STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
THE SIERRA CLUB, )
)
Petitioner, )
)
vs. )
)
ST. JOHNS COUNTY and DEPARTMENT ) Case No. 01-1851GM OF COMMUNITY AFFAIRS, )
)
Respondents, )
)
and )
) SONOC COMPANY, LLC, and THE ) PARC GROUP, INC., )
)
Intervenors. )
_______________________________) ELLEN A. WHITMER, )
)
Petitioner, )
)
vs. )
)
ST. JOHNS COUNTY and DEPARTMENT) Case No. 01-1852GM OF COMMUNITY AFFAIRS, )
)
Respondents, )
)
and )
) SONOC COMPANY, LLC, and THE ) PARC GROUP, INC., )
)
Intervenors. )
_______________________________)
RECOMMENDED ORDER
Notice was given and on November 13 through 16,
November 19 through 21, and December 12, 2001, a final hearing
was held in this case. Pursuant to the authority set forth in Sections 120.569, 120.57(1), and 163.3184(9)(b), Florida Statutes, the hearing was conducted by Charles A. Stampelos, Administrative Law Judge, in St. Johns County, Florida.
APPEARANCES
For Petitioner The Sierra Club:
Peter B. Belmont, Esquire
102 Fareham Place
St. Petersburg, Florida 33701
Deborah J. Andrews, Esquire
11 North Roscoe Boulevard
Ponte Vedra Beach, Florida 32082 For Petitioner Ellen A. Whitmer:
Ellen A. Whitmer, pro se
1178 Natures Hammock Road, South Fruit Cove, Florida 32259-2879
For Respondent Department of Community Affairs:
Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
For Respondent St. Johns County:
Daniel J. Bosanko, Esquire
St. Johns County Attorney's Office 4020 Lewis Speedway
St. Augustine, Florida 32085
LLC:
For Intervenors The PARC Group, Inc., and SONOC Company,
John A. DeVault, III, Esquire Robert A. Farnell, II, Esquire Jane A. Lester, Esquire
Bedell, Dittmar, DeVault, Pillans & Coxe The Bedell Building
101 East Adams Street Jacksonville, Florida 32202
Marcia P. Tjoflat, Esquire
M. Lynn Pappas, Esquire Thomas O. Ingram, Esquire
Pappas Metcalf Jenks & Miller, P.A.
200 West Forsyth Street Suite 1400
Jacksonville, Florida 32202-4327 STATEMENT OF THE ISSUE
Whether the Plan Amendments to the St. Johns County
Comprehensive Plan, adopted by Ordinance Number 2001-18, are "in compliance" as defined in Chapter 163, Part II, Florida Statutes, or are not "in compliance" as alleged in the petitions of The Sierra Club (Sierra) and Ellen A. Whitmer (Whitmer).
PRELIMINARY STATEMENT
On February 23, 2001, St. Johns County (County) amended its Comprehensive Plan (Plan) by the adoption of Ordinance Number 2001-18 (Plan Amendments). This Ordinance contains four changes to the Plan.
On April 18, 2001, the Department of Community Affairs (Department) caused to be published in the St. Augustine Record its Notice of Intent to find the Plan Amendments "in
compliance" pursuant to Sections 163.3184, 163.3187, and 163.3189, Florida Statutes.
On May 9, 2001, Whitmer filed an Amended Petition with the Department, having previously been granted leave to amend.
On May 8, 2001, Sierra filed its Petition for Hearing. On May 7, 2001, the Florida Wildlife Federation (Federation) also filed a Petition. Each Petitioner sought to contest the Department's Notice of Intent and its initial determination that the Plan Amendments are "in compliance." The Department referred these Petitions to the Division of Administrative Hearings (Division) for the assignment of an administrative law judge. The Petitions were given independent case numbers and consolidated for further proceedings.
On or about May 25, 2001, The PARC Group, Inc., and SONOC Company, LLC (Intervenors) filed a Petition to Intervene and requested and were granted the right to intervene in this consolidated case in support of the Department and the County.
On or about June 7, 2001, Intervenors filed a Motion to Dismiss Sierra's Petition based upon an alleged lack of standing. The County also filed a Motion to Dismiss. Sierra filed Responses. The Department opposed the Motions to Dismiss. The Motions to Dismiss were denied without prejudice. Pursuant to the parties' Prehearing Stipulation and Sierra's Addendum, Sierra's standing remains at issue.
Approximately two months before the final administrative hearing in this case, the Federation filed a Demand for Informal Mediation pursuant to Section 163.3189(3)(a), Florida Statutes. By Order entered October 2, 2001, the parties were directed to continue discovery and preparation for the established November 2001, hearing dates independently of informal mediation. On November 9, 2001, the Federation filed a Notice of Dismissal with Prejudice. The Division's file involving the Federation (DOAH Case No. 01-1798GM) was closed, and the consolidated case involving Whitmer and Sierra proceeded to final hearing.
On November 13, 2001, the parties filed a Prehearing Stipulation. On November 16, 2001, Sierra filed its Addendum.
On November 9, 2001, Sierra filed its first Motion in Limine, seeking to prohibit consideration of any evidence or argument regarding estimates of development allocated under each land use category other than "maximum potential density or intensity." After hearing argument, ruling was deferred until this Recommended Order. This Motion is denied.
On November 9, 2001, Sierra filed its second Motion in Limine, seeking to exclude portions of expected testimony of the Department's witness, Robert Alan Pennock, on several issues. This Motion was denied.
On November 13, 2001, Sierra filed its third Motion in Limine, seeking to prohibit any argument, opinion, or evidence regarding any data not available and existing on February 23, 2001, the date when the County approved the Plan Amendments.
Ruling on this Motion was deferred until this Recommended Order. This Motion is granted and no data available after February 23, 2001, has been considered in this Recommended Order.
On November 20, 2001, Sierra filed its fourth Motion in Limine, seeking to prohibit the testimony of Intervenors' witness, Dr. Anthony Downs. This Motion was denied. However, Sierra was offered the opportunity to depose Dr. Downs during a recess in the final hearing. No deposition transcript was submitted into the record.
A final hearing in the remaining cases was held on November 13 through 16, November 19 through 21, and December 12, 2001. Also, pursuant to Section 120.57(1)(b), Florida Statutes, public comment was scheduled and received during the final hearing on November 15, 2001, and a one- volume transcript of the comments was filed as part of the
final hearing transcript. Written public comments (Exhibits 1 and 2) are also part of this record and have been considered.
Sierra called Scott Clem; Teresa Bishop; John O'Rourke; Kevin D. Feldt, A.I.C.P.; Ron Boddicker; Charles Gauthier,
A.I.C.P.; David Toner; Richard McCann; Joseph Vonasek; Thomas Scott Hoctor, M.A. (Ph.D. candidate); James E. O'
Toole; Dan Donaldson, M.P.A.; and Stanley MacPherson Reigger, M.C.P., as witnesses at the hearing. Sierra's Exhibits 2, 4, 6-13, 18-23, 27, 32-35, 39-40, 42-47, 49, 51, 58, 61, 63, 67,
and 69-70 were admitted into evidence.
Whitmer called Marie Seifert, H. Jay Skelton, and
Daniel Webster MacDonald, III, as witnesses. Whitmer Exhibits 2, 6, 9-11, 13, 16-20, 43 (first two pages only), and 44 were admitted into evidence.
Intervenors called H. Jay Skelton; Donald V. Fullerton, A.S.L.A.; Douglas R. Porter; Anthony Downs, Ph.D.; Henry H. Fishkind, Ph.D.; Isaac Rhodes Robinson, Jr., C.E.P.; James M. Robinson, P.E.; and James A. Sellen, M.S.P., as witnesses at the hearing. Intervernors' Exhibits 1-2, 4, 8-11, 14, 29-36, and 40-41 were admitted into evidence.
The County called Jan Brewer as its only witness.
The Department called James D. Stansbury and Robert Alan Pennock as its witnesses. The Department's Exhibits 1 and 2 were admitted into evidence.
Joint Exhibits 1-14 were admitted into evidence. A large March 2000 aerial photograph of northern St. Johns and southern Duval Counties, including the amendment site here in dispute and surrounding lands, was not listed in the Pre-
Hearing Stipulation as an exhibit, but was admitted with the consent of all parties as Joint Exhibit 15.
In addition, Intervenors' Request for Judicial Notice filed November 5, 2001, was granted. Intervenors filed a Second Request for Judicial Notice on November 7, 2001, which has been granted. The documents referenced in the Notices are also a part of this record.
The Transcript (Volumes I-XII) of the final hearing was filed February 4, 2002. (Volume XIII of the Transcript covers the public hearing portion of the proceeding.) All proposed recommended orders and supporting memoranda of law were filed on March 4, 2002, and have been considered during the preparation of this Recommended Order.
FINDINGS OF FACT
The Parties
The Sierra Club. Sierra alleged in its Petition that it "does business in St. Johns County and has a substantial number of members who reside in and own property in St. Johns County."
Sierra is registered as a California corporation and maintains offices in St. Petersburg and West Palm Beach, Florida. The National Organization of Sierra publishes Sierra Magazine, which members receive in the County. Sierra's basic mission is to provide an opportunity for its members to
explore, enjoy, and protect the outdoors and natural systems, including those which exist in the County.
The Florida Chapter of The Sierra Club (Florida Chapter) is subdivided into 10-12 "groups," including the approximately 1,400-member Northeast Florida Group, serving Duval, St. Johns, and Clay Counties, with approximately 325 members living in St. Johns County. There are approximately 24,000 Sierra members in the State of Florida.
Sierra holds monthly meetings in the County.
Speakers discuss various educational subjects with members attending the monthly meetings. Sierra members hike in the County, and canoe and kayak on, for example, the Tolomato and Guana Rivers. These activities can be expected to be enhanced if the Plan Amendments are approved and the approximately 1,630-acre preserve area dedicated as planned.
Sierra has held fundraisers in the County for the benefit of the three-county Northeast Group. The Northeast Florida Group sends out monthly newsletters, published in and mailed from Duval County, and publishes the Sierra Sentry: Standing Watch on Northeast Florida.
Sierra does not maintain a business address or bank account in the County; nor does Sierra own or lease real property, offices or buildings in the County.
The Plan Amendments are not reasonably expected to constrain, inhibit, or prevent activities of Sierra's members, including their educational and permitting activities, although a Sierra member testified that the Plan Amendments would potentially "be adverse to [Sierra's] mission in terms of experiencing outdoors and the wildlife associated with the outdoors "
Sierra submitted timely oral and written comments to the St. Johns County Commission between the time the County transmitted the Plan Amendment for review and the time the County adopted the Plan Amendment. Sierra made a presentation at the public hearing related to the Plan Amendments.
