STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
1000 FRIENDS OF FLORIDA, )
INC.; FLORIDA WILDLIFE ) FEDERATION; JUPITER FARMS ) ENVIRONMENTAL COUNCIL, INC., ) d/b/a LOXAHATCHEE RIVER ) COALITION; AUDUBON SOCIETY OF ) THE EVERGLADES; and MARIA ) WISE-MILLER, )
)
Petitioners, )
)
vs. )
)
DEPARTMENT OF COMMUNITY )
AFFAIRS and PALM BEACH )
COUNTY, )
)
Respondents. )
Case No. 04-4492GM
)
RECOMMENDED ORDER
On March 7-11, 14-18, and 21-23, 2005, a final administrative hearing was held in this case in West Palm Beach, Florida, before J. Lawrence Johnston, Administrative Law Judge (ALJ), Division of Administrative Hearings (DOAH).
APPEARANCES
For Petitioners:
Lisa Interlandi, Esquire Robert Hartsell, Esquire
Environmental & Land Use Law Center, Inc.
244 Datura Street, Suite 201 West Palm Beach, Florida 33401
Richard Grosso, Esquire
Environmental & Land Use Law Center, Inc. 3305 College Avenue
Fort Lauderdale, Florida 33314 For Petitioner Audubon Society of the Everglades:
Barry M. Silver, Esquire
1200 South Rogers Circle, Suite 8 Boca Raton, Florida 33487-5703
For Respondent Department of Community Affairs:
Shaw P. Stiller, Esquire Leslie E. Bryson, Esquire
Department of Community Affiars 2555 Shumard Oak Boulevard Tallahassee, Florida 32314
For Respondent Palm Beach County:
Gary P. Sams, Esquire David L. Powell, Esquire Frank E. Matthews, Esquire
Carolyn S. Raepple, Esquire Hopping Green & Sams, P.A.
123 South Calhoun Street Tallahassee, Florida 32301
Andrew J. McMahon, Esquire
Palm Beach County Attorney's Office
301 North Olive Street, Suite 601 West Palm Beach, Florida 33401-470
STATEMENT OF THE ISSUE
The issue in this case is whether amendments to the Palm Beach County (County) Comprehensive Plan (Plan) adopted by Ordinance Nos. 2004-34 through 2004-39, 2004-63 and 2004-64 (Amendments) to accommodate the County's development of a biotechnology research park on 1,900 acres known as the Mecca
site are "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.1
PRELIMINARY STATEMENT
On November 18, 2003, the Office of Tourism, Trade and Economic Development (OTTED) and the County entered into a Memorandum of Agreement by which expedited review procedures under Section 403.973 would apply to the establishment of the new Scripps Research Institute–Florida (Scripps Florida) in the County, including any necessary County Plan amendments.
On October 13, 2004, the County adopted Ordinance Nos. 2004-34 through 2004-39 to establish a Scientific Community Overlay (SCO) for the County's proposed development. On November 19, 2004, the Department of Community Affairs (DCA) published a Notice of Intent to find Ordinance Nos. 2004-34 through 2004-39 “not in compliance.”
On December 10, 2004, DCA filed with its agency clerk a Petition for Formal Administrative Hearing regarding this notice. On December 10, 2004, 1000 Friends of Florida, Inc., et al. (Intervenors), filed a petition intervening on behalf of DCA and raising additional grounds for non-compliance.
On December 13, 2004, the County adopted Ordinance Nos. 2004-63 and 2004-64 as remedial amendments. On December 16, 2004, DCA and the County (but not the Intervenors) entered
into a Stipulated Settlement Agreement by which the County agreed to adopt the remedial amendments just adopted.
On December 17, 2004, DCA forwarded the two petitions to DOAH, along with other papers. DCA also filed a Notice of Filing Compliance Agreement and Request for Stay of Proceedings. On December 21, 2004, the ALJ entered an Order Granting Stay.
On January 14, 2005, DCA published a second amended notice of intent to find Ordinance Nos. 2004-34 through 2004-
39 and a corrected notice of intent to find Ordinance Nos.
2004-63 and 2004-64 “in compliance.”
On February 4, 2005, the Intervenors filed a Consolidated Amended Petition for Formal Administrative Hearing (Amended Petition.)
