cent Optional Sales Tax, the amount of Capital Improvements will have to be reduced in half. This will have severe impacts on service levels for ... roads ...
The introduction reasons that ad valorem property taxes should not be used extensively for financing much of the required facilities because ad valorem taxes are needed to operate the newly constructed facilities and the seasonal population does not pay its fair share of the cost of facilities when they are financed by ad valorem taxes.
Although not adopted as part of the plan, the data and analysis supporting the CIE contain useful background information concerning financial feasibility. Table 15-15 indicates that the County's share of the optional one cent sales tax would have been $81.3 million for the six-year period, 1990-95. Table 15-16 shows, for the same period, that capital road projects constitute about 24% of all capital expenditures.
The Capital Improvement Program begins with a budget message from the County manager. Stressing the importance of the one cent optional sales tax, the message concludes that the only other viable Source of funding the County's infrastructure needs is the ad valorem tax.
The total cost of road projects for 1990-96 is $122.6 million. Capital Improvement Program, page C-246. Of this sum, the local option sales tax was Projected to Provide $35.6 million. Id. During the same period, the County's capital expenditures are Projected to total $417.8 million. Capital Improvement Program, page B-2. Of this total, $249 million was Projected to be spent on facilities for which concurrency is required. Id.
CIE Objective 15.3.1 places roads as the highest priority among all other facilities. The objectives and policies under CIE Goal 15.4 describe the funding Sources for capital projects. These Sources include user fees, impact fees, broad-based revenue sources, and debt Proceeds.
Among user fees, CIE Policy 15.4.1.9 allocates the gas tax between maintenance and construction expenditures. CIE Policy 15.4.1.10 extends all gas taxes under the County's control to 2010. CIE Policy 15.4.1.11 directs the County to use "to the maximum extent possible" all other road user fees, such as toll roads, utility taxes, and special assessments.
Addressing impact fees for roads, Objective 15.4.2 provides:
Future development shall bear their fair share (a pro rata share) of not less than seventy (70%) percent of road facility costs including [right-of-way] as a result of their development in order to achieve and maintain the adopted level of service standards and other measurable objective standards.
CIE Policy 15.4.2.6 requires the County to "verify that the impact fees are sufficient to cover the pro rata share of improvement costs necessitated by new development."
CIE Objective 15.4.3 promises that the County will "rely primarily on the broadest revenue bases as possible for the funding of Capital facilities." CIE Policy 15.4.3.2 reserves the one cent optional sales tax for facilities for which no dedicated revenue sources exist. CIE Policy 15.4.3.3 restricts the County from using increases in the ad valorem tax millage rate for purposes other than operating costs associated with future additional capital facilities, unless other sources of funding are not available.
CIE Policy 15.4.3.5 considers the alternatives if the one cent optional sales tax were not approved by the voters. In such a case, the County shall consider, among other measures, increasing the ad valorem tax millage rate to fund public facilities for which concurrency is required, creating special taxing districts, reducing service levels, increasing yet-to-be specified new revenue sources, and selectively using Community Development Districts. 10/
Relevant Provisions of the Regional Plan
Policy 64.1 of the East Central Florida Comprehensive Regional Policy Plan (Regional Plan) provides:
Local governments and the Florida Department of Transportation will set appropriate minimum levels of service for components of the regional roadway system under their respective jurisdictions. The ... Regional Planning Council will assist these bodies in developing their service standards, with the following level of service standards being used as guidelines in the determination of levels of service for individual components of the regional roadway system:
In rural areas (Level of Service "C")
* * *
In urban fringe, urban residential
areas, and outlying business districts (Level of Service "D")
* * *
In central business districts (Level of Service "E")
* * *
The minimum levels of service determinations will be based on the following criteria:
Regional level of service guidelines:
Existing conditions of each roadway:
Planned programmed roadway improvements:
Financial constraints: and
Local Comprehensive Plans, and adopted DRI or other development orders.
Level of service E on roads of the State Highway System are subject to the agreement of the local government, regional planning council, Florida Department of Transportation, and Metropolitan Planning Organization.
Regional Plan Policy 64.5 provides:
Access to minor arterials, major arterials and expressways shall be limited in order to maximize their traffic-carrying capacity and safety ...
Regional Plan Policy 64.8 states:
The principle of equitable cost participation shall be used as a guide in development approval decisions, including allocation of costs among private parties benefiting from or creating the need for transportation improvements, with consideration being given to:
New development being required to pay its fair share as a condition for development approval, unless sufficient funds are available from other sources;
Existing unmet needs being identified, to include the nature of the need and estimated cost of fulfillment; and
Existing land uses and activities which benefit from better access being required to participate in the cost of the
roadway improvement or new construction which results in the improved access in the form of user fees or special assessments.
Provisions being made in local development orders to include the mitigation of adverse impacts on the state highway system.
Regional Plan Policy 64.6 requires that traffic signalization, roadway signage, and operational capacities be designed "to optimize traffic flow and enhance the levels of service throughout the regional roadway network.
Regional Plan Implementation Policy 64.5 provides in relevant part:
Local governments are requested to undertake the following actions:
Evaluate the feasibility and practicality of enacting ordinances capable of assessing existing landowners a proportionate share of costs associated with the elimination of unmet needs based on the provision of enhanced level of service benefits accruing from roadway improvements or new construction projects.
Enact impact fee ordinances which are designed to cover the fair share cost of roadway improvements on local and state roadways except for that portion of deficient capacity already existing.
Seek public review and comment on all new roadway construction proposals and widening projects.
Regional Plan Implementation Policy 64.6 requests Metropolitan Planning Organizations to take certain actions and is thus irrelevant to the present case.
Capital Improvements Element
The financial feasibility of the entire plan, which is challenged by Petitioners Hart, has been considered to some extent in the findings concerning roads. These findings involve not only the financial feasibility of the Capital Improvement Program for roads, but the overall financial feasibility of the plan. As explained in the corresponding section of the Conclusions of Law, the optional one cent sales tax may be considered to a greater extent in determining the financial feasibility of the entire plan than it may be considered in the availability of scheduled capital projects in making concurrency determinations.
The Capital Improvement Program, which schedules capital improvements for the six year period from 1990-1995, identifies, as noted above, $417.8 million in capital expenditures. Although the sources of funding are not collected in a single table like expenditures are, revenues are identified in numerous tables covering each of the numerous categories of public expenditures. In each case, revenues match expenditures.
The Capital Improvement Program does not address alternative revenue sources to the optional one cent sales tax. However, CIE 15.4.3.5 describes revenue alternatives to the optional one cent sales tax.