Ellen A. Whitmer. Whitmer resides and owns property within the County and submitted timely oral and written comments to the County regarding the Plan Amendments. The parties agreed Whitmer has standing.
Intervenors. SONOC owns the property which is the subject of the future land use map (FLUM) Plan Amendment being challenged in these proceedings. SONOC submitted oral and/or written comments to the County regarding the Plan Amendments.
SONOC has expended approximately $3.5 million in the approval process. The PARC Group is the agent of SONOC, and is the applicant/developer of the Nocatee development, which is the subject of the Plan Amendments. The PARC Group submitted oral
and/or written comments to the County regarding the Plan Amendments.
St. Johns County. The County is a political subdivision of the State of Florida. Pursuant to Section 163.3191, Florida Statutes, the County prepared an evaluation and appraisal of the Plan and an Evaluation and Appraisal Report (the "EAR") in January 1998. The EAR process allows local government to periodically assess the success or failure of their comprehensive plan. The EAR is subjected to a sufficiency review by the Department.
In May 2000, the County adopted the EAR-Based Comprehensive Plan Amendment (EAR-Based Plan Amendment), with supporting data and analysis, which the Department found to be "in compliance." This included the data and analysis for the future land use element (FLUE), which was adopted as part of the Plan. (Joint Exhibit 7-A). This is part of the data and analysis used to support the Plan Amendments at issue in this proceeding. The Department's "in compliance" review became final agency action without challenge.
St. Johns County is located in the northeast portion of the State of Florida, south of Duval County and Jacksonville. The St. Johns River separates the County from Clay and Putnam Counties to the west. Flagler County borders the County to the south.
There are three (3) incorporated municipalities located within the County, i.e., St. Augustine, St. Augustine Beach, and the Town of Hastings. The County comprises approximately 423,580 acres. St. Augustine is the largest municipality in the County.
Agriculture and silviculture are the leading industries in the County. The County has a large portion of silviculture lands and there are more than 2.5 million acres in Northeast Florida. The intensive agriculture areas of the County are located in the southern part of the County. The Plan Amendments will not adversely affect the economic viability of agriculture or silviculture in the County.
A barrier island runs the length of the County, from the Flagler County line to Duval County. Interstate 95 runs north and south through the County and is west of St. Augustine. U.S. Highway 1 also runs north and south and east of Interstate 95 and runs parallel to Interstate 95.
The Tolomato and Matanzas Rivers form the majority of the Intercoastal Waterway on the eastern portion of the County and separate the barrier island from the mainland portion of the County.
The Guana River State Park and Guana River State Wildlife Management Area form a significant part of the barrier island adjacent to the Tolomato River.
The Department. As the state land planning agency, the Department reviewed the Plan Amendments and timely filed a Notice of Intent to find the Plan Amendments "in compliance."
The Challenges
While Petitioners cite to numerous statutory and rule provisions in their petitions, the principle allegations, that the Plan Amendments are not "in compliance," may be placed into three general categories: "need" and urban sprawl; natural resource protection; and economic feasibility.
Under each of these general subject headings, Petitioners raise allegations that the Plan Amendments are inconsistent with Rule 9J-5, Florida Administrative Code, and Chapters 163 and 187, Florida Statutes, and that they are internally inconsistent with the St. Johns County Comprehensive Plan.
The Nocatee Plan Amendments
On February 23, 2001, the County amended its Comprehensive Plan by Ordinance No. 2001-18. The Ordinance contains four changes to the Plan. First, the Ordinance creates a new FLUE category known as "New Town Development" (Text Amendment). Second, the Ordinance changes the FLUM designation of approximately 11,332 acres of land from Rural/Silviculture to New Town (Map Amendment). Third, the Ordinance changes the FLUM designation for approximately 1,630 acres of land from Rural/Silviculture to Conservation
(Preserve Amendment). (Petitioners are not challenging the designation of the Nocatee Preserve as "Conservation.") Fourth, the Ordinance adds text (Policy H.1.6.6) to the Plan authorizing the Nocatee DRI "to utilize the standards and guidelines set forth in [Section 163.3180(12), Florida Statutes] to satisfy the County's transportation concurrency requirements by payment of a proportionate share contribution is [sic] as stated in the Nocatee [DRI] Order, Special Condition 25, entitled Transportation Resource Impacts." (This latter provision allows the use of "pipelining" and is referred to herein as the Transportation Amendment.)
These Plan Amendments are related to a proposed development known as "Nocatee." The New Town category was crafted to provide criteria and guidelines for large projects such as Nocatee. The acreage designated New Town by the Map Amendment is the proposed site of the Nocatee development. The acreage designated Conservation by the Preserve Amendment is for the purpose of establishing the "Nocatee Preserve." The Nocatee development will utilize the Transportation Amendment to address anticipated development impacts on the roadway system. These amendments and the Nocatee development are discussed in more detail below.
Ordinance No. 2001-18 provides that "[t]he data and analysis supporting [these Plan Amendments] includes, but is
not limited to, the Nocatee Application for Development Approval, Sufficiency Responses, and Nocatee Development of Regional Impact Development Order adopted concurrently with this Ordinance, application materials submitted by the Applicant and reports generated by the County Growth Management Department."
Pursuant to Section 380.06, Florida Statutes, and Rule 9J-2, Florida Administrative Code, projects which must undergo Development of Regional Impact (DRI) review are subject to a multi-agency, multi-issue review of the proposed development's impacts and a process for mitigating those impacts.
A DRI is a development order issued by a local government. It pertains to approval for a specific type of development for a particular site. A comprehensive plan is a different type of document, which considers long-term planning for an entire jurisdiction, taking into account the cumulative effect of many developments, including consideration of projected supply and demand in the future.
DRIs are subject to the requirements of Chapter 380, Florida Statutes. One of the requirements for a DRI is that it be consistent with the requirements of the local government's comprehensive plan, a determination that is separate from that undertaken here. On the other hand,
comprehensive plans and amendments, as here, must comply with Section 163.3184(1)(b), Florida Statutes, which defines "in compliance" as being consistent with Sections 163.3177, 163.3178, and 163.3191, Florida Statutes, the state comprehensive plan, regional policy plan, and Chapter 9J-5, Florida Administrative Code. A plan amendment does not have to be consistent with Chapter 380, Florida Statutes, to be "in compliance."
A DRI development order does not guarantee that the site will be developed or developed as approved. For example, the development order may be amended through the substantial deviation process, or a development order may expire.
Applications for DRI approval are prepared and submitted to the appropriate regional planning council by the developer. These applications are submitted in response to a set of criteria that differ from those applicable to a plan or plan amendment. Some of the information provided by a developer in support of a DRI request may be relevant to the review of a plan amendment, as here. However, a DRI development order, in general, and the Nocatee DRI Development Order specifically, are not subject to an "in compliance" review in this administrative proceeding conducted pursuant to Section 163.3184(1)(b), Florida Statutes.
At the conclusion of the DRI process, if project approval is attained, the local government issues a development order. Section 380.06(15), Florida Statutes. The development order must include, among numerous other information, a detailed listing of each land use by acreage and magnitude. Rule 9J-2.025(3)(b)(5), Florida Administrative Code. This land use information from the DRI development order is incorporated into the County Plan for any approved New Town. See Finding of Fact 33.
In this case, the Nocatee DRI Application for Development Approval (ADA) was reviewed by the Northeast Florida Regional Planning Council as required by Section 380.06, Florida Statutes, (and by other agencies), and the Council recommended that the ADA be approved, with conditions.
It was stipulated that "[i]n considering comprehensive plan amendments, there is no requirement that favorable consideration be provided to a proposed amendment solely because it is a DRI." See generally Section 163.3187, Florida Statutes.
The Nocatee DRI "is a proposed mixed use development on approximately 13,323 acres, of which approximately 11,332 acres are located in northeastern St. Johns County . . . and approximately 1,991 acres are located in southeastern Jacksonville, Florida."
On February 22 and 23, 2001, concurrent with its consideration of the Plan Amendments, the St. Johns County Board of County Commissioners considered the merits of the Nocatee DRI ADA and approved same through Resolution No. 2001- 30.
Accordingly, while Ordinance No. 2001-18, adopting the Plan Amendments, expressly relies on, in part, the data and analysis in the Nocatee DRI ADA and related documents, including the Nocatee DRI Development Order, and Policy
A.1.19.15 expressly refers to the Nocatee DRI and incorporates the "allowable uses and mix of uses within the Nocatee" DRI,1 the Nocatee DRI is not subject to "in compliance" review in this administrative proceeding. See 1000 Friends of Florida and Robert Jenks v. City of Daytona Beach and Department of Community Affairs, et al., 16 F.A.L.R. 2428 (DCA June 16, 1994). See also Pinecrest Lakes, Inc. v. Shidel, 795 So. 2d
191 (Fla. 4th DCA 2001)(discussing the scope of Section 163.3215, Florida Statutes).
The Text Amendment
The Text Amendment adds Objective A.1.19, "New Town Development," to the Plan, which is a new future land use category. The purpose of this new land use category is described as follows:
The New Town Future Land Use category shall guide development into a series of clearly
identified and distinct villages that together form a larger New Town. Within the New Town there is a clear hierarchy of development types utilizing neighborhoods as the basic development unit. Several neighborhoods and one or two village centers combine to form a village, and several villages form a New Town. A central village functions as the Town Center Village, and includes the main employment[,] shopping, and cultural activities for the New Town. Villages shall have central focal points of higher densities and intensities that create an identity and a sense of place. The planned mix of uses of New Towns shall help to provide a positive fiscal impact for the County. New Towns shall offer a wide range of housing choices, including affordable housing.
The New Town Future Land Use category may be requested for any Development of Regional Impact that meets the policies set forth herein. The Board of County Commissioners may approve or deny any New Town on a project-by-project basis, after the New Town review.
The Text Amendment is proposed to be included in the County's Plan as FLUE Objective A.1.19 – which is quoted in full immediately above – and fifteen (15) implementing policies (Policies A.1.19.1 through A.1.19.15). Unlike many of the other land use categories in the Plan, which are defined only by the statutorily-required minimum list of allowable uses and standards, the New Town land use category contains detail on a wide spectrum of issues ranging from fiscal impact analysis, affordable housing, to the
"[i]nterconnectivity of pedestrian and vehicular routes through the [New] Town to encourage multi-modal circulation."
The detail contained in the Text Amendment is necessary to ensure that a specific form of development occurs on land bearing the New Town future land use designation. The land use pattern of this category is a tool to combat urban sprawl, as further explained below, and was crafted with guidance from the following Rule definition.