On February 7, 2005, the ALJ entered an Order Realigning Parties. The Intervenors became the Petitioners, and DCA joined the County as a Respondent.
Under Section 403.973, the summary hearing procedure of Section 120.574 was followed, and the final hearing was held in West Palm Beach on March 7-11, 14-18, and 21-23, 2005.
After opening statements, Joint Exhibits 1–42 were admitted into evidence. Petitioners called 24 witnesses, several of whom were fact witnesses as to standing. The following Petitioners’ Exhibits were admitted into evidence:
20, 21, 23-26, 28, 37, 38, 39, 43, 45, 48, 65, 67, 68, 74, 82,
84, 92-105, 107, 109, 121, 129, 132-135, and 137-139.
The County called 14 witnesses. The following County Exhibits were admitted into evidence: 7, 18, 19, 22a-22b, 23,
24, 30, 37-39, 41-45, 49a-49d, 52, 58, 59, 61, 66, 67, 69, 70,
77-79, 82, 83a-83b, 90, 93, 94, 97-99, 104, 105, 113, 114,
117-119, 135, 136, 138, 141, 143, 145-147, 151, 153, 154, 156,
and 159-162. In addition, official recognition was taken of PBC Exhibits 2 and 3.
DCA called one witness and had DCA Exhibit 1 admitted into evidence.
After presentation of the evidence, the ALJ announced that, since at least one of the Petitioners (Maria Wise- Miller) had standing, there would be no need to address the standing of the other Petitioners in proposed recommended orders (PROs) or in the Recommended Order (RO). See Durham, et al., v. Polk County¸ DOAH Case Nos. 03-0593GM and 03- 0933GM, 2004 WL 364174 (DOAH February 24, 2004; Final Order AC-04-004 Admin. Comm'n June 25, 2004). See also Coalition for Adequacy and Fairness in School Funding, Inc. v. Chiles, 680 So. 2d 400, 403 n.4 (Fla. 1996).
A Transcript of the final hearing was ordered, and the parties were given ten days from the filing of the Transcript to file proposed recommended orders (PROs). The Transcript
(3177 pages in Volumes I-XX) was filed on March 29, 2005, making PROs due April 8, 2005. The timely-filed PROs have been considered in preparing this Recommended Order.
FINDINGS OF FACT
Overview of the County's Pre-Scripps Plan
The County's first Plan was adopted in 1980. Its 1989 Plan, the first adopted under the 1985 Local Government Comprehensive Planning and Land Development Regulation Act (also known as the 1985 Growth Management Act, or GMA) built upon the strengths of the first Plan. In 1995, the County evaluated and appraised its 1989 Plan, completed an Evaluation and Appraisal Report (EAR), and subsequently adopted a substantially-amended EAR-based Plan. In 1999, the Plan again was amended by the addition of a Managed Growth Tier System (MGTS) as a new growth management tool.2
The County's Plan recognizes that development in the County has generally moved from eastern coastal areas to the west and from the southern part of the County to the north. Generally, the Plan has attempted to direct growth towards the eastern part of the County and to encourage infill and redevelopment in that part of the County. Redevelopment is underway in older areas, usually under the auspices of local governments. At the same time, the Plan now recognizes that another growth corridor is located along SR 7 and US 441.
Even with the efforts to encourage infill and redevelopment in the eastern part of the County, growth pressures have led to 18,000 acres of new land use approvals in the County north of Lake Worth Boulevard in the last 10 years.
The Future Land Use Element (FLUE) of the County's Plan contains County Directions, GOPs (i.e., Goals, Objectives, and Policies), the MGTS Map, and the Future Land Use Atlas. The County Directions "provide the basis for preparation of the [GOPs]." The GOPs "provide the framework for decisions that direct the location, pattern, character, interrelationships and timing of development, which ultimately affects the distribution of facilities and services to support it." The MGTS Map "defines distinct geographical areas within the County that currently either support or are anticipated to accommodate various types of development patterns and service delivery provisions that, together, allow for a diverse range of lifestyle choices, and livable, sustainable communities." The Atlas "graphically depicts the future distribution, general use and densities and intensities of [land use] within each tier." (FLUE Introduction, pp. 1-2)
The County also routinely employs geographic-specific
planning tools. The Plan creates at least 15 overlays to meet planning challenges for specific areas. It also recognizes 10 neighborhood plans. Optional sector planning for a large part
of the Central-Western Communities of the County also is underway.