Future Land Use and Conservation Elements
Data and Analysis
The data and analysis accompanying the Future Land Use Element (FLUE) contain population tables prepared by the County, U.S Census, and Bureau of Economic and Business Research, University of Florida. The population projection for 2000, which is 506,000 persons, is the high-range projection prepared by the Bureau of Economic and Business Research. Support Document #1-1, page 14.
Among the factors considered in the land use suitability analysis are the type of soil, presence of wetland vegetation, and nature of the floodplain if the land is located in the 100-year floodplain. Support Document #1-5, page
Analysis of these factors is incorporated into a suitability rating system, which is then projected onto maps. Id.
The land use suitability analysis contains an extensive inventory of native habitats, soils, and existing land uses by region. The suitability rating system factors in other items such as the availability of central water and sewer and the presence of historic resources.
Support Document #1-6 describes the process by which future uses are allocated to the land. Taking the projected population of the unincorporated part of the County, the analysis first allocates the population among six geographic planning areas. Determining the number of dwelling units needed to accommodate the projected population, the analysis generates data indicating the additional acreage required, by the end of the planning timeframe, to accommodate expected residential and nonresidential uses. A growth factor of
30% is then added to the residential and commercial categories due to high growth rates expected from the County's proximity to Disneyworld and the proposed Spaceport.
Support Document 1-7 describes the process by which the land uses necessary to accommodate the previously described growth are designated on the future land use maps.
Data and analysis supporting the future land use designations for forestry, agriculture, and environmental uses are found in Support Document #12- 1, which accompanies the Conservation Element. Based upon considerable data concerning wildlife and native habitats, the analysis concludes that "there are broad expanses of ecologically interconnected lands." Id. at page 12R-50.
The analysis recommends that the plan establish a land use category within which urban development would be
discouraged... Because growth should be directed towards those lands best able to accommodate future development, marginally suited lands for development should be placed in a Natural Resource Management Area (NRMA), as should interconnecting environmentally sensitive and ecologically significant lands.
This would include ... inland swamp
systems, riverine and estuarine flood plains, critical wildlife habitats, and endangered, rare or threatened ecosystems."
The recommendation for the establishment of Natural Resource Management Areas (NRMA) explains further:
The area within the NRMA should be divided into districts of special use, promoting activities which are compatible with natural resource protection. Among these divisions should be one which affords a degree of protection to natural systems which would assure their continued, uninterrupted preservation. Although several thousand acres of these lands are in public ownership, there is not enough public funds to purchase all the environmentally sensitive lands in the County, and therefore requires land use controls to ensure an adequate degree of ecological integrity.
Because a major component of the value of natural communities is the ecological interrelationships with other natural communities, a highly effective way to protect ecological functions would be to form a natural areas network, or corridors. Land which falls within this network, referred to as Environmental Systems Corridors (ESC's), would be restricted to land use activities which inflict extremely small long term
impacts on ecological functions, primarily a type of large lot conservation residential and passive types of agriculture, particularly silviculture. The corridors should include protected systems of wetlands, conservation lands and, where possible, rare and threatened upland communities such as mesic hammocks and longleaf pine-oaks.
Because silviculture is the predominant use on the relic marine terraces, and that this use appears to be the most suitable for the terraces given the natural constraints of the land, a forestry district should be established within the NRMA. The intent of the forestry district would be to promote silvicultural pursuits and to keep this a predominant use on the relic terraces. This should be part of the NRMA because silvicultural activities typically have the least impact on natural resources other than public ownership, and thus should be encouraged on private landholdings. Other types of agricultural uses should be allowed in the forestry district to provide a certain amount of flexibility, but silviculture should be the predominant use.
* * *
Established agricultural areas which occur within the NRMA, particularly around Samsula should be considered an agricultural
enclave within the NRMA, and should have the appropriate agricultural land use classifications. The enclave should allow room for a limited amount of agricultural growth. Id. at pages 12B-51 and 12B-52.
Although the analysis concedes that the data are unavailable by which to map the vegetative communities at a sufficiently high level of detail, the mapping was scheduled to be completed by March, 1990. In the meantime, maps contained in the Support Document indicate generally the location of important vegetative communities, partly because of extensive reliance upon NASA infrared maps of wetlands and vegetation.
Goals, Objectives, and Policies
Various goals, objectives, and policies are relevant to Petitioners Hart's challenge to the relationship between the forestry, agricultural, and environmental designations and the operative provisions of the plan.
Conservation Element Objective 12.2.1 is to "provide for the protection of areas determined to be environmentally sensitive, and direct growth away from such areas." Toward that end, Conservation Element Policy
12.2.1.1 provides that "[e]xisting, relatively uninterrupted expanses of natural resources contained within the County shall be managed as an individual unit, providing natural resources the highest degree of protection in land development decisions and planning." These units are NRMA's.
Conservation Element Policy 12.2.1.1 identifies specific areas to be included in NRMA. Conservation Element Policy 12.2.1.2 requires the County to:
promote land use activities compatible with the intentions of the NRMA through the establishment of special use areas, the boundaries of which to be determined by resource data including: ecological community mapping as stated in Policy 12.2.2.1, USGS Topographic maps; National Wetland Inventory maps; Florida Natural Area Inventory records; available wildlife data; and site specific field information if available.
Conservation Element Policy 12.2.1.2 establishes Environmental Systems Corridors (ESC) and Forestry areas within NRMA's. The policy identifies these two designations as follows:
ESC's shall include significant interconnected natural systems of environmentally sensitive lands, connected to and including conservation areas where possible. Land use activities shall be limited to conservation, silviculture utilizing Best Management Practices, and large residential lots with limits on land clearance. Proposed roads which encroach within ESC's shall minimize adverse impacts by: aligning the routes at the least sensitive areas (e.g., narrowest width of wetlands); requiring sufficiently sized bridging and culverts over wetlands to allow non-interrupted water flow and wildlife access; and posting low speed limits and/or caution signs.
A forestry category shall be established which shall promote the continued and expanded use of silviculture in Volusia County. Because the mixed use concept is an integral component of forest management, the standards of this category shall not interfere with this practice, so long as silviculture remains the dominant use and best management practices are followed.
The Future Land Use Categories, which are adopted as part of the plan, describe in more detail the ESC, Forestry, and Agriculture designations. Most significantly, the Future Land Use Categories set residential densities at one unit per 25 acres for the ESC designation, an average of one unit per 20 acres for the Forestry designation (but one unit per five acres may be permitted), and one unit per ten acres for the Agriculture designation. FLUE, pages 1-2 to 1-6.