"New town" means a new urban activity center and community designated on the future land use map and located within a rural area or at the rural-urban fringe, clearly functionally distinct from existing urban areas and other new towns. A new town shall be of sufficient size, population and land use composition to support a variety of economic and social activities consistent with an urban designation. New towns shall include basic economic activities; all major land use categories, with the possible exception of agricultural and industrial; and a centrally provided full range of public facilities and services. A new town shall be based on a master development plan, and shall be bordered by land use designations which provide a clear distinction between the new town and surrounding land uses.
Rule 9J-5.003(80), Florida Administrative Code.
The New Town category in the Text Amendment is consistent with and furthers the concept embodied in this definition, i.e., the creation of an efficient urban level of mixed-use development in a rural area. The Text Amendment sets 2,500 acres as the minimum size for any parcel to be
eligible for designation as a New Town. The Text Amendment then establishes general land use standards applicable to the overall New Town parcel, which are embellished by more specific controls for the different components of the New Town.
"At least 35% of lands within a New Town development shall be reserved for Open Space/Conservation and shall preserve a connected system of environmentally sensitive and passive recreation areas that will form a greenway system," and shall be provided for public uses. "The greenway system will serve the additional goal of surrounding and defining villages and the Town Center Village." ("Greenways, wetlands, and similar natural areas are open space/conservation. Open space/conservation does not include parks, golf courses, and other designated recreational lands.")
At least 40 percent of the net developable acreage of a New Town must be residential units and, of the total residential units, at least 20 percent must be multi-family, and at least 50 percent must be residential single-family. Workplace land uses, i.e., retail, service, office, and industrial, must comprise at least five percent of the net developable acreage.
This proportion of mix of uses is further refined in Policy A.1.19.9, where square footage requirements for each of
the non-residential land uses are linked to the number of approved dwelling units, e.g., a minimum of 50 square feet of retail space for each dwelling unit and 30 square feet of civic space per dwelling unit in a Town Center Village and five square feet per dwelling unit for each Village. Other "specific use standards" are provided. New Towns are also required to provide land for libraries, fire stations, local government annexes, school sites and similar public uses and shall provide minimum park acreage equivalent to Comprehensive Plan LOS [level of service] requirements.
In addition to this overall guidance, the Text Amendment directs a specific community form by assembling the several mixed uses into components which together will form the New Town. The "neighborhood" is designed to be the "basic development unit" within the New Town. Neighborhoods are to be compact residential areas with a mix of housing types.
"Several neighborhoods and one or two village centers combine to form a village, and several villages form a New Town." Village Centers are areas designed to provide civic, service, limited retail, and elementary school uses for the surrounding neighborhoods.
"A village shall contain distinct neighborhoods that will each have a central neighborhood park, which shall be
called the neighborhood commons." At least 10 percent of each village must be retained in open space/conservation areas.
While residential uses (at least 10 percent of net developable acreage) are also allowed in village centers, at least 45 percent of net developable acreage of the uses must be non-residential. Villages composed of these centers and neighborhoods are to be surrounded by greenways, golf courses, and natural features, and linked to the remainder of the New Town through interconnected roads and a pedestrian/bikeway system.
Also, within villages, low density residential must have an overall net residential density between 1-2 units per acre. Medium density residential development must have an overall net density between 2-6 units per acre. Traditional neighborhoods must have an overall net density of 4-6 units per acre.
In addition to the villages, each New Town is to contain a "Town Center Village," which "is intended to serve as the cultural, shopping, employment and civic center for the New Town, and shall include office uses, light industrial areas, and higher density residential uses surrounding a
mixed-use core." In addition to some single-family residential and retail, the Town Center Village must contain at least 30 percent multi-family residential (percentage of
units) and 45 percent (percentage of square feet) office use in order that "[t]he mixed-core shall have the characteristics of a downtown."
The most intense of these uses are to be concentrated in the "Town Center Village Mixed-Use Core," which is to be the "pedestrian-oriented 'Main Street' area of retail, service, office, residential, and civic uses."
Both the Town Center Village and its Mixed-Use Core are governed by specific design standards addressing matters such as sidewalks, signs, porches, and on-street parking.
Overall, the Objective and Policies contained in the New Town land use category provide meaningful and predictable detail.2 The specific Policies describe the types and uses and how these uses will relate to one another, the mix of uses, transportation issues, interconnectivity, design, and urban features of New Towns.
The Map Amendment
In the same Ordinance in which the Text Amendment was adopted, the County adopted a Map Amendment changing the FLUM designation of approximately 11,332 acres from Rural/Silviculture to New Town. The Map Amendment was adopted to allow development of a project known as "Nocatee." As required by the Text Amendment, Nocatee has been designated as a New Town on the FLUM, and has been reviewed and approved as
a DRI. The "allowable uses and mix of uses" within the Nocatee DRI Development Order have been incorporated into the County Plan Amendments.
The Nocatee project includes approximately 11,332 New Town acres in St. Johns County. ("The Nocatee site consists of approximately 15,000 acres, with approximately 2200 acres in Jacksonville and the remainder in St. Johns County. The site is generally bounded on the west by [U.S.] 1, on the east by the Intercoastal Waterway, on the south by Pine Island Road, and extends north of CR 210 approximately
1.5 miles.") However, the portion of Nocatee in the southern portion of Duval County (Jacksonville) is not subject to the instant challenges.
The land uses adopted in the Nocatee DRI Development Order and incorporated into the St. Johns County Plan are as follows: 2,872,000 square feet, 336 acres of office uses; 968,000 square feet, 150 acres and 3,900 parking spaces for retail commercial uses; 250,000 square feet, 29 acres and 500 parking spaces for light industrial uses; 12,579 total dwelling units, comprising 8,811 single family units, 3,228 multi-family units (including single-family attached units), and 540 assisted living units; 54 golf course holes, 485 hotel rooms, 5,531 acres of recreation/open space (including, but not limited to, parks, the Greenway, and golf courses),
churches, schools, and civic uses. The uses described above are to be developed in five phases, each anticipated to last five years, with various combinations of uses allowed in each phase. Individual phases may be extended pursuant to Section 380.06(19), Florida Statutes, or accelerated provided that all mitigation requirements have been satisfied for the particular phase to be accelerated.
The Nocatee DRI includes a Town Center Village, a secondary town center, seven other villages, and up to two village centers in each village. Village centers may include limited intensity office and retail commercial uses and an elementary school. However, "[t]he specific location of all land uses will be determined through the [Planned Unit Development] PUD approval process."
The Nocatee DRI Development Order contains a "conversion table" which authorizes the conversion, at a defined rate, of one type of land use to another, but prohibits the conversion of non-residential land uses to residential uses during the first two phases of development. The conversion tables cannot be used to convert the Nocatee DRI land uses below those established in the New Town land use category.
The Preserve Amendment
Along with the Text and Map Amendments, the County adopted the Preserve Amendment, which re-designated approximately 1,630 acres of land from Rural/Silviculture to Conservation for purposes of establishing the "Nocatee Preserve."
The Nocatee Preserve is an area of over 2500 acres including close to 1800 acres of land above the mean high water line. This strategic location with over 3 miles of frontage on the Tolomato River complements the Guana State Park and the Guana Wildlife Management area directly east of the river. The Nocatee Preserve will expand preserved environmental lands to both sides of the Tolomato River. This expansion of environmental lands will provide additional protection for the northern Tolomato River Basin and will provide passive recreation opportunities for both the Nocatee community and the entire region.
Additionally, the Preserve will serve as a buffer between the Tolomato River and future development within Nocatee–a buffer that is between 1 and 1 1/2 mile wide. The Preserve includes the most ecologically significant (and economically valuable) part of the [Nocatee] property.
Transportation Amendment
The last change to the County Plan (Policy H.1.6.6) here at issue, the Transportation Amendment, provides:
The Nocatee Development of Regional Impact, a multi-use development meeting the criteria of Chapter 163.3180(12), Florida Statutes, is authorized by the County to utilize the standards and guidelines set forth in the Statute to satisfy the
County's transportation concurrency requirements by payments of a proportionate share contribution is [sic] as stated in the Nocatee Development of Regional Impact Development Order, Special Condition 25, entitled Transportation Resource Impacts.
Pursuant to operation of the Transportation Amendment, Nocatee "will contribute up to $99,741,366 in cash payments and funded transportation improvements to offset the impacts of the Nocatee development upon the regional transportation system "
Agency Review and Notice
The Department is the state land planning agency and has the authority to administer and enforce the Local Government Planning and Land Development Regulation Act (Act), Chapter 163, Part II, Florida Statutes. Among the responsibilities of the Department under the Act is the duty to review plan amendments and determine if the plan amendments are in compliance with the Act.
On or about June 1, 2000, the Department received the County's proposed Plan Amendments, and copies were distributed to various state, regional, and local agencies for their review and comments. On August 10, 2000, the Department submitted its Objections, Recommendations and Comments (ORC) Report issued pursuant to Rule 9J-11.010, Florida Administrative Code. Comments from the Department of
Environmental Protection and the St. Johns River Water Management District were attached to the ORC.
On or about January 22, 2001, the Applicant, The PARC Group, submitted its response to the Department's ORC.
On February 22 and 23, 2001, the St. Johns County Board of County Commissioners held noticed hearings on the Nocatee DRI and related Comprehensive Plan Amendments and enacted Ordinance No. 2001-18 (Comprehensive Plan Amendment
01-01D), adopting changes to the Comprehensive Plan and Future Land Use Map, and also enacted Ordinance No. 2001-30, approving the Nocatee DRI.
On March 5, 2001, the County furnished the Department with a submission package including documents relating to the Plan Amendments.
On April 18, 2001, the Department caused to be published its Notice of Intent to find the Text Amendment, Map Amendment, Preserve Amendment, and Transportation Amendment "in compliance" pursuant to Sections 163.3184, 163.3187, and 163.3189, Florida Statutes.
Need and Urban Sprawl
The nomenclature "New Town," adopted as the title of the Text Amendment, is a reference to a form of land use described in Rule 9J-5, Florida Administrative Code. By definition, a "New Town" means, in part, "a new urban activity
center and community designated on the future land use map and located within a rural area or at the rural-urban fringe, clearly functionally distinct or geographically separated from existing urban areas and other new towns." In addition, a "New Town" will necessarily contain a full range of uses in order to support a variety of economic and social activities "consistent with an urban area designation." See Rule 9J- 5.003(80), Florida Administrative Code.
The new town land use generally described in Rule
9J-5.003(80), is a category expressly designed to combat urban sprawl. Rule 9J-5.006(5)(l), Florida Administrative Code, recognizes new towns as one of the "innovative and flexible" manners in which comprehensive plans may discourage the proliferation of urban sprawl.
