STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DAVID AND DECEMBER MCSHERRY; ) DWIGHT ADAMS; HOLLY JENSEN; ) SIERRA CLUB, INC.; AND ) SUSTAINABLE ALACHUA COUNTY, ) INC., )
)
Petitioners, )
)
vs. )
) ALACHUA COUNTY AND DEPARTMENT ) OF COMMUNITY AFFAIRS, )
)
Respondents, )
)
and )
) PRESERVING RURAL PROPERTY ) VALUES, INC.; GEORGE E. )
FLETCHER; AND BUILDERS ) ASSOCIATION OF NORTH CENTRAL ) FLORIDA, INC., )
)
Intervenors. )
__ ) JONESVILLE PROPERTIES, INC.; ) KENNETH P. BROWN; AND DIBROS ) CORPORATION, )
)
Petitioners, )
)
vs. )
)
DEPARTMENT OF COMMUNITY )
AFFAIRS, )
)
Respondent. )
__ )
Case No. 02-2676GM
Case No. 03-3665GM
RECOMMENDED ORDER
On December 15 through 19, 29 through 30, 2003, and February 2 through 6, 2004, a final administrative hearing was held in these cases in Gainesville, Florida, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioners: David J. Russ, Esquire David and December McSherry 601 South Main Street
Suite 9J-5
Gainesville, Florida 32601
For Petitioners: Henry Lee Morgenstern, Esquire Sierra Club, Inc., Dwight 102 South Main Street
Adams, Holly Jensen, and Crescent City, Florida 32112 Sustainable Alachua
County, Inc.1/ Deborah J. Andrews, Esquire
11 North Roscoe Boulevard
Ponte Vedra Beach, Florida 32082
For Petitioners: Patrice Boyes, Esquire Jonesville Properties, Inc., Patrice Boyes, P.A. Kenneth P. Brown, and Dibros 4719 Northwest 53rd Avenue Corporation Post Office Box 358584
Gainesville, Florida 32635-1775
S. Scott Walker, Esquire Folds & Walker, LLC
527 East University Avenue Post Office Box 1775 Gainesville, Florida 32602
For Respondent: David L. Jordon, Esquire Department of Community Moses E. Williams, Esquire Affairs Department of Community Affairs
2555 Shumard Oak Boulevard Suite 325
Tallahassee, Florida 32399-2100
For Respondent: David C. Schwartz, Esquire
Alachua County Alachua County Attorney's Office Post Office Box 2877 Gainesville, Florida 32602-2877
For Intervenors: Linda Loomis Shelley, Esquire Fowler, White, Boggs, Banker, P.A.
101 North Monroe Street Suite 1090
Post Office Box 11240 Tallahassee, Florida 32301
STATEMENT OF THE ISSUE
The issue in these cases is whether the Alachua County Comprehensive Plan amendments adopted through Alachua County Ordinance Number 03-05 on August 26, 2003, are "in compliance," as defined in Subsection 163.3184(1)(b), Florida Statutes (2003).
PRELIMINARY STATEMENT
On April 8, 2002, the Board of County Commissioners (the "Board") of Alachua County (the "County") adopted amendments to the Alachua County Comprehensive Plan (the "Plan") by way of Ordinance Numbers 02-05 through 02-18 (referred to variously herein as the "2002 Amendments" or the "2002 Plan Update"). Of particular interest in this proceeding, Ordinance Number 02-07 amended the Future Land Use Element ("FLUE") of the Plan, and Ordinance Number 02-13 amended the Conservation and Open Space Element ("COSE") of the Plan. On June 3, 2002, the Department of Community Affairs ("DCA") published its Notice of Intent to find the 2002 Amendments "in
compliance." On June 24, 2002, a petition challenging the determination that the 2002 Amendments were "in compliance" was filed by Preserving Rural Property Values, Inc. ("PRPV"), George E. Fletcher, and 12 other Petitioners who later withdrew from the proceedings, collectively referred to below as the "PRPV Petitioners." The case was forwarded to the Division of Administrative Hearings ("DOAH") on July 5, 2002, and assigned DOAH Case No. 02-2676GM. On July 9, 2002, the Gainesville Builders Association, Inc. (subsequently renamed the Builders Association of North Central Florida, Inc., and referred to herein as "BANCF"), filed a petition to intervene, which was granted by Order dated July 11, 2002.
On July 25, 2002, the PRPV Petitioners filed a request for mediation pursuant to Subsection 163.3189(3)(a), Florida Statutes (2003). On August 1, 2002, Alachua County filed a favorable response to the mediation request. By Order dated August 15, 2002, the final hearing was scheduled to commence on November 20, 2002. The requested mediation was scheduled to commence on October 9, 2002. On October 4, 2002, the PRPV Petitioners filed a motion to continue the final hearing, citing both the pending mediation and the fact that two new Alachua County commissioners were to be seated on November 19, 2002.2/ Despite the County's opposition, an Order was issued on October 11, 2002, granting the motion to continue. The
final hearing was rescheduled for February 25 through 28, 2003.
The mediation commenced on October 9, 2002, and continued through June 2003 by way of meetings and written exchanges designed to refine the issues and reach settlement.
On November 12, 2002, Sustainable Alachua County, Inc. ("SAC"), the Sierra Club, and Dr. Dwight Adams filed motions to intervene. SAC, the Sierra Club, and Dr. Adams were ultimately found to have standing.3/ On November 26, 2002, David and December McSherry filed a motion to intervene, which was granted by Order dated December 20, 2002.
On December 16, 2002, PRPV and its aligned Petitioners filed a consented motion for continuance. By Order dated December 24, 2002, the hearing was continued and rescheduled to commence on April 22, 2003. PRPV and its aligned Petitioners filed another motion for continuance on March 26, 2003. By Order dated March 31, 2003, the case was placed in abeyance, and the parties were ordered to file a status report on June 30, 2003.
In June 2003, a proposed settlement began circulating among the parties that in general terms reflected the amendments that would ultimately be adopted by the Board. On June 23, 2003, Intervenors, Dr. Adams and the McSherrys filed a demand for expedited resolution pursuant to Subsection
163.3189(3)(a), Florida Statutes (2003). On June 27, 2003, the same Intervenors, joined by SAC, filed a motion to remove the case from abatement and allow expedited discovery. By Order dated July 2, 2003, the case was set for hearing on July 25, 2003.
On July 11, 2003, a joint motion to intervene was filed by Jonesville Properties, Inc. ("Jonesville"), Kenneth P. Brown, and Dibros Corporation ("Dibros"), collectively referred to herein as the "Jonesville Petitioners."
On July 16, 2003, DCA filed a stipulated settlement agreement and a request for stay of proceedings pursuant to Subsection 163.3184(16)(b), Florida Statutes (2003). By Order dated July 21, 2003, the scheduled hearing was cancelled, and the case placed in abeyance, with a status report to be filed on September 15, 2003. On August 26, 2003, the Board adopted amendments to the Plan by way of Ordinance Number 03-05 (the "2003 Amendments").
A status report was filed on September 15, 2003, requesting that the case remain in abeyance until October 15, 2003, to provide DCA sufficient time to publish its cumulative notice of intent on October 3, 2003, 30 days after receipt of the 2003 Amendments from Alachua County pursuant to Subsections 163.3184(8)(b) and (16)(e), Florida Statutes
(2003). By Order dated September 18, 2003, the abeyance was continued to October 15, 2003.
On September 30, 2003, DCA published its cumulative Notice of Intent to find the 2003 Amendments "in compliance." Also, on September 30, 2003, an original Petition for Administrative Hearing challenging the 2003 Amendments was filed by Jonesville, Kenneth P. Brown, and Dibros (the "Jonesville Petition"). On October 7, 2003, DCA filed a "Notice of Filing Cumulative Notice of Intent and Request for Realignment of Parties." On October 8, 2003, the Jonesville Petition was forwarded to DOAH and assigned DOAH Case
No. 03-3665GM. On October 21, 2003, an Order was entered that realigned the parties pursuant to Subsection 163.3184(16)(f)1., Florida Statutes (2003). Relevant to this Recommended Order, the McSherrys, Dr. Adams, and SAC were realigned as Petitioners.4/ During the hearing, these Petitioners were collectively referred to as the "McSherry Petitioners." In recognition of the split in representation that occurred at the hearing, this Recommended Order will refer only to David and December McSherry as the "McSherry Petitioners." Sierra Club, SAC, and Dr. Adams will be referred to collectively as the "Sierra Club Petitioners" or, simply, "Sierra Club." Where their interests and arguments coincide, they will be referred to as the "Sierra
Club/McSherry Petitioners." PRPV, George E. Fletcher, and BANCF were realigned as Intervenors in support of DCA and Alachua County. On October 22, 2003, DOAH Case No. 03-3665GM was consolidated with DOAH Case No. 02-2676GM.5/
The hearing commenced on December 15, 2003. At the outset of the hearing, Petitioners David and December McSherry, Sierra Club, Dr. Adams, Holly Jensen, and SAC were granted leave to file an amended petition, referred to herein as the "Sierra Club/McSherry Petition." The standing of all parties to the hearing was stipulated. Joint Exhibits 1a through 1i, 1k through 1m, and 1p were admitted into evidence. Pursuant to notice, public comment was heard on December 19, 2003.
The Sierra Club/McSherry Petitioners presented the testimony of the following witnesses: Randall H. Reid, Alachua County manager; Richard Drummond, Alachua County growth management director; Dr. Kenneth Dodd, expert in wetlands systems and their fauna, reptiles, and amphibians in particular; Dr. Daniel Spangler, expert in hydrogeology; James Christopher Bird, Alachua County environmental director; Michael Drummond, senior environmental planner for Alachua County; Dr. Thomas Hoctor, expert in conservation biology, landscape ecology, and the ecosystems, habitat, distribution and needs of threatened and endangered species in Alachua
County; Adrienne Burgess; Ruth Steiner, expert in transportation planning; Dr. Kathleen Cantwell; Allison Law; Dr. Dwight Adams; December McSherry; and Reid Ewing, expert in urban and regional planning. McSherry Exhibits 1 through 6,
10 through 15, 19 through 22, 24, 25, 28, and 30 through 32 were admitted into evidence. McSherry Exhibits 7 through 9, 17, and 23 were proffered, but not admitted.
The Jonesville Petitioners presented the testimony of the following witnesses: Carl Salafrio, expert in biology, ecology, and mapping; Kenneth Zeichner, planner for Alachua County; Richard Drummond; Kenneth P. Brown; Luis Diaz, a principal of Dibros; and David DePew, expert in land planning, development, permitting, zoning, comprehensive planning, transportation planning, traffic analysis, eminent domain planning, statistical modeling, and the application of Chapter 163, Florida Statutes (2003), and Florida Administrative Code Rule Chapter 9J-5. Jonesville Exhibits 1 through 15, 17
through 22, 24, 25, and 27 were admitted into evidence. Ruling was withheld on Jonesville Exhibit 16, two aerial photographs of the Dibros properties taken on January 10, 2004. The admission of Jonesville Exhibit 16 is DENIED on relevance grounds, in that these photographs were taken subsequent to the adoption of the 2003 Amendments and, thus, could not have been part of that decision. Jonesville
Composite Exhibit 23 was not formally admitted; however, the depositions included in that exhibit were read and fully considered by the undersigned.
Alachua County presented the testimony of Michael Drummond and Richard Drummond. Alachua County Exhibits 4a through 4g, 4l through 4p, 4s through 4y, and 5 through 7 were admitted into evidence. DCA presented the testimony of James Stansbury, expert in comprehensive planning. DCA Exhibit 1, Mr. Stansbury's resume, was admitted into evidence. PRPV presented the testimony of Robert Pennock, expert in local comprehensive planning with an emphasis on urban sprawl. In an oversight, Mr. Pennock's resume was not admitted at the hearing. Mr. Pennock's resume is hereby ADMITTED as PRPV Exhibit 1.
No party ordered a complete transcript of the hearing.
Each party submitted portions of the Transcript in support of its position. The parties agreed to file proposed recommended orders on April 19, 2004, and were granted permission to exceed the 40-page limit. Alachua County, DCA, PRPV, and BANCF filed a Joint Proposed Recommended Order on April 19, 2004. The Jonesville Petitioners filed a Proposed Recommended Order on April 19, 2004. Sierra Club, Dwight Adams, Holly Jensen, and SAC filed a Proposed Recommended Order on April 19, 2004.
On May 28, 2004, counsel for the McSherrys filed a motion for leave to file a late proposed recommended order, which was granted after the undersigned ascertained that no other party objected. The McSherrys filed a Proposed Recommended Order on June 29, 2004.
FINDINGS OF FACT
Parties
The Board is a local government charged with the responsibility of adopting and enforcing a comprehensive plan as provided in the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes (2003)(the "Act"). In this Recommended Order, "the Board" will refer to the elected Board of County Commissioners. "The County" will refer to Alachua County staff, as well as to the County as a litigant in these proceedings.
The Department of Community Affairs is the state land planning agency with the authority to administer and enforce the Act.
David and December McSherry are residents of the County, own and operate a business, and own property in the County. The McSherrys made comments to the Board concerning the 2003 Amendments during the transmittal and adoption periods. The McSherrys are "affected persons" as defined in
Subsection 163.3184(1), Florida Statutes (2003), and have standing to bring this proceeding.
Dr. Adams owns property and resides in the County.
Dr. Adams submitted oral and written comments to the Board concerning the 2003 Amendments during the transmittal and adoption periods. Dr. Adams is an "affected person" as defined in Subsection 163.3184(1), Florida Statutes (2003), and has standing to bring this proceeding.
Dr. Kathy Cantwell owns property and resides in the County. Dr. Cantwell submitted oral and written comments to the Board concerning the 2003 Amendments during the transmittal and adoption periods. Dr. Cantwell is an "affected person" as defined in Subsection 163.3184(1), Florida Statutes (2003), and has standing to bring this proceeding.
Holly Jensen owns property and resides in the County.
Ms. Jensen submitted oral and written comments to the Board concerning the 2003 Amendments during the transmittal and adoption periods. Ms. Jensen is an "affected person" as defined in Subsection 163.3184(1), Florida Statutes (2003), and has standing to bring this proceeding.
Sierra Club, Inc., is a California nonprofit organization that advocates ecological conservation in the County through its Florida chapter and the Suwannee-St. Johns
Group. Sierra Club and a substantial number of its members conduct a business in the County by maintaining a local website, raising funds, participating in governmental meetings and decisions, soliciting and obtaining membership, distributing publications, purchasing, selling and delivering merchandise and goods and services, holding conferences and meetings, maintaining local representatives, distributing information and newsletters, and organizing members and other citizens to petition the government for redress of grievances. Sierra Club provided comments to the Board concerning the 2003 Amendments during the transmittal and adoption periods.
Sierra Club is an "affected person" as defined in Subsection 163.3184(1), Florida Statutes (2003), and has associational standing to bring this proceeding.
SAC is a Florida nonprofit organization that advocates ecological conservation and principles of sustainability in the County. The organization and a substantial number of its members conduct a business in the County by maintaining a local website that is a forum for local comment, raising funds, participating in governmental meetings and decisions, soliciting and obtaining membership, and distributing publications. SAC provided comments to the Board concerning the 2003 Amendments during the transmittal and adoption periods. SAC is an "affected person" as defined
in Subsection 163.3184(1), Florida Statutes (2003), and has associational standing to bring this proceeding.
Each of the Jonesville Petitioners owns property and operates businesses in the County. Each of the Jonesville Petitioners provided comments to the Board concerning the 2003 Amendments during the transmittal and adoption periods. The Jonesville Petitioners are "affected persons" as defined in Subsection 163.3184(1), Florida Statutes (2003), and have standing to bring this proceeding.
PRPV is a Florida not-for-profit corporation that was created for the purpose of representing landowners of rural and agricultural land, participating with local and state government in the development of reasonable land use regulations, and protecting values of rural properties in the County. A substantial number of PRPV's members reside in, own property in, or own or operate businesses in the County. PRPV submitted oral and written comments to the Board concerning the 2003 Amendments during the transmittal and adoption periods. PRPV is an "affected person" as defined in Subsection 163.3184(1), Florida Statutes (2003), and has associational standing to bring this proceeding.
BANCF is a Florida corporation that was created for the purpose of educating and advocating on behalf of its members, who are primarily engaged in the residential and
commercial construction industry in the County and who are citizens residing in, and businesses located in the County. A substantial number of BANCF's members reside in, own property in, or own or operate businesses in the County. BANCF submitted oral and written comments to the Board concerning the 2003 Amendments during the respective transmittal and adoption periods. BANCF is an "affected person" as defined in Subsection 163.3184(1), Florida Statutes (2003), and has associational standing to bring this proceeding.
Background and Procedural Issues
The Board adopted the Plan in 1991. In 1998, the Board adopted an Evaluation and Appraisal Report ("EAR") for the Plan. Subsection 163.3191(1), Florida Statutes (2003), requires each local government to adopt an EAR once every seven years, assessing its progress in implementing its comprehensive plan. The local government must then amend its comprehensive plan to reflect the data and analysis and recommendations in the EAR.
§ 163.3191(10), Fla. Stat. (2003).
In August 2001, the Board adopted amendments to the Plan and transmitted them to DCA, and to the other agencies enumerated in Florida Administrative Code Rule 9J-11.009(6), for review and comment. On November 30, 2001, DCA completed its review of the amendments and issued its Objections,
Recommendations and Comments document (commonly referred to as an "ORC Report") to the County pursuant to Florida Administrative Code Rule 9J-11.010.
On April 8, 2002, the Board adopted the 2002 Plan Update, addressing the objections raised in the ORC Report. By letter dated May 31, 2002, DCA notified the Board that it had completed its review of the 2002 Plan Update and determined that it met the Act's requirements for
"compliance," as defined in Subsection 163.3184(1)(b), Florida Statutes (2003). DCA published notice of its intent to find the 2002 Plan Update in compliance in The Gainesville Sun on June 3, 2002.
On June 24, 2002, PRPV and others filed a petition challenging DCA's determination that the 2002 Plan Update was in compliance. The Petition was forwarded to DOAH on July 5, 2002. BANCF was granted intervenor status, in alignment with PRPV, on July 11, 2002. On July 25, 2002, the PRPV Petitioners joined by BANCF, filed a request for mediation pursuant to Subsection 163.3189(3)(a), Florida Statutes (2003). On August 1, 2002, the Board filed a response agreeing to participate in mediation.
In the instant proceeding, the Sierra Club/McSherry Petitioners have alleged several irregularities in the mediation process. They allege that despite the requirements
of Subsection 163.3184(16)(a), Florida Statutes (2003), regarding mediation, "the McSherry Petitioners found that they were not given adequate notices of [mediation] meetings and proposals, that the method in which the mediator ran the meetings denied them a reasonable opportunity to participate, that they were not included in negotiation meetings, and that negotiation meetings were not open to the public, and that when the public did attend meetings the public was not allowed to comment."