The FLUE's County Directions include: Livable Communities (with "a balance of land uses and [other features]"); Growth Management (to "provide for sustainable urban, suburban, exurban and rural communities and lifestyle choices by: (a) directing . . . development that respects the characteristics of a particular geographic area; (b) ensuring smart growth . . . ; and (c) providing for facilities and services in a cost efficient timely manner"); Infill Development (to increase efficiency); Land Use Compatibility; Neighborhood Integrity; Economic Diversity and Prosperity (to promote the growth of industries that are high-wage and diversify the economic base); Housing Opportunity ("by providing an adequate distribution of very-low and low-income housing, Countywide"); Economic Activity Centers (to encourage manufacturing and other value-added activities); Level of Service Standards ("to accommodate an optimal level . . . needed as a result of growth"); Linear Open Space and Park Systems; Environmental Integrity (to "[e]ncourage restoration and protection of viable, native ecosystems and endangered and threatened wildlife by limiting the impacts of growth on those systems; direct incompatible growth away from them; encourage environmentally sound land use planning and development and
recognize the carrying capacity and/or limits of stress upon these fragile areas"); Design; A Strong Sense of Community; and Externalities (placing "major negative" ones "away from neighborhoods"). (Id. at pp. 5-6)
FLUE Goal 1 is to establish the MGTS. Objective 1.1 recognizes five geographic regions (tiers) of land with "distinctive physical development patterns with different needs for services to ensure a diversity of lifestyle choices": Urban/Suburban (land within the Urban Service Area (USA), generally along the east coast but also along the southeast shore of Lake Okeechobee in the extreme west of the County, having urban or suburban density and intensity and afforded urban levels of service); Exurban (land outside the USA and generally between the Urban and Rural Tiers, platted prior to the 1989 Plan and developed at densities greater than
1 dwelling unit per 5 acres (du/ac); Rural (land outside the USA and east of the Water Conservation Areas, Twenty Mile Bend, and the J.W. Corbett Wildlife Management Area (Corbet WMA), including large tracts of land, as well as lands platted prior to the 1989 Plan, that had a predominant density of 1 du/10 ac, but less than 1 du/5 ac, and afforded rural levels of service); Agricultural Reserve (primarily for agricultural use, reflecting the unique farmlands and wetlands within it, to be either preserved or developed only at low residential
density); and Glades (all land west of the Water Conservation Areas, Twenty Mile Bend, and Corbett WMA, predominantly supporting large-scale agricultural operations, and afforded rural levels of service.)
The five tiers are depicted graphically in Map LU 1.1, MGTS, of the Map Series. Conservation lands are also depicted on Map LU 1.1 but are not assigned to a tier. The Map also depicts the United Technologies (Pratt-Whitney) (UT) Overlay and the North County General Aviation Airport (North County Airport), neither one which appears from Map LU 1.1 to lie within a tier. The UT Overlay is in the north-central part of the County, sandwiched between Rural Tier on the north, east, and southeast and Conservation land, including Corbett WMA on the west and southwest, and roughly bisected by the Beeline Highway (Beeline), which runs diagonally through the overlay between its northwest and southeast extremes. The Airport lies farther to the southeast along the Beeline, essentially surrounded by Rural Tier land, except for relatively small pieces of Conservation land contiguous to it along its western boundary and at its southeast corner (the North County Airport Preserve.)
Notwithstanding the possible appearance from the
depictions on Map LU 1.1, the County has no general planning jurisdiction in any of the incorporated areas of the County.3
Map LU 2.1 depicts the three service areas to guide delivery of public services that are established under FLUE Goal 3. These are the Urban Service Area (USA), the Rural Service Area (RSA), and the Limited Urban Service Areas (LUSA). The USA essentially follows the boundaries of the Urban/Suburban Tier. The LUSA is relatively limited geographically and includes the Agricultural Reserve Tier, the UT Overlay, and the North County Airport (with contiguous Conservation lands). The rest of the County is in the RSA.