The general designation of NRMA's is intended to carry out FLUE Objective 1.2.1, which requires FLUE designations to "reflect the inherent capabilities and limitations of the existing natural features of the land." FLUE Policy 1.2.1.1 requires that, during the development review process, the
County shall consider the site's topography, vegetation, wildlife habitat, flood hazard, and soils, as well as the location of the 100-year floodplain.
FLUE Policy 1.2.1.3 states that "lands most suited for silviculture activities shall be [designated] under the Forest Resource subcategory of NRMA." FLUE Policy 1.2.1.4 limits the extent of intensive agriculture in any NRMA.
FLUE Policy 1.2.1.5 restricts residential development in any Forest Resource area to one unit per five acres. FLUE Coal 1.4 is to "ensure that agricultural and silvicultural lands are protected from encroachment by incompatible land uses and remain a vital element of the County's economy." FLUE Policy 1.4.1.1B provides that urban growth is to be directed away from Agriculture areas.
Miscellaneous Findings
Petitioners Hart own 11/ 1000-1500 acres at County Road 415 and State Road 44 in the vicinity of Samsula (Samsula Land). They also own 2000-2500 acres just west of Edgewater, south of State Route 44, and mostly east of I-95, which is known as the Charles Sibbald Grant (Sibbald Land). About 500-700 acres of the Sibbald Land lie west of I-95. About three miles south of the Sibbald Land, Petitioners Hart own 6000-8000 acres that is divided almost equally by I-
95 and is known as the John Lowe Grant (Lowe Land). It is not possible to cross I-95 where it divides the land. The Sibbald Land and Lowe Land have no improved roads or other public facilities. Petitioners Hart acquired all of the land for investment purposes.
The Samsula Land is mostly undeveloped and used largely for cattle and possibly timbering.
The Sibbald Land is a contiguous block of land that has not been subdivided. Hart Land & Cattle Co. acquired the land in the early 1970's. Timber has been harvested on the smaller section of this land west of I-95. The trees have been harvested for about 50 years. Back in the 1940's, a turpentine business was operated on the land. Petitioners Hart have also mined shell for road bases and red sand for asphalt from the Sibbald Land.
Petitioners Hart acquired the Lowe Land in 1980 or 1981. Consisting of numerous noncontiguous lots, the Lowe Land is part of a 14,000-acre subdivision known as Cape Atlantic Estates, which was subdivided into 6000-7000 parcels in the late 1960's. Cattle are kept on the northeast corner of the Lowe Land. The Lowe Land has contained improved pastureland for almost 70 years.
The record provides no basis for findings of the extent to which land owned by Petitioners Hart is subject to the ESC, Forestry, and Agricultural designations; the extent to which Petitioners Hart have been denied proposed uses of their land; the extent to which Petitioners Hart have exhausted County administrative remedies, such as requesting field surveys, to obtain available relief from the impact of the NRMA designations; or other matters relevant to the taking claims of Petitioners Hart.
However, the evidence fails to establish that Petitioners Hart have been denied all economically reasonable uses of their entire property or any individual parcel.
Ultimate Findings of Fact
Traffic Circulation Element
1. Data and Analysis
The evidence fails to establish to the exclusion of fair debate that the analysis accompanying the TCE inadequately addresses existing levels of service and present and future system needs, as well as the need for new and expanded facilities. The evidence fails to establish to the exclusion of fair debate that the analysis inadequately addresses projected levels of service based on future land uses and the relevant plans of other jurisdictions.
The evidence is clear that the West Volusia Beltway is feasible, given the funding priorities assigned to its various projects in the plan.
There is substantial evidence to support the transportation data and modeling on which the road networks are based. There is no significant evidence that the projected levels of service for any road segments are inaccurate due to an unjustifiable reliance on the traffic to be borne by the West Volusia Beltway or for any other reason.
Petitioner Wenz alleged that TCE Policy 2.2.1.6, which establishes a level of service standard of E for County-maintained roads in urbanized areas, was internally inconsistent with the introductory language of the CIE concerning the use of existing level of service standards as benchmarks for most of the proposed level of service standards set forth in the plan. This allegation has been treated as raising the issue of supporting data and analysis. 12/
For roads, the analysis begins with the existing levels of service and then, as indicating in the introduction, adjusts service levels to correspond to projected revenues. If the use of the word "benchmark" were to imply an unvarying standard, then the sentence would impose upon the planning effort an unrealistic and, in the case of the County's urban containment strategy, unworkable limitation. Operative plan provisions should not be rejected because of lack of support from incompetent analysis.
2. Goals, Objectives, and Policies
The evidence fails to establish to the exclusion of fair debate that the plan is not financially feasible in terms of scheduled road projects. Roads receive the highest priority for capital spending in the County. Although the optional one cents sales tax required a referendum, the plan adequately identifies other potential sources of revenue to fund needed road improvements.
The unavailability of the optional one cent sales tax means the loss of $35.6 million for road projects over the six-year period covered by the Capital Improvement Program. Representing about 29% of the road budget for these six years, the optional one cent sales tax can be replaced by other funds. Total capital spending over this period is projected at $417.8 million, of which
$249 million is projected for facilities for which concurrency is required. The evidence does not establish to the exclusion of fair debate that the shortfall of $35.6 million, under these facts, renders the plan financially unfeasible as to roads.
As the plan acknowledges, another factor supporting the financial feasibility of the plan as to roads is the concurrency provisions. 13/ The evidence fails to establish to the exclusion of fair debate that the plan fails
to create a monitoring system to enable the County to determine whether it is adhering to the adopted level of service standards and whether public facilities are available. The evidence fails to establish to the exclusion of fair debate that the plan fails to require development agreements to ensure that required facilities will be in place when the impacts of development occur.
During periods of revenue shortfalls, timely concurrency determinations supported by an effective monitoring system and understandable level of service standards may help preserve financial feasibility. A concurrency management system breaks the cycle by which the impacts of development outpace the ability of a local government to finance needed infrastructure. To prevent the accumulation of infrastructure deficits, such as backlogged roads, a concurrency management system limits development whose impacts exceed the available capacity of facilities for which concurrency is required. In the absence of funding from the developer or a third party, a financially strapped local government no longer permits the proposed development and thus does not increase the backlog of needed public facilities. The portion of Petitioner Wenz's challenge to provisions governing development agreements also raises the issue of concurrency determinations, at least in the situation where the developer, rather than the County, is providing the required facilities.