The Sierra Club/McSherry Petitioners allege that they were systematically frozen out of the mediation process, which resulted in a settlement agreement favorable to PRPV and BANCF. However, the facts established at the hearing did not support these allegations.
One particular complaint by the Sierra Club/McSherry Petitioners is that the mediator, Robert Cambric of DCA, split the mediation into two simultaneous meetings, one on land use and one on environmental issues, making it impossible for an individual or a small group to follow all the issues under discussion. This situation did occur at one mediation session on December 12, 2002. Ms. McSherry and Dr. Adams complained about this arrangement, and it was not repeated by Mr. Cambric.
Richard Drummond, the County's growth management director, testified that no agreements were reached at the December 12, 2002, sessions; rather, participants were given "homework assignments" to complete for the next mediation session. Mr. Drummond's testimony is supported by the fact that the mediation process continued for another six months after this disputed meeting.
The Sierra Club/McSherry Petitioners were allowed to participate in the mediation sessions even before they were formally granted intervention in the underlying proceeding. No evidence was presented to establish that secret meetings were held. The evidence demonstrated that County staff, at the Board's direction, attempted to negotiate a tentative settlement. On several occasions, the Board held public meetings at which extensive public comment was elicited and during which the Board directed staff regarding its position on issues. The Sierra Club/McSherry Petitioners actively
participated in these public meetings, and were represented at all the mediation sessions. No evidence was presented that the mediator acted less than capably and professionally during the mediation process.
Mediation sessions were open to the press and public, though participation at the sessions was limited to the parties, which included the Sierra Club/McSherry
Petitioners. Every person who requested individual notice of mediation sessions was included on an electronic mail distribution list and received notice. The Board's meetings on the mediation were publicly noticed, and extensive public comment was taken.
Beginning in December 2002, a spreadsheet matrix was circulated that outlined the positions of the County and of the PRPV Petitioners on the narrowing list of issues that remained in dispute. As the mediation entered February 2003 and the County and PRPV inched closer to settlement, it became apparent that the County's position on many issues was beginning to diverge from that of its aligned Intervenors, the Sierra Club/McSherry Petitioners.
Mr. Cambric, the mediator, offered to meet with
Dr. Adams and Dr. Cantwell6/ in order to flesh out their issue positions for inclusion in a separate "intervenors" column of the spreadsheet matrix. On or about March 5, 2003, Mr.
Cambric, Richard Drummond, and other County staff persons held the proposed meeting with Dr. Adams, Dr. Cantwell and the McSherrys. A revised matrix was circulated on March 11, 2003, that included a separate column setting forth Intervenors' position. On March 20, 2003, the matrix was further amended to add a separate column for the McSherrys, whose positions on
some issues deviated from the positions of Dr. Adams, SAC, and the Sierra Club.
It is clear from the documentary evidence and the testimony of various witnesses that the Sierra Club/McSherry Petitioners felt a degree of betrayal in the County's reaching a settlement with PRPV. However, the evidence was insufficient to establish their allegations that they were denied adequate participation in the process.
The Sierra Club/McSherry Petitioners contend that the driving force in the settlement of PRPV's challenge was a change in the makeup of the Board in the wake of a primary election held on September 10, 2002. The political situation in Alachua County is obviously relevant to the concerns of the parties, but is beyond the scope of this proceeding. There is no need for detailed findings of fact concerning the Board elections or the positions taken by candidates for office in the County.
Finally, the Sierra Club/McSherry Petitioners contend that jilted Intervenors; i.e., those who supported the County's initial litigation position in defense of the 2002 Plan Update and then opposed the Stipulated Settlement Agreement, should be allowed, by virtue of the realignment of parties pursuant to Subsection 163.3184(16)(f), Florida Statutes (2003), to step into the shoes of the original
Petitioners and attack the 2002 Plan Update, as well as the 2003 Amendments.
This contention was rejected at the hearing for reasons explained in the Conclusions of Law below. Extensive evidence, testimonial and documentary, was taken regarding the 2002 Plan Update. However, findings of fact concerning the 2002 Plan Update are confined to its interplay with the 2003 Amendments and to issues of internal consistency raised thereby.
The Jonesville Petitioners raised procedural issues regarding the concluding phase of the mediation. On July 11, 2003, the Jonesville Petitioners filed a motion to intervene in the challenge to the 2002 Plan Update. Their concern was that the revised definition of "strategic ecosystem" in the proposed 2003 Amendments would adversely affect the value and/or development potential of their properties. At the hearing, the Jonesville Petitioners contended that they were not given adequate notice of the proposed change to the definition of "strategic ecosystem."
Policy 1.1.2 of the Conservation and Aquifer Recharge Element of the 1991 Plan required the County "to provide notification to all property owners whose land use may be restricted due to proposed conservation or preservation designation in the Comprehensive Plan prior to official
designation in the Alachua County Comprehensive Plan." The evidence established that the County complied with this policy, providing notice by mail in April 2003 to all owners of property proposed to be mapped as part of a "strategic ecosystem" site by the 2003 Amendments. The notice informed the property owners that their properties had been identified within the mapped areas and invited the property owners to attend one of a series of late-April 2003 informational workshops regarding the map. The Jonesville Petitioners received the mailed notices.
The Board held a public hearing on approval of the Stipulated Settlement Agreement on July 15, 2003, and a public hearing on August 26, 2003, to adopt the 2003 Amendments. The Jonesville Petitioners had actual knowledge of the public hearings in July and August to approve the agreement and adopt the 2003 Amendments and were represented at those hearings.
At the hearing in the instant proceeding, the Jonesville Petitioners complained that they submitted extensive site investigation reports to the Board at the July 15, 2003, demonstrating that their properties should not be considered "strategic ecosystems," but that they were allowed only three minutes to make their presentation at the hearing. There was no requirement that the Board allow lengthy, fact- intensive presentations concerning specific parcels of land
during the public hearing to adopt the Stipulated Settlement Agreement. Nonetheless, the evidence established that the Jonesville Petitioners, like the other parties to the underlying litigation, would have been allowed more than three minutes had they requested it before the hearing.
There was also no requirement that the County staff or the Board make a detailed response to the Jonesville Petitioners' site reports prior to the Board's adoption of the Stipulated Settlement Agreement or the 2003 Amendments. Further, as is more fully explored below in the findings as to the 2003 Amendments, the information provided by the Jonesville Petitioners was more appropriate to a land development scenario than to the large- scale comprehensive plan amendment process that the County was undertaking.
In conclusion, it is found that neither the Sierra Club/McSherry Petitioners nor the Jonesville Petitioners demonstrated that their procedural rights under the Act or its implementing rules were violated by the process employed by the County during the mediation and when adopting the 2003 Amendments.
2003 FLUE Amendments
Gated Communities and Cul-de-Sacs
FLUE Objective 1.2 in the 2002 Plan Update states:
Provide for adequate future urban residential development that includes a
full range of housing types and densities to serve different segments of the housing market, designed to be integrated and connected with surrounding neighborhoods and the community, with opportunities for recreation and other mixed uses within walking or bicycling distance.
The 2003 Amendments included the following changes to FLUE Policy 1.2.1.17/:
Residential areas shall be designed to provide for an interconnected system of internal circulation, including the provision of streets dedicated to the public connecting the residential area to the major street system. New development shall not restrict preclude public access to the development or include cul de sacs. Residential areas shall also be designed to provide for substantial interconnectivity between adjacent developments and within developments, except where such connectivity is precluded by constraints resulting from physical layout of existing development or environmental features. If connectivity is precluded by such constraints, cul de sacs may be considered for those roads subject to such constraints. The land development regulations shall detail the requirements for public access and substantial interconnectivity based on standards such as a connectivity index, maximum separations between connections to adjacent developments, and rules relative to hours, operations, and public safety considerations for any restriction of access through use of gates.
FLUE Policy 1.2.1.1 was new to the 2002 Plan Update.
Its purpose is to assist in discouraging urban sprawl by encouraging street connectivity, thus, moving the County away from a development pattern of isolated residential
subdivisions with only one or two points of ingress/egress. Adding connectivity features allows pedestrian or bicycle travel between subdivisions and disperses the flow of vehicular traffic by providing more points of entry to arterial roads. All of the parties agreed that interconnectivity is a positive value.
The Sierra Club/McSherry Petitioners criticize amended Policy 1.2.1.1 for failing to define "substantial interconnectivity" and, therefore, providing no meaningful standards by which to determine whether a new residential development provides "substantial interconnectivity." They point out that the policy leaves it to subsequent land development regulations ("LDRs") to define the term, but provides little guidance and essentially standardless discretion to the drafters of the LDRs. The Sierra Club/McSherry Petitioners' chief concern was that a lax regulatory regime could define a single connecting road as "substantial interconnectivity" and, thereby, defeat the clear intent of the policy. Similarly, they observed that Amended Policy 1.2.1.1 refers to a "connectivity index," but provides no definition or guidance as to the meaning of the term, again leaving the LDR drafters limitless discretion.
The Sierra Club/McSherry Petitioners suggest that
the seeds for lax regulation are planted in the policy through
its requirement that the LDRs provide for "maximum separations between connections to adjacent developments." They argue that, if the goal is to provide for interconnected developments, then the LDRs should logically provide for minimum, not maximum, separations between connections. This argument is rejected simply as a matter of logic because providing for maximum separations in the LDRs is precisely what can ensure interconnectivity.8/
Finally, the McSherry Petitioners argue that the amended policy's allowance of gated communities is in direct contradiction to its mandate that "[n]ew development should not preclude public access to the development." They contend that LDRs providing rules for "hours, operations, and public safety considerations for any restriction of access through use of gates" would create an internal inconsistency within FLUE Policy 1.2.1.1.
The County presented testimony from Richard Drummond stating that amended FLUE Policy 1.2.1.1 strengthens existing Plan provisions for interconnectivity by adding the requirement for "substantial interconnectivity," and by adding a requirement that new development not preclude public access.
Robert Pennock, PRPV's expert witness on local government comprehensive planning, with an emphasis on urban
sprawl, testified that the term "substantial," in the context of FLUE Policy 1.2.1.1 and in combination with other policies in the Plan, is a meaningful qualifier indicating the County's intent that its future development pattern will not be a patchwork of isolated subdivisions with a single connection to an arterial road. Mr. Pennock pointed out that a degree of common sense must be applied to the use of the term in the development of LDRs and that it must be acknowledged that the details of the LDRs will be developed by professional planners.
Mr. Pennock's comments regarding common sense and good faith on the part of the regulators points out the chief flaw in the Sierra Club/McSherry Petitioners' argument that a lax regulatory regime could employ the terms "substantial interconnectivity" and "connectivity index" in such a way as to allow developers to do whatever they wish. The argument fails to explain why such a hypothetical "bad regulator" could not twist the Sierra Club's favored term, "connectivity," in the same fashion. If one accepts the hypothetical premise of the "bad regulator" poised to do the bidding of residential developers regardless of any other considerations, then the text of the Plan will hardly matter; the bad regulator will find a way around the Plan's language.
In fact, "substantial interconnectivity" is no more or less vague a term than "connectivity." As Mr. Pennock testified, these terms have meaning in the planning profession, and it must be accepted that the County will draft meaningful LDRs to implement FLUE Policy 1.2.1.1, including the challenged terms.
In summary, the Sierra Club Petitioners did not establish that an outright ban on gated communities or cul-de- sacs is necessary for the County to have an efficient road network, meet applicable levels of service or Rule 9J-5 requirements, or that such a ban has ever been imposed elsewhere in Florida. It is at least fairly debatable that 2003 FLUE Policy 1.2.1.1 appropriately responds to the data and analysis and provides adequate guidance for development of LDRs.
Clustering
Florida Administrative Code Rule 9J-5.003(14) defines "clustering" as "the grouping together of structures and infrastructure on a portion of a development site." Clustering is a planning and development technique that transfers the allowable development density onto smaller lots on a portion of the property to be developed, in a tighter development pattern, that reduces road and infrastructure
costs and that sets aside the remainder of the property for conservation, agriculture, or general open space.
Residential cluster development is generally promoted as a means of conserving open space, rural character, and important environmental resources in new housing developments. According to the County's "Supporting Data and Analysis for Comprehensive Plan Amendments Updating the Alachua County Comprehensive Plan: 2001-2020" (the "Data and Analysis"), clustering is a "means to protect the characteristics and features of rural areas, while allowing for rural residential lifestyles."
FLUE Policy 7.2.8 of the 1991 Plan required clustering in new rural residential subdivisions with 25 or more lots and made no provision to allow clustering for smaller subdivisions. Proposed clustered developments were required to seek permits as Planned Unit Developments, a lengthy and complicated zoning process that included review by County staff, recommendations by the Board, and final approval or denial by the Board at a public hearing.
Every witness who testified on the subject agreed that the clustering provision of the 1991 Plan had been a failure. Only two proposed developments have sought permits as clustered developments, and both were denied. The County approved the construction of phased subdivisions, with each
phase containing fewer than 25 lots and built to the base rural density of one unit per five acres.
Smaller subdivisions were designed to fall below the 25-lot threshold for clustering. Richard Drummond noted that the 1991 Plan would not allow the developer of these smaller subdivisions to cluster even if he so desired. These subdivisions tend to be platted in such a way that each lot owner also owns a small part of the natural resources found in the subdivision, complicating any efforts by the County to preserve those resources.
The consensus of the expert opinion was that clustering failed because developers tend to be conservative in designing subdivisions. Clustering is a new pattern for development, and 1991 FLUE Policy 7.2.8 offered insufficient incentive to developers to take the risk of building and marketing nontraditional developments and left them the option of sizing their developments to avoid the clustering requirement.
In the 2002 Plan Update, proposed FLUE Policy 6.2.9 addressed the reluctance of developers to cluster by removing their option to avoid clustering by downsizing their projects. The policy would have required clustering in all new rural residential subdivisions. The 2003 Amendments softened the policy as follows:
Policy 6.2.9 Clustering
The preferred design for Nnew rural residential subdivisions shall be is that they be clustered in order to protect the characteristics and features of rural areas through the following goals:
Protect natural and historic resources.
Support continued agricultural activities by preserving viable soils and effective land masses.
Minimize land use conflicts.
Provide recreational and habitat corridors through linked open space networks.
Achieve flexibility, efficiency, and cost reduction in the provision of services and infrastructure.
Reduce natural hazard risks to life and property.
The 2003 Amendments maintain the clustering requirement for new developments containing 25 or more lots, but attempt to provide more incentives to developers to use clustering in developments of any size. 2003 FLUE Policy 6.2.10, relating to allowable density and intensity of new development, provides for a "density bonus" as follows, in relevant part:
The overall development density shall not exceed the maximum gross density of one dwelling unit per five acres for the Rural/Agriculture land use category, except as a result of incentive bonuses for clustering as provided under item 4 below, subject to the resource protection
standards in the Conservation and Open Space Element. These standards include the following requirements:
* * *
4. As an incentive to cluster new residential subdivisions, if a new residential subdivision in the Rural/Agriculture area is clustered with a minimum of 50% of the development in open space, a total of 2 units in addition to the number of units based on the gross density of 1 unit per 5 acres are allowed, plus 1 additional unit per every 10 acres of conservation area set aside as open space; plus 1 additional unit per every 20 acres non-conservation area set aside as open space.
As a further incentive, the 2003 Amendments delete the Planned Unit Development aspect of clustered subdivision approval, expediting the zoning approval process.
Under the clustering provisions of the 1991 Plan, rural subdivisions with more than 25 lots were required to set aside 80 percent of their area as open space. The 2003 Amendments reduce this open space set-aside to 50 percent. Richard Drummond persuasively noted that there is no practical reduction in the set-aside, because very few people subjected themselves to the clustering requirement of the 1991 Plan.
Also, the 1991 Plan expressly disclaimed any intent that the open spaces remain undeveloped in perpetuity. 2003 FLUE Policy 6.2.12.4 provides that all future development in designated open space areas is prohibited and requires the
filing of a legal instrument that runs with the land establishing that the open space will be maintained and remain undeveloped in perpetuity.
Conservation is the highest priority among the open space uses recognized by the 2003 Amendments' provisions on rural development. 2003 FLUE Policy 6.2.5 requires clustering for a new development of more than 25 lots, then goes on to provide that a new development of fewer than 25 lots must either cluster or employ a development plan "that assures the permanent protection of natural resources consistent with the requirements of the [COSE]."
2003 FLUE Policy 6.2.5 further provides that the LDRs will detail the requirements for "management and permanent protection of the ecological value of natural resources in those developments that are not clustered, through legally enforceable mechanisms" that provide protections equivalent to those provided in clustered subdivisions.
The Sierra Club Petitioners attacked the 2003 clustering provisions as being inconsistent with the 2002 Data and Analysis, which emphasize that urban sprawl is a major threat to the County's rural agricultural landscape. The Data and Analysis indicated "a rapid rate of conversion of the rural area to allow low density development," and concluded
that "the rural land character is threatened by the piece-meal development of residential uses."
Sierra Club places special emphasis on a 1992 report sponsored by the American Farmland Trust, Florida's Growth Management Plans: Will Agriculture Survive?, summarized and discussed in the 2002 Data and Analysis as follows:
This report noted that the degree to which rural low density residential zones are effective in conserving farmland is directly related to the minimum lot size required for each residence. The larger the minimum lot size, the more effective the zone is in conserving farmland. The current policy [in the 1991 Plan] allowing residential development on 5 acre lots in the rural area is totally ineffective, according to this report. The minimum lot sizes can be rated as follows according to their effectiveness in conserving farmland:
under 4.9 acres totally ineffective
5 to 9.9 acres generally ineffective
acres moderately ineffective
to 20 acres moderately effective
20.1 to 40 acres generally effective over 40 acres highly effective
In the six years, 1995-2000, the average numbers for single family and mobile home permits issued by lot size in unincorporated Alachua County were as follows:
Less than 3 acres 162 average yearly
3 to 8 acres 182 average yearly
8 to 12 acres 72 average yearly
12 to 20 acres 35 average yearly Total 20 acres or less 511 average yearly[9/]
Relying on the quoted section of the Data and Analysis, Sierra Club argues that only mandatory clustering of subdivisions in the rural area can fulfill the goal of protecting the characteristics and features of the rural area. Sierra Club correctly notes that, in adopting the 2003 Amendments, the County provided no additional data and analysis to demonstrate that the density bonuses added to the Plan would lead to clustering under 2003 FLUE Policy 6.2.9, which eliminated mandatory clustering and simply made it the "preferred design." Sierra Club contends that the County was required to offer some expert testimony to indicate that density bonuses provided in 2003 FLUE Policy 6.2.10 would actually cause landowners to choose clustering.