The weight of the evidence demonstrated that the New Town development form contained in the Text Amendment will discourage urban sprawl. For example, Dr. Downs and Mr. Porter, both of whom are national growth management experts with decades of experience, testified that new towns in general, and specifically, the Text Amendment adopted by the County, serve to discourage urban sprawl. Mr. Pennock, the primary author of the urban sprawl rule, which is now a part of Rule 9J-5, Florida Administrative Code, testified that the
types and mix of uses in the Text Amendment are appropriate for a new town and will serve to discourage urban sprawl.
The designated Nocatee New Town is located on the St. Johns County/Duval County line in the Northeast Planning District, and lies east of U.S. Highway 1, and straddles County Road 210. The Nocatee New Town lies in the rural/urban fringe, within the fastest growing sector of the County, in the regional growth corridor emanating from southeast Duval County and Ponte Vedra.
This is an advantageous location because it is close enough to the main employment center in the area (Jacksonville), to afford residents employment opportunities.
Additionally, the Nocatee New Town is a master-planned community, unlike piecemeal fragmented development which has occurred in other parts of the County.
Consistent with the Text and Map Amendments, the Nocatee New Town is planned to include preserved natural areas and greenways and villages. Each village is expected to consist of neighborhoods and a village center, which will include elementary schools, civic and retail uses, and higher density housing.
The Nocatee New Town serves as a cultural center, providing for a mix of higher density residential, retail, restaurant, hotel, office, and light industrial, schools,
churches, a fire station, a library, a county annex, a police complex, parks and public spaces, and as athletic complex.
The Nocatee New Town is geographically separated from existing areas by U.S. Highway 1 and preserved greenways, and is a functionally distinct land use. The Nocatee New Town is functionally similar in size and land use composition to other successful new towns, and includes basic economic activities in all major land use categories.
Further, the Nocatee New Town is innovative planning, especially for a rapidly urbanizing county like St. Johns. In addition, it provides for flexibility in land use mixes by designating minimum land use percentages, but not requiring fixed percentages. This flexibility is desirable to allow for market adaptation over the 25-year build-out period.
The expert testimony at the final hearing was persuasive that the location chosen for the Map Amendment is appropriate for a New Town in the County. Just a short distance to the north of the Map Amendment is Jacksonville, which was accurately described as "the major economic engine for the northeast Florida area . . . ." The past two decades of economic success for Jacksonville have resulted in growth along a corridor to the southeast, i.e., directly toward the site of the Map Amendment and the proposed Nocatee New Town. From 1991 to 1996, approximately 42 percent of the growth in
St. Johns County occurred in the area around the proposed Nocatee New Town. The Nocatee New Town can be expected to improve the current, incremental and piecemeal development patterns of the County.
Unfortunately, the emerging development pattern in the northeast area of the County exhibits indicators of sprawl. Currently, growth is not occurring in the most compact fashion. Sprawl is often viewed as a single-use or low- density residential setting. Here, the New Town concept offers a mixture of uses and the Plan Amendments, in particular, require an overall residential density range of three to eight units per net developable residential acre, whereas most of the residential areas of the County appear to have two residential unit per acre, and the proposed density for Nocatee is higher than the existing average in the northeast portion of the County. If Nocatee is developed according to its approved plan, it will be a New Town and will be a useful tool to fight this undesirable land use pattern of current development and is an anti-urban sprawl alternative to the existing sprawl development in the County.
Petitioners maintain that the Text Amendment will
allow, and the Map Amendment will promote, urban sprawl for essentially two reasons; first, there is no "need" for a new land use approval; second, there are insufficient guarantees
that Nocatee or any future approval will actually develop as a New Town.
The "need" question is founded in Section 163.3177(6)(a), Florida Statutes, which requires that "[t]he future land use plan shall be based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth [and] the projected population of the area . . . ." This requirement is repeated in the statute's implementing rule, i.e., Rule 9J-5.005(2)(e), Florida Administrative Code ("The comprehensive plan shall be based on resident and seasonal population estimates and projections.") Finally, the "need" issue is one of the primary factors to be considered in any urban sprawl analysis.
See Rule 9J-5.006(5)(g)1, Florida Administrative Code (urban sprawl may be present where a plan designates for development "uses in excess of demonstrated need").
The calculation of how much land is needed to accommodate the projected population involves comparing what is available for development under the comprehensive plan with the projected population over the same planning time frame applicable to the plan. An "allocation ratio" to express this need can be derived by dividing the development potential by the projected population. For example, if a comprehensive plan allocated 100 residential dwelling units over the
planning time frame and the jurisdiction's population was projected to increase by 100 over the same time, there would be an allocation ratio of 1:1. This ratio would express an exact match between supply and demand. A ratio of 2:1, on the other hand, would demonstrate that the jurisdiction had twice as much land as designated for use as the projected population is expected to need.
There is no allocation ratio adopted by statute or rule by which all comprehensive plans are judged. The testimony in this case from the planning experts is that there is no accepted "hard and fast" allocation ratio at which a local government would be required to deny all future plan amendments. (There is testimony from Department planners that there is a recommended guideline, which set a ratio of 1.25:1 of supply over demand. This ratio has not been adopted as a rule nor has it been proven to be an accepted ratio to be applied in this case.) Rather, the allocation ratio is a planning guideline to be used for two purposes: first, ensuring a local government has enough land to accommodate future population; second, discouraging urban sprawl.
The County divides St. Johns County into four Planning Districts (part of the data and analysis of the Plan) for purposes of calculating allocation ratios of the amount of land needed for particular land uses compared to an amount of
land so designated. (Disaggregating allocation ratios into planning districts is professionally acceptable.) Planning districts differentiate the County into different growth scenarios, development trends, and land use patterns. County staff explained the analysis performed regarding each of the four Planning Districts. Separate ratios were developed for each Planning District.
Population projections were developed based on historical growth and compared to the Bureau of Economic and Business Research (BEBR) numbers. See footnote 5. In part, the County analyzed the amount of developable land designated in the FLUM, which was converted "into a very specific GIS map, so [they] had more definitive areas . . . ." Developable and un-developable land was analyzed. The County also examined the nature of the future land use densities existing on the developable lands to derive "a potential development for those developable areas and compare[d] those to the population projections which converted into housing units." A comparison was made "between population projections or need for housing units and the amount of dwelling units that can be accommodated in this developable area on the map."3 As otherwise noted further in Joint Exhibit 7-A, page A-37, in part:
These population projections are then
converted into housing demand by planning
district as discussed in the Housing Element. The demand for these housing units will occur in different residential densities. However, as an aggregate measure, the total housing units needed is useful for comparison to the maximum net densities allowed for the various residential land use designations. It should be pointed out that rarely are the maximum net densities achieved, particularly at the higher density lands.
For instance, while the Mixed Use Districts
allow up to 13 units per acre, historically these acres have developed at much lower densities. This trend has been particularly significant due to the shortage of multi-family dwelling units constructed in the County. Single-family residential developments generally cannot achieve the densities at the high density level (6-13 units per acre), and rarely exceed the threshold for low density development (less than or equal to 2 units per acre).
The May 2000, County EAR-Based Plan Amendment for the FLUE, provides residential land use allocation ratios for the year 2015 ranging between 1.63:1 for the Northeast Planning District to 11.59:1 for the Southwest Planning District, and an overall County allocation ratio of 3.08:1. These ratios appear in Joint Exhibit 7A at A-41, Table A-10, and were previously approved by the Department. ("A comparison of the allocation of dwelling units from the available developable land with the projected housing demand by planning district is provided in Table A-10.")
Intervenors' expert independently calculated County allocation ratios, including the Nocatee New Town Map
Amendment, and arrived at a ratio of 2.33:1 for the Northeast Planning District and 2.9:1 for the entire County, using data available as of February 2001.4 It is at least fairly debatable that these allocations ratios are supported by appropriate data and analyzed in a professionally acceptable manner.
Numerous witnesses testified that allocation ratios should not be used as a bright line test because there are no adopted rules or clearly defined professional standards which establish a maximum ratio above which a plan amendment may not go. In other words, use of a maximum allocation ratio as a set upper limit, without consideration of other relevant factors to establish need, would offer no concrete, professionally accepted standard.
Sierra offered no independent allocation ratios.
Rather, Sierra elicited testimony from County staff that, if a series of assumptions supplied by Sierra were used to calculate the allocation ratios, based on Sierra's concept of using maximum theoretical density, the allocation ratios would be as high as 4.36:1 and 6.1:1 for the Northeast Planning District of the County. In other words, Sierra sought to have the County's calculations redone using the maximum theoretical density allowed under each land use category.5
The allocation ratios offered by Sierra raise a concern that, with the Nocatee development, there is a projected over-allocation of supply to meet the projected demand in the County, and, in particular, in the Northeast Planning District of the County.
However, there is no persuasive evidence that the strict maximum theoretical density methodology offered by Sierra was professionally acceptable for use in the County to project the future need in light of the Plan Amendments. In fact, the testimony was that an allocation ratio utilizing the maximum theoretical density may be appropriate if only urban lands are included in the calculation, and if appropriate restrictions on the ability to realize this density are made a part of the equation. Sierra did not so limit its inquiry.
Also, the weight of the evidence indicates that the use of maximum theoretical densities, as calculated according to Sierra, is more likely than not to overstate the realistic densities that will be achieved on the land designated for residential use by the County.
While not mandating that every subsequent plan amendment must be categorically denied, the presence of an over-allocation will trigger a heightened, more thorough review of the indicators of urban sprawl when considering further plan amendments. Only amendments subjected to this
greater scrutiny and still found to discourage urban sprawl may be found "in compliance" in the presence of an over- allocation.
On the other hand, a higher allocation ratio may be appropriate in relatively high-growth counties, like the County, to offset the difficulties inherent in forecasting growth. An allocation ratio which is set too low may tend to reduce market choice, resulting in increased housing prices and a reduced employment base.
There is persuasive evidence that the Map and Text Amendments meet this heightened level of sprawl analysis. Urban sprawl involves, at its core, the spreading of low density or strip commercial development from urban areas into rural lands. The determination of whether any amendment or plan constitutes urban sprawl is undertaken pursuant to the criteria of Rule 9J-5.006(5), Florida Administrative Code.
The emerging development pattern in northeast
St. Johns County exhibits numerous symptoms of sprawl. There is persuasive evidence that the Text and Map Amendments can be reasonably expected to make the situation better by providing "an anti-sprawl alternative to what's there now." The rule applicable to sprawl speaks directly to this situation.
If a local government has in place a comprehensive plan found in compliance, the Department shall not find a plan amendment to be not in compliance on the issue of
discouraging urban sprawl solely because of preexisting indicators if the amendment does not exacerbate existing indicators of urban sprawl within the jurisdiction.