As to development agreements, CIE Policies 15.5.1.6 and 15.5.3.2.d provide for the use of enforceable development agreements to provide required facilities. CIE Policies 15.5.1.1 et seq. establish generally applicable concurrency requirements that adequately correspond, for the purpose of resolving the present claims, to the concurrency criteria in Rule 9J-5.0055. The concurrency determinations for developments impacting backlogged and constrained roads reflect a strategy of adjusting level of service standards, subject to clear standards and specific time limits, to provide time to
eliminate deficiencies that have accumulated over the years. The evidence fails to establish to the exclusion of fair debate that this strategy, when used in development agreements, precludes effective concurrency determinations or, when considered in light of the financial feasibility of road projects, renders the plan financially unsound.
3. Consistency with Regional Plan
The evidence fails to establish to the exclusion of fair debate that the plan is inconsistent with the cited provisions of the Regional Plan. Most importantly, the plan's level of service standards are consistent with those contained in Regional Plan Policy 64.1, and the plan's sources of revenue are consistent with the principle of equitable cost participation in Regional Plan Policy 64.8. To the extent that the remaining Regional Plan provisions cited by Petitioner Wenz contain criteria against which the plan may be measured, no evidence suggests the existence of any inconsistencies.
Capital Improvements Element
The evidence fails to establish to the exclusion of fair debate that the plan is not financially feasible.
Future Land Use Element
1. Data and Analysis
120. The evidence fails to establish to the exclusion of fair debate that the data and analysis fail to include a land use suitability analysis or that they fail to support, such as through the absence of accurate population projections, the NRMA designations of ESC, Forestry, and Agriculture. To the contrary, the land use suitability analysis is thorough, and the omission of these NRMA designations or equivalent conservation designations would itself have been unsupported by the data and analysis.
2. Maps and Goals, Objectives, and Policies
The evidence fails to establish to the exclusion of fair debate that the NRMA designations of ESC, Forestry, and Agriculture, or any other designations contained on the future land use maps, are inconsistent with the operative provisions of the plan. Again, to the contrary, these NRMA designations graphically depict the text of relevant goals, objectives, and policies.
CONCLUSIONS OF LAW
Jurisdiction, Standing, Standard of Proof, and Issue
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Sections 120.57(1) and 163.3184(9), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)
Petitioners are "affected persons" within the meaning of Section 163.3184(1)(a) and thus have standing to file the petitions challenging DCA's determination that the County's plan is in compliance.
Petitioners are required to prove to the exclusion of fair debate that the plan is not "in compliance." Section 163.3184(9)(a). "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 issues raised by the petitioners in the present case require determinations of consistency with various provisions of Chapter 9J-5 and the Regional Plan.
Public Participation
Rule 9J-5.004(1) provides that the local government and local planning agency "shall adopt procedures to provide for and encourage public participation in the planning process, including consideration of amendments to the comprehensive plan and evaluation and appraisal reports."
Rule 9J-5.004(2)(b) and (e) states that the public participation procedures shall include provisions "for notice to keep the general public informed" and "to assure the consideration and response to public comments."
The instant planning process and relevant ordinances are consistent with the criteria of public participation.
Traffic Circulation Element
Data and Analysis
Rule 9J-5.007(2) requires that the TCE be based on:
An analysis of the existing traffic circulation levels of service and system needs based upon existing design capacities; most recently available estimates for average daily trips; and accident frequency data, if available. The analysis shall address the need for new facilities, or expansions to provide safe and efficient operating conditions on the roadway network; and
An analysis of the projected traffic circulation levels of service and system needs based upon the future land uses shown on the future land use map or map series, addressing the need for new facilities or expansions to provide safe and efficient operating conditions on the roadway network. In addition, this analysis shall consider the adopted level of service standards, improvements, expansions and new facilities planned for in the Florida Department of Transportation Five-Year Transportation Plan and the plans of the appropriate metropolitan planning organization and should, to the maximum extent feasible as determined by the local government adopting the local government comprehensive plan, be compatible with the policies and guidelines of such plans.
Rule 9J-5.005(2)(a) states that the operative provisions of a plan must be based upon relevant and appropriate data.
The TCE analysis is consistent with the criteria set forth in Rule
9J-5.007(2)(a) and (b). TCE Policy 2.2.1.6 is not contradicted by analysis that uses the existing level of service standards as starting points from which to work in generating the level of service standards ultimately adopted in the plan.
Goals, Objectives, and Policies
Rule 9J-5.007(3)(b)1. states that the TCE shall contain an objective to "[p]rovide for a safe, convenient, and efficient motorized and non-motorized transportation system."
Rule 9J-5.007(3)(c)5. states that the TCE shall contain a policy addressing implementation activities for the "[c]onsideration of bicycle and pedestrian ways in the planning of transportation facilities."
TCE Objectives 2.1.1 and 2.1.2 restate the language of Rule 9J- 5.007(3)(b)1. TCE Policies 2.1.1.4 and 2.1.2.2 promise that the County will adopt land development regulations to require new development to address the safe and efficient movement of pedestrians. TCE Policy 2.1.2.1 assures that, by 1993, the County shall coordinate with the metropolitan planning organization to develop a County-wide facilities plan for bicycles. Given the relegation of
pedestrian ways to land development regulations and the deferral of bicycle paths to 1993, it is noteworthy that the Capital Improvement Program contains significant expenditures for facilities capable of accommodating pedestrians and bicycles.
In view of the above, the plan is consistent with the criteria of Rules 9J-5.007(3)(b)1. and 9J-5.007(3)(c)5.
Rule 9J-5.0055(2)(c), which applies to roads, provides in relevant part:
a local government may satisfy the concurrency requirement by complying with the standards in Rules 9J-5.0055(2)(a)1.-4. and (2)(b) 1. and 2. In addition, in
areas in which the local government has committed to provide the necessary public facilities and services in accordance with its five-year schedule of capital improvements, a local government may satisfy the concurrency requirement for roads ...
by the adoption and implementation of a concurrency management system based upon an adequate capital improvements program and schedule and adequate implementing regulations which, at a minimum, include the following provisions:
A capital improvements element and a five-year schedule of capital improvements which, in addition to meeting all of the other statutory and rule requirements, must be financially feasible. The capital improvements element and schedule of capital improvements may recognize and include transportation projects included in the first three years of the applicable, adopted Florida Department of Transportation five- year work program.
* * *
8. A provision that a monitoring system shall be adopted which enables the local government to determine whether it is adhering to the adopted level of service standards and its schedule of capital improvements and that the local government has a demonstrated capability of monitoring the availability of public facilities and services.
Rule 9J-5.0055(2)(a), whose standards are incorporated by reference for roads, provides that the concurrency requirement will be met if, among other things:
4. The necessary facilities and services are guaranteed in an enforceable development agreement that includes the provision of Rules 9J-5.0055(2)(a)1.-3. [which requires that the facilities be in place at the time of the impact from development or under construction when the permit is issued].