Alternatively, Sierra Club argues that if voluntary density-bonus clustering occurred, it could lead to considerably more dwelling units in rural areas than under the 1991 Plan. For example, if a 20-acre parcel with four 5-acre lots were clustered to leave ten acres of conservation area, then a total of seven units would be permitted for the parcel: four units based on the allowed rural density of one unit per five acres; two units as a bonus for leaving 50 percent of the development in open space; and one additional unit for setting
aside ten acres of conservation area. Thus, seven units would be permitted, compared with four units that would have been allowed without the bonuses, and these seven would be situated on the ten unpreserved acres on lots with an average size of
1.43 acres. Sierra Club contends that these "ranchettes" would not meet the objective of maintaining viable agriculture and of providing a separation between urban and rural land uses.
Thus, Sierra Club argues that, under any view, the 2003 Amendments are inconsistent with FLUE Objective 6.1:
Rural areas shall protect rural and agriculture areas in a manner consistent with the retention of agriculture, open space, and rural character, and the preservation of environmentally sensitive areas and efficient use of public services and facilities.
Richard Drummond contended that it is impossible at this point to say that the 2003 Amendments dealing with incentive clustering will not work. He conceded that the density bonuses provided in 2003 FLUE Policy 6.2.10.4 could be too much or not enough, but that the only way to know is to try it in practice, then use the experience to adjust the incentives in future plan cycles. Mr. Drummond credibly testified that given the lack of clustering that occurred under the mandatory provision of the 1991 Plan, it is a
virtual certainty that there will be more clustered development under the 2003 Amendments.
Sierra Club's criticism that density-bonus clustering will not have a great impact on the density of development in the rural area is well taken, but beside the point. The very 2002 Data and Analysis upon which Sierra Club bases its argument notes that "rural cluster subdivisions are simply an internal transfer of density involving the same number of dwellings." In other words, the chief purpose of clustering is not to affect overall density of development, but to arrange that development on the land in a more environmentally sensitive, aesthetically pleasing way than traditional grid-style platting of lots.
The density bonuses offered by the 2003 Amendments will not notably alter the overall density of rural development, but that is not their main purpose. The County hopes that the density bonuses will provide sufficient incentive for developers to avail themselves of the clustering option.
The County did not dispute Sierra Club's argument that the 2002 Data and Analysis support the mandatory clustering for all new development that was adopted in the 2002 Plan Update. However, the County does contend that the 2002 Data and Analysis do not require mandatory clustering as
the only way to achieve the goals of retaining the rural character and preserving the environmentally sensitive areas of rural lands. The County is correct that the 2002 Data and Analysis provides a generally positive assessment of clustering, but nowhere forces a reader to conclude that mandatory clustering is required.
Even accepting the Data and Analysis suggestion that allowing residential development on five-acre lots in the rural area is "totally ineffective" in conserving farmland and that controls show some effectiveness only when the minimum lot size is increased to ten acres, the fact remains that conserving farmland is not the sole value served by the clustering provision, nor should it be the sole measure of the provision's success. In addition to farmland conservation, 2003 FLUE Policy 6.2.9 cites protection of natural and historic resources, minimization of land use conflicts, provision of recreational and habitat corridors through linked open-space networks, achievement of flexibility, efficiency, cost reduction in the provision of services and infrastructure, and reduction of natural hazard risks to life and property as goals of the clustering provisions.
While it may be true that lot sizes of more than
40 acres would be "highly effective" in conserving farmland, Alachua County seeks to balance all of the stated goals in its
clustering provision and has arrived at a reasonable formula for achieving at least some progress on each of the goals.
The County pointed out that Florida Administrative Code Rule 9J-5.006(5)(l) identifies clustering as an "innovative and flexible" planning strategy, but does not mandate clustering. Given the County's history of failure with one form of mandatory clustering, it is not unreasonable that it would attempt the application of an incentive program as an alternative.
Urban Cluster/Urban Services Line10/
The 2003 Amendments amended the Future Land Use Map series ("FLUM"), a necessary part of the FLUE pursuant to Florida Administrative Code Rule 9J-5.006(4). FLUE General Strategy 1 provides that the Plan must:
Minimize the conversion of land from rural to urban uses by maximizing the efficient use of available urban infrastructure, while preserving environmentally sensitive areas, according to the following:
Designate and maintain on the [FLUM] an urban cluster that sets a boundary for urban growth.
Provide incentives for higher average densities for residential development and mixed uses in the urban cluster, including density bonus and transfer of development rights.
Provide a range of urban residential densities with the highest densities located in or near urban activity centers,
and lower densities located in outlying rural areas or areas of the County which have physical limitations to development. .
. .
The "Urban Cluster" is defined as:
An area on the [FLUM] for urban development, which includes residential densities ranging from one unit per acre to
24 units per acre or greater, non- residential development, and is generally served by urban services.
The Urban Cluster designation on the FLUM sets a boundary for urban growth in order to maximize the efficient use of available urban infrastructure and to preserve environmentally sensitive areas to minimize urban sprawl. The 2002 Plan Update uses the Urban Cluster to differentiate between urban and rural uses and encourages higher densities in the Urban Cluster in order to use land efficiently.
To further the efficient use of land, the 2002 Plan Update also established an "urban services line" ("USL") within the Urban Cluster. FLUE Policy 7.1.3.A describes the USL as follows:
In order to phase development for the Urban Cluster and promote efficient use of land and infrastructure and minimize sprawl, an urban services line is designated in the Future Land Use Map series. The line identifies the limits of the area within the Urban Cluster within which phased development shall be promoted through the year 2010.
The USL's ten-year planning period, through 2010, is shorter than the planning period for the Urban Cluster, which is through 2020. The purpose of USL is to provide better timing of development within the urban area, to encourage redevelopment and direct new development to areas where infrastructure exists or will be available.
The 2003 Amendments expanded the Urban Cluster as part of the FLUM series. The 2003 Amendments also expanded the USL within the Urban Cluster on the FLUM series.
The appropriate size for the USL and the Urban Cluster depends on the amount of land needed for projected population growth. FLUE Policy 7.1.3 establishes the process for determining the need for additional developable land to accommodate the projected population as follows:
As part of the periodic update of the Comprehensive Plan and any proposed amendments to the Urban Cluster, determine a sufficient and nonexcessive amount of land within the Urban Cluster to accommodate urban uses for a ten year and twenty year time frame.
The determination (methodology is shown in Appendix A)[11/] shall be based on a comparison of:
a forecast need for land for urban residential and non-residential development based on projected population, average household size, a residential vacancy rate, and a market factor. The market factor for the ten year time frame shall be 2.0. The market factor for the 20 year time frame shall be 1.5.
land available in the Urban Cluster for urban residential and non-residential uses. Mapping of environmentally sensitive areas shall be utilized as a factor for determining land availability.
If the land comparison shows that the land available is less than the forecast need for land, the following measures shall be considered:
revisions to density standards and land development regulations, or other measures, to accommodate greater population within the existing Urban Cluster.
coordination with municipalities regarding possible reallocation of forecast need to the incorporated areas.
phased expansion of the Urban Cluster.
If the forecast need for one type of land use exceeds the supply of land for that particular use, a revision to the allocation of land uses within the Urban Cluster shall be considered before the Urban Cluster is expanded.
If this methodology determines expansion of the Urban Cluster is warranted, the evaluation of appropriate location shall be subject to analysis including the following economic, infrastructure, transportation, conservation and recreation criteria:
rural character and viable agriculture land and the potential impact of expansion of the Urban Cluster on existing agricultural uses.
economic development considerations including affordable housing.
relationship to existing and planned future urban services and infrastructure.
access to the regional transportation network and multi-modal transportation systems.
Conservation and Preservation land uses.
planned recreation/open space or greenway systems.
Thus, FLUE Policy 7.1.3 provides a three-step process for determining "a sufficient and nonexcessive amount of land" to accommodate urban uses. First, there must be a calculation of the estimated need for land to accommodate the projected population. The second step is to calculate the amount of vacant land currently available for urban residential use. Third, a comparison is made between the need for and the availability of vacant land to determine whether and how the FLUM should be amended.
In calculating need, the County built into its formula a safety factor to ensure sufficient land for the future population over the projected time period. The real estate market requires some excess capacity to prevent scarcity-driven price increases, and the County, therefore, included a "market factor" in determining the amount of land that should be designated for development. The 2002 Data and Analysis explained the principle as follows:
A market factor is included in the calculation to allow for a measure of flexibility between supply and demand. A sufficient market factor allows flexibility in the siting of development, thereby helping ensure that developers can find locations favored by the market. Market factor is a multiplier used in developing a forecast of future land use needs, specifically housing, to allow for market choice. The market factor results in additional developable land in the urban cluster and thereby can have a positive effect on housing affordability. The market factor also addresses market uncertainty with respect to the accuracy of market predictions, for example if some landowners withhold their land from development. The market factor ensures that enough land is set aside for residential purposes to accommodate these residential support activities-- parks, easements for utilities, churches, to name a few. Across the country the range in factors is as low as 1.15 (Portland, Oregon) to over 2.0 (several Florida locations). Alachua County has used the market factor 2.0 for calculations for the year 2010 and the market factor 1.5 for the year 2020.
The County multiplied the number of new dwelling units needed over the 2010 and 2020 planning horizons by the market factors chosen for those periods to arrive at a "total capacity needed" number. The Sierra Club/McSherry Petitioners contended that the market factors chosen by the County were too high and that 1.25 was a more reasonable figure for the County. Mr. Pennock, PRPV's planning expert, testified that there is no "final magic answer" to the question of the market factor number. He stated that 1.25 is a "conservative" market
factor, and that 2.0 is a professionally acceptable number. It is found that the County's market factors of 2.0 for the year 2010 and 1.5 for the year 2020 were reasonable, in light of all the evidence.
After determining the amount of land needed over the planning horizon, the second step in the County's formula is to determine the amount of vacant land currently available for urban residential use. In order to determine the amount of land currently available, there must be a calculation of the number of units per acre available for future residential development. The two components of this calculation are, first, the number of acres presently within the Urban Cluster or USL, and second, the residential dwelling unit density allowed within that acreage.
FLUE Objective 1.3 provides that "[g]ross residential densities shall be established to serve as a guideline for evaluating development in Alachua County." FLUE Policy 1.3.2 classifies the densities as follows:
The following classification of gross residential densities shall serve as a standard for evaluating development in Alachua County, unless specific provisions are otherwise provided in the Plan.
a. Urban Residential Densities - Areas designated on the [FLUM] for gross residential densities of one unit per acre or greater shall be considered as urban in character. There shall be four gross residential density ranges as follows:
Low Density One to Four dwelling units per acre
Medium Density Greater than Four to
less or equal to Eight dwelling units per
acre
Medium-High Greater than Eight to less than or equal to
14 dwelling units per acre
High Density Greater than 14 to less
than or equal to 24 dwelling units per
acre
The Sierra Club/McSherry Petitioners contend there was already an excess of acres available for development relative to need for the projected population, even before the 2003 Amendments expanded the Urban Cluster and the USL. They point to the 2002 FLUE Data and Analysis, which explained that the need calculations resulted in a finding that there were 7,396 acres available for urban development beyond the projected need in the Urban Cluster through the year 2010, and 4,378 acres beyond the projected need in the Urban Cluster through the year 2020. The 2002 Data and Analysis concluded: "Therefore there is no need in both 2010 and 2020 for modification of the area designated for urban development."
Nonetheless, the 2003 Amendments added an additional
434 acres to the Urban Cluster, thereby increasing the
available acres for development to 8,370. Richard Drummond explained that the County discovered, after the EAR process and the adoption of the 2002 Plan Update, that some of the population projections for the unincorporated areas were in error. The County also found miscalculations in terms of the existing housing stock. Mr. Drummond stated that the 2002 projections did not reflect the impact that the Plan's new environmental and floodplain policies could have on existing development capacity, or the fact that some private property owners had made it known their land would not be available for development.
Mr. Drummond emphasized that the final need projections reflected the methodology that the County chose to employ and conceded that other methodologies could be used to arrive at different projections. The Sierra Club Petitioners have set forth at some length the methodologies they believe should have been employed by the County as regards establishment of the Urban Cluster and USL.
At the outset, the Sierra Club Petitioners have challenged the County's methodology for calculating the number of needed dwelling units and corresponding acreage. They contend that the County calculated an excessive amount of acreage based on outdated historical data, rather than on the
maximum gross residential densities allowed under the updated Plan.
In making its acreage calculations, the County assumed that the low density residential areas would have an average density of 1.6 dwelling units per acre ("DU/acre"). Sierra Club contends that the County placed undue reliance on historical evidence that the density trends in the low density category was 1.34 DU/acre from 1980-1990, and 1.6 DU/acre from 1991-1997, when the County's own EAR provided more recent evidence that the objective of 2.0 DU/acre was being achieved.
Mr. Drummond testified that a goal of the 2002 Plan Update was to increase the density of development within the low-density range. Sierra Club contends that using higher densities in the calculations of needed acreage would better support that goal and that the County was, therefore, required to base its calculations of the land presently available to serve the projected need on the maximum available density.
The Sierra Club Petitioners argue that basing the projections on historical trends "perpetuates old planning mistakes," and is internally inconsistent with FLUE General Strategy 1's requirement that the Plan provide "incentives for higher average densities for residential development and mixed uses in the urban cluster." They conclude that the maximum available density of 4.0 DU/acre should have been the County's
basis for allocating acreage in the low density category, rather than the historically-based 1.6 dwelling units per acre presented by the County.
The Sierra Club Petitioners offered a detailed recalculation of the "needed acres" for the Urban Cluster and the USL based on a density of 4.0 DU/acre, rather than 1.6 DU/acre, concluding that Alachua County overestimated the needed land by 2,737 acres in the low-density residential category. They performed a similar recalculation of need in the medium-high and high-density residential categories based on the maximum allowable density, rather than the historic "average density" used by the County.
It is not necessary to set out the recalculation here because it is found that the Sierra Club Petitioners failed to demonstrate that the methodology employed by Alachua County to project the acreage needed for development in 2010 and 2020 was so unreasonable as to be beyond fair debate, or that their substituted methodology was correct and accurate beyond fair debate.
The Sierra Club Petitioners may be correct in their contention that the Plan's goal of increasing densities in
low-density residential developments would be better supported by use of maximum allowable densities in the need projections. There is little doubt that reducing the acreage available for
development would force more compact development in the Urban Cluster, but there is no indication that the County's projections present an unreasonable risk of urban sprawl.
Both Richard Drummond and Mr. Pennock discussed other Plan goals, such as avoiding a distortion of the real estate market caused by allocating too little land for development, that the Sierra Club Petitioners' methodology arguably does not address or would even subvert.
In arriving at its methodology, Alachua County necessarily struck a balance in its priorities. Richard Drummond candidly testified that there were other ways to arrive at the need projections. The Sierra Club Petitioners reasonably disagree with that balance and believe that the community would be better served through tighter controls on expansion of urban development. This is a disagreement to be resolved through the political process and is certainly not beyond "fair debate" for either side of the argument in the context of this administrative proceeding.
The Sierra Club Petitioners contend that the "development factor" employed in the calculation of capacity needed within the Urban Cluster and USL also contributes to inflating the estimate. As part of the formula used to calculate the land needed to accommodate the projected population, Alachua County applied a "development factor" of
0.5 to the residential units available on vacant land identified as "strategic ecosystems" or wetland areas, thus halving the available acreage in those areas. The 0.5 development factor was applied in recognition of the Plan's policies requiring that 50 percent of such lands be preserved from development.
The Sierra Club Petitioners argue that the County's reasoning ignores FLUE Policy 6.2.10, which allows the landowner to cluster the total number of available residential units for an entire parcel on the developable 50 percent of the property. Thus, while 50 percent of the property is placed in conservation with no dwelling units, the dwelling units for the total acreage can be built on the remaining 50 percent of the property. The Sierra Club Petitioners argue that this methodology leads to an understatement of the acreage available for development and, thereby, underestimates the number of available dwelling units.
Mr. Drummond explained that the "development factor" is intended to account for several contingencies. Some property owners might not choose to cluster and, therefore, would not develop the remaining 50 percent at the maximum density. More than 50 percent of some properties might be set aside after their boundaries are ground-truthed.12/ Because of such contingencies, the County decided to adjust the
calculations so that its estimate would include the net acreage that would be fully available for development.
This rationale could lead to some excess of vacant residential lands if a significant number of the conservation/wetlands properties are developed to their maximum density, but it cannot be deemed wrong beyond fair debate for Alachua County to seek certainty under its formula.
FLUE Policy 7.1.3.d, set out in full above, requires the County to evaluate the appropriate location for expansion of the Urban Cluster according to the criteria set forth therein. The Sierra Club Petitioners contend that Alachua County did not provide data and analysis to demonstrate compliance with these locational standards in its 2003 Amendment to the FLUM for the Urban Cluster.
The 2002 FLUE Data and Analysis provide that development outside of the USL "must provide a full compliment of urban services." Mr. Drummond testified that because the 2002 Plan Update requires that all new development in the urban area must hook up to central water and sewer services,13/ the 2002 USL was based on proximity to those services, which became "the primary indicator for the rational progression of urban development."
The Sierra Club Petitioners have challenged the 2003 Amendments' expansion of the USL to include all land in
"common ownership" outside of the parcels on the 2002 FLUM map. According to Mr. Drummond, the common ownership included parcels where there was "a legal relationship between the corporate entities that owned the property." The Sierra Club Petitioners claim that the County "failed to demonstrate that the method of including all parcels within common ownership within the expanded Urban Cluster or [USL] was a professionally acceptable methodology." The Sierra Club Petitioners assert that the effect of this change is to add property within the USL regardless of proximity to existing infrastructure in contravention of 2002 FLUE Policy 7.1.3(d).
It is found that the County's recognition of properties under common ownership in setting the USL, where at least part of the property meets all criteria for inclusion within the USL, appears on its face to be a sensible amendment. In this proceeding, the burden was not on the County to demonstrate that its methodology was "professionally acceptable." Rather, the burden was on Petitioners to demonstrate that the methodology did not meet the "fairly debatable" standard of acceptability. Petitioners failed to make that demonstration as to this issue.
The Sierra Club Petitioners claim that because the expansion of the USL in the 2003 Amendments was based on availability of central water and sewer, it is internally
inconsistent with other provisions of the Plan. FLUE Principle 2 requires the Plan to "[b]ase new development upon the provision of necessary services and infrastructure." FLUE General Strategy 1.f. provides that the Plan should:
Minimize the conversion of land from rural to urban uses by maximizing the efficient use of available urban infrastructure, while preserving environmentally sensitive areas, according to the following:
* * *
f. Time development approval in conjunction with the economic and efficient provision of supporting community facilities, urban services, and infrastructure, such as streets, utilities, police and fire protection service, emergency medical service, mass transit, public schools, recreation and open space, in coordination with the Capital Improvements Element.
The Sierra Club Petitioners assert that the County has failed to comply with these provisions because it based the expansion of the Urban Cluster and the USL on only one form of infrastructure, central sewer and water, while ignoring the availability of "supporting community facilities, urban services, and infrastructure" such as schools, police and fire protection, emergency medical service, mass transit, and recreation and open space.