The verbiage of Goal 3, its Objectives and Policies and other parts of the Plan, gives the impression that provision of services is fine-tuned to the character and needs of a particular locale. For example, Goal 3 is "to define graduated service areas for directing services to the County's diverse neighborhoods and communities in a timely and cost- effective manner, reflective of the quality of life associated with each respective Tier." But actually the Plan assigns countywide level-of-service standards (LOSS's) to seven of nine types of facilities. All urban services can be provided in all areas of the County except that County centralized water and sewer services cannot be provided in the RSA. While theoretically intended to be geographically limited, the main difference between the USA and the LUSA is that the LUSA is outside the USA. The Agricultural Reserve part of the LUSA is
actually a westerly extension of the USA. The North County Airport part of the LUSA is surrounded by Rural Tier land; the UT part of the LUSA is surrounded by Rural Tier and Conservation lands, the same as the UT Overlay.
The County has re-examined its policy decision not to provide centralized water and sewer services in the RSA because it has resulted in various municipalities and utilities special districts and perhaps private alternative providers extending services while the County excludes itself. The County has adopted plan amendments to change this to allow the County to provide such services and to exclude others. Those plan amendments are under administrative challenge at this time and are not yet in effect.
The County has three priorities for extending services. One is to encourage development of basic industry to further the Economic Element.
The County Plan's Economic Element is optional. It reflects a concerted effort to diversify the economy of the County by encouraging growth in cluster industries, including medical products.
Taken together, the Plan reflects a desire to accommodate growth in the Urban/Suburban Tier, especially in the eastern part of the County. Many GOPs in the Plan promote and encourage infill and redevelopment. However, pressure to
grow in other parts of the County are undeniable. It appears that, under the Plan, the County will be completely built-out within 30 years.
The County's current Plan is detailed and complicated. Many other parts of it, some of which will be addressed later in this Recommended Order, also are implicated in some manner and in different degrees by the Amendments at issue.
Scripps Florida
In the early 1990s, a County study indicated concern about the three main elements of the local economy: tourism was low-paying; agriculture was low-paying and a declining sector; and construction and development would decline as the County built out.
In 1998, a consulting firm (SRI) proposed an action plan for the County to develop economic clusters. The action plan addressed several industry clusters, including medical/pharmaceuticals. SRI recommended, among other things, attracting a biomedical park development, a satellite campus of a medical school, venture capital providers, and a medical research institute. Meanwhile, in the same general time frame, the State’s economic development arm, Enterprise Florida, Inc., targeted the biomedical industry for development in Florida.
The Scripps Research Institute in La Jolla, California (Scripps), is the largest not-for-profit biotechnology research organization of its kind in the world. In 2003, Scripps decided to expand its operations. Florida Governor Bush, along with several Florida legislators, personally and through Enterprise Florida and OTTED, actively pursued Scripps to locate in Florida. During the same timeframe, the Federal Government made funds available to Florida under the Jobs and Growth Tax Relief Reconciliation Act of 2003, for the essential governmental service of improving economic opportunities available to the people of this state by attracting new or expanding businesses to, and retaining businesses in, the State. It was decided to use
$310,000,000 of these funds in the pursuit of Scripps and hoped-for related economic and other benefits. By
October 2003, Scripps agreed to negotiate expansion to Florida and chose Palm Beach County as its preferred location in the State.
Also in October 2003, the Florida Legislature met in special session and, on November 3, 2003, enacted Chapter 2003-420, Laws of Florida, which created the Scripps Florida Funding Corporation to facilitate establishment and operation of a biomedical research institution for the purposes of enhancing education and research and promoting economic
development and diversity. The Funding Corporation was required by the law to negotiate a contract with the Scripps Research Institute of La Jolla, California, for Scripps to establish a state-of-the-art biomedical research institution and campus in Florida. After disbursement of $300,000 to OTTED to cover staffing and administration expenses of the Funding Corporation, and upon execution of the contract with Scripps, the balance of the $310,000,000 was to be disbursed to the Funding Corporation subject to the terms of the contract.