The agreement must guarantee that the necessary facilities and services will be in place when the impacts of development occur.
Rule 9J-5.0055(2)(b)1. and 2., whose standards are also incorporated by reference for roads, provides that the concurrency requirement is met if guaranteed by an enforceable development agreement or
1. At the time the development permit is issued, the necessary facilities and services are the subject of a binding executed contract which provides for the commencement of the actual construction of the required facilities or the provision of services within one year of the issuance of the development permit [.]
In addition to the above-described allegations explicitly addressing concurrency, Petition Wenz also alleged that the capital improvements for roads were not financially feasible due to unjustifiable assumptions concerning the contributions of impact fees as sources of revenue. 14/ The allegation of financial unfeasibility bears upon the concurrency determinations. A local government may, under Rule 9J-5.0055(2)(c), rely upon its schedule of capital improvements to determine concurrency exclusively for roads only if, among other things, the funding system is "realistic, financially feasible" and
based on currently available revenue sources which must be adequate to fund the public facilities required to serve the development authorized by the development order and development permit and which public facilities are included in the five-year schedule of capital improvements.
Rule 9J-5.0055(2)(c)3.
Rule 9J-5.003(23) defines "currently available revenue sources" as follows:
an existing source and amount of
revenue presently available to the local government. It does not include a local government's present intent to increase the future level or amount of a revenue source which is contingent on ratification by public referendum.
CIE Policy 15.5.1.3 requires needed facilities to be in place when a building permit is issued, although a conditional building permit may be obtained that requires the needed facilities to be in place prior to receiving the final development order. Under CIE Policy 15.5.1.4, concurrency is achieved if the facilities are under construction or contract for acquisition when the building permit is issued. These requirements generally correspond to the requirements of Rule 9J-5.0055(2)(a)4. and (b)1., respectively, equating the plan's requirement of a contract for acquisition with the Rule's requirement of a contract for construction.
Applying to roads, CIE Policy 15.5.1.6 allows new developments to satisfy concurrency if the needed facilities are scheduled for the first year of the five-year schedule of capital improvement, following the issuance of the final development order. This policy falls within the special concurrency provisions applicable to roads (Rule 9J-5.0055(2)(c)5.), provided all of the other requirements are satisfied, including the requirement of a financially feasible funding system based on currently available revenue sources.
CIE Policy 15.5.2.4 indicates that the County "may impose delay requirements on any permits it has issued, so that public facility availability is concurrent with the impact of new development, if facilities are delayed and the delay may imperil the public health, safety, and welfare.
Backlogged and constrained roads receive special treatment. Explicitly endorsing one method by which a local government may deal with the problem of existing infrastructure deficiencies, Rule 9J-5.0055(1)(c) allows a plan to contain a "tiered, two-level approach" for the level of service standard. The Rule explains:
To utilize a tiered approach, the local government must adopt an initial level of service standard as a policy to be utilized for the purpose of the issuance of development orders and development permits. A second policy may be included which adopts a higher level of service standard by a date certain to be utilized for the purpose of the issuance of development orders and permits.
The specific date for this second policy to become effective must be included in the plan. The plan must set forth the specific actions and programs for attaining the higher level of service by the specified date. If the identified actions and programs are not attained by the specific date, the local government comprehensive plan must be amended to specify the level of service standard that will be utilized and be binding for the purpose of the issuance of development orders and permits.
Like the tiered approach of the Rule, the plan's treatment of backlogged and constrained roads is intended to provide the County with some flexibility. The special level of service standards and concurrency provisions allow the County to address facility deficiencies that have accumulated prior to the adoption of the plan without necessarily halting all further development.
For backlogged roads, the effective level of service standard is not more than a 20% increase of current traffic volume. By using generally accepted traffic models, the County will determine when a proposed development would reduce the level of service below the degraded standard. In such event, the County will not approve any more final development orders unless the order concerns a project in the urbanized area and is subject to an Area-wise Traffic Action Mitigation Plan, whose goal is to mitigate the entire impact of the development.
For physically constrained roads, CIE Policy 15.5.3.2 allows 5% degradation For policy constrained roads, the same policy allows 10% degradation. Once the adopted level of service is reached on a State-maintained urbanized road operating, as of the date of the adoption of the plan, at a higher level of service standard than that adopted in the plan, the plan requires applicants to submit traffic analyses of the impact of the proposed development and Area-wide Traffic Action Mitigation Plans, which are to achieve mitigation of the entire impact of development. However, the level of service standards for constrained roads operating at or above their minimum level in 1989 may not be degraded below the minimum approved level. CIE Policy 15.5.3.3 contains similar provisions for County maintained constrained roads.
The plan's treatment of roads, in terms of level of service standards and concurrency determinations, satisfies the requirements of Rule 9J- 5.0055(2)(a)4. and (c)1. and 8. 15/ The key point is that the plan contains provisions that effectively require, for all types of roads, that the County ensure that the availability of public facilities and impact of development are correlated.
Capital Improvements Element
Section 163.3177(2) requires that plans be "economically feasible." Rule 9J-5.016(4)(a)2. provides in part:
Only for the purpose of determining the financial feasibility of the capital improvements element, Projected revenue sources may include a local government's present intent to increase the level or amount of a revenue Source which is contingent on ratification by public referendum. If a local government utilizes these Projected revenue sources for planning purposes, the local government is encouraged to include in the plan Policies which identify alternatives and actions to be undertaken should the referendum fail. If a local government utilizes Projected revenue Sources which require a referendum and the plan does not include Policies to identify alternatives and actions to be taken if the referendum fails, the plan must include a Policy that the local government will amend the plan to identify alternative funding sources or other actions Should the referendum fail. However, for the Purpose of issuing development orders and Permits, the
local government must have a concurrency management system which meets the requirements of Rule 9J-5.005(2).
The overall financial feasibility of the plan may be evaluated in terms of revenue sources that require a public referendum. By contrast, the financial feasibility of road concurrency systems relying upon scheduled projects to offset later the impact of development may not depend upon revenue sources that require a public referendum.
In general, the expenditures and sources of revenue contained in the Capital Improvement Program are in balance. As encouraged to do by the rule, the plan also discusses alternatives to the one cent optional sales tax. The plan is consistent with the criteria of financial feasibility without regard to the efficacy of the concurrency management systems during periods of revenue shortfalls.