The evidence does not support this assertion beyond fair debate. The USL is a timing and phasing mechanism for
development within the Urban Cluster over a ten-year planning horizon and is intended to encourage redevelopment and to direct new development to areas where public infrastructure exists or will be available. To the east, the County has located the USL coterminously with the Urban Cluster in order to promote redevelopment in the east Gainesville area. To the west, the USL is located a quarter-mile outward from existing and planned central water and sewer lines, without splitting ownership lines on individual parcels, except that in an area to the southwest near Archer Road, the USL is located a half- mile from existing and planned central water and sewer lines in order to promote this area as a future transit corridor.
It is at least fairly debatable that the establishment and location of the USL is supported by appropriate data and analysis and that the County considered other infrastructure factors in drawing the lines of its urban boundaries.
Water and Sewer Line Extensions
In the 1991 Plan, Potable Water and Sanitary Sewer Element ("PWSSE") Policy 8.2 provided, in relevant part:
Proposed extensions of potable water and sanitary sewer lines outside of the urban service area designated by the [FLUE] shall be subject to approval by the Board of County Commissioners. . . .
The 2002 Plan Update renumbered the quoted provision as PWSSE Policy 3.5 and changed the term "urban
service area" to "Urban Services Line," but otherwise left the text unamended. The 2003 Amendments changed the term "Urban Services Line" to "Urban Cluster." The Sierra Club Petitioners contend that the effect of the latter change is to allow the extension of water and sewer outside the USL, but within the Urban Cluster without the approval of the Board.
They point out that the City of Gainesville owns and operates Gainesville Regional Utilities ("GRU") and that Alachua County historically has had little to no control over the pattern of development based on utility service.
Mr. Drummond conceded that allowing the utility provider to dictate the pattern of development led to low- density sprawl. Thus, the Sierra Club Petitioners contend that the 2003 Amendment to PWSSE Policy 3.5 weakens the ability of the County to control growth through the phasing envisioned by the USL, because the County has no control over how the growth is "phased" when it lacks control over utilities.
The County replies that the 2003 Amendments' change of "Urban Services Line" to "Urban Cluster" merely corrects a scrivener's error. Mr. Drummond testified that the 2002 Plan Update version of PWSSE Policy 3.5, requiring Board approval of water and sewer extensions outside the USL, unintentionally conflicted with FLUE Policy 7.1.3.B, which provides a
mechanism for development to occur outside the USL but within the Urban Cluster without Board approval. The 2003 Amendment corrected the error and brought PWSSE Policy 3.5 into harmony with FLUE Policy 7.1.3.B. It is found that the 2003 Amendment to PWSSE Policy 3.5 does not represent a substantive change to the Plan.
As to Petitioner's "lack of control" critique, the County responds that the City of Gainesville's Plan calls for coordination with the County's Plan when proposing utility line extensions. Mr. Drummond testified that the City of Gainesville's Plan recognizes that GRU will extend its utility lines in the unincorporated area in a manner consistent with the County's Plan. It is at least fairly debatable that the 2003 Amendments are supported by data and analysis and do not inappropriately delegate planning authority to the City of Gainesville or GRU.
2003 COSE Amendments
Strategic Ecosystems
The 1991 Plan employed the term "conservation area" to describe properties meriting special protection, including areas with significant geologic features such as springs and caves, wetlands, areas subject to 100-year flooding, and
surface waters and their transitional zones. The 2002 Plan Update recognized both "primary" and "secondary" conservation areas. 2002 COSE Policy 3.1.1 provided:
Primary conservation areas shall consist of natural resources that, because of their ecological value, uniqueness and particular sensitivity to development activities, require stringent protective measures to sustain their ecological integrity. These areas shall include:
Wetlands;
Surface waters;
Wellfield protection areas;
Listed species habitat;
Significant geologic features; and
Strategic ecosystems.[14/]
"Strategic ecosystem" was a new term added by the 2002 Plan Update and was defined in the 2002 COSE definitions as follows:
Outstanding examples of ecosystems that are intact or capable of restoration and that require conservation or management to maintain important reserves of biodiversity at landscape, natural community and species specific levels. Strategic ecosystems are greater than 20 acres in size and contain one or more natural ecological communities, including but not limited to scrub, sandhill, xeric hammock, upland pine forest, upland mixed forest, mesic hammock, prairie hammock, wet prairie, seepage slope, slope forest, mesic flatwoods, scrubby flatwoods, floodplain forest, baygall, wet flatwoods, and hydric hammock. The natural resources that comprise
strategic ecosystems are identified through means including, but not limited to: the Florida Fish and Wildlife Conservation Commission's "Closing the Gaps in Florida's Wildlife Habitat Conservation System" (1994), as supplemented with "Habitat Conservation Needs of Rare and Imperiled Life in Florida" (2000); FDEP's "Statewide Ecological Network," contained in The Greenways System Planning Project (1998); the Florida Natural Areas Inventory; and Golder's "Alachua County Ecological Inventory Project" (1996).
2002 COSE Objective 4.10, not amended in 2003, provides that it is the County's objective to "[p]rotect, conserve, enhance, and manage the ecological integrity of strategic ecosystems in Alachua County." The 2002 COSE Policies implementing Objective 4.10, which were all new to the 2002 Plan Update, provided:
Policy 4.10.1
Conserve ecosystems that are determined to be strategic based on an overall assessment of the following characteristics:
Natural ecological communities that exhibit:
Native biodiversity within or across natural ecological communities.
Ecological integrity.
Rarity.
Functional connectedness.
Plant and animal species habitat that is:
Documented for listed species.
Documented for species with large home ranges.
Documented as a special wildlife migration or aggregation site for activities such as breeding, roosting, colonial nesting, or over-wintering.
High in vegetation quality and species diversity.
Low in non-native invasive species.
Size, shape, and landscape features that allow the ecosystem to be restored to or maintained in good condition with regular management activities, such as prescribed burning, removal of exotic vegetation, or hydrological restoration.
Policy 4.10.2
Strategies shall be implemented through the land use planning and development review process to ensure that each strategic ecosystem is evaluated and protected based on the integrity of the ecological unit.
Policy 4.10.3
The County shall create special area plans in cooperation with landowners to establish specific guidelines for strategic ecosystems prior to approval of land use change, zoning change, or development approval.
The County shall devise a schedule for creating special area plans, based on current development pressures and anticipated priorities.
The County shall create special area plans for each strategic ecosystem, in accordance with the schedule and with the standards under Objective 3.6.[15/]
If an applicant seeks development prior to the County's creation of a special
area plan for a particular strategic ecosystem, the applicant has two avenues for pursuing development. A special area study may be conducted at the applicant's expense. Alternatively, if the applicant demonstrates that the ecological integrity of the strategic ecosystem will be sufficiently protected, the applicant may proceed according to the clustering provisions in policies under Objective 6.2 of the [FLUE].
Policy 4.10.4
Management strategies for strategic ecosystems shall be developed with landowners in conjunction with special area plans and may include, but are not limited to:
Prescribed burning.
Control of invasive species.
Silvicultural activities according to BMPs [best management practices], with particular emphasis on maintenance and improvement of water quality, biological health, and the function of natural systems.
Reduction in the intensity of site preparation activities, including bedding and herbicide application.
Provision for listed species habitat needs, including restricting, at appropriate times, intrusions into sensitive feeding and breeding areas.
Cooperative efforts and agreements to help promote or conduct certain management activities, such as cleanups, maintenance, public education, observation, monitoring, and reporting.
Land acquisition.
Policy 4.10.5
Clustering shall be required so that at least 80% of each strategic ecosystem is preserved as undeveloped area. Development shall be designed in accordance with the standards under Objective 3.6 of this Element. In the rural area, development shall also comply with standards under Objective 6.2 of the [FLUM].
Policy 4.10.6
The County shall provide regulatory flexibility to facilitate planning across multiple parcels that protects the integrity of the strategic ecosystem as an ecological unit. Existing cluster and PUD ordinances shall be revised to enhance long-term protection of strategic ecosystems.
Policy 4.10.7
The County shall work with owners of agricultural and silvicultural lands to retain the ecological integrity and ecological value of strategic ecosystems through management plans and incentives. A management plan shall be required before any activity occurs in a strategic ecosystem that has not been used for agriculture or silviculture within the last
20 years, in accordance with the following:
The management plan shall provide for retention of the ecological integrity and ecological value of the strategic ecosystem.
The management plan shall be submitted to Alachua County for review and approval by appropriately qualified technical staff.
The management plan may be satisfied by Forest Stewardship Council certification, land acquisition, or participation in a conservation program sponsored by the USDA Natural Resources Conservation Service.
Passive recreational and ecotourism activities shall be encouraged where consistent with protection of the ecological integrity of the strategic ecosystem.
The County shall, through community outreach and collaboration, facilitate participation of landowners in forestry certification programs, land acquisition programs, and federal and state cost-share conservation programs, such as the Environmental Quality Incentive Program, the Conservation Reserve Program, the Wildlife Habitat Incentive Program, and the Farmland Protection Program.
Policy 4.10.8
Alachua County shall implement an ordinance that specifically addresses the preservation of strategic ecosystems, significant plant and wildlife habitat, habitat corridors, and vegetative communities.
The 2003 Amendments deleted 2002 COSE Policy 3.1.2, which had defined "secondary" conservation areas. The 2003 Amendments amended 2002 COSE Policy 3.1.1, set forth above, by deleting the first word, "Primary." The effect of these amendments is that the policy now simply defines "conservation areas" without distinction as to their being "primary" or "secondary."
The 2003 Amendments also deleted "Wellfield protection areas" from the definition of "conservation areas," replacing it with "100-year floodplains."
Finally, the 2003 Amendments changed the definition of "strategic ecosystem" to read:
Outstanding examples of ecosystems that are intact or capable of restoration and that require conservation or management to maintain important reserves of biodiversity at landscape, natural community and species specific levels. Strategic ecosystems are greater than 20 acres in size and contain one or more natural ecological communities, including but not limited to scrub, sandhill, xeric hammock, upland pine forest, upland mixed forest, mesic hammock, prairie hammock, wet prairie, seepage slope, slope forest, mesic flatwoods, scrubby flatwoods, floodplain forest, baygall, wet flatwoods, and hydric hammock. The natural resources that comprise strategic ecosystems are identified through means including, but not limited to: the Florida Fish and Wildlife Conservation Commission's "Closing the Gaps in Florida's Wildlife Habitat Conservation System"(1994), as supplemented with "Habitat Conservation Needs of Rare and Imperiled Life in Florida"(2000); FDEP's "Statewide Ecological Network," contained in The Greenways System Planning Project (1998); the Florida Natural Areas Inventory; and Sites that are identified in the KBN/Golder's Associates report, "Alachua County Ecological Inventory Project" (1996).
The 2003 Amendments amended the 2002 COSE Policies implementing Objective 4.10 as follows:
Policy 4.10.1
Conserve strategic ecosystems that are determined through ground-truthing using the KBN/Golder report as a guide to be strategic maintain or enhance biodiversity based on an overall assessment of the following characteristics:
Natural ecological communities that exhibit:
Native biodiversity within or across natural ecological communities.
Ecological integrity.
Rarity.
Functional connectedness.
Plant and animal species habitat that is:
Documented for listed species.
Documented for species with large home ranges.
Documented as a special wildlife migration or aggregation site for activities such as breeding, roosting, colonial nesting, or over-wintering.
High in vegetation quality and species diversity.
Low in non-native invasive species.
Size, shape, and landscape features that allow the ecosystem to be restored to or maintained in good condition with regular management activities, such as prescribed burning, removal of exotic vegetation, or hydrological restoration.
The Alachua County 2001 digital orthophotographic series (for purposes of this policy, the date of this photography is March 1, 2001) shall presumptively establish the baseline condition of the strategic ecosystem property as of the effective date of this policy. The County shall adopt land development regulations
that set forth additional guidance for the determination of whether and the extent to which strategic ecosystems exist on a property.
* * *
Policy 4.10.4
Management strategies for strategic ecosystems shall be developed with landowners in conjunction with special area plans or cluster developments and may include, but are not limited to:
Prescribed burning.
Control of invasive species.
Silvicultural activies according to BMPs [best management practices], with particular emphasis on maintenance and improvement of water quality, biological health, and the function of natural systems.
Reduction in the intensity of site preparation activities, including bedding and herbicide application.
Provision for listed species habitat needs, including restricting, at appropriate times, intrusions into sensitive feeding and breeding areas.
Cooperative efforts and agreements to help promote or conduct certain management activities, such as cleanups, maintenance, public education, observation, monitoring, and reporting.
Land acquisition.
* * *
Policy 4.10.5
Clustering shall be required so that at least 80% of each strategic ecosystem is preserved as undeveloped area. Development shall be designed in accordance with the standards under Objective 3.6 of this Element. In the rural area, development shall also comply with standards under Objective 6.2 of the [FLUM].
Policy 4.10.5
Each strategic ecosystem shall be preserved as undeveloped area, not to exceed 50% of the upland portion of the property without landowner consent and in accordance with the following:
Upland areas required to be protected pursuant to policies for significant geological features and wetland and surface water buffers shall be counted in calculation of the 50% limitation, however, the extent of protection of significant geological features and wetland and surface water buffers shall not be reduced by this limitation.
This limitation shall not apply to 100-year floodplains and wellfield protection areas, which are addressed independently through policies under Objectives 4.8 and 4.5, respectively.
This limitation shall not restrict in any way state and federal agency protections.
The remaining Policies implementing 2002 COSE Objective 4.10 were not amended by the 2003 Amendments.
Thus, the definition of "strategic ecosystem" was amended from an identification of sites based upon the characteristics of their ecological communities to a question of whether a given property is found on a "strategic
ecosystems" map sourced from the "Alachua County Ecological Inventory Project" prepared by KBN/Golder Associates (the "KBN/Golder Report").
In 1986, the County retained the Gainesville firm of KBN Engineering and Applied Sciences, Inc. ("KBN") to conduct a survey of potential ecologically significant upland properties. The purpose of the survey, completed in 1987, was to provide information on important upland sites for planning purposes, principally to complete the Conservation Element of what would become the 1991 Plan, and to assist the Alachua County Conservation and Recreation Areas Task Force in greenbelt planning.
In November 1996, the County commissioned KBN, now a subsidiary of Golder Associates, to produce the KBN/Golder Report, which built upon the 1987 survey to compile the most extensive study to date of ecological communities in the County. The stated purpose of the KBN/Golder Report was to "identify, inventory, map, describe, and evaluate the most significant biological communities, both upland and wetland, in private ownership in Alachua County and make recommendations for protecting these natural resources." A total of 47 sites were identified and ranked based on their quality of vegetation and landscape ecology, their status as habitats for endangered species and wildlife in general, their
hydrology, and their management potential. The 1996 KBN/Golder Report was more comprehensive than its predecessor study in that it covered a larger area, evaluated wetlands as well as uplands, and included mapping of ecological connections and biological communities.
KBN/Golder accumulated and evaluated a wide range of data in the process of preparing the Report including: the 1987 KBN survey; a 1995 set of infrared aerial photographs provided by the St. Johns River Water Management District ("SJRWMD"), as well as a 1986 set of infrareds provided by the Alachua County Department of Environmental Services; a 1994 set of black and white aerial photographs provided by the Alachua County Property Appraiser's Office; Florida Fish and Wildlife Conservation Commission ("FFWCC") habitat distribution maps; SJRWMD wetlands vegetation maps; Florida Natural Areas Inventory natural community/plant community classification categories; and SJRWMD and Suwannee River Water Management District Floridan Aquifer recharge maps.
The KBN/Golder Report described its methodology and limitations as follows:
The inventories were done by David Clayton and Bob Simons, working separately. Landowners were contacted where access was necessary for the survey work, and those lands where access was denied were inventoried using aerial photographs, outside sources of information, and whatever information could be obtained by
observations from the property boundary. Initially, a review was made of the USGS topographic quadrangle maps (various dates) and aerial photographs... to determine access, location of communities, drainage features, and karst features. Next, vehicle or pedestrian surveys of all accessible areas were used to get an overall view; to discern as many biocommunities as possible; to look for exotic species, listed species, or signs of habitat for listed species; and to evaluate the overall wildlife habitat and the condition of the communities. Specific sites were chosen to inventory in more detail.
Limitations for this survey were the large number of sites, the vast acreage, and the restricted time available.
Thousands of acres on 47 sites were surveyed within 8 weeks, necessitating limited survey time on the larger sites. Terrestrial species were emphasized because
90 percent of the area surveyed is terrestrial.
The Jonesville Petitioners contested the validity of the 2003 Amendments regarding strategic ecosystems on several grounds. Common to all these grounds is a disagreement on the meaning of the strategic ecosystems definition and its interplay with COSE Objective 4.10 and its implementing policies, as amended by the 2003 Amendments.
The Jonesville Petitioners argue that defining the term "strategic ecosystem" by way of the map in the KBN/Golder Report is fatally flawed because it provides no flexibility. If a property is identified on the KBN/Golder Report map, then it is a strategic ecosystem subject to the restrictions of
COSE Objective 4.10, without regard to the facts on the ground. The definition makes no provision for ground-truthing the property prior to inclusion in the strategic ecosystem category.
The County responds that 2003 COSE Policy 4.10.1 provides for more detailed identification of strategic ecosystems through ground-truthing, using the KBN/Golder Report as a guide. 2003 COSE Policy 4.10.1 also provides that the County's LDRs will provide additional guidance to determine whether and to what extent, strategic ecosystems exist on a property.
The Jonesville Petitioners answer that there is a fundamental conflict in the policy's purported use of the KBN/Golder Report as a "guide" to delineating strategic ecosystems, when the definition provides that identification on the KBN/Golder Report is all that is required to establish a property as a strategic ecosystem. Subsequently adopted LDRs cannot provide guidance as to whether strategic ecosystems exist on a property; by definition, the KBN/Golder Report map determines whether there are strategic ecosystems. The Jonesville Petitioners argue that the only correct way to take a property out of the strategic ecosystem category would be to amend the adopted KBN/Golder Report map, thus amending the definition of "strategic ecosystem."
The Jonesville Petitioners' argument fundamentally concedes that, if the definition were to provide for ground- truthing based on the characteristics set forth in 2003 COSE Policy 4.10.1, it would be unexceptionable. However, they point out that 2003 COSE Objective 4.10 and its policies apply to all "strategic ecosystems," that "strategic ecosystems" are also subject to regulation as "conservation areas" under COSE Policy 3.1.1, and that the ground-truthing provided by 2003 COSE Policy 4.10.1 does nothing to change the definition. Under this definitional scheme, a landowner whose property is identified on the KBN/Golder Report map can do nothing to take his property out of the strategic ecosystems definition, short of petitioning the County to amend its Plan, and is subject to all COSE provisions dealing with strategic ecosystems.