The Scripps Grant Agreement
Scripps Florida and the County entered into a Grant Agreement on February 9, 2004, with a term of 30 years. In the Grant Agreement, the County agreed to pay for or provide: a 100-acre campus for Scripps Florida in the 1,919-acre site at Mecca Farms (Mecca), with a funding limitation of
$60,000,000; the construction of initial temporary facilities for Scripps Florida at the Florida Atlantic University (FAU) campus in Jupiter, with a funding limitation of $12,000,000; the construction of permanent facilities for Scripps Florida at the Mecca site, with a funding limitation of $137,000,000;
400 adjacent acres for development of “related uses”; and applications for approvals for Scripps Florida to develop 2 million square feet at Mecca.
The Grant Agreement’s definition of “related uses” was intended to be broad so that the County can open the 400 acres to computer research, telecommunications and other economic clusters if not enough pharmaceutical or life-science research firms are attracted.
The Grant Agreement requires Scripps Florida to create or relocate at least 545 new jobs to the Mecca site; to strive to create 2,777 new or relocated jobs; and to work with the County to create a total 6,500 jobs.
In the Grant Agreement, the County expressly reserves all legislative and quasi-judicial powers, acting only in its proprietary capacity.
The County's Purchase of Mecca Site
In accordance with the Grant Agreement, the County proceeded with the purchase of the Mecca site. In
October 2003, the Business Development Board (BDB), a non- profit organization that is funded primarily by and reports to the County, already had obtained an option to purchase the site for $60,000,000, if certain government approvals could be obtained. In February 2004, the County acquired the option on the Mecca property from the BDB and exercised it. Including the cost of some "oral add-ons," the purchase price for Mecca was approximately $60,500,000.
Characteristics of the Mecca and Surroundings
The Mecca site is in the shape of a rectangle located in the north-central part of the County. It is designated in the Rural Tier. For approximately 50 years, most of the site has been used as a citrus grove with trees grown in rows 15 feet apart, 73-acres of agricultural ditches, and a 272-acre above-ground water impoundment area in the northeast quadrant of the site used for irrigation. There also is a 30-acre sand mine operation in the southwestern quadrant.
At this time, the Mecca site is accessible by road only by Seminole Pratt-Whitney Road (SPW), a two-lane paved road from the south. When SPW reaches the southwest corner of Mecca, it becomes a dirt road as it continues along the west side of the property.
While Mecca itself is in the Rural Tier, it is not surrounded by Rural Tier land. The land to the west is designated Conservation, and the land to the north and south is designated Exurban Tier. The land to the east is designated Rural Tier, but it actually is within the jurisdictional boundaries of the City of Palm Beach Gardens.
The area around Mecca is a “mosaic” of uses, including undeveloped agricultural lands, conservation lands, and lands developed predominantly as undesirable residential
sprawl with limited employment and shopping. The nearby Beeline, part of the Florida Intrastate Highway System (FIHS), is classified by the State as “urban” to the east and “transitional” to the west of SPW.
Significant among the developed areas near Mecca is The Acreage, abutting Mecca to the south. The County designated The Acreage as part of the Exurban Tier. It is a large, 76 percent built-out, antiquated subdivision with a density of 1 du/1.25 ac and a population of approximately 42,000. As such, it can be characterized as either urban or suburban, but not rural.
To the south and west of The Acreage are large citrus groves in the Rural Tier. Farther south and west of The Acreage is Loxahatchee Groves, another antiquated subdivision in the Exurban Tier, with a density of 1 du/5 ac that is just 18 percent built-ut with 1,216 homes built. Farther south, just south of Southern Boulevard, is the Village of Wellington, which is a municipality located within the boundaries of the Urban/Suburban Tier. South and east of The Acreage is the Village of Royal Palm Beach, also a municipality within the Urban/Suburban Tier.
The 60,288-acre Corbett WMA is located immediately west of Mecca and is owned and managed by the State as a hunting preserve. It has no tier designation. Corbett has a
variety of habitats for endangered or threatened species (wood storks, eagles, red-cockaded woodpeckers, gopher tortoises and indigo snakes), including wet prairie, freshwater marsh and pine flatwoods. Corbett could provide habitat for Florida panthers although there have been no confirmed panther sightings in the area in a number of years.