Future Land Use and Conservation Elements
Data and Analysis
Rule 9J-5.006(2)(b) and (c) states that the FLUE shall be based upon
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
Soils;
Topography;
Natural resources; and
Historic resources.
An analysis of the amount of land needed to accommodate the projected population, including:
The categories of land use and their densities or intensities of use,
The estimated gross acreage needed by category, and
A description of the methodology used.
The plan's land use suitability analysis is consistent with the criteria of Rule 9J-5.006(2)(b) and (c).
Rule 9J-5.005(2)(a) states that all operative provisions of a plan must be supported by relevant and appropriate data. Rule 9J-5.006(2)(e) states that population projections shall be provided by the Bureau of Economic and Business Research of the University of Florida, Executive Office of the Governor, or local government.
The future land use maps, including the designations of ESC, Forestry, and Agriculture, are Supported by relevant and appropriate data.
Maps and Goals, Objectives, and Policies
Rule 9J-5.006(4) requires that the future land use maps depict the proposed distribution, extent, and location of various generalized land uses, including agricultural and conservation, and natural resources, including wetlands.
The future land use maps are consistent with the criteria of Rule 9J- 5.006(4), including with regard to the depiction of the NRMA's for ESC, Forestry, and Agriculture.
Based on the foregoing, it is hereby
RECOMMENDED that the Department of Community Affairs enter a final order dismissing the petitions of all Petitioners.
ENTERED this 2nd day of August, 1991, 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 this 2nd day of August, 1991.
ENDNOTES
1/ Findings of Fact concerning the Citizen Resource Committee address only the Land Use, Circulation, Resource, and Utility Citizen Resource Committees. The record does not similarly describe the Coastal Citizen Resource Committee.
2/ Ordinance No. 90-10 states that the "Ordinance shall take effect upon the issuance of a certificate of consistency or conditional certificate of consistency by the Volusia Growth Management Commission. Pursuant to Section
202.3 of the Volusia County Home Rule Charter, the Volusia Growth County Commission has the "power ... to determine the consistency of the municipalities' and the County's comprehensive plans and any amendments thereto with each other." The record indicates, through the testimony of Planning Director Donald Sikorski, that the Commission issued a certificate of consistency.
3/ A level of service value represents the capacity of a facility relative to the demand placed on the facility. With respect to roads,
[l]evel of service is a quantitative measure used to define the operating condition in a traffic stream as perceived by motorists and/or passengers. The level of service quality is based on such factors as speed and travel time, freedom to maneuver, traffic
interruptions, comfort and convenience, and safety. Six levels of service are used to define quality of flow. Level of Service A is the best operating condition that can be achieved, Level of Service B, C and D reflect a progressive degradation in the quality of traffic flow and Level of Service E represents traffic flow at capacity. Level of Service F is the lowest level, indicating forced flow condition characterized by stop- and-go, bumper-to-bumper movement.
Kimley-Horn Report, P. 19. TCE Policy 2.2.1.2 states that the County will use the Florida Department of Transportation's most recent highway capacity tables "as a guide in the determination of local Thoroughfare System Capacity" in future updates of the TCE.
4/ Table 28 assumes that the construction of roads "built by 1995 as part of the committed 5-year road project." Kimley-Horn Report, P. 70. Originally, Kimley-Horn defined the "base network" as the "existing plus committed (5-Year Transportation Improvement Program) plus the 2010 VCATS Financially Feasible Plan." Id. at P. 25. (The 2010 VCATS plan is the 2010 financially feasible plan for the coastal area described above.) Evidently during the planning process, the County "adopted a Five-Year Road Program which included a number of road projects identified in the VCATS Year 2010 Financially Feasible Plan." Id. at P.
46. Presumably, the Five-Year Road Program includes all "committed" roads in the 5-Year Transportation Improvement Program, so the only change to the 1995 base network was the deletion of certain projects from the 2010 financially feasible plan, which involves only the coastal area of Volusia County. Thus, Table 28, as well as Figure 11 discussed in the preceding Finding of Fact, remain valid for west Volusia County.
5/ A road with an adopted level of service standard of C would be operating above the adopted level if the existing level of service standard is A or B.
6/ Although the definition does not expressly so provide, the scheduled capital improvements presumably must be sufficient to restore the road to at least the general level of service standard otherwise applicable.
7/ In the transmittal draft of the plan, "to coincide with" was replaced by "eighteen months following the." This change and the language following the ellipses was added at DCA's urging to attain consistency with the concurrency language of Section 163.3177(10)(h).
8/ Some road segments may not be degraded more than 10 or 15%, pursuant to CIA Policy 15.3.1.4.e, which is referenced in CIE Policy 15.5.3.1.b.
The magnitude of the degradation is reduced by the fact that the Florida Department of Transportation allows 5% degradation to allow for errors in data or modeling.
9/ TCE Policy 2.1.4.5, which is substantially the same, adds after "The County shall temporarily defer" the following clause: "If such studies do not indicate an improved level of service on the affected backlogged road."
10/ The TCE covers certain of the provisions described in the preceding paragraphs. TCE Objective 2.1.4 provides that, prior to 2011, the County "shall ensure that current and future thoroughfare system needs are financed in an effective, efficient, and equitable manner." TCE Policy 2.1.4.2 adds that the
County shall continue to rely upon impact fees to finance road projects. TCE Policy 2.1.4.4 promises that the County "shall regularly evaluate its transportation impact fee by monitoring the cost of developing its thoroughfare system to meet the demand attributable to new development." TCE Policy 2.1.4.5 states that the County "shall maintain its transportation impact fee at a rate which is commensurate with the cost of providing thoroughfare system improvements necessitated by new development."
11/ The record does not establish exactly who owns what. For instance, Clyde Hart testified repeatedly that Hart Land & Cattle Co. owned or had a "vested interest" in the John Lowe Grant land.
12/ Operative provisions of a plan are required to be consistent with each other. Sect. 163.3177(9)(b). However, operative provisions, such as TCE Policy 2.2.1.6, are not required to be consistent with unadopted portions of a plan, such as the introductory language of the CIE. Under the circumstances, Petitioner Wenz's allegations in this regard are construed as a claim that TCE Policy 2.2.1.6 is not supported by the data and analysis.
13/ Petitioner Wenz based his challenge on limited provisions of the concurrency rule. These provisions involve the financial feasibility of the plan, monitoring provisions, and development agreements. Except to the extent that Rule 9J-5.0055(2)(a) provides that development agreements must guarantee that the required facilities be in place when the impacts of development occur, the challenge does not extend to concurrency determinations in general nor, as noted in footnote 15, the issue whether the plan's concurrency provisions are consistent with the criteria of Chapter 163, Part 11.