The undersigned agrees with the Jonesville Petitioners that the County would have been better served to refine its definition of "strategic ecosystem" to include the standards set forth in 2003 COSE Policy 4.10.1. The undersigned does not agree that the County's failure to do so invalidates the definition under the "fairly debatable" standard, given the County's interpretation of the interplay among the applicable policies.
By using the KBN/Golder Report map to set the boundaries of strategic ecosystems, the County attempted to
delineate reasonably large, contiguous areas, rather than create a "swiss cheese" pattern of intermixed conservation and non-conservation lands; i.e., designating isolated pockets of conservation within a large non-conservation area, or vice versa.
The County made a general determination that strategic ecosystem site boundaries should be delineated with simple straight lines, rather than by the edges of land features, such as vegetative cover. The County reasonably decided that a straight boundary, such as a section line is easier to administer and more easily communicated to the public than a natural feature such as vegetation, which would require a survey and is often characterized by a gradual change, rather than the sharp demarcation necessary for a boundary.
The County recognized that under this approach, strategic ecosystems would include some areas neither particularly environmentally sensitive, nor valuable as habitat. 2003 COSE Policy 4.10.1 provides for ground-truthing to further refine the delineation of the boundaries of the strategic ecosystem properties to more specifically identify the most environmentally sensitive portions of the property and to assist in the determination of appropriate protection measures.
Under the COSE Objective 4.10 policies, set forth in full above, the County will use the KBN/Golder Report map and the more detailed information provided by additional ground-truthing to identify the least environmentally sensitive portion of the strategic ecosystem property, so that any development can be directed and clustered there, and away from the most environmentally sensitive portion of the property.
The landowner will retain the right to transfer the same number of residential units as allowed by the density limits of the underlying land use classification to the least sensitive portion of the property, notwithstanding the strategic ecosystems designation.
The County's explanation of the interplay among the Plan provisions effectively addresses the concerns of the Jonesville Petitioners regarding "erroneously mapped" parcels, i.e., parcels that are identified on the KBN/Golder Report map, but that, in fact, are not environmentally sensitive.
The Jonesville Petitioners are technically correct that because identification on the KBN/Golder Report map defines a property as a strategic ecosystem, subsequent ground-truthing does nothing to remove the property from that definition.
However, the Jonesville Petitioners' argument depends on a reading of the Plan that is not merely literal,
but blinkered. One must accept that the definition is absolutely controlling and that if a property is on the KBN/Golder Report map, then every individual plan provision referencing "strategic ecosystem" will apply to the property regardless of the natural characteristics found on the ground.
A fair reading of the 2003 Amendments makes it clear that the definition of "strategic ecosystem" is the beginning of the analysis, not the end. The County acknowledged that, while the data on the KBN/Golder Report map are professionally accepted for general planning purposes, the data are not detailed enough for regulatory purposes on the level of individual parcels.
Thus, once the map designates a property as a strategic ecosystem, 2003 COSE Policy 4.10.1 requires ground- truthing to determine whether and to what extent that strategic ecosystem is subject to conservation. Later adopted LDRs will provide additional guidance "for the determination of whether and the extent to which strategic ecosystems exist on a property." This treatment is similar to that found in 2002 COSE Policy 3.3.4 regarding conservation and preservation areas on the FLUM generally:
Site Specific Delineation: The parcel- specific boundaries of preservation and conservation areas shall be verified by ground surveys conducted in the course of special studies or development review.
County-initiated mapping efforts shall be
performed at the County's expense, except when an applicant seeks land use change, zoning change, or development approval prior to the completion of the County's mapping efforts, consistent with [COSE] policies 3.4.2 and 4.10.3. Conservation policies shall be applied based on the resulting site specific delineation.
The referenced 2002 COSE Policy 3.4.2 provides:
Where site specific analysis or verification is required to determine the presence of natural resources protected under this Element, the cost of such analysis or verification shall be borne by the applicant.
The Jonesville Petitioners contend that there is an internal inconsistency in the fact that the definition of strategic ecosystem does not include the criteria found in 2003 COSE Policy 4.10.1. However, the parameters used by KBN/Golder Report to score and rank the sites that appear on the map include: vegetation value (species diversity, presence of exotics); endangered species habitat value (plant and animal); wildlife habitat value; hydrology; landscape ecology (community diversity, ecological quality, community rarity, functional connectedness); and management potential. These parameters are consistent with the characteristics listed in 2003 COSE Policy 4.10.1.
The Jonesville Petitioners point out that the design of the KBN/Golder Report map was such that no parcel less than 20 acres in size was identified, resulting in the
omission of thousands of acres countywide that possess the characteristics identified in 2003 COSE Policy 4.10.1 as indicative of strategic ecosystems. The Jonesville Petitioners claim that this presents an internal inconsistency in the Plan, because the COSE policies would protect only 25 percent of those unmapped properties (under 2003 COSE Policy
4.9.12 addressing upland habitat), rather than the 50 percent protected by the strategic ecosystems policies.
This alleged inconsistency is simply another example of the County's reasonable policy choice to focus its conservation efforts on larger, more contiguous properties, rather than a myriad of small-acreage lands. Even the 2002 definition of "strategic ecosystem," not challenged by the Jonesville Petitioners, limited strategic ecosystems to properties greater than 20 acres in size. The smaller sites will remain subject to regulation on a site-specific basis as they are proposed for development.
The Jonesville Petitioners appear to insist, absent any pending development applications with the County or even any present plans to develop, on their right to have the Plan and its incorporated maps provide them with a definitive, binding delineation of their properties and, thus, their development potential. This claim is unrealistic, given that such a general right would require County staff to ground-
truth hundreds of thousands of acres countywide before a conservation land use category could be established at all.
The KBN/Golder Report map is sufficient to place landowners, such as the Jonesville Petitioners, on notice of their need to inquire as to the status of their properties prior to the initiation of development activities. Parcel- specific regulation requires parcel-specific ground-truthing, and 2003 COSE Policy 4.10.1 provides for such ground-truthing.
Further, 2003 COSE Policy 4.10.3 provides that the County will create special area plans for strategic ecosystems "based on current development pressures and anticipated priorities." It further provides that an applicant in the position of the Jonesville Petitioners may pay for its own special area plan, should it not wish to wait on the County to complete its plan process.
Finally, the Jonesville Petitioners attack 2003 COSE Policy 4.10.1's use of the Alachua County 2001 digital orthophotographic series dated March 1, 2001, to "presumptively establish the baseline condition of the strategic ecosystem property as of the effective date of this policy." They contend that it is uncertain how the County will treat properties on which the owners have altered ecosystems in the period between the 2001 orthophotographs and 2003 adoption of the new COSE policies and that the policy
would have a retroactive impact of dubious constitutionality if the County were to require restoration of those properties to their 2001 state.
This valid concern of the Jonesville Petitioners is prematurely raised in this proceeding. The evidence at hearing failed to demonstrate that the County would not allow a landowner to provide information through the development review process to demonstrate that the condition of the property had changed after March 1, 2001, and prior to the effective date of the 2003 Amendments.
In summary, it is found that the mere fact that the County determined that the definition of "strategic ecosystem" shall consist of the identification of properties on the KBN/Golder Report map is a fairly debatable decision, given the manner in which that definition is put into effect through amended COSE Objective 4.10 and its implementing policies.
The Jonesville Petitioners entered reports prepared by their environmental consultant concerning particular properties and their unsuitability for designation as strategic ecosystems and presented extensive testimony on the subject. The County presented testimony as to each of the Jonesville Petitioners' properties to support the County's contention that they are indeed strategic ecosystems. Each of the Jonesville properties is a small portion of a much larger
parcel on the KBN/Golder Report strategic ecosystems map. It is unnecessary to make detailed findings of fact as to the environmental quality of these properties. As the findings above indicate, the appropriate time to consider the qualities of particular properties will be during the special area planning process and/or the development review process.16/
Uplands Habitat
2002 COSE Objective 4.9, titled "Biodiversity," provides:
Maintain and enhance plant and animal species diversity and distribution within Alachua County by protecting significant plant and wildlife habitats, providing for habitat corridors, and preventing habitat fragmentation.
The 2002 Plan Update provisions implementing COSE Objective 4.9 provided as follows:
Policy 4.9.1
A critical portion of each significant plant and wildlife habitat type in Alachua County shall be protected. Protection shall be accomplished using all available methods, including land acquisition, incentives and requirements for the provision of conservation or preservation areas, habitat corridors, greenways, and common open space.
Policy 4.9.2
During the land use planning and development review processes, the County shall minimize the effects of development on significant plant and wildlife habitat. All developments shall protect as
conservation or preservation areas a minimum of 25% of the significant plant and wildlife habitat that occurs on site.
The habitat to be conserved shall be selected based on the quality and viability of the habitat. The County shall work with the landowner to select the portion of the habitat that will be included in the 25% set aside.
Conserved habitat shall be located and maintained in areas with intact canopy, understory and groundcover in functional, clustered arrangement which maximizes use by wildlife and maintains the long-term viability of native upland plant communities. Linkages to habitat corridors and greenways shall be required where available.
The County shall have the authority to accept alternatives to onsite conservation that provide for the long-term protection and management of significant plant and wildlife habitat of equal or greater habitat value that would not have otherwise been preserved.
The land development regulations shall establish criteria for determining which projects warrant the use of alternatives to onsite conservation. Criteria may include but are not limited to: the size of the development site, habitat quality, uniqueness, connectivity, management opportunities, and adjacent uses.
Off-site conservation shall not be permitted for listed species habitat that is capable of being managed or restored on- site as a high quality natural plant or animal community or communities.
This requirement is not intended to limit the effect of other resource-specific
protective measures in this element, such as clustering and buffers.
Policy 4.9.3
The County shall require the development and implementation of management plans for all significant plant and wildlife habitat that is to be protected. The management plan shall be prepared at the expense of the developer by an appropriately qualified professional and provide for the following:
Removal of invasive vegetation and debris.
Replanting with native vegetation as necessary.
Maintenance of biodiversity, with special emphasis on protection of listed plant and animal species.
Any additional measures determined to be necessary to protect and maintain the functions and values of the habitat conservation areas while ensuring protection from wildfire.
Policy 4.9.4[17/]
The County shall consult with the Florida Fish and Wildlife Conservation Commission, United States Fish and Wildlife Service, Florida Department of Agriculture and Consumer Services or other appropriate agencies prior to authorizing development that could result in potential adverse impacts to any listed species. The County shall utilize these recommendations to provide specific requirements regarding development where these species are encountered. Conditions of approval shall ensure the maintenance and, where feasible and appropriate, increase the abundance and distribution of populations of listed species.
Policy 4.9.5
The use of listed plant and wildlife species habitat shall be restricted to that which is compatible with the requirements of listed species. Development activities[18/] that would threaten the life or habitat of any listed species shall not be permitted.
Policy 4.9.6
The County shall prohibit the alteration of natural shorelines or degradation of water quality where listed species feed or breed, through the establishment of buffers as set out in [COSE] Policy 3.6.8. The County shall encourage the restoration of degraded shorelines when possible.
Policy 4.9.7[19/]
The County shall periodically review monitoring data from federal, state, regional, and local agencies to determine the status of listed species habitats in Alachua County. The County shall use this information to maintain and provide, for the convenience of the public, a table of listed species and listed species habitats in Alachua County.
Policy 4.9.8
The County shall recommend specific management and recovery strategies for listed species, as they are developed by the Florida Fish and Wildlife Conservation Commission and the U.S. Fish and Wildlife Service, and shall assist in their implementation. These management techniques shall be incorporated into the land development regulations, as well as the management plans of County-owned preservation areas.
Policy 4.9.9
Wildlife habitat enhancement and management programs in urban areas shall be promoted through such techniques as designation of bird sanctuary areas where rookeries or other significant bird populations exist and landscaping schemes for stormwater detention and retention areas that maintain native vegetation and establish littoral zones which encourages wildlife usage.
Policy 4.9.10
The County shall develop incentives designed to encourage private land owners to manage land holdings for wildlife attributes.
Policy 4.9.11
The County shall establish and preserve habitat corridors that connect significant plant and wildlife habitats throughout the County. The County shall perform an objective analysis to determine the appropriateness of habitat corridors, how extensive they should be, the location of potential corridors, what fiscal resources are available for implementation, and economic incentives for property owners to voluntarily participate in formation of a habitat corridor program.
The 2003 Amendments changed 2002 COSE Policy 4.9.2 as follows:
During the land use planning and development review processes, the County shall minimize the effects of development on significant plant and wildlife habitat. All developments shall protect as conservation or preservation areas a minimum of 25% of the significant plant and wildlife habitat that occurs on site, subject to the limitation in 4.9.12.
The habitat to be conserved shall be selected based on the quality and viability
of the habitat. The County shall work with the landowner to select the portion of the habitat that will be included in the 25% set aside. . . .
The 2003 Amendments added a new COSE Policy 4.9.12, which reads as follows:
Policy 4.9.12
Upland habitat protections under Objective 4.9 shall be limited as follows:
No more than 25% of the upland portion of a property may be required to be set aside for preservation pursuant to policies under this Objective without landowner consent. Upland areas required to be protected pursuant to policies for significant geological features and wetland and surface water buffers shall be counted in calculation of the 25% limitation, however, the extent of protection of significant geological features and wetland and surface water buffers shall not be reduced by this limitation.
This limitation shall not apply to 100-year floodplains and wellfield protection areas, which are addressed independently through policies under Objectives 4.8 [Flood Plains and Floodways] and 4.5 [Groundwater], respectively.
This limitation shall not restrict in any state and federal agency protections.
For purposes of applying this limitation, a property shall include all contiguous land under common ownership or control. Properties may not be disaggregated, processed in piecemeal fashion, reviewed or developed in any manner that results in lesser upland protections than would otherwise be required under this Objective.
The Sierra Club Petitioners challenged these uplands policies on several grounds. The 2002 Plan Update, as amended in 2003, provides two kinds of protection to uplands. The most highly protected upland is one established as part of a strategic ecosystem. Under 2003 COSE Policy 4.10.5, up to
50 percent of the upland portion of a strategic ecosystem can be preserved as undeveloped area without the landowner's consent.
A lesser level of protection is afforded to "significant plant and wildlife habitat." The 2002 Plan Update defines "significant habitat" as "contiguous stands of natural upland plant communities which have been documented to support, and which have the potential to maintain, healthy and diverse populations of plants or wildlife." Under 2003 COSE Policies 4.9.2 and 4.9.12, up to 25 percent of the upland portion of "significant plant and wildlife habitat" may be set aside for preservation without the landowner's consent.
Neither the strategic ecosystems provision nor the significant plant and wildlife habitat provision purports to restrict or lessen any protections afforded by state or federal law.
The Sierra Club Petitioners complain that the 2003 Amendments modify the categories and levels of upland protection which had been adopted in the 2002 Plan Update,
that these modifications weaken the environmental protection provided to upland vegetative communities and habitats, and that the modifications are based on legislative settlement of the 2002 administrative challenge, not on any science or new data or analysis.
The 2002 Plan Update was supported by the 1998 EAR and the 2002 Data and Analysis documents. On December 10, 2002, during the settlement process that culminated in the 2003 Amendments, Alachua County's environmental protection director, Chris Bird, produced a memorandum titled "Response to Questions Raised on Conservation Issues in the 12/2/02 Special [Board] Comp Plan Meeting," referred to hereinafter as "the Bird Memo."
As of December 2, 2002, mediation had commenced in the 2002 administrative challenge, but the parties had yet to crystallize their respective positions into what would become the 2003 Amendments. As indicated by its full title, the Bird Memo contains the County staff's explanation of the basis for the conservation policies in the 2002 Amendments. The memo sets forth citations to and quotes from the 2002 Data and Analysis, and supplements this with its own comments on the propriety or necessity for the changes to the 1991 Plan made by the 2002 Amendments.
The Sierra Club Petitioners point out that the Bird Memo offers a clear explanation as to how the 2002 Plan Update was based on the 1998 EAR and the 2002 Data and Analysis.
They contend that there is no equivalent documentation in the record of this case that explains how the 2003 Amendments were based on the Data and Analysis.
In answer to the question, "What's wrong with the old [1991] Comprehensive Plan and why do we have to change it?," the Bird Memo stated:
Of 70 measurable objectives set forth for the Conservation portion of the [1998] EAR, less than a third of those objectives were met without caveat. At least 10 objectives were not met, and another 40 objectives were only partially met, met in limited fashion, or were in need of revision/update.
The Bird Memo noted that the 1998 EAR made the following recommendations under the heading, "Permitted Uses in Conservation Areas":
Review and revise requirements for development in ecologically sensitive/environmentally significant areas. Using the PUD[20/] or a modified Cluster Ordinance, consider the following modifications at a minimum: (1) modify the comprehensive plan to include additional natural communities identified in the 1996 ecological inventory [i.e., the KBN/Golder study]; (2) require clustering for all development and eliminate the 20-acre parcel threshold; (3) require stricter
long-term protection for Conservation areas and significant natural communities; (4) increase the 50% minimum set-aside; (5)
include incentives/requirements for permanent set-aside arrangements.
The Bird Memo went on to set forth staff's recommendation as to what "stricter long-term protection for conservation areas and significant natural communities" necessitates for "significant habitat":
Significant habitat is defined in the [2002] Comprehensive Plan update as contiguous stands of natural upland plant communities that support and maintain healthy and diverse populations of plants or wildlife. Sandhill and xeric hammock are two examples. Industrial pine plantations are not significant habitat because they are not natural communities.
FAC 9J-5 requires that the Conservation Element include objectives and policies that conserve and protect native vegetative communities and wildlife habitat from destruction by development activities. The Plan update approaches this protection at two scales: strategic ecosystems are important at a larger geographical scale; significant habitat and listed species habitat are important at smaller scales.
The purpose is to identify and protect
natural systems and their fundamental building blocks before they are in the "emergency room" at the brink of crisis, when they can still be preserved for the future in healthy form.
To accomplish this, the largest remaining wild areas are afforded the greatest protection (80% preservation of strategic ecosystems), while the smaller but significant natural habitat areas are afforded lesser but still meaningful protection (25% preservation of significant habitat). There is no percentage associated with listed species habitat protection, but protection is determined on
a case-by-case basis depending on species and site characteristics.
The requirement for 25% preservation of native habitat is clearly less than what is needed to stop habitat and species declines, but represents a compromise.[21/] This percentage was chosen in order to provide for the conditions necessary to preserve some degree of ecological integrity while accommodating the needs of development. . . .
The Sierra Club Petitioners concede that some of the quoted conservation recommendations were adopted in the 2003 Amendments, e.g., the map of the KBN/Golder Report inventory lands was adopted as the initial definition of strategic ecosystems and incentives for clustering are provided. However, they contend that most of the staff's conservation recommendations are not reflected in the 2003 Amendments, e.g., clustering is not required for all development in ecologically sensitive and/or environmentally significant areas; the 20-acre parcel threshold for ecosystem protection is not eliminated; 50 percent minimum set-asides are not increased; species on the Florida Natural Areas Inventory ("FNAI") endangered species list but not on federal or state lists are not protected in wetland buffers; the recommended minimum default buffer is not used; and no minimum protection is required for either listed species habitat or significant habitat.