Rule 9J-5.006(5)(k), Florida Administrative Code (emphasis added).
Neither Petitioner offered persuasive evidence to rebut the finding that the Map and Text Amendments improve the existing development pattern in northeast St. Johns County. Sierra attempted to imply that the Text and Map Amendments allow for the proliferation of urban sprawl in the form of
low-density residential development. Contrary to this argument, the evidence shows, for example, that the three to eight dwelling units per net developable residential acre contained in the Text Amendment, coupled with the text provisions directing the location of higher density residential uses, affordable housing, and the myriad of non- residential uses, provide meaningful and predictable standards for the development of an anti-sprawl New Town. The flexibility built into the Text and Map Amendments afford a reasonable ability to change and meet the market demands over a long-term build-out.
Natural Resource Protection
Every New Town development must adhere to the Policies in the Plan. The Plan Amendment adds additional
requirements to the Plan in the environmental section, Policy A.1.19.5, "Environmental Consideration."
Policy A.1.19.5 of the Text Amendment affords natural resource protection by requiring that at least 35 percent of any land designated New Town shall be "reserved for Open Space/Conservation lands and shall preserve a connected system of environmentally sensitive and passive recreation areas that will form a greenway system." "At least 15% of this open space component must be uplands." At least ten percent of a village must be retained in open space/conservation areas.
According to Policy A.1.19.5, "[s]ignificant environmental characteristics" must "be incorporated into the New Town design, particularly into the greenway system." The applicant for a New Town designation is required to "provide data and analysis regarding potential environmental impacts, including, but not limited to[,] impacts to wetlands, sub- surface waters, and surface waters and the presence of plant and animal species that are listed by the U.S. Fish and Wildlife Service or the Florida Fish and Wildlife Conservation Commission as threatened, endangered, or as a species of special concern."
Natural resource protection is furthered through Objective A.1.19 which states: "The New Town Future Land Use
category may be requested from any [DRI] that meets the policies set forth " in the Plan Amendments. The application form for a DRI requires a detailed listing of vegetation and wildlife. Rule 9J-2.010(1)(a), Florida Administrative Code. Any flora or fauna identified as listed must be protected in accordance with the Department's "Listed Plant and Wildlife Resources Uniform Standard Rule." Rule 9J-2.041, Florida Administrative Code. Master planning, such as in a DRI, better protects natural resource than piecemeal development. Moreover, there is persuasive evidence that natural resources can be better protected under the New Town category than in the existing Rural/Silviculture land use category.
Pursuant to these provisions, there are 5,531 of the 11,332 acres designated as New Town set aside for recreation/open space, "including, but not limited to, parks, the Greenway, and golf courses." This set aside is based upon data and analysis compiled through the DRI review process.
The Nocatee Preserve (an example of an "environmentally significant characteristic") is the most significant environmental resource on the Nocatee site and establishes additional resource protection. (The Plan Amendments designate approximately 1,630 acres (the Nocatee Preserve) lying above the mean high water line in the "Conservation" land use category. Petitioners do not object
to this designation.) This Preserve is a mosaic of uplands and wetlands and includes tidal saltwater wetlands. It includes streams, uplands, and a variety of habitats. It fronts the Outstanding Florida Waters (OFWs) of the Guana/Tolomato preserve areas. The Preserve adds protection for the aquatic preserve.
The Nocatee Preserve is located between the Nocatee New Town and the Tolomato River and protects the parcel's approximately 3.5 miles of frontage on the Tolomato River (Guana-Tolomato Aquatic Preserve). It is likely to ensure the protection of wildlife habitat on both sides of the Tolomato River and a natural view for recreational boaters and others.
In addition to the Nocatee Preserve, which is approximately 1 1/2 miles wide, "the greenways," comprising a minimum of 4,961 acres (at least 960 acres of uplands at
build-out) in St. Johns and Duval Counties, will be preserved.
Greenways will consist of wetlands and uplands. Vegetative communities currently found on site will be preserved.
The County's FLUM series includes Map 9-B, entitled "Environmentally Sensitive Lands (ESL)." Within the County, the ESL designation is given to OFWs, estuaries, wetlands, essential habitat to listed species, coastal barrier resources and beach and dune systems, and other areas specifically designated by the Board of County Commissioners.6 (Policy
E.2.2.5 of the Plan also requires the County to protect ESLs "through the establishment of Land Development Regulations (LDRs) which address the alternative types of protection for each type of" ESL.)
The weight of the evidence indicates that Map 9-B is a generalized depiction of these ESLs. On its face, the Map contains a disclaimer that the data are provided from multiple sources, with varying degrees of accuracy. In essence, Map 9-B is used by the County for "reference only" purposes, i.e., data and analysis only, and is not intended to be used as a predicate for decision-making, for example, a determination is made as to the "exact location of a wetland jurisdictional line." Map 9-B, although part of the data and analysis, is not the best available data for site-specific analysis. Policy A.1.11.7 of the Plan Amendment states that "[i]n the event of a conflict between any of the Maps and the text of the Plan, the text of the Plan shall control."
Pursuant to the Plan Amendments, see, e.g., Policy A.1.19.5, the County requires applicants for New Town plan amendments to provide the County with site-specific information, including environmental, and wildlife surveys (conducted pursuant to the Florida Fish and Wildlife Conservation Commission's (FFWCC) requirements),7 including vegetative surveys, in order for the County to determine the
extent of ESLs on the property, proposed for New Town designation. See Finding of Fact 95. This information is part of the data and analysis required under the Plan Amendments and is required to be based on professionally accepted methodologies. Site visits by County personnel are also required.
Sierra alleges that the protective measures mentioned above in the Plan Amendments fail to adequately address natural resources because the term "significant environmental characteristics" in the Text Amendment and the protections attendant such areas are uncertain, and the depiction of greenways, wetland impacts, and development of the "Sandy Ridge Village" as depicted in various maps attached to the Nocatee DRI Development Order, allow undue impacts.
The operation of the Text Amendment as a whole, including the provision for the protection of "significant environmental characteristics," when read in conjunction with the protections required in the Plan and Plan Amendments, can be expected to afford protection of natural resources.
The remainder of Sierra's allegations rest on the presumption that the maps of development areas and greenways attached to the Nocatee DRI Development Order are part of the County Plan and are subject to this compliance review. However, the only portion of the Nocatee DRI Development Order
incorporated into the Plan and subject to this review is the provision that establishes the "allowable uses and mix of uses." Policy A.1.19.15. The location of those uses, as shown in the Nocatee DRI Development Order is not incorporated into the Plan. (However, Ordinance No. 2001-18, recognizes the importance of the Nocatee DRI Development Order. See Ordinance No. 2001-18, Section 2, paragraph 5). Accordingly, and as further set forth below in the Conclusions of Law, Sierra's allegations that the Plan Amendment must be found not "in compliance," e.g., because of the location of uses and their potential impact on natural resources, is beyond the scope of this proceeding.
Nevertheless, the data and analysis supporting the Nocatee DRI have been considered herein in order to determine whether the Plan Amendments are "in compliance."
The Nocatee site in Duval and St. Johns Counties is approximately 15,000 acres, of which "approximately 8,000 acres of uplands and wetlands will be preserved in the Greenway, the Preserve and within preserved jurisdictional wetlands in the villages and Town Center Village "
Further, it was apparent that when several maps are reviewed together, up to 474 acres of wetlands may be impacted by the development, subject to further permitting. At present, it is speculative as to the precise number of wetlands which will be
impacted by the development. However, there are general depictions of wetlands delineated on, for example, Maps H-1 and H-3, which are anticipated to be preserved. Ultimately, the wetlands impacts are required to be addressed on a site- specific basis in future permitting by the United States Army Corps of Engineers and the St. Johns River Water Management District.8
Sierra's expert (Mr. Hoctor) opined that the proposed greenways were, in some instances, too narrow because protected areas should be located at least 330 feet from developed areas due to "edge effect." However, Mr. Hoctor also stated that the distance of the edge effect could be less than 330 feet, although he believed that 330 feet "is a good base-line estimate of edge effects." On the other hand, the County and Intervenors' experts opined that the greenways, as designated, are sufficiently wide, and can be expected to provide adequate habitat to sustain the environmental resources on site.9
In general, on the Nocatee site, buffers of upland areas ranging from 15 to 100 feet will be preserved in their natural state adjacent to wetlands systems. In some areas, the width of the proposed buffers will exceed current County requirements. The buffers serve to push incompatible land uses away from surface waters and protect wetland functions.
Further, Deep, Durbin, Smith, and Sweetwater Creeks are proposed to be protected by a minimum 100-foot buffer along the Creeks, which is twice as wide as other County requirements for these areas. (Theoretically, estuary systems, require a 50-foot buffer, whereas the Nocatee project has committed to a 100-foot buffer.) The County Land Development Code requires upland buffers adjacent to contiguous jurisdictional wetlands, and the buffer sizes vary, dependent upon the location of the wetlands. For example, a 50-foot buffer is required along the Tolomato River in areas where the high water line can be set; and in all other areas with contiguous wetlands, a 25-foot buffer and a 25-foot setback are required.
As noted in the Nocatee DRI ADA, Question 16, Second Sufficiency Response: "The state-of-the-art stormwater management system proposed for Nocatee will limit the 100-year flood plain to greenways, wetlands, and stormwater management facilities. No post-development developed areas in Nocatee will be in the 100-year flood plain." This representation is adopted in the Nocatee DRI Development Order.
Further, the bald eagle is a protected species and the habitat for the bald eagle is an essential habitat. The bald eagle's nest on-the Nocatee site is being protected by means of a 1,500-foot management zone (360 degrees). (The
United States Fish and Wildlife Service guidelines indicate that a 1,500-foot buffer should be utilized.)
Petitioners also offered evidence, by and through the testimony of Mr. Hoctor, that "only about 60 acres of both sand hill and scrub are proposed for protection out of at least 180 acres of zeric communities on site. Most of it long leaf pine sand hill and xeric oak sand hill." According to Mr. Hoctor, these areas include a 70-acre sandy hill parcel in the proposed Sandy Ridge Village, which is not expected to be preserved, and a 25-acre parcel, which will be preserved. (A 17-acre parcel of scrub-type habitat will also be preserved in the southwest corner of the site.)
The experts agree that gopher tortoises live in and need sandy soils to construct their burrows. Gopher tortoises will be impacted by the Nocatee development. One of the guidelines set by the FFWCC states that a minimum size patch of 25 acres is necessary for on-site protection of gopher tortoises. The experts disagree as to whether preservation of a proposed 25-acre site (to be incorporated into a 20-mile greenway on-site) is sufficiently large enough to accommodate the gopher tortoises (and gopher frogs, indigo snakes, and other species) on the Nocatee site.