14/ Petitioner Wenz also alleged that the plan is not financially feasible due to a perceived deficiency with the phrase "regularly evaluate" in TCE Policy
2.1.4.4. Whatever the merits of the plan's monitoring system, TCE Policy
2.1.4.4 does not render the plan financially unfeasible.
15/ Petitioner Wenz's claims fail to raise the issue whether the a concurrency determination based on the inclusion of the required road in the Capital Improvement Program in the first year following the impact of development satisfies Rule 9J-5.0055(2)(c). Rule 9J-5.0055(2)(0)3. requires that, in such cases, the plan's funding system be based on "currently available revenue sources," which exclude taxes such as the optional one cent sales tax. It is therefore unnecessary to determine the sufficiency of the other revenue sources outlined in CIE Policy 15.4.3.5.
Also, Petitioner Wenz did not allege that the concurrency provisions in the plan were inconsistent with provisions of Chapter 163, Part II, such as Section 163.3177(10)(h) or 163.3177(3)(a)3. Thus, it is unnecessary to consider whether these statutory Provisions impose stricter criteria upon plans than those contained in Rule 9J-0055 and, if so, whether the plan is consistent with these Stricter criteria.
APPENDIX
Treatment Accorded Proposed Findings of Petitioner Wenz 1: adopted in substance.
2: rejected as legal argument.
3: rejected as legal argument, subordinate, and unsupported by the appropriate weight of the evidence.
4: rejected as subordinate and irrelevant. 5: adopted in substance.
6-9 and 11: rejected as irrelevant.
10: first sentence rejected as subordinate. Second sentence to "LOS" and third sentence to "revenue" rejected as unsupported by the appropriate weight of the evidence. Remainder adopted.
12: rejected as unsupported by the appropriate weight of the evidence. 13: rejected as recitation of evidence.
14: rejected as repetitious.
15: rejected as not finding of fact.
16: rejected as not finding of fact and recitation of evidence. 17: rejected as recitation of evidence.
18: rejected as subordinate.
19: rejected as not finding of fact. 20: rejected as legal argument.
21 and 24-26: rejected as irrelevant. 22: rejected as legal argument.
23: rejected as subordinate.
27: rejected as not finding of fact. 28: rejected as subordinate.
29: rejected as not supported by the appropriate weight of the evidence and irrelevant.
30-33: rejected as irrelevant.
34: rejected as not finding of fact. 35: adopted in substance.
36: rejected as Subordinate.
37-38: rejected as legal argument. 39: rejected as not finding of fact.
40: first sentence rejected as irrelevant. Second sentence except for "loopholes" adopted in substance.
41: rejected as irrelevant.
42: rejected as recitation of evidence. 43-44: rejected as not finding of fact. 45-46 and 48: rejected as legal argument. 47: rejected as not finding of fact.
49: rejected as not finding of fact and not supported by the appropriate weight of the evidence.
50: rejected as not supported by the appropriate weight of the evidence. 51: rejected as repetitious. First and third unnumbered Paragraphs at
end: rejected as repetitious. Second unnumbered paragraph at end: rejected as not supported by the appropriate weight of the evidence.
Treatment Accorded Petitioners Hart's Proposed Findings
The proposed findings of Petitioners Hart, although carefully reviewed, were not ruled upon because they were not in numbered paragraphs.
Treatment Accorded DCA's Proposed Findings All adopted or adopted in substance except:
Irrelevant: 56, 58-64, 70-71, and 75-77
Subordinate: 26-27, 41-42, 46-47, and 51-52.
Treatment Accorded County's Proposed Findings
The proposed findings of the County were substantially the same as those of DCA. Thus, the same rulings apply.
COPIES FURNISHED:
Daniel D. Eckert, County Attorney
Jamie E. Seaman, Assistant County Attorney
123 West Indiana Ave. DeLand, FL 32720-4613
Henry A. Wenz
658 Whitemarsh Ave.
Deltona, FL 32725
Attorney Dan R. Warren
P.O. Box 5355
Daytona Beach, FL 32118
David J. Russ, Assistant General Counsel Department of Community Affairs
2740 Centerview Dr.
Tallahassee, FL 32399
William E. Sadowski, Secretary Department of Community Affairs 2740 Centerview Dr.
Tallahassee, FL 32399
G. Steven Pfeiffer, General Counsel Department of Community Affairs 2740 Centerview Dr.
Tallahassee, FL 32399
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 this case 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 this case.
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS
HARRY A. WENZ,
Petitioner,
vs. DOAH CASE NO
90-3586GM
VOLUSIA COUNTY, and DEPARTMENT OF COMMUNITY AFFAIRS,
Respondents.
/
HART LAND & CATTLE CO., INC.,
R. L. HART, and CLYDE D. HART,
Petitioners,
vs. DOAH CASE NO
90-3606GM
VOLUSIA COUNTY and DEPARTMENT OF COMMUNITY AFFAIRS,
Respondents.
/
FINAL ORDER
On August 2, 1991, a Hearing Officer of the Division of Administrative Hearings entered his Recommended Order in this proceeding. The Recommended Order was received by the Department of Community Affairs ("Department" hereafter) on August 9, 1991. A copy is attached to this Order as Exhibit A.
BACKGROUND
The Petitioners in these proceedings have challenged the comprehensive plan adopted by Volusia County ("County" hereafter) in accordance with the Local Government Comprehensive Planning and Land Development Regulation Act, Ch. 163, Part II, Florida Statutes ("Act" hereafter). The Department issued its Notice of Intent to find the County's plan in compliance with the Act. Petitioners filed petitions in accordance with Section 163.3184(9), Florida Statutes, alleging that the plan was not in compliance with the Act for reasons that are set out in the Recommended Order. The Department forwarded the petitions to the Division of Administrative Hearings. A Hearing Officer was assigned, and the final hearing was conducted on February 11, 12, and 13, 1991, in Deland, Volusia County, Florida.
In his Recommended Order, the Hearing Officer made detailed findings of fact and conclusions of law. He determined that the County's comprehensive plan was in compliance with the Act, and recommended that the Department enter a final order finding the plan in compliance. No exceptions to the Recommended Order have been filed by the parties. The Department has determined that the Hearing Officer's Recommended Order should be adopted.
FINDINGS OF FACT
The Findings of Fact set out in the Hearing Officer's Recommended Order are hereby adopted, and are incorporated herein by reference.
CONCLUSIONS OF LAW
The Conclusions of Law set out in the Hearing Officer's Recommended Order are hereby adopted, and are incorporated herein by reference.