The Sierra Club Petitioners contend that the 25 percent maximum upland preservation introduced by 2003 COSE Policy 4.9.12 destroys the impact of 2002 COSE Policy 4.9.5, which under the 2002 Plan Update would have protected the habitat of any "listed species" on a case-by-case determination of what was reasonable and necessary for the species on the particular site, apparently without regard to the amount of a given tract that would be turned over to preservation against the wishes of the landowner. "Listed species" is defined in the 2003 Amendments as:
Those species of plants and animals listed as endangered, threatened, rare, or species of special concern by an official state or federal plant or wildlife agency, or the Florida Natural Areas Inventory (FNAI, includes species ranked as S1, S2, or S3), or the Florida Committee on Rare and Endangered Plants and Animals (FCREPA). These species are targeted for protection for a number of reasons, e.g., they are in imminent danger of extinction, are rapidly declining in number or habitat, or have an inherent vulnerability to habitat modification, environmental alteration, or human disturbance which puts them at risk of extinction.
This contention is rejected because it neglects to factor in the express limitation expressed in 2003 COSE Policy
4.9.12.c. that the 25 percent limitation "shall not restrict in any way state and federal agency protections." Such "protections" include federal and state listed species
protections, meaning that the 25 percent limitation cannot function as a brake on listed species protection.
The Sierra Club Petitioners make too much of the distinction between 2002 COSE Policy 4.9.2's language, "All developments shall protect as conservation or preservation areas a minimum of 25 percent of the significant plant and wildlife habitat that occurs on site," and 2003 COSE Policy 4.9.12's language, "No more than 25 percent of the upland portion of a property may be required to be set aside for preservation pursuant to policies under this Objective without landowner consent." They appear to assume that the former provision would allow the County to impose draconian development limitations without regard to the property rights of landowners.
In the undersigned's view, the distinction is not so great, particularly in light of 2002 COSE Policy 4.9.2.1's direction to the County to "work with the landowner to select the portion of the habitat that will be included in the 25% set aside." (Emphasis added.) The express reference to a "25% set aside" indicates that Alachua County did not anticipate forcing landowners to cede more than that amount of their property even under the 2002 Plan Update.
It is found that the Sierra Club Petitioners overstate the necessary impact of the Bird Memo as "Data and
Analysis." Florida Administrative Code Rule 9J-5.005(2), indeed, requires that plan amendments be "based upon relevant and appropriate data," and further explains that 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."
However, the Sierra Club Petitioners essentially contend that the Board was bound to enact each recommendation of the Bird Memo in every particular or stand in violation of Florida Administrative Code Rule 9J-5.005(2). To accept this contention would be to make the elected officials of Alachua County subservient to their own hired staff, an exact reversal of the comprehensive planning process.
It is found that the County has reacted to the data and analysis of the Bird Memo "in an appropriate way and to the extent necessary indicated by the data." There is no question that the 2002 Plan Update, as amended by the 2003 Amendments, for the first time "establish[es] an integrated approach to the protection of natural communities and their associated values in Alachua County," in contrast to the fragmented approach of the 1991 Plan. See COSE Data and Analysis, Biodiversity, p. 38.
The 2003 Amendments address and, to some degree, adopt every element raised by staff in the Bird Memo. The 2003 Amendments do not adopt the terms of the Bird Memo to the letter as urged by the Sierra Club Petitioners, but the County was not required to do so. It is at least fairly debatable that the COSE uplands policies are supported by data and analysis and provide adequate guidance for the development of LDRs.
Wetland Buffers
Under the 1991 Plan, standards for natural vegetative buffers around surface waters and wetlands consisted of a minimum 75-foot buffer for Outstanding Florida Waters and a 35-foot buffer for all other surface waters and wetlands. The 2002 Plan Update's version of COSE Policy 3.6.8, referenced in Policy 4.9.6 above, provided detailed new buffer requirements as follows:
Policy 3.6.8
Development occurring along the edges of conservation and preservation areas shall be designed to protect and minimize the impact of development on conservation areas through the use of natural vegetative buffers.
Buffer width shall be determined on a case-by-case basis depending on what is demonstrated to be scientifically necessary to protect natural ecosystems from significant adverse impact. This determination shall be made in
consideration of at least the following factors:
Type of development and associated potential for adverse site-specific and off-site impacts;
Natural community type and associated hydrologic or management requirements;
Buffer area characteristics and function;
Presence of listed species of plants and animals.
Absent scientific information which demonstrates that a larger or smaller buffer width is appropriate, the following buffer widths shall apply for the resources set forth in the table below.
Protected Resource | Buffer Distance (feet)** |
Surface waters and wetlands that do not include the resources listed below | 75* |
Outstanding Florida Waters | 200* |
Areas where listed plant or animal species have been documented within 300 feet of a surface water or wetland | 300* from the surface water or wetland |
Public water supply well | 200 |
* Buffer widths are recommended based on the report, "Calculating Buffer Zone Widths For Protection of Wetlands and Other Environmentally Sensitive Lands in St.
Johns County," prepared by Jones, Edmunds & Associates, Inc. in collaboration with Mark
T. Brown, Ph.D., University of Florida Center for Wetlands and Water Resources, and Richard Hamann, Esq., University of Florida College of Law, January 2000.
** If the buffer precludes all economically viable use of a particular property,
development may be allowed within the buffer in accordance with [COSE] policy 3.6.5, and where applicable, [COSE] policies 4.6.6 and 4.7.4.
Buffers shall be measured from the outer edge of the protected resource.
The 2003 Amendments made no changes to the text of COSE Policy 3.6.8, but changed the table of buffer widths as follows:
Protected Resource | Buffer Distance (feet)** |
Surface waters and wetlands less than or equal to 0.5 acre that do not include OFWs or listed animal species as described elsewhere in this table | 50 average, 35 minimum |
Surface waters and wetlands greater than 0.5 acre that do not include elsewhere in this table | 75* 75 average, 50 minimum |
Areas where federally and/or state regulated vertebrate wetland/aquatic dependent animal species wetland | 300* from the surface water or wetland 100 average, 75 minimum |
Outstanding Florida Waters (OFWS) | 200* 150 average, 100 minimum |
Public water supply well | 200 |
* Buffer widths are recommended based on the report, "Calculating Buffer Zone Widths For Protection of Wetlands and Other Environmentally Sensitive Lands in St.
Johns County," prepared by Jones, Edmunds & Associates, Inc. in collaboration with Mark T. Brown, Ph.D., University of Florida Center for Wetlands and Water Resources,
and Richard Hamann, Esq., University of Florida College of Law, January 2000.
** If the buffer precludes all economically viable use of a particular property, development may be allowed within the buffer in accordance with [COSE] policy 3.6.5, and where applicable, [COSE] policies 4.6.6 and 4.7.4.
The referenced COSE Policy 3.6.5, introduced in the 2002 Plan Update and not amended in 2003, provides:
Development on land that includes conservation areas shall be sited and designed according to the following standards and consistent with policies under Objective 6.2 [Rural/Agriculture] of the [FLUE] in the rural area:
The preservation of conservation areas shall be required on all development sites to the greatest extent possible, consistent with standards which are outlined subsequently in [the COSE].
Density or intensity shall be transferred from conservation areas to non- conservation portions of the property, to adjoining property under common ownership or management and within a unified development, or to other development receivership areas, at a rate consistent with that of the underlying zoning district, but not to exceed the maximum density allowed by the land use designation.
When there are no non-conservation areas to which density or intensity may be transferred, the development shall be clustered in the portion of the site that will result in least environmental impact.
When connection to central sewer is not required, septic wastes shall be disposed of according to the Comprehensive
Plan, land development regulations, and health department standards, and without adversely affecting ecosystem health.
Existing landscape connections to other conservation areas shall be maintained so that fragmentation is avoided.
The referenced COSE Policy 4.6.6, under Objective
dealing with "Surface Water Systems," was introduced in the 2002 Plan Update, was not amended in 2003, and provides:
The following activities may be allowed within the buffer subject to standards that regulate environmental impacts:
Agricultural and silvicultural operations consistent with Objective 5.5 [Agricultural and Silvicultural Practices];
Water dependent facilities;
Minimal impact activities;
Activities that serve the overriding public interest; and
Development allowed through implementation of [COSE] policy 3.6.5.3, provided that the development impact area shall not exceed the rate of 1/2 acre per ten acres of conservation area, including the footprint of principal and accessory structures and parking, allowing for reasonable access.
175. The referenced COSE Policy 4.7.4, under Objective
dealing with "Wetland Ecosystems," was introduced in the 2002 Plan Update and amended in 2003 as indicated below:
Development activity shall not be authorized in wetlands or wetland buffers
except when all of the following conditions are met:
The applicant has taken every reasonable step to avoid adverse impact to the wetland and buffer; and
The applicant has taken every reasonable step to minimize adverse impact to the wetland and buffer; and
The applicant has provided appropriate mitigation for adverse impact to the wetland and buffer; and
The applicant shows that one of the following circumstances applies:
Minimal impact activity; or
Overriding public interest; or
All economically beneficial or productive use of the property is otherwise precluded.
The development impact area shall not exceed the rate of 1/2 acre per ten acres of conservation area, including the footprint of principal and accessory structures and parking, allowing for reasonable access. Notwithstanding the above, mitigated impact may be allowed to any isolated poor quality wetland that is less than 0.25 acre in size, provided the total impact area is not greater than or equal to 0.25 acre per development. Poor quality shall be defined in the land development regulations based on factors relative to ecological value.
The 2002 Data and Analysis clearly concluded that the 35-foot buffers in the 1991 Plan were inadequate to protect the natural functions of the affected wetlands. The Bird Memo summarized the data as follows:
The Conservation/Aquifer Recharge portion of the EAR, as well as the data and analysis supporting the Comprehensive Plan update, are replete with documentation of the inadequacy of the current 35-foot buffer for wetlands and surface waters in Alachua County. Inadequacy is demonstrated by documentation of at least the following nine facts: (1) the direct loss of the extent and quality of wetlands, (2) the degradation of wetland functions, (3) no change in declining water quality trends since implementation of 35-foot buffers,
high sediment loads in surface waters,
elevated nutrient concentrations in surface waters, groundwater, and springs,
poor surface water systems health documented by macroinvertebrate sampling,
poor hydrology, including lake drawdown problems, (8) the continued loss, degradation and fragmentation of wildlife habitat in Alachua County, and (9) the decline of native species concurrent with the spread of invasive non-native species.
The Bird Memo also contained appendices that included 11 pages of specific citations from the Data and Analysis discussing the inadequacy of the 35-foot buffers and supporting larger buffer widths.
The buffers in 2002 COSE Policy 3.6.8 were based on the Data and Analysis in the 2000 Jones, Edmunds & Associates, Inc., report titled "Calculating Buffer Zone Widths For Protection of Wetlands and Other Environmentally Sensitive Lands in St. Johns County," ("JEA Report"). The Bird Memo summarized the JEA Report's findings and Alachua County's response, as follows:
Upland vegetative buffers are widely regarded as necessary to protect wetlands, streams, and other aquatic resources.
However, buffer size requirements typically have been established by political acceptability, rather than scientific merit. This often leads to insufficiently buffered aquatic resources and the false perception that the resources are being properly protected from potential impacts. Numerous scientific studies have shown that relatively wide buffers (150 to more than
300 feet) are necessary to protect wetlands. (JEA et al. 2000) A dilemma exists. Undersized buffers may place aquatic and wetland resources at risk, while buffers that are sufficiently large to provide full protection may unrealistically deny landowners use of their land. Therefore, it is important to determine the minimum buffer width necessary for protection of most of the resources, or the most sensitive of the resources.
Three goals have been identified and used to determine buffer sizes: protection of wildlife habitat; minimization of sediment transport into wetlands; and minimization of groundwater drawdown in wetlands. The JEA report (2000) concludes that a minimum of 300 feet is necessary to reasonably protect a viably functioning wetland ecosystem. A 300-foot buffer would protect approximately 50% of the wetland-dependent wildlife species in freshwater wetlands, and protect water quality from sedimentation by course [sic] and fine sands. In some site-specific cases, such as with silt or clay soils, or from large draw-down structures, a greater buffer distance would be necessary to protect the wetland.
Any reduction in the buffer width below
300 feet can impose adverse impacts to the wetland, particularly to the wetland- dependent wildlife species that require a
wide surrounding upland area in which to feed, forage, and use as protection from human disturbance. Lesser alternatives would still provide some protection to wetlands; however, any reduction can result in adverse impacts to wildlife populations, as well as degradation of water quality from deposition of fine sediments. The County has chosen an alternative to one large buffer distance. This alternative is intended to provide flexibility while accommodating private property concerns.
The Sierra Club Petitioners emphasize the JEA Report's conclusion that "a minimum of 300 feet is necessary to reasonably protect a viably functioning wetland ecosystem." They note that the language of 2003 COSE Policy 3.6.8.2 provides that "[a]bsent scientific information which demonstrates that a larger or smaller buffer width is appropriate," a 100-foot average, 75-foot minimum natural vegetative "default" buffer would apply in "areas where federally and/or state regulated vertebrate wetland/aquatic dependent animal species have been documented within 300 feet of a surface water or wetland." They conclude that providing only a 75-100 foot "default" buffer in an area documented to contain threatened or endangered species habitat within 300 feet would result in the destruction of that habitat between the 75- to 100-foot buffer zone and the 300-foot extent of the documented habitat.
This is another instance in which the Sierra Club
Petitioners' conclusion requires an assumption of bad faith on
the part of the County regulatory authorities. Whether the default buffer is 300 feet or 75 feet, that default buffer applies only in the absence of "scientific information which demonstrates that a larger or smaller buffer width is appropriate."
The Sierra Club Petitioners correctly note Michael Drummond's testimony that, under the 1991 Plan, the default buffers were often employed where the existence of wetland- dependent species was suspected, but not verified. Mr. Drummond also testified that application of a 100-foot buffer would not be adequate for listed species. However, Mr. Drummond's testimony does not demonstrate that the County would ignore scientific information demonstrating the presence of endangered species and apply the default buffers regardless of those species' habitat requirements.
The undersigned does not agree that it is beyond fair debate that Florida Administrative Code Rule 9J- 5.013(2)(c)5. requires the County to apply the default buffers in habitats where there is a "high potential" for endangered species to occur, but where the species have not been documented. The cited Rule requires the COSE to contain policies that address implementation activities for the "[r]estriction of activities known to adversely affect the survival of endangered and threatened wildlife." 2003 COSE
Policy 3.6.8 complies with the language of the rule by addressing known adverse affects. Alachua County was entitled to make a policy choice not to go farther and address potential adverse effects caused by inadequate buffers in areas that endangered species might inhabit.22/ There is no question that the Sierra Club's policy preference would result in greater protection of endangered species and their habitats, actual or potential. However, this fact alone does not compel the County to enact stricter provisions than the relevant statutes and rules require.
The Sierra Club Petitioners' focus on the "300 foot minimum buffer" language in the Bird Memo led them to overlook the fact that the Data and Analysis support 2003 COSE Policy 3.6.8, as well as the version in the 2002 Plan Update. The Bird Memo itself recognizes the County's choice of "an alternative to one large buffer distance . . . to provide flexibility while accommodating private property concerns." The Bird Memo expressly recognized that the scientifically preferable wide buffers "may unrealistically deny landowners use of their land."
2003 COSE Policy 3.6.8 reasonably balances the interests noted in the Bird Memo by providing for a site- specific determination of the proper buffer width based on the scientific information at hand. Application of the default
buffer is always contingent upon the absence of scientific information.23/
The Sierra Club Petitioners also challenge the 2003 Amendment's change of language in the table of COSE Policy
3.6.8.2 from "listed plant or animal species" to "federally and/or state regulated vertebrate wetland/aquatic dependent animal species." They argue that the evidence showed that limiting the buffer protection in COSE Policy 3.6.8.2 to only federally and/or state regulated species, rather than to all "listed species" as defined in the 2002 Plan as amended, would exclude approximately 14 species from the threatened and endangered species protection of the buffer provision.
The 2002 Plan, as amended in 2003, defines "Listed Species" as follows:
Those species of plants and animals listed as endangered, threatened, rare, or species of special concern by an official state or federal plant or wildlife agency, or the Florida Natural Areas Inventory (FNAI, includes species ranked as S1, S2, or S3), or the Florida Committee on Rare and Endangered Plants and Animals (FCREPA). These species are targeted for protection for a number of reasons, e.g. they are in imminent danger of extinction, are rapidly declining in number or habitat, or have an inherent vulnerability to habitat modification, environmental alteration, or human disturbance which puts them at risk of extinction.
The Bird Memo explains the inclusion of the FNAI and, until the 2003 Amendments, the Florida Committee on Rare and Endangered Plants and Animals ("FCREPA") lists as follows:
The use of FNAI and FCREPA sources does not make the list of protected species significantly broader than the list generated from using federal and state agency lists. Rather, it makes protection efforts more accurate and timely because they are based on scientific judgment responsive to changing natural conditions, rather than political listing decisions which can take years in the making. The use of these data sources to identify species for special protection is considered by many ecological professionals, including state and water management district personnel, as the best available data for the purpose of recognizing plants and animals in decline in the state and in Alachua County.
The Sierra Club Petitioners argue that there was no basis in either the 2002 Plan Update or the Data and Analysis for 2003 COSE Policy 3.6.8.2 to exclude the FNAI-listed species from the protection they receive at every other point in the Plan where endangered and threatened species protections apply or to exclude non-vertebrates from the buffering provisions of COSE Policy 3.6.8.2.
In response, the County initially points out that the category of buffers for listed species was new to the 2002 Plan Update. The County notes that the 1991 Plan essentially deferred to federal and state agencies in the regulation of plants and wildlife and that in crafting the 2002 Plan Update,
the County decided to broaden conservation areas to include the habitat of FNAI-listed species. The County incidentally observes that FNAI is a scientific organization with no regulatory function whatever.
The County argues that there is no conflict between its decision to generally broaden conservation areas and its decision to create a new wetland buffer category for federal and state-regulated species. The undersigned agrees that it is at least fairly debatable that the County was not required to apply its "listed species" definition to the buffering provision of COSE Policy 3.6.8.2. The Sierra Club Petitioners simply failed to demonstrate the necessary connection between the definition and the buffer category that might establish an internal inconsistency.
The mere fact that the 2002 Plan Update employed the term "listed plant or animal species" in the buffer table does not establish a presumption of correctness. The Bird Memo states that the FNAI and FCREPA lists provide "the best available data for the purpose of recognizing plants and animals in decline," and thus supports the County's decision to reference the FNAI list in its "listed species" definition, but does not require the County to include the list for purposes of defining a buffer category.