The County and Intervenors provided reasonable explanations for requiring the preservation of the 25-acre
site (as a significant natural communities habitat) in lieu of the 70-acre site. At the very least, reasonable minds have differed on this issue. It is also subject to reasonable debate whether gopher tortoises will remain on-site given the preserved 25-acre site. On the other hand, the 25-acre site has canopy and good ground cover vegetation for the gopher tortoise community. Also, pursuant to the Nocatee DRI Development Order, "as mitigation for impacts to gopher tortoises and their commensals, the Developer will be responsible for off-site mitigation of the equivalent of approximately 66 acres of habitat, in conjunction with the permit requirements of the [FFWCC]." "This off-site mitigation will be accomplished by the Developer by issuance of an incidental take permit or by purchase of habitat at an off-site location within the jurisdictional boundaries of the Northeast Florida Regional Planning Council."
Total preservation on-site is expected to be
approximately 33 percent which exceeds the ten percent Plan requirement.
Sherman Fox Squirrels are a species of special concern. It appears that two fox squirrels have been sighted on the Nocatee site in the general vicinity of the St. Johns County/Duval County lines. This species is "highly mobile" and "will very likely migrate to other suitable habitat when
the [Nocatee site is developed]." "[F]ox squirrel habitat will be included in the incidental take permit."
The preservation of the fox squirrels has been addressed in a general way, i.e., through preservation of significant natural communities and the 8,000 acres of land which is being preserved on-site.
Petitioners also presented expert testimony that the Nocatee site is an essential habitat for the Florida Black Bear, which should be protected by preserving a "large swath" of most or all of the southern portion of the Nocatee site which "would serve as a potentially functional wildlife corridor." (The Florida Black Bear is a threatened species. The minimum acreage required to sustain a viable population for the Florida Black Bear is between 500,000 and 1 million acres.) The experts disagreed whether portions of the Nocatee site are essential habitat for the Florida Black Bear population and the extent of the impacts on the Florida Black Bear if the Nocatee site is developed as proposed. (Mr. Hoctor suggested during cross-examination that the Florida Black Bear population, east of U.S. Highway 1 in the County, stood "only a fair to poor chance of being viable.")10
Part of the habitat data discussed by Mr. Hoctor
indicates that bear road kills were more than 15 years ago. More recent bear kills have occurred in other parts of the
County (west of the river or adjacent to the Twelve Mile Swamp property), but not east of Interstate 95 in the Nocatee area.
Even if Florida Black Bears use the Nocatee site, more than one-half of the site (approximately 8,000 acres), which will be preserved for wildlife corridors, potentially may be used by Florida Black Bears for migration and foraging.
It is at least fairly debatable whether the environmental components of the Plan Amendments are "in compliance."
Land Use Suitability
The Nocatee site plan was based upon a land use suitability analysis, considering soils, wetlands, vegetation, archeological sites, and topography. The Nocatee DRI ADA contains appropriate data and analysis, including testimony during the final hearing, related to such topics as "vegetations and wildlife," "wetlands," "soils," "floodplains," and "historical and archeological sites." The Nocatee scientists spent approximately 8,000 man hours in the field (on the Nocatee site) over a course of two and one-half years collecting detailed data related to these issues. The data was collected and analyzed in a professionally acceptable manner.
Economic Feasibility In General
The Capital Improvement Element (CIE) of a Comprehensive Plan identifies facilities for which local government has financial responsibility, which include roads, water, sewer, drainage, parks, and solid waste. (As noted herein, this does not include schools for which the School Board has financial responsibility.)
Petitioners raise numerous issues relating to the "financial feasibility" of the Plan Amendments. The record contains detailed data and analysis of existing and future public facility needs. The data and analysis were conducted in a professionally acceptable manner.
Further, the County conducted a cost benefit analysis of the Nocatee development and determined that the development can be expected to produce a positive revenue stream for capital expenditures in each year. (For example, the County's Budget Director calculated that as of build-out (twenty-five year period), Nocatee will result in a net financial gain to the County of approximately $114 million.) This study was bolstered by Intervenors' cost benefit analysis documenting a net positive cash flow.
Public Schools
Sierra contends that the Map Amendment runs afoul of the State's growth management laws by not providing a financially feasible development that adequately addresses its impacts on the public school system. As set forth in the Conclusions of Law, existing laws do not require local governments to address public schools as part of comprehensive planning. This link between land use and public schools is currently optional and the County has not elected to pursue the option; this election is supported by extant law.
There is persuasive evidence that the County is not responsible for funding public school facilities. Rather, the St. Johns County School Board is responsible for such funding.
For example, the only portion of the school facilities construction paid by the County occurs when the School Board requests the County to pay for the upgrading of a facility to provide for use as a hurricane shelter. The Nocatee developers agreed to construct at least two such shelters in accordance with the Department of Education's standards.
However, the placement of hurricane shelters is a decision made by the County, not the School Board.
Furthermore, the County has not adopted a Public School Facilities Element or a school concurrency funding program. (Examples of concurrency requirements for the State
of Florida include transportation, potable water, sanitary sewer, parks and recreation, drainage, and solid waste.) The St. Johns County School Board is an independent taxing authority with an established budget for school construction and operation.
Nevertheless, with respect to the New Town Category, elementary schools are allowed within or adjacent to village centers and the Town Center Village. The Nocatee development will require an additional eight schools in the County in order to meet the projected need. (Mr. Toner projected that over a period of 25 years, eight new schools would be needed and that during the five-year planning horizon after construction begins at Nocatee, one middle school would be needed for the projected number of students, i.e., 450 would start to materialize. Mr. Toner desires that schools be built concurrently with development, which does not appear to be required.)
The Nocatee developers have agreed to donate, at no charge to the County (or the citizens of the County), land for the eight public schools and to waive a credit against the school impact fees to which the developers would otherwise be entitled. The value of the land donation credit is approximately $12 million.
Additionally, by build-out (in the twenty-fifth year), according to Intervenors' data and analysis, the School Board can expect to receive annual net revenue or gain of approximately $9.6 million. It is also expected that over the life of the Nocatee development and, in particular, during the later phases of the development, revenues will "significantly exceed the costs," in light of expected commercial, industrial, and additional residential development "that's generating the student load on the system."
Transportation
The Plan Amendments add Policy H.1.6.6. to the County's Comprehensive Plan stating:
The Nocatee Development of Regional Impact, a multi-use development meeting the criteria of Chapter 163.3180(12), Florida Statutes, is authorized by the County to utilize the standards and guidelines set forth in the Statute to satisfy the County's transportation concurrency requirements by payment of a proportionate share contribution is [sic] as stated in the Nocatee Development of Regional Impact Development Order, Special Condition No. 25 entitled Transportation Resource Impacts. (See Ordinance No. 2001-18)
The "pipelining" method of mitigating transportation impacts has been selected in the Plan Amendments. This method allows the transportation mitigation funds to be used to increase the transportation capacity of some links of a regional roadway network beyond that necessary
to offset projected impacts. It allows impacts on the regional roadway network to be handled on a proportionate share basis.
Pipelining contemplates that various proportionate share impacts along the regional roadway network are assessed and all of the calculated dollars under the pipelining method are aggregated to create "a pot of money" which is used "to build one or more whole transportation improvements."
The pipelining statute takes precedence over the conflicting concurrency requirements of the County.
Here, the mitigation package is based upon a "proportionate fair share" calculation, under which Nocatee will pay $99.7 million. This amount is supported by appropriate data and analysis based upon the application of professionally accepted methods. In addition to the payment, the mitigation will include right-of-way donation and roadway construction.
Petitioners do not challenge the concept of "pipelining." Rather, Petitioners question whether the transportation components of the Plan Amendments are "economically feasible." Overall, there is persuasive evidence, presented in the form of data and analysis, that with the Nocatee approval and the Plan Amendments, the County's transportation capital funds are likely to be
improved both at the 25-year build-out and within the first five years. (State law requires that land use decisions and transportation facility planning be coordinated over the five- year planning time frame in order to maintain and achieve adopted levels of service. See Section 163.3177(3)(a), Florida Statutes. The persuasive evidence indicates that the Nocatee development will not cause any roadway segment to fall below its adopted level of service (LOS) standard during the five-year planning time frame.)
Petitioners, largely through the testimony and exhibits offered by Mr. Feldt (a former employee with the County whose area of expertise is transportation), contend that the proportionate fair share calculation was incorrectly calculated and that the Nocatee DRI development data and analysis understates transportation impacts which are likely to arise as a result of the Nocatee development. However, while Mr. Feldt maintained that the $99.7 million allocation would not be sufficient to cover some of the improvements he deemed necessary, such as right-of way, most of his concerns regarding the transportation component of the Nocatee DRI had been satisfied during the DRI review process leading up to the County's approval of the Nocatee DRI Development Order.
It is at least fairly debatable that the pipelining transportation component of the Plan Amendments is supported
by appropriate data and analysis, which is professionally acceptable.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction to conduct a hearing on the subject matter of this proceeding. Sections 120.569, 120.57(1), and 163.3184(9), Florida Statutes.
Standing
The parties agreed that Whitmer is an "affected person" with standing to participate as a party in this proceeding pursuant to Section 163.3184(1)(a), Florida Statutes.
Sierra's standing is disputed. Material here, Section 163.3184(9)(a), Florida Statutes, specifies that any "affected person may file a petition"11 to challenge the Department's notice of intent to find that the transmitted comprehensive plan or amendment is "in compliance." An "'[a]ffected person' includes the affected local government; persons owning property, residing, or owning or operating a business within the boundaries of the local government whose plan is the subject of the review . . . ." Section 163.3184(1)(a), Florida Statutes (emphasis added).12 The "affected person" "shall also have submitted oral or written
comments, recommendations, or objections to the local government . . . ." Id. ("Person" includes individuals, associations, and corporations. Section 1.01(3), Florida Statutes. See also Section 120.52(13), Florida Statutes.)
Sierra timely commented to the County regarding the Plan Amendments. The remaining question for determination is whether the activities of Sierra in the County constitute "operating a business" for purposes of standing in this proceeding. See 1000 Friends of Florida, Inc. and Audubon Society of the Everglades, Inc. v. Department of Community Affairs, Case No. 01-0781GM (DCA Dec. 28, 2001) (1000 Friends of Florida and Audubon Society of the Everglades found to "operate a business" in the Village of Wellington for purposes of establishing standing by virtue of environmental, advocacy, and educational activities).