Immediately north of Mecca is another antiquated subdivision, Unit 11 of the Indian Trail Improvement District (Unit 11). The County is buying Unit 11 for preservation as Hungryland Slough, a regional off-site mitigation area. Unit
11 is designated in the Exurban Tier. Hungryland contains habitat similar to that found in Corbett WMA.
North of Hungryland, and south of the Beeline, is a small triangle of Rural Tier land, which is just south and south east of the UT Overlay, which includes the Park of Commerce (a/k/a Florida Research Park).
The Rural Tier land to the northeast of Hungryland, across the Beeline, is Caloosa, a large-lot residential development with a density of 1 du/5 ac. To the northeast of Caloosa is Jupiter Farms, another large, 81 percent built-out antiquated residential subdivision with a density of 1 du/2 ac and a population of about 12,600. Jupiter Farms is designated in the Rural Tier although it also seems to fit the criteria for the Exurban Tier.
The Vavrus Ranch, a 4,600-acre landholding, is located immediately east of Mecca. Approximately half of Vavrus Ranch is wetlands, and the remainder is improved pasture. The Vavrus Ranch appears to be designated in the Rural Tier, but it actually is in the City of Palm Beach Gardens.
Existing urban-scale public facilities between Mecca and Southern Boulevard to serve the suburbs include five fire stations, two post offices, eight elementary schools, two middle schools and two branch libraries, with one high school and one middle school planned or under construction. Existing public facilities north of Mecca in Caloosa include one fire station and one elementary school. East of Mecca and the Vavrus Ranch is the North County General Aviation Airport.
To address land use deficiencies in this area, the County has agreed with DCA to prepare a plan for a 52,000-acre sector, which originally included Mecca.
Current development has committed approximately two- thirds of lands in the sector to an inefficient pattern that is not “sustainable.” This pattern increases reliance on the automobile; may not be served long-term by private wells and septic tanks; and does not pay for itself, requiring substantial taxpayer subsidies. The sector has a serious
jobs/housing imbalance, resulting in more congestion and longer commutes for residents.
The County’s sector planning consultants identified Mecca as an appropriate site for an intensive employment center in two out of three initial scenarios. Subsequent studies identified Mecca for other uses, and the site was deleted from the sector planning area in 2004 when the Scripps Florida opportunity arose at Mecca.
Development of Regional Impact (DRI) and Plan Amendments
Since the Scripps opportunity arose, the County's primary vision for Mecca has been to transform its 1,919 acres into a very special place that would be able not only to satisfy the needs of Scripps, but also would have all of the essential elements and many extra amenities so as to enable the County to compete with other areas of the country (and, indeed, the world) to attract related research and development (R&D) and, especially commercial activity in order to reap the maximum possible economic benefits of a biotechnology cluster. This vision included not only onsite opportunities for development of related biotechnology R&D and related commercial ventures, but also a university campus, a hospital/clinic, expansive green spaces and water features, onsite residential opportunities, including affordable
housing, and onsite commercial and retail uses, including a town center.
The County prepared plans by first reviewing and considering other R&D complexes, companies potentially interested in new locations, views of university officials, the Scripps experience at La Jolla, employees per square foot per industry type, and its own allowable floor area ratios (FARs) in order to identify the developable square footage for R&D at Mecca. As applicant for the necessary DRI approval and Plan amendments, the County’s staff and consultants initially requested approval of 10.5 million square feet for R&D use after balancing space needs, traffic impacts, environmental needs, buffering and other factors.
The County’s real estate consultant concluded that a minimum of 2 to 3 million square feet of R&D space would be necessary for the venture to be successful, and that the absorption of 8 to 8.5 million square feet over a long-term build-out period of 30 years was a reasonable expectation. That view was bolstered by the potential establishment of other R&D users, if biotechnology firms do not absorb the entire capacity of the project.
Ultimately, the Board of County Commissioners (BCC) approved a development of regional impact (DRI) for 8 to 8.5 million square feet of R&D, including the 2 million square
feet for Scripps Florida, in order to provide economic opportunities while avoiding the need for eight-lane roads in the area.
In order to accommodate this project, amendments to the County's Plan were necessary. Changes to the Plan adopted October 13, 2004, included Ordinance Nos. 2004-34 through
2004-39. Changes to the Plan adopted December 14, 2004,
included Ordinance Nos. 2004-63 and 2004-64.