In further defense of 2003 COSE Policy 3.6.8, the County notes that the policy provides flexibility to respond to the needs of individual species by allowing for "buffer averaging," which permits the buffer area to be distributed in a varying width around the wetland, subject to the minimum widths contained in the table.
In addition to the increased buffers, the County substantially improved its protection of wetlands by strengthened requirements in proposed COSE Policies 3.6.1324/ and 4.7.4 for avoidance and minimization of impacts. Avoidance and minimization is also facilitated by proposed Policy 3.6.5, which provides for transfers of densities or clustering.
The County notes that the updated Plan contains multiple layers of wetlands protection. COSE Policy 4.7.1 provides that wetlands of all sizes are to be regulated, without exception. COSE Policy 4.7.4 limits the development impact area to the ratio of one-half acre of impact to each ten acres of conservation area. If wetland impacts cannot be avoided or minimized, then the strengthened mitigation requirements of COSE Policy 4.7.7 must be met, including a minimum ratio of 5:1 mitigation area to impacted area, a requirement that the mitigation areas be within the County and no mitigation credits for onsite preservation of wetlands,
which are required to be protected in any event. Preservation of wetlands and/or other surface waters or uplands cannot be counted as "mitigation" if federal, state, water management district, or local regulations already require protection of the resource in question.
In summary, it is at least fairly debatable that the County appropriately responded to the Data and Analysis by its policies on surface waters and wetlands.
D. Agricultural Uses
The Jonesville Petitioners criticized 2003 COSE Policy 3.1.2,25/ which provides:
In primary and secondary conservation areas, the following uses, if otherwise consistent with the Comprehensive Plan, generally shall be permitted to the extent that they do not significantly alter the natural functions of the conservation area:
Public and private conservation, recreation and open space uses.
Public and private wildlife preserves, game management and refuge areas.
Water conservation and retention/detention areas that are determined to be appropriate for stormwater management.
Agricultural uses, employing latest applicable best management practices.
The Jonesville Petitioners contend that the quoted policy creates an internal inconsistency in the Plan. The
inconsistency is said to stem from a conflict between the County's desire to sustain the ecological integrity of natural resource areas that due to their ecological value, uniqueness and particular sensitivity to development activities, require stringent protective measures, and the fact that some of the uses to be permitted in conservation areas, particularly agricultural uses, can be incompatible with the preservation of ecological integrity as defined in the Plan.
While there was some expert testimony as to the difficulty of reconciling agricultural and recreational uses with conservation, the weight of the evidence did not demonstrate such an inherent incompatibility as to establish an internal inconsistency in the Plan. The listed uses are to be permitted "to the extent that they do not significantly alter the natural functions of the conservation area," and there was no showing that this qualification is unenforceable by its terms.
The County also pointed out that its authority to regulate agricultural activities by way of development controls is limited by statute. The "Florida Right to Farm Act," Section 823.14, Florida Statutes (2003), provides, in relevant part:
(6) Limitation on duplication of government regulation.-- It is the intent of the Legislature to eliminate duplication of regulatory authority over farm
operations as expressed in this subsection. Except as otherwise provided for in this section and s. 487.051(2)[pesticide regulation], and notwithstanding any other provision of law, a local government may not adopt any ordinance, regulation, rule, or policy to prohibit, restrict, regulate, or otherwise limit an activity of a bona fide farm operation on land classified as agricultural land pursuant to s. 193.461 [property tax assessments of agricultural lands], where such activity is regulated through implemented best-management practices or interim measures developed by the Department of Environmental Protection, the Department of Agriculture and Consumer Services, or water management districts and adopted under chapter 120 as part of a statewide or regional program. . . .
(Emphasis added.)
More recently, the Legislature passed the "Agricultural Lands and Practices Act," Section 163.3162, Florida Statutes (2003), effective July 1, 2003, subsection
(4) of which provides:
Duplication of regulation.-- Except as otherwise provided in this section and
s. 487.051(2), and notwithstanding any other law, including any provision of chapter 125 or this chapter, a county may not exercise any of its powers to adopt any ordinance, resolution, regulation, rule, or policy to prohibit, restrict, regulate, or otherwise limit an activity of a bona fide farm operation on land classified as agricultural land pursuant to s. 193.461, if such activity is regulated through implemented best management practices, interim measures, or regulations developed by the Department of Environmental Protection, the Department of Agriculture and Consumer Services, or a water management district and adopted under
chapter 120 as part of a statewide or regional program; or if such activity is expressly regulated by the United States Department of Agriculture, the United States Army Corps of Engineers, or the United States Environmental Protection Agency. (Emphasis added.)
The Jonesville Petitioners also raised the specter of sham agricultural uses being used as a cover for the conversion of environmentally sensitive properties to residential development. Richard Drummond candidly acknowledged that such conversions could occur if the County were insufficiently diligent as to events on the ground, but also testified that the County did what it could, within the statutory constraints set forth above, to ensure that the updated Plan would circumvent such covert efforts. Both statutes quoted above restrict a local government's ability to restrict a "bona fide farm operation," but neither statute defines the term "bona fide farm operation." In the 2002 COSE definitions, Alachua County provided a definition of "bona fide agricultural purposes" to mean:
Good faith commercial agricultural use of the land, provided the land is classified for assessment purposes by the property appraiser as "agricultural" pursuant to Chapter 193, Florida Statutes. In determining whether the use of the land for agricultural purposes is bona fide, the following factors may be taken into consideration:
The length of time the land has been so utilized;
Whether the use has been continuous;
The purchase price paid;
Size, as it relates to specific agricultural use;
Whether an indicated effort has been made to care sufficiently and adequately for the land in accordance with accepted commercial agricultural practices, including, without limitation, fertilizing, liming, tilling, mowing, reforesting, and other accepted agricultural practices;
Whether such land us under lease and, if so, the effective length, terms, and conditions of the lease; and
Such other factors as may from time to time become applicable.
The Jonesville Petitioners contend that 2003 COSE Policy 3.1.2 creates an internal inconsistency with 2002 FLUE Policies 6.2.10, 6.2.12, 6.2.13, and 6.2.15. The permitted uses delineated in 2003 COSE Policy 3.1.2 do not list residential activity as a permitted use in conservation areas. The cited 2002 FLUE Policies all contemplate some residential development in "strategic ecosystems," which are included in the definition of conservation areas.
The Jonesville Petitioners also note that, within 2002 FLUE Policy 6.2.12, silviculture, common water supply systems, and common septic system drainfields are listed as potential uses in conservation areas that are designated as "open space" in clustered rural residential subdivisions, yet
none of these uses is listed as permitted in 2003 COSE Policy
3.1.2. They assert that the definition, treatment, and application of the terms "agriculture" and "silviculture" within the 2003 COSE plan amendments create inconsistency and lack of predictability in the application and treatment of the related policies.
As to the last point, the County credibly responds that the COSE definition of "agriculture" includes silviculture and that silviculture is considered in the Plan as a subset of agriculture, except in those instances in which some external factor requires a distinction. For example, Objective 5.5, "Agricultural and Silvicultural Practices," and its implementing policies recognize that agriculture and silviculture have distinct best management practices. It is not unreasonable for the County to interpret 2003 COSE Policy
3.1.2 as permitting silvicultural uses in conservation areas within the constraints applied to agricultural uses, where the COSE definition of "agriculture" includes silviculture.
As to residential development and its concomitant common water supply and septic systems, it is evident from the FLUE Policies cited by the Jonesville Petitioners, as well as 2003 FLUE Policies 1.3.1e and 6.2.11 and 2002 COSE Policies 3.6.5, 4.10.3.3, and 4.10.4 to 4.10.6, that the Plan will allow for residential development of the least environmentally
sensitive portion of a strategic ecosystems property by means of clustering, gross residential density limits, transfers of density, and other design techniques intended to protect ecosystems and private property rights. There is no inconsistency with 2003 COSE Policy 3.1.2 because that policy does not purport to contain the exclusive list of uses allowed in conservation areas, as indicated by its own text and that of the very next policy, 2003 COSE Policy 3.1.3:
Primary and secondary cConservation areas shall be developed only in a manner consistent with protection of the ecological integrity of natural resources, and in accordance with standards which are outlined subsequently in this Element.
The COSE Definitions provide the following meaning for the term "development activity":
Any dredging, filling, excavation, construction of new structures, expansion of existing structures, installation of utilities, roads, personal wireless service facilities, stormwater management systems, septic tanks, bulkheading, land clearing, tree cutting, mechanized vegetation removal and the disposal of solid or liquid waste.
Clearly, 2003 COSE Policy 3.1.2 lists certain uses that "generally shall be permitted," but when read in context with other Plan provisions, does not necessarily forbid residential development on certain properties defined as conservation areas.
In summary, it is at least fairly debatable that
the County appropriately responded to the Data and Analysis by its policies affecting agricultural uses and their impact on conservation. The alleged internal consistencies in these policies were not demonstrated beyond fair debate.
Level of Service
2003 Transportation Policy 1.1.2 and Capital Improvements Policy 1.2.4 raise the level of service ("LOS") for rural collector roads from LOS D in the 1991 Plan to LOS C, which is the standard recommended by the Florida Department of Transportation for rural collector roads. The McSherry Petitioners challenged this amendment because the 2002 Plan Update had upgraded the rural collector roads to LOS B. However, the proper point of comparison is from the 1991 Plan to the 2003 Amendments. Further, the evidence produced at hearing did not demonstrate that a higher LOS than C is required for protection of the state or county transportation network. It is at least fairly debatable that the Amendments regarding the LOS for rural collector roads were adequately supported by data and analysis.
Conclusion
It is found that, as to the 2003 Amendments in their entirety, the County used the best available data and reacted to it appropriately for planning purposes by applying
professionally acceptable analysis in review and application of that data.
CONCLUSIONS OF LAW
Jurisdiction and Standing
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of these proceedings. §§ 120.569, 120.57, and 163.3184(9), Fla. Stat. (2003).
As detailed in the Preliminary Statement above, these cases commenced with a challenge to the Department's finding that Alachua County's 2002 Plan Update was "in compliance." Subsection 163.3184(9), Florida Statutes (2003), dictates the procedure for such challenges:
If the state land planning agency issues a notice of intent to find that the comprehensive plan or plan amendment transmitted pursuant tos. 163.3167, s. 163.3187, s. 163.3189, or s. 163.3191 is in compliance with this act, any affected person may file a petition with the agency pursuant to ss. 120.569 and 120.57 within
21 days after the publication of notice. In this proceeding, the local plan or plan amendment shall be determined to be in compliance if
the local government's determination of compliance is fairly debatable.
The hearing shall be conducted by an administrative law judge of the Division of Administrative Hearings of the Department of Management Services, who shall hold the hearing in the county of and convenient to the affected local jurisdiction and submit
a recommended order to the state land planning agency. The state land planning agency shall allow for the filing of exceptions to the recommended order and shall issue a final order after receipt of the recommended order if the state land planning agency determines that the plan or plan amendment is in compliance. If the state land planning agency determines that the plan or plan amendment is not in compliance, the agency shall submit the recommended order to the Administration Commission for final agency action.
The parties entered settlement discussions and arrived at a compliance agreement pursuant to Subsection 163.3184(16), Florida Statutes (2003), which provides, in relevant part:
(a) At any time following the issuance of a notice of intent to find a comprehensive plan or plan amendment not in compliance with this part or after the initiation of a hearing pursuant to subsection (9), the state land planning agency and the local government may voluntarily enter into a compliance agreement to resolve one or more of the issues raised in the proceedings. Affected persons who have initiated a formal proceeding or have intervened in a formal proceeding may also enter into the compliance agreement. All parties granted intervenor status shall be provided reasonable notice of the commencement of a compliance agreement negotiation process and a reasonable opportunity to participate in such negotiation process. Negotiation meetings with local governments or intervenors shall be open to the public. The state land planning agency shall provide each party granted intervenor status with a copy of the compliance agreement within 10 days after the agreement is executed. The compliance
agreement shall list each portion of the plan or plan amendment which is not in compliance, and shall specify remedial actions which the local government must complete within a specified time in order to bring the plan or plan amendment into compliance, including adoption of all necessary plan amendments. The compliance agreement may also establish monitoring requirements and incentives to ensure that the conditions of the compliance agreement are met.
* * *
(f)1. If the local government adopts a comprehensive plan amendment pursuant to a compliance agreement and a notice of intent to find the plan amendment in compliance is issued, the state land planning agency shall forward the notice of intent to the Division of Administrative Hearings and the administrative law judge shall realign the parties in the pending proceeding under ss.
120.569 and 120.57, which shall thereafter be governed by the process contained in paragraphs (9)(a) and (b), including provisions relating to challenges by an affected person, burden of proof, and issues of a recommended order and a final order, except as provided in subparagraph
2. Parties to the original proceeding at the time of realignment may continue as parties without being required to file additional pleadings to initiate a proceeding, but may timely amend their pleadings to raise any challenge to the amendment which is the subject of the cumulative notice of intent, and must otherwise conform to the rules of procedure of the Division of Administrative Hearings. Any affected person not a party to the realigned proceeding may challenge the plan amendment which is the subject of the cumulative notice of intent by filing a petition with the agency as provided in subsection (9). The agency shall forward the petition filed by the affected person
not a party to the realigned proceeding to the Division of Administrative Hearings for consolidation with the realigned proceeding.
Thus, jurisdiction over these proceedings is based on Subsection 163.3184(9), Florida Statutes (2003). Under that statute, only an "affected person" has standing. Under Subsection 163.3184(1)(a), Florida Statutes (2003):
"Affected 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 . . . Each person, other than an adjoining local government, in order to qualify under this definition, shall also have submitted oral or written comments, recommendations, or objections to the local government during the period of time beginning with the transmittal hearing for the plan or plan amendment and ending with adoption of the plan or plan amendment.
In these cases, the parties stipulated to the underlying facts regarding standing; it is concluded that each of the Petitioners and Intervenors is an "affected person," as defined in Subsection 163.3184(1)(a), Florida Statutes (2003); and each of them also timely submitted comments to the County regarding the 2003 Amendments during the period between the transmittal public hearing and the adoption hearing. Accordingly, each of the Petitioners and Intervenors has standing to challenge the 2003 Amendments.
Compliance Criteria
Subsection 163.3184(1)(b), Florida Statutes (2003), sets out the compliance criteria for these cases:
"In compliance" means consistent with the requirements of ss. 163.3177, 163.31776, when a local government adopts an educational facilities element, 163.3178, 163.3180, 163.3191, and 163.3245, with the
state comprehensive plan, with the appropriate strategic regional policy plan, and with chapter 9J-5, Florida Administrative Code, where such rule is not inconsistent with this part and with the principles for guiding development in designated areas of critical state concern.
Burden of Proof and Standard of Proof
Because DCA issued a Notice of Intent to find the 2003 Amendments to be "in compliance," Subsection 163.3184(9)(a), Florida Statutes (2003), provides that the 2003 Amendments "shall be determined to be in compliance if the local government's determination of compliance is fairly debatable."
"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." Martin v. Yusem, 690 So. 2d 1288, 1295 (Fla. 1997). Quoting from City of Miami Beach v. Lachman, 71 So. 2d 148, 152 (Fla. 1953), the Yusem court stated further:
An 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
Id.
validity. . . However, we do point out that even with the deferential review of legislative action afforded by the fairly debatable rule, local government action still must be in accord with the procedures required by chapter 163, part II, Florida
Statutes, and local ordinances. . . .
(Citations omitted.)
Another court has stated that "where . . . there is
evidence in support of both sides of a comprehensive plan amendment, it is difficult to determine that the County's decision was anything but 'fairly debatable.'" Martin County v. Section 28 Partnership Ltd., 772 So. 2d 616, 621 (Fla. 4th DCA 2000).
Scope of the Proceeding
None of the Petitioners timely challenged the 2002 Plan Update. In fact, the Sierra Club/McSherry Petitioners originally intervened in support of those amendments. This proceeding is, therefore, limited to the substantive changes made in the 2003 Amendments pursuant to Subsection 163.3184(16)(f)1., quoted, in full, above.
The Jonesville Petitioners are undoubtedly limited to challenging the 2003 Amendments because of their status as affected persons not parties to the original proceeding.26/ The Sierra Club/McSherry Petitioners were parties to the
original proceeding, but as intervenors in support of the 2002
Plan Update. Therefore, they are limited to "amend[ing] their pleadings to raise any challenge to the amendment which is the subject of the cumulative notice of intent."
Data and Analysis
Subsection 163.3177(8), Florida Statutes (2003), requires all elements of comprehensive plans to be "based upon data appropriate to the element involved." Subsection 163.3177(10)(e), Florida Statutes (2003), provides:
It is the Legislature's intent that support data or summaries thereof shall not be subject to the compliance review process, but the Legislature intends that goals and policies be clearly based on appropriate data. The department may utilize support data or summaries thereof to aid in its determination of compliance and consistency. The Legislature intends that the department may evaluate the application of a methodology utilized in data collection or whether a particular methodology is professionally accepted.
However, the department shall not evaluate whether one accepted methodology is better than another. Chapter 9J-5, Florida Administrative Code, shall not be construed to require original data collection by local governments; however, local governments are not to be discouraged from utilizing original data so long as methodologies are professionally accepted.
Florida Administrative Code Rule 9J-5.005(2) provides in pertinent part:
All goals, objectives, policies, standards, findings and conclusions within the comprehensive plan and its support documents, and within plan amendments and their support documents, shall be based upon relevant and appropriate data and the analyses applicable to each element. 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.
* * *
(c) Data are to be taken from professionally accepted existing sources, such as the United States Census, State Data Center, State University System of Florida, regional planning councils, water management districts, or existing technical studies. The data used shall be the best available existing data, unless the local government desires original data or special studies. Where data augmentation, updates, or special studies or surveys are deemed necessary by local government, appropriate methodologies shall be clearly described or referenced and shall meet professionally accepted standards for such methodologies. Among the sources available to local governments are those identified in "The Guide to Local Comprehensive Planning Data Sources" published by the Department in 1989. Among the sources of data for preliminary identification of wetland locations are the National Wetland Inventory Maps prepared by the U.S. Fish and Wildlife Service.
FLUE data and analysis requirements are set out in Florida Administrative Code Rule 9J-5.006(1)-(2). COSE data and analysis requirements are set out in Florida Administrative Code Rule 9J-5.013(1). Transportation Element
data and analysis requirements are set out in Florida Administrative Code Rule 9J-5.019(2)-(3). Data and analysis related to the PWSSE are set out in Florida Administrative Code Rule 9J-5.011(1). It was not proven that the County failed to meet those requirements in adopting the 2003 Amendments. The evidence was that the County used the data sources identified in the cited rules. Collection of original data, including that involved in "ground-truthing" the Jonesville Petitioners' individual parcels, is encouraged but not required. § 163.3177(10)(e), Fla. Stat. (2003); Fla.
Admin. Code R. 9J-5.005(2)(b).