ORDER
The Comprehensive Plan adopted by Volusia County is determined to be in compliance with the Local Government Comprehensive Planning and Land Development Regulation Act.
NOTICE OF RIGHTS
The parties to this proceeding are hereby advised of their right to seek judicial review of this Final Order pursuant to Section 120.68, Florida Statutes, and Florida Rules of Appellate Procedure 9.030 (1)c and 9.110. To initiate an appeal, a Notice of Appeal must be filed with the Department's Clerk of Agency Proceedings, Rhyne Building, 2740 Centerview Drive, Tallahassee, Florida, 32399-2100, and with the appropriate District Court of Appeal within 30 days of the filing of this Final Order with the Department's Clerk of Agency Proceedings. A Notice of Appeal filed with the District Court of Appeal should be accompanied by the filing fee specified in Section 35.22, Florida Statutes.
DONE and ORDERED this 6th day of September, 1991.
William E. Sadowski, Secretary Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
FILING AND ACKNOWLEDGEMENT
FILED, on this date, with the designated Department Clerk, receipt of which is hereby acknowledged.
9/9/91 Jane R. Bass, Department Clerk Date
COPIES FURNISHED:
Henry A. Wenz, pro se 658 Whitemarsh Avenue
Deltona, FL 32725
Dan R. Warren
Judge & Warren, P.A.
315 Silver Beach Avenue Daytona Beach, FL 32118
Daniel D. Eckert County Attorney Jamie E. Seamen
Assistant County Attorney
123 West Indiana Avenue Deland, FL 32720
David J. Russ
Assistant General Counsel Department of Community Affairs 2740 Centerview Drive
Tallahassee, FL 32399-2100
Robert D. Meal, Hearing Officer Division of Administrative Hearings
The DeSoto Building, 1230 Apalachee Parkway Tallahassee, FL 32399-1550
| Issue Date | Proceedings |
|---|---|
| Aug. 02, 1991 | Recommended Order sent out. CASE CLOSED. Hearing held 2/11-13/91. |
| Feb. 28, 1991 | (Petitioner) Motion for Extension of Time filed. |
| Feb. 28, 1991 | Proposed Recommended Order of Department of Community Affairs filed. |
| Feb. 27, 1991 | Proposed Administrative Order Statement of The Issues (unsigned); AndCover letter from D. Warren filed. |
| Feb. 27, 1991 | Ltr. to REM from J. Seaman filed. |
| Feb. 26, 1991 | Letter to REM from J. Seaman (Re: Three day extension for filing Proposed RO) filed. |
| Feb. 25, 1991 | Ltr. to H. Wenz from T. McClelland attaching list containing the Impact Fee Committees by zone; Proposed Recommended Order (Henry Wenz) filed. |
| Feb. 25, 1991 | Proposed Recommended Order of Respondent Volusia County filed. |
| Feb. 21, 1991 | Letter to REM from D. Warren (Re: letter from J. Seaman) filed. |
| Feb. 19, 1991 | Letter to C. Henderson from T. Pelham (Exhibit TAGGED); And Cover letter to REM from J. Seaman filed. |
| Feb. 11, 1991 | Respondent County of Volusia's Memorandum of Law in Support of MotionFor ORder im LimineAs to Petitioner Hart Land & Cattle Co. et al filed. (From Jamie Seaman) |
| Feb. 08, 1991 | Order on Prehearing Conference sent out. |
| Feb. 06, 1991 | Letter to WFQ from H. Wenz (re: 15 additional rule violation) filed. |
| Feb. 04, 1991 | Letter to WFQ from Henry Wenz (Re: overnight ltr dated January 28, 1991) filed. |
| Feb. 04, 1991 | Letter to WFQ from Jamie E. Seaman (re: Mr. Wenz's Correspondence) filed. |
| Feb. 04, 1991 | Letter to D. R. Warren & H. A. Wenz from Jamie E. Seaman (re: ltr Volusia Cty received from DCA) & attachment filed. |
| Feb. 01, 1991 | Respondent County of Volusia's Motion For Order in Limine As to Petitioner Wenz and Memorandum of Law; Respondent County of Volusia's Replyto Response to Order to Show Cause By Petitioner Henry A. Wenz and Renewed Motion in Opposi tion to Petition rec'd |
| Feb. 01, 1991 | Respondent County of Volusia's Motion For Order in Limine As to Petitioner Hank A. Wenz; Motin For Official Recgnition filed. (from Jamie E. Seaman) |
| Jan. 30, 1991 | Henry A. Wenz's Comments and Rejection of Answers Provided In VolusiaCounty's Response to Henry A. Wenz's First Set of Interrogatory filed. |
| Jan. 30, 1991 | Letter to WFQ from Heny A. Wenz (re: Omitting Technical Document) filed. |
| Dec. 12, 1990 | Volusia County's Response to Interrogatories From Henry Wenz filed. |
| Dec. 06, 1990 | (Petitioners) Motion for Extension of Time to Answer Respondent's Second Set of Interrogatories filed. (From D. R. Warren) |
| Nov. 13, 1990 | Notice of Service of Interrogatories by Respondent County of Volusia to Petitioners Hart Land & Cattle Co., R. L. Hart, and Clyde E. Hart filed. (From Jamie E. Seaman) |
| Oct. 12, 1990 | A Joint Stipulation For Extension of Time to Answer Interrogatories filed. (From Jamie E. Seaman & Henry A. Wenz) |
| Aug. 27, 1990 | Response to Order to Show Cause filed. (From Henry A. Wenz) |
| Aug. 14, 1990 | Order to Show Cause sent out. |
| Jul. 02, 1990 | Letter to WFQ from H. Wenz (request for severance) filed. |
| Jun. 28, 1990 | (Respondent) Answer and Affirmation Defense filed. (From Daniel D. Eckert & Jamie E. Seaman) |
| Jun. 28, 1990 | (Respondent) Motion In Opposition to Petition and Supporting Memorandum of Law filed. (from Daniel D. Eckert & Jamie E. Seaman) |
| Jun. 25, 1990 | Letter to DRA from Suzanne D. Lanier (re: Initial Order) filed. |
| Jun. 21, 1990 | Order of Consolidation sent out. Consolidated cases are: 90-3582GM, 90-3583GM, 90-3584GM, 90-3585GM, 90-3586GM & 90-3606GM. |
| Jun. 12, 1990 | PPF's sent out. |
| Jun. 08, 1990 | Referral Letter; Petition; A Preamble to Future Taxation filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 06, 1991 | Agency Final Order | |
| Aug. 02, 1991 | Recommended Order | Plan consisitent with all requirements including financial feasibility. |