Ordinance No. 2004-34 removes the 1,919-acre Mecca site from the Rural Tier; creates a scientific community overlay (SCO) on Mecca; establishes its allowed uses; imposes controls to balance residential and non-residential uses by phase; sets design principles; designates Mecca as a LUSA; and makes related changes to the FLUE and Economic Element and the FLUE Map Series.
Ordinance No. 2004-35 modifies FLUE Policy 3.5-d to exempt the SCO from a County-imposed limitation on allowed land use changes expected to generate significant impacts on any roadway segment projected to fail to operate at LOSS "D" based on the adopted Long-Range Transportation Plan.
Ordinance No. 2004-36 amends the FLUE Atlas to change the land use on Mecca from Rural Residential with a density of 1 du/10 ac (RR-10) to Economic Development Center with an underlying density of 2 du/ac (EDC/2). This amendment
also sets minimum and maximum amounts of each use and incorporates by reference the land use conversion matrix in the DRI development order (DO).
Ordinance No. 2004-37 amends the FLUE Atlas to change the land use on a 28-acre Accessory Site obtained from Corbett WMA from Conservation to Transportation and Utilities Facilities.
Ordinance No. 2004-38 amends the Transportation Element (TE) to lower the adopted LOSS on 37 road segments and
6 intersections from the generally applicable standard of “D” to “Constrained Roadway at Lower Level of Service” (CRALLS).
Ordinance No. 2004-39 amends the Thoroughfare Right- of-Way (ROW) Identification Map (TIM) and the 2020 Roadway System Map to reflect certain road improvements to accommodate SCO-generated traffic.
Ordinance No. 2004-63 updates Tables 1 through 16 of the 2005-2010 Capital Improvement Schedule (CIS), and includes road, water, and sewer facilities to serve the SCO.
Ordinance No. 2004-64 updates Table 17 of the CIS, which addresses schools.
g. The Petitioners, Their Burden, and Their Issues
DCA’s notices of intent to find the Amendments in compliance were challenged by four not-for-profit organizations and one resident of Palm Beach County. All of
the Petitioners timely commented, orally or in writing, to the County regarding the Amendments.
Additional standing evidence was presented as to each Petitioner. Standing as an "affected person" under Section 163.3184(1)(a) was disputed as to all but one Petitioner. As to Petitioner, Maria Wise-Miller, it was undisputed that she is an "affected person" under Section 163.3184(1)(a).
It was Petitioners' burden to prove beyond fair debate that the Plan Amendments were not "in compliance." See Conclusions 210-211, infra.
Essentially, Petitioners are concerned that development of the SCO on Mecca's 1,919 acres is poor planning because of its present agricultural use, its location in relation to nearby natural areas and rural areas, and its distance from more urban areas and transportation facilities. More specifically, the issues raised by Petitioners as reasons why the Plan Amendments are not "in compliance" are framed in their Amended Petition.4 Implicating numerous applicable statutory and rule provisions, Petitioners' issues involve: urban sprawl; capital improvements (infrastructure); transportation concurrency; data and analysis; internal consistency; natural resources; community character and compatibility with adjacent uses; the Treasure Coast Regional
Planning Council (TCRPC's) Strategic Regional Policy Plan (SRPP); and State Comprehensive Plan (SCP). No other issues have been added by further amendment, and no additional issues were heard by consent of the parties. See Conclusion 212, infra.
H. Urban Sprawl
Whether the Plan Amendments are consistent with relevant provisions of the state comprehensive plan, regional policy plan, the GMA, and Rule Chapter 9J-5 regarding discouraging urban sprawl, including provisions concerning the efficiency of land use, the efficient provision of public facilities and services, the separation of urban and rural land uses, and the protection of agriculture and natural resources, is determined by application of Rule 9J-5.006(5).5
Exceedingly detailed and complex, Rule 9J-5.006(5) provides in pertinent part:
(d) Paragraph (5)(g) describes those aspects or attributes of a plan or plan amendment which, when present, indicate that the plan or plan amendment may fail to discourage urban sprawl. For purposes of reviewing the plan for discouragement of urban sprawl, an evaluation shall be made whether any of these indicators is present in a plan or plan amendment. If an indicator is present, the extent, amount or frequency of that indicator shall be considered. The presence and potential effects of multiple indicators shall be considered to determine whether they collectively reflect a failure to discourage urban sprawl.