Data not available to a local government at the adoption hearing cannot be considered to either support or challenge a plan amendment. Zemel v. Lee County and Dept. of Community Affairs, Case No. 90-7793GM (DOAH December 16, 1992) ("The most reasonable reading of Rule 9J-5.005(2)(c) is that the data must be available and existing when the local government adopts the plan or plan amendment. These are the only data on which a local government may rely to show supporting data or consistency with a specific data criterion, or on which an affected person or DCA may rely to show the converse.") Even if in existence as of the date of adoption, data cannot be relied upon if it was not available to the local government. Data and analysis supporting the original
comprehensive plan may support an amendment. See Geraci v. Dept. of Community Affairs and Hillsborough County, Case No. 95-0259GM (DOAH October 14, 1998), which states:
177. Data and analysis may support more than one land use classification. "Nothing in Chapter 163, Part II, or Chapter 9J-5 implies that only one land use may be supported by the data and analysis."
Wilson v. City of Cocoa and Department of Community Affairs, 13 F.A.L.R. 3848, 3873 (Recommended Order, August 8, 1991)(also noting that nothing in Chapter 163, Part II, F.S., or Chapter 9J-5, F.A.C., requires the addition of new data or analysis to support a plan amendment; the data and analysis for the original comprehensive plan may be used in support of amendments).
In regard to analysis, the acceptability of one
methodology over another is not a proper issue for determination of compliance, and analysis may be relied upon so long as its methodology is professionally accepted.
Subsection 163.3177(10)(e), Florida Statutes (2003), provides:
It is the Legislature's intent that support data or summaries thereof shall not be subject to the compliance review process, but the Legislature intends that goals and policies be clearly based on appropriate data. The department may utilize support data or summaries thereof to aid in its determination of compliance and consistency. The Legislature intends that the department may evaluate the application of a methodology utilized in data collection or whether a particular methodology is professionally accepted.
However, the department shall not evaluate
whether one accepted methodology is better than another. Chapter 9J-5, Florida Administrative Code, shall not be construed to require original data collection by
local governments; however, local governments are not to be discouraged from utilizing original data so long as methodologies are professionally accepted.
None of the Petitioners proved beyond fair debate that the 2003 Amendments are not supported by appropriate data and analysis. There has been no showing that the data relied upon by Alachua County was not the "best available data," nor that the County did not "react to it in an appropriate way and to the extent necessary," as required by Florida Administrative Code Rule 9J-5.005(2)(a)-(c) and Subsection 163.3177(10)(e), Florida Statutes (2003).
Based on the findings, it is at least fairly debatable that the County used appropriate existing and available data, analyzed it appropriately and in a professional manner, and reacted to the Data and Analysis appropriately.
Procedural Issues
The procedural issues in these cases regarding mediation, settlement, notice, local planning agency, data submittal, and the adequacy of the notice of intent relate to requirements in Sections 163.3174 and 163.3184, Florida Statutes (2003). Neither of those statutes is one of the enumerated statutes within the definition of "in compliance" in Subsection 163.3184(1)(b), Florida Statutes (2003). Procedural issues may not be a basis for a finding of
noncompliance absent prejudice. See Brevard County v. Dept. of Community Affairs and City of Palm Bay, Case No. 00-1956GM (DOAH December 16, 2002).27/ None of the Petitioners has demonstrated that there has been any deviation from any of the applicable procedural requirements, nor have they shown that any of the alleged procedural irregularities has caused prejudice to any of the Petitioners.
Internal Consistency
Subsection 163.3177(2), Florida Statutes (2003), and Florida Administrative Code Rule 9J-5.005(5) require that comprehensive plan amendments must not be inconsistent with the underlying plan. A plan amendment creates an internal inconsistency when it has the effect of conflicting with an existing provision of the plan. None of the Petitioners has shown beyond fair debate that any of the 2003 Amendments are internally inconsistent with other amendments or portions of the existing Plan.
Meaningful Guidance
Under Florida Administrative Code Rule 9J-5.005(6), goals, objectives, and policies are required to establish meaningful and predictable standards and guidelines for the development of LDRs. Florida Administrative Code Rule Chapter 9J-5 does not require the inclusion of implementing regulations in the comprehensive plan. Petitioners correctly
state that LDRs may not substitute for Florida Administrative Code Rule Chapter 9J-5 minimum requirements, but are incorrect that Alachua County has employed prospective LDRs as a substitute for Plan policies and definitions. The 2003 Amendments provide adequate guidance for the development of LDRs.
Urban Sprawl
Florida Administrative Code Rule 9J-5.006(5) provides guidance on how to ensure that plans and plan amendments are consistent with applicable requirements pertaining to the discouragement of urban sprawl. If a local government's existing plan is in compliance, then an amendment cannot be found "not in compliance" solely because of pre- existing indicators of urban sprawl, if the amendment does not exacerbate existing indicators of sprawl within the jurisdiction. Fla. Admin. Code R. 9J-5.006(5)(k).
While the 13 primary indicators of urban sprawl found in Florida Administrative Code Rule 9J-5.006(5)(g) are essential, the analysis of the potential for sprawl should not be limited to these factors. Rather, the sprawl question should be considered under all the provisions of Chapter 163, Florida Statutes (2003), and Florida Administrative Code Chapter 9J-5. Manasota-88, Inc., et al. v. Dept. of Community Affairs and Sarasota County, Case No. 02-3897GM (DOAH May 14,
2004). The County Plan is "in compliance" and already discourages urban sprawl. Petitioners have not shown beyond fair debate that the 2003 Amendments exacerbate any indicator of urban sprawl.
Natural Resources
Florida Administrative Code Rule 9J-5.013 provides plan requirements for the promotion of natural resource conservation, use, and protection. The requirements address appropriate goals, objectives, and policies. The Rule does not require plans to protect all types of natural resources or to provide protection to the maximum extent possible. Rather, the Rule provides that the COSE contain policies that, among other things, protect "native vegetative communities from destruction by development activities" and that restrict activities "known to adversely affect the survival of endangered and threatened wildlife." Fla. Admin. Code R. 9J- 5.013(2)(c)3 & 5. Petitioners did not demonstrate beyond fair debate that the 2003 Amendments fail sufficiently to address the requirements of Florida Administrative Code Rule 9J-5.013.
Florida Administrative Code Rule 9J-5.006(4)(b) provides:
The following natural resources or conditions shall be shown on the future land use map or map series:
Existing and planned public potable waterwells and wellhead protection areas;
Beaches and shores, including estuarine systems;
Rivers, bays, lakes, flood plains, and harbors;
Wetlands;
Minerals and soils; and
Coastal high hazard areas.
Listed species habitat, geologic features, and native vegetative communities are not among the natural resources that are required to be placed on an adopted FLUM. The Alachua County Plan, as amended in 2003, contains policies for the designation of environmentally sensitive lands for protection based on local criteria, and in doing so, complies with all of the applicable requirements of Florida Administrative Code Chapter 9J-5.
Agricultural activities are exempt from the definition of "development" which applies to comprehensive plans. §§ 163.3164(6) and 380.04(4), Fla. Stat. (2003); See also § 823.14(6), Fla. Stat. (2003)(the "Right to Farm Act").
State Comprehensive Plan and Regional Policy Plan
Consistency with the state comprehensive plan or the appropriate regional policy plan is determined by construing those plans as a whole and no specific goal or policy in either of those plans shall be construed in isolation from the other goals and policies in that plan. See
Subsections 163.3184(1)(b) and 163.3177(10)(a), Florida Statutes (2003).
Petitioners did not prove beyond fair debate that the 2003 Amendments are inconsistent with either the state comprehensive plan or the North Central Florida Regional Policy Plan, as those plans are construed as a whole. Consistency of the 2003 Amendments
Petitioners failed to prove beyond fair debate that any of the 2003 Amendments are not "in compliance," as that term is defined in Subsection 163.3184(1)(b), Florida Statutes (2003). Based upon all of the evidence, Petitioners have failed to establish beyond fair debate that the amendments are not supported by adequate data and analysis, that some of the provisions conflict with each other or with previously adopted Plan provisions, or that some of the provisions conflict with the State Comprehensive Plan, pertinent statutes, or Department rules.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Department of Community Affairs enter a final order finding the 2003 Alachua County Amendments to be "in compliance."
DONE AND ENTERED this 18th day of October, 2004, in Tallahassee, Leon County, Florida.
S
LAWRENCE P. STEVENSON
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 18th day of October, 2004.
ENDNOTES
1/ Prior to February 2, 2004, David J. Russ was counsel of record for Petitioners Sierra Club, Inc., Dwight Adams, Holly Jensen, and Sustainable Alachua County, Inc., with Henry Lee Morgenstern serving as co-counsel. (Deborah Andrews did not make a live appearance at the hearing.) On February 2, 2004, the named Petitioners requested that Mr. Russ be dismissed and that Mr. Morgenstern take over as lead counsel. This request was granted ore tenus, without objection from any party.
2/ Both at the hearing and in their Proposed Recommended Order, the McSherry Petitioners dwelled at great length on the political situation in Alachua County, especially the impact of the September 2002 Democratic primary on the litigation and settlement of the PRPV/Fletcher petitions. Though undeniably fascinating, the electoral politics of Alachua County play no part in the determination whether the 2003 Amendments are in compliance, and no detailed findings of fact on the political situation are necessary.
3/ Sierra Club's standing was acknowledged in an ore tenus ruling on December 15, 2003, at the outset of the final hearing. Sierra Club had been denied standing in an Order dated June 26, 2003. Review of the case file convinced the undersigned that this denial had been due to a clerical error,
and that Sierra Club's First Amended Petition for Leave to Intervene established its standing in these proceedings.
4/ Petitioner Sierra Club had, yet, to be granted standing.
5/ The same Order also consolidated University of Florida Foundation, Inc. and Phil Hawley v. Department of Community Affairs and Alachua County, DOAH Case No. 03-3818, with the above proceedings. The file in DOAH Case No. 03-3818 was closed on December 3, 2003, pursuant to Petitioners' notice of voluntary dismissal.
6/ At that time, Dr. Adams was the qualified representative of Sierra Club, and Dr. Cantwell was the qualified representative of SAC. Dr. Adams had also intervened on his own behalf.
7/ The 2003 Amendments were based on the language of the 2002 Plan Update. Thus, strikethroughs and underlines indicate deletions from and additions to the 2002 language, not the Plan as it was adopted in 1991.
8/ The Sierra Club/McSherry Petitioners' argument seems to confuse "minimum" with "minimal." If the LDRs provide for maximum separations, i.e., they state that the separation can be no greater than "X," then the LDRs will assure that the separations are minimal.
9/ It is unclear from the text whether the "511 average yearly" number is merely a miscalculation of the four preceding numbers, the sum of which is actually 451, or whether it is a standalone number derived from other sources.
10/ In this subsection, references to the FLUE are to unchallenged provisions of the 2002 Plan Update, unless otherwise noted.
11/ The 2002 Plan Update contains no "Appendix A" to the FLUE. However, the 2002 Data and Analysis contains an Appendix that includes the referenced calculations and need determinations. It is assumed that FLUE Policy 7.1.3.a. refers to this Appendix.
12/ See Findings of Fact, Section IV.A. below for discussion of "ground-truthing" in connection with the subset of conservation areas called "strategic ecosystems."
13/ 2002 Potable Water & Sanitary Sewer Policy 2.1 provides, in relevant part: "All new development in the urban cluster
shall be timed to occur when both centralized potable water and sanitary sewer systems are available for connection."
14/ The Jonesville Petitioners made an issue of the fact that "and" is used to connect the six "conservation areas" in the quoted policy. They contend that the use of the conjunctive means that the definition of "conservation area" may be met only by a property that possesses all six of the listed qualities, i.e., it must be simultaneously a wetland, a surface water, a 100-year floodplain, a listed species habitat, possess significant geologic features, and be a strategic ecosystem. However, superficially persuasive this reading may be, the weight of the evidence established that such an absurd result was never contemplated by the County.
The plain intent of the "and" was to indicate that all six
types of property are "conservation areas," not that each property must exemplify all six types.
15/ 2002 COSE Objective 3.6 provides that Alachua County will "[p]rotect natural resources by requiring that all development activities be conducted in accordance with at least minimum resource protection standards."
16/ This finding is premised upon the correctness of the previous findings as to the methodology Alachua County will employ during the development review process. If the Jonesville Petitioners were correct that the analysis ends with a property's placement on the map, and that all "strategic ecosystems" Plan provisions apply to that property with no means by which an owner can demonstrate the property's lack of actual ecological significance at the development review stage, then detailed findings would be necessary at this stage as a matter of fundamental fairness to the Jonesville Petitioners.
17/ Strikethroughs and underlines indicating changes from the 1991 Plan are omitted.
18/ The 2002 Plan Update defines "development activity" as "Any dredging, filling, excavation, construction of new structures, expansion of existing structures, installation of utilities, roads, personal wireless service facilities, stormwater management systems, septic tanks, bulkheading,
land-clearing, tree-cutting, mechanized vegetation removal and the disposal of solid or liquid waste."
19/ Strikethroughs and underlines indicating changes from the 1991 Plan are omitted.
20/ The Planned Unit Development ("PUD") zoning classification was ultimately abandoned in the 2002 Plan Update. No discussion of the PUD concept is necessary.
21/ Because the Bird Memo predates the 2003 Amendments, it is clear that the "25% preservation" statement references 2002 COSE Policy 4.9.2, which called for conservation or preservation of a minimum of 25 percent of the significant plant and wildlife habitat on site, not to 2003 COSE Policy 4.9.12, which makes 25 percent preservation the maximum that may be undertaken without landowner consent.
22/ This distinction is also apparent in the 2003 Amendment changing the definition of "critical habitat":
The specific areas that contain biological or physical features upon which a listed species depends. These include recently documented feeding, breeding, and nesting, or repetitive use areas.
The 2003 Amendments added a definition of "documented":
The existence of a scientifically credible occurrence record for a listed species, including surveys, scientific publications, or other information from a developer or landowner, local, regional, state or federal agencies.
23/ It should also be noted that 2002 COSE Policy 4.7.7 requires mitigation at the expense of the landowner for any development activity in a wetland or buffer.
24/ COSE Policy 3.6.13 essentially places upon public projects the same minimization of impacts and mitigation requirements that apply to private developments.
25/ This policy was numbered COSE Policy 3.1.3 in the 2002 Plan Update. The 2003 Amendments eliminated then-Policy 3.1.2, which dealt with "secondary" conservation areas, and renumbered the quoted provision as COSE Policy 3.1.2.
26/ In practice, this limitation is elastic enough to include those portions of the 2002 Plan Update that are inextricably linked to, or whose meaning was allegedly altered by, the 2003 Amendments under attack. The Jonesville Petitioners were
allowed much leeway in presenting their case, over Alachua County's scope objections.
27/ The relevant portion of the cited DOAH decision reads as follows:
As found, the large-scale amendment was not adopted within 120 days from receipt of DCA's ORC Report, as required by Section 163.3184(7), Florida Statutes. But that procedural requirement is not a compliance criterion under Section 163.3184(1)(b), Florida Statutes. In addition, a plan or plan amendment will not be set aside for such a procedural breach absent a showing of prejudice. See Caliente Partnership v. Johnston, 604
So. 2d 886 (Fla. 2d DCA 1991)(45-day time
limit period for publishing a notice of intent prescribed by subsection 163.3184(15)(b), Florida Statutes, not jurisdictional and not ground for default reversal notice of intent); Dept. of Community Affairs, et al., v. Hamilton County, DOAH Case No. 91-6038GM, 1995 WL
1052618, at *15 (Admin. Comm'n 1995)(County's untimely adoption not jurisdictional and not ground to set aside plan or plan amendment absent showing of prejudice). See also Edmond J. Gong and Dana L. Gong v. Department of Community Affairs and City of Hialeah, Case No. 94- 3506GM, 1994 WL 1027737 (Fla. Div. Admin.
Hrgs. November 28, 1994)(actions of City and DCA not a nullity for failure to give statutory notice, and no showing of prejudice). The County failed to show any prejudice in this case from the City's untimely adoption of the large-scale amendment.
The County also asserts that LPA review of the plan amendments was lacking. Specifically, the County criticizes LPA review in this case both for taking place prior to annexation of the amendment parcels and for taking place prior to adoption of EAR-based amendments in effect
at the time the plan amendments at issue were adopted. But it does not appear that procedural requirements of LPA review under Section 163.3174(4)(a), Florida Statutes, is a compliance criterion under Section 163.3184(1)(b), Florida Statutes. In addition, as already indicated, procedural defects are not jurisdictional and are not grounds to set aside City and DCA action without a showing of prejudice. Cf. also B&H Travel Corp. v. Dept. of Community Affairs, 602 So. 2d 1362 (Fla. 1st DCA 1992)(LPA's action without quorum was not jurisdictional and not a ground for reversal of DCA finding of compliance).
Absent any showing of prejudice, the plan
amendments at issue in this case should not be set aside as a result of alleged infirmities in the LPA's review.
COPIES FURNISHED:
Ronald A. Carpenter, Esquire Carpenter & Parrish, P.A.
5608 Northwest 43rd Street Gainesville, Florida 32653-8334
David C. Schwartz, Esquire Alachua County Attorney's Office Post Office Box 2877 Gainesville, Florida 32602-2877
Linda Loomis Shelley, Esquire Fowler, White, Boggs, Banker, P.A.
101 North Monroe Street, Suite 1090 Post Office Box 11240
Tallahassee, Florida 32301
Brenna M. Durden, Esquire Lewis, Longman & Walker, P.A. 9428 Baymeadows Way, Suite 625
Jacksonville, Florida 32256-7969
Terry E. Lewis, Esquire Lewis, Longman & Walker, P.A. Suite 1000
1700 Palm Beach Lakes Boulevard
West Palm Beach, Florida 33401-2006
Patrice Boyes, Esquire Patrice Boyes, P.A.
4719 Northwest 53rd Avenue, Suite C Post Office Box 358584 Gainesville, Florida 32635
David J. Russ, Esquire
601 South Main Street, Suite 9J-5 Gainesville, Florida 32601
S. Scott Walker, Esquire Folds & Walker, LLC
527 East University Avenue Post Office Box 1775
Gainesville, Florida 32602-1775
David L. Jordan, Esquire Moses E. Williams, Esquire
Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 325
Tallahassee, Florida 32399-2100
Deborah J. Andrews, Esquire
11 North Roscoe Boulevard
Ponte Vedra Beach, Florida 32082-3625
Henry Lee Morgenstern, Esquire
102 South Main Street Crescent City, Florida 32112
Thaddeus Cohen, Secretary Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 100
Tallahassee, Florida 32399-2100
Heidi Hughes, General Counsel Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 325
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 |
|---|---|---|
| May 02, 2005 | Agency Final Order | |
| Oct. 18, 2004 | Recommended Order | Petitioner failed to prove beyond "fair debate" that the 2003 Amendments to Alachua County`s Plan were not "in compliance" with the relevant statutory and rule requirements. |