In St. Joe Paper Company v. Department of Community Affairs, 657 So. 2d 27 (Fla. 1st DCA 1995), the court discussed the standing requirements of Section 163.3184(1)(a), Florida Statutes, and concluded that 1000 Friends did not prove it was an "affected person." The court stated that "1000 Friends notes that it did participate in the local planning process and that such involvement is within the declared purpose for its corporate existence." Id. at 28.
The court stated further:
But the section 163.3184(1)(a) definition is not satisfied merely by conducting some business activity in connection with the comprehensive planning process, as the statues specifies that one must be "owning or operating a business within the boundaries of the local government" to qualify as an affected person in this regard. Even though representatives of 1000 Friends physically appeared in Walton County during the local process, such incidental and transient presence does not suffice under section 163.3184(1)(a).
Rather, the statute contemplates a more
substantial local nexus, of a type which might make the business potentially subject to the constraints of the local comprehensive plan. 1000 Friends' involvement in the planning process does not meet this standard, and does not qualify as the operation of a business within the county, as contemplated by section 163.3184(1)(a).
Id. at 29. (The court also determined that there was no evidence to support the hearing officer's finding "that 1000 Friends had members residing in Walton County." The contrary was proven in this case regarding Sierra's members residing in the County. See Finding of Fact 3.)
In light of the Final Order in 1000 Friends of Florida, Inc., Sierra is "operating a business" within the County by, for example, conducting meetings, fundraising activities, and outings, and by participating in governmental decisions, in the County. See Findings of Fact 1-5. Therefore, Sierra is an "affected person" and has standing in this proceeding.
Intervenors are "affected persons" with standing to participate in this proceeding pursuant to Section 163.3184(1)(a), Florida Statutes. Both Intervenors timely commented on the Amendments. SONOC owns the land subject to the Map and Preserve Amendments, all of which is located in St. Johns County. The PARC Group operates a business in St. Johns County by virtue of its development activities with respect to the Nocatee DRI.
Burden of Proof
The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Young v. Department of Community Affairs, 625 So. 2d 831 (Fla. 1993).
Section 163.3184(9)(a), Florida Statutes, imposes the burden of proof on the person challenging a plan amendment that has been determined by the Department to be "in compliance."
"In compliance" means consistent with the requirements of Sections 163.3177, 163.3178, 163.3180, 163.3191, and 163.3245, Florida Statutes, the State Comprehensive Plan, the Regional Policy Plan, and Rule 9J-5, Florida Administrative Code. Section 163.3184(1)(b), Florida Statutes.
Because the Department initially issued a Notice of Intent to find the Plan Amendments adopted by Ordinance No. 2001-18 "in compliance," those Plan Amendments shall be determined to be "in compliance" if the local government's determination of compliance is "fairly debatable" as set forth in Section 163.3184(9)(a), Florida Statutes. Petitioners have the burden of demonstrating beyond fair debate that the Plan Amendments are not "in compliance."
The terms "fairly debatable" are not defined in Chapter 163, Florida Statutes, or Rule 9J-5, Florida Administrative Code. The Supreme Court of Florida has opined, however, that the fairly debatable standard under Chapter 163, Florida Statutes, is the same as the common law "fairly debatable" standard applicable to decisions of local governments acting in a legislative capacity. In Martin County v. Yusem, the Court opined: "The fairly debatable standard of review is a highly deferential standard requiring approval of a planning action if reasonable persons could differ as to its propriety." 690 So. 2d 1288, 1295 (Fla. 1997)(citation omitted). Quoting from City of Miami Beach v. Lachman, 71 So. 2d 148, 152 (Fla. 1953), the Court stated further: "[A]n ordinance may be said to be fairly debatable when for any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction that
in no way involves its constitutional validity." Martin County v. Yusem, 690 So. 2d at 1295. Nevertheless, "local government action still must be in accord with the procedures required by Chapter 163, Part II, Florida Statutes, and local ordinances." Id. (citation omitted).
Petitioners are bound by the allegations in their Petitions as to the alleged deficiencies in the Plan Amendments. Sections 120.569 and 120.57(1), Florida Statutes; Heartland Environmental Council, Inc. v. Department of Community Affairs, Case No. 94-2095GM, 1996 WL 1059751, *18 (Fla. Div. Admin. Hrgs. Nov. 16, 1996). Issues first raised in the Prehearing Stipulation and Addendum without mention in the timely-filed Petitions are not considered herein.
Data and Analysis
Petitioners contend that the Plan Amendments are not based upon relevant and appropriate data and analysis regarding land use need (including populations projections used by the County) and urban sprawl, natural resources, public facilities, and financial feasibility.
Any amendment to a comprehensive plan must be based upon appropriate data. Although such data need not be original data, local governments are permitted to utilize original data as long as appropriate methodologies are used
for data collection. Section 163.3177(8) and (10)(e), Florida Statutes.
Rule 9J-5.005(2), Florida Administrative Code, requires that, in order for a plan provision to be "based" upon appropriate "data available on that particular subject at the time of adoption of the . . . plan amendment at issue," the local government must "react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue." The data must also be the "best available existing data" "collected and applied in a professionally acceptable manner." Rule 9J-5.005(2)(a)-(c), Florida Administrative Code.
However, the data and analysis which may support a plan amendment are not limited to those identified or actually relied upon by a local government. All data available to a local government in existence at the time of the adoption of the plan amendment may be relied upon to support an amendment in a de novo proceeding. Zemel v. Lee County, et al., 15
F.A.L.R. 2735 (DCA June 22, 1993), aff'd, 642 So. 2d 1367 (Fla. 1st DCA 1994). Analysis which may support a plan amendment, however, need not be in existence at the time of the adoption of a plan amendment. Id. Data which existed at the time of the adoption of a plan amendment may be subject to
new or even first-time analysis at the time of an administrative hearing challenging a plan amendment. Id.
The population projections were prepared in the 1998 EAR and the subsequent EAR-Based Plan Amendments. The parties stipulated that the Department approved the May 2000, EAR-Based Plan Amendments, which included the data and analysis, see, e.g., Joint Exhibit 7-A), and that the Department's "in compliance" "finding became final agency action without and challenges." Thus, the data and analysis contained in these documents may be used in this proceeding. See Rule 9J-5.005(5)(a), Florida Administrative Code ("Where data are relevant to several elements, the same data shall be used, including population estimates and projections."). In addition, the County offered reasonable explanations for the data used and analyzed to determine the population projections at issue in this proceeding. Based upon the evidence presented, it is at least fairly debatable that the Plan Amendments are based upon relevant and appropriate population projections.
This record contains extensive data and analysis to
support the Plan Amendments at issue in this proceeding. This includes, but is not limited to, the data and analysis provided in the Nocatee DRI ADA and supporting documentation, and the County EARs, which are quite voluminous. Petitioners,
while raising several areas of concern, have not demonstrated beyond fair debate that the Plan Amendments are not based upon appropriate data and analysis.
Need and Urban Sprawl
Petitioners have failed to prove beyond fair debate that the Text, Map, and Preserve Amendments fail to discourage urban sprawl as required by Rule 9J-5.006(5), Florida Administrative Code, and Chapters 163, Part II, and 187, Florida Statutes, and are not supported by an appropriate demonstration of need.
As to need, Sierra offered evidence to support its contention that there is a numerical over-allocation of need for the County for the 2015 planning horizon. Allocation ratios have been analyzed by the experts in this proceeding.
An amendment to a local government's FLUE must be based, among other things, upon "[a]n analysis of the amount of land needed to accommodate the projected population . . .
." Rule 9J-5.006(2)(c), Florida Administrative Code. Sierra contends that this "needs analysis" must be based upon "maximum theoretical density," in light of the assumptions offered by Sierra in this case. However, the weight of the evidence did not prove that Sierra's calculations of need (based upon its assumptions of "maximum theoretical density" for the County) is professionally acceptable or the only
professionally acceptable method of conducting a needs analysis. At least under the facts of this case, reasonable minds can differ regarding acceptable methods for conducting needs analyses.13
Nevertheless, there is evidence that the County utilized maximum densities in its four residential land use categories. The County did not use "maximum theoretical densities" in its mixed use category, nor did it allocate any residences to its agricultural category. These and other reductions are set forth in the May 2000, EAR-Based Plan Amendment for the future land use element and in the testimony and exhibits offered during the final hearing. For example, while Sierra objects to its use to support the Plan Amendment, the EAR-Based Amendment for the future land use element states that the mixed use category will be estimated at 20 percent residential, and consideration of this factor is at least fairly debatable. Further, it is at least fairly debatable that it was professionally acceptable for the County to make the reductions from maximum theoretical density that it made.
Furthermore, "need" is a component of the overall
goal of planning to avoid urban sprawl. First, it is at least fairly debatable that the Plan Amendments adequately describe the concept of "New Town," consistent with Rule 9J-5.003(80), Florida Administrative Code. Second, an analysis of the 13
primary indicators of urban sprawl, set forth in Rule 9J- 5.006(5)(g)1-13, Florida Administrative Code, within the context of the Plan Amendments indicates, on balance, that the Plan Amendments do a better job of discouraging urban sprawl than the existing Plan. (The indicators are not applied with mathematical precision, and professional planners may disagree in the application of a particular indicator to a particular circumstance. See Florida East Coast Industries, Inc. v.
Department of Community Affairs, 677 So. 2d 357, 360 (Fla. 1st DCA 1996)). It is at least fairly debatable that the Plan Amendments do "not exacerbate existing indicators of urban sprawl within the" County and discourage the proliferation of urban sprawl. Rule 9J-5.006(5)(k), Florida Administrative Code. Moreover, it is at least fairly debatable that the "New Town" Plan Amendments describe an innovative and flexible planning and development strategy.
In summary, it is at least fairly debatable that the Plan Amendments are based on relevant and appropriate data and analysis as to land use need.
Land Use Suitability
Section 163.3177(6)(a), Florida Statutes, requires that local government future land use plans be based, in part, on surveys, studies, and data regarding "the character of undeveloped land." It is at least fairly debatable that the
Plan Amendments are supported by data and analysis regarding land use suitability.
Specific Measurable, Intermediate Ends
Petitioners contend that the Plan Amendments do not have "specific measurable, intermediate end[s]," and do not provide "meaningful and predictable standards for the use and development of land." Rules 9J-5.003(82) and 9J-5.005(6), Florida Administrative Code. Given the level of detail and precision in the Plan Amendments referred to in the Findings of Fact, it is at least fairly debatable that the Plan Amendments satisfy the requirements of these rules.
Internal Consistency
Petitioners contend that the Plan Amendments are not consistent with other elements of the Plan. To be "internally consistent," comprehensive plan elements must not conflict. If the objectives do not conflict, then they are coordinated, related, and consistent. See generally Schember v. Department of Community Affairs, Case No. 00-2066GM (DCA Oct. 24, 2001).
It is at least fairly debatable that the FLUM Amendments are not internally inconsistent with the Text Amendments and that the FLUM Amendments and the Text Amendments are not inconsistent with the Plan.
Further, Rule 9J-5.005(4), Florida Administrative Code, provides that "[e]ach local government comprehensive plan shall include at least two planning periods: one for at least the first five-year period subsequent to the plan's adoption and one for at least an overall ten-year period." It is not fatal for a comprehensive plan to contain more than two planning horizons. Nor is it inconsistent for a comprehensive plan amendment related to a DRI to contain planning provisions reaching beyond the Plan's planning horizon. Thus, it is at least fairly debatable that the 2025 build-out planned for Nocatee does not conflict with the 2015 planning horizon contained in the Plan.
Natural Resources
Petitioners have failed to prove beyond fair debate that the Text, Map, and Preserve Amendments fail to properly and adequately protect natural resources as required by Rules 9J-5.006(3)(b)4 and 9J-5.013(2)(b) and (3)(a) and (b), Florida Administrative Code, Chapters 163, Part II and 187, Florida Statutes, and the Plan.
Petitioners' allegations with respect to the specific location of uses as depicted on maps attached to the Nocatee DRI Development Order are not relevant in this case. The issue in this proceeding is whether the Plan Amendments to the County Plan adopted by Ordinance 2001-18 are "in
compliance." The maps with which Petitioners take issue are not part of Ordinance 2001-18. Only one portion of the Nocatee DRI Development Order is part of the County Plan.
The allowable uses and mix of uses within the Nocatee Development of Regional Impact is [sic] as set forth in the Development of Regional Impact Development Order dated February 23, 2001, Resolution No. 2001-30 as may be modified by a Notice of Proposed Change pursuant to Section 380.06(19), Florida Statutes.
This provision incorporates only the allowable uses in the Nocatee DRI Development Order and the mix of those uses. It does not incorporate the maps upon which Sierra founds its allegations, and does not otherwise fix the location of uses.14
Nevertheless, based upon the weight of the evidence, it is at least fairly debatable that the Plan Amendments contain detailed Policies which ensure the protection of natural resources through, for example, the incorporation of significant environmental characteristics with required data and analysis, the 35 percent minimum set- aside for Open Space/Conservation, the Policies which guide protective measures, and the Text Amendment. The utilization of these measures through the Map Amendment, in addition to the protections afforded by the Preserve Amendment and the protections afforded in the Plan, further these protections for the Nocatee New Town itself.
Economic Feasibility
Petitioners have failed to prove beyond fair debate that the Text, Map, Preserve, and Transportation Amendments are not economically feasible as required by Section 163.3177(3)(a), Florida Statutes, Chapter 187, Florida Statutes, and Rule 9J-5, Florida Administrative Code.
The several elements of a comprehensive plan must be coordinated and consistent, and the plan itself must be "economically feasible." Section 163.3177(2), Florida Statutes. For a plan to be economically feasible, it must have a process by which level of service standards are achieved and maintained. See Rule 9J-5.016(3)(b)4, Florida Administrative Code (comprehensive plan must contain provisions "in order to adequately maintain adopted level of service standards"). The finances for this achievement and maintenance are contained in the Capital Improvements Element, which lists projects for which the local government has responsibility and for which the government has an adopted level of service. Section 163.3177(3), Florida Statutes; Rule 9J-5.016, Florida Administrative Code.
It is at least fairly debatable that the Plan Amendments are consistent with the Capital Improvements Element of the Plan and are "economically feasible."
Public school facilities fall outside of the scope of this economic feasibility calculus for two basic reasons. First, there are only six facilities for which local governments must adopt level of service standards: transportation, potable water, sanitary sewer, solid waste, parks and recreation, and drainage. Section 163.3180(1)(a), Florida Statutes. Local governments need not adopt a level of service standard for public schools. Without an adopted standard, a local government would have no objective benchmark against which to measure economic feasibility.
Moreover, the St. Johns County School Board – not the County – has the responsibility for funding public school facilities. Thus, even if an objective measure of public school capacity could be read into a comprehensive plan, the local government does not have financing authority to address and meet that standard.
There is an optional method for local governments and school boards to cooperatively address the funding of public school facilities as part of the growth management process. This process, known as "public school concurrency," is authorized under Section 163.3180(13), Florida Statutes. However, the County has not adopted public school concurrency requirements through amendment to its Plan.
Finally, Section 163.3180(12), Florida Statutes, provides a method to demonstrate that transportation-related public facilities will be provided in a cost-efficient manner and will be economically feasible. It is at least fairly debatable that the pipelining provision in the Plan Amendment is "in compliance."
For all of these reasons, Petitioners have failed to prove beyond fair debate that the Plan Amendments adopted by the County in Ordinance 2001-18 are not "in compliance."
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that a final order be issued concluding that the Plan Amendments adopted by St. Johns County in Ordinance No. 2001-18 are "in compliance" as defined in Chapter 163, Part II, Florida Statutes, and the rules promulgated thereunder.
DONE AND ENTERED this 20th day of May, 2002, in Tallahassee, Leon County, Florida.
_________________________________ CHARLES A. STAMPELOS
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2002.
ENDNOTES
1/ Mr. Gauthier recommended this language in order to clarify the Map Amendments.
2/ Mr. Gauthier expressed concerns that portions of several Policies lacked clarity and detail in several respects.
However, other experts opined that the Objective and Policies provided clarity and meaningful and predictable detail.
3/ Certain reductions were made and explained. For example, "[r]esidential Acres includes 15% reduction for non- residential development within residential land use designations." (Table A-9). Mr. Clem explained that the 15 percent reduction would need to be added back in order to determine the theoretical maximum density for the residential numbers on Table A-9. The County also provided a reasonable explanation for using a 20 percent residential figure for the mixed use category.
4/ For some allocation calculations, Dr. Fishkind relied upon data that was not in existence at the time the County adopted the Plan Amendments. Only data which was in existence at the time of Plan Amendment adoption may be relied upon for an ultimate compliance determination. Rule 9J-5.005(2)(a), Florida Administrative Code ("To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue."). The findings in this Recommended Order do not rely, upon this post-adoption data, and those portions of Intervenors Exhibit 32 which contain such data are stricken from the record.
5/ Sierra also contended the County erred in not using the mid-range population projections from the University of Florida, Bureau of Economic and Business Research, in arriving at its allocation ratios. The County's calculation was within a small percentage of the calculation using the BEBR mid-range projections. The County modified the BEBR projections by calculating the County's growth rate from 1980-1998, and applying a straight line linear progression of that rate into the 2015 planning time frame. The County refined its
projections based on growth trends in the County, and "disaggregated" into Planning Districts.
6/ ESLs are defined in the 2015 EAR-Based Plan Amendment for the FLUE.
7/ The methodologies used by Nocatee in preparing the Nocatee DRI ADA to conduct wildlife surveys were approved by the FFWCC.
8/ For example, Mr. McCann stated that the exact wetland acreage, which may be impacted by the Nocatee development, has not been specifically identified. The FFWCC will make recommendations to the water management district.
9/ The Applicant represented in the Comprehensive Plan Amendment Application, page 131: "To lessen the impact on existing development in and around the site, Greenway perimeter buffers will be at least 300 feet in width, and will average 500 feet in width "
10/ Mr. McCann expected the Nocatee site to be used by Florida Black Bears. He did not see any during his trips to the site, although a sighting would be "happenstance," given the secretive lifestyles of the bears.
11/ This subsection does not require the person to be "substantially affected," see, e.g., Agrico Chemical Co. v. Department of Environmental Regulation, 406 So. 2d 478 (Fla. 2d DCA 1981), rev. denied, 415 So. 2d 1359 (Fla. 1982) and 415 So. 2d 1361 (Fla. 1982) nor "adversely affected." See, e.g., Florida Chapter of the Sierra Club v. Suwannee American Cement Co., Inc., 802 So. 2d 520 (Fla. 1st DCA 2001). Also,
"[s]ection 163.3187(3)(a) [here Section 163.3184(9)(a)] confers standing in these administrative hearings to any 'affected person' as broadly defined in section 163.3184(1)(a), without the need to allege an injury." Coastal Development of North Florida, Inc. v. City of Jacksonville, 788 So. 2d 204, 209 n.25 (Fla. 2001).
12/ "Business" means in part: "The occupation, work, or trade in which one is engaged . . . . A specific pursuit or occupation . . . . Commercial, industrial, or professional dealings . . . . . A commercial enterprise or establishment .
. . ." Webster's II New College Dictionary 149 (1999).
13/ For example, based upon the weight of the evidence, it is at least fairly debatable to exclude consideration of
agricultural lands from the County's residential needs analysis.
14/ To the extent the maps could have been incorporated, the specific location of uses would still be fluid and difficult to challenge at this early, conceptual stage. Those maps note that "[t]he precise boundaries of the Greenway may be adjusted at the time conservation easements are conveyed to the SJRWMD," and "Village Center locations are conceptual and subject to change and will be identified on the PUD Village Master Development Plan." The Development Order provides that "[t]he specific location of all land uses will be determined through the PUD approval process."
COPIES FURNISHED:
Peter B. Belmont, Esquire
102 Fareham Place
St. Petersburg, Florida 33701
Deborah J. Andrews, Esquire
11 North Roscoe Boulevard
Ponte Vedra Beach, Florida 32082
Ellen A. Whitmer, pro se
1178 Natures Hammock Road, South Fruit Cove, Florida 32259-2879
Daniel J. Bosanko, Esquire
St. Johns County Attorney's Office 4020 Lewis Speedway
St. Augustine, Florida 32085
John A. DeVault, III, Esquire Robert H. Farnell, II, Esquire Jane A. Lester, Esquire
Bedell, Dittmar, DeVault, Pillans & Coxe The Bedell Building
101 East Adams Street Jacksonville, Florida 32202
Marcia P. Tjoflat, Esquire
M. Lynn Pappas, Esquire Thomas O. Ingram, Esquire
Pappas Metcalf Jenks & Miller, P.A.
200 West Forsyth Street, Suite 1400 Jacksonville, Florida 32202-4327
Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
Cari L. Roth, General Counsel Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 325
Tallahassee, Florida 32399-2100
Steven M. Seibert, Secretary Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 100
Tallahassee, Florida 32399-2100
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 30, 2002 | Agency Final Order | |
| May 20, 2002 | Recommended Order | Plan Amendments adopted by St. Johns County in Ordinance No. 2001-18 are "in compliance" as defined in Chapter 163, Part II, Florida Statutes, and the rules promulgated there under. |