* * *
Primary indicators. The primary indicators that a plan or plan amendment does not discourage the proliferation of urban sprawl are listed below. The evaluation of the presence of these indicators shall consist of an analysis of the plan or plan amendment within the context of features and characteristics unique to each locality in order to determine whether the plan or plan amendment:
Promotes, allows or designates for
development substantial areas of the jurisdiction to develop as low-intensity, low-density, or single-use development or uses in excess of demonstrated need.
Promotes, allows or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development.
Promotes, allows or designates urban development in radial, strip, isolated or ribbon patterns generally emanating from existing urban developments.
As a result of premature or poorly planned conversion of rural land to other uses, fails adequately to protect and conserve natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, natural groundwater aquifer recharge areas, lakes, rivers, shorelines, beaches, bays, estuarine systems, and other significant natural systems.
Fails adequately to protect adjacent agricultural areas and activities, including silviculture, and including active agricultural and silvicultural activities as well as passive agricultural activities and dormant, unique and prime farmlands and soils.
Fails to maximize use of existing public facilities and services.
Fails to maximize use of future public facilities and services.
Allows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government.
Fails to provide a clear separation between rural and urban uses.
Discourages or inhibits infill development or the redevelopment of existing neighborhoods and communities.
Fails to encourage an attractive and functional mix of uses.
Results in poor accessibility among linked or related land uses.
Results in the loss of significant amounts of functional open space.
Evaluation of land uses. The comprehensive plan must be reviewed in its entirety to make the determinations in (5)(g) above. Plan amendments must be reviewed individually and for their impact on the remainder of the plan. However, in either case, a land use analysis will be the focus of the review and constitute the primary factor for making the determinations. Land use types cumulatively (within the entire jurisdiction and areas less than the entire jurisdiction, and in proximate areas outside the jurisdiction) will be evaluated based on density, intensity, distribution and functional relationship, including an analysis of the distribution of urban and rural land uses. Each land use type will be evaluated based on:
Extent.
Location.
Distribution.
Density.
Intensity.
Compatibility.
Suitability.
Functional relationship.
Land use combinations.
Demonstrated need over the planning period.
Local conditions. Each of the land use factors in (5)(h) above will be evaluated within the context of features and characteristics unique to each locality. These include:
Size of developable area.
Projected growth rate (including population, commerce, industry, and agriculture).
Projected growth amounts (acres per land use category).
Facility availability (existing and committed).
Existing pattern of development (built and vested), including an analysis of the extent to which the existing pattern of development reflects urban sprawl.
Projected growth trends over the planning period, including the change in the overall density or intensity of urban development throughout the jurisdiction.
Costs of facilities and services, such as per capita cost over the planning period in terms of resources and energy.
Extra-jurisdictional and regional growth characteristics.
Transportation networks and use characteristics (existing and committed).
Geography, topography and various natural features of the jurisdiction.
Development controls. Development controls in the comprehensive plan may affect the determinations in (5)(g) above. The following development controls, to the extent they are included in the comprehensive plan, will be evaluated to determine how they discourage urban sprawl:
Open space requirements.
Development clustering requirements.
Other planning strategies, including the establishment of minimum development density and intensity, affecting the pattern and character of development.
Phasing of urban land use types, densities, intensities, extent, locations, and distribution over time, as measured
through the permitted changes in land use within each urban land use category in the plan, and the timing and location of those changes.
Land use locational criteria related to the existing development pattern, natural resources and facilities and services.
Infrastructure extension controls, and infrastructure maximization requirements and incentives.
Allocation of the costs of future development based on the benefits received.
The extent to which new development pays for itself.
Transfer of development rights.
Purchase of development rights.
Planned unit development requirements.
Traditional neighborhood developments.
Land use functional relationship linkages and mixed land uses.
Jobs-to-housing balance requirements.
Policies specifying the circumstances under which future amendments could designate new lands for the urbanizing area.
Provision for new towns, rural villages or rural activity centers.
Effective functional buffering requirements.
Restriction on expansion of urban areas.
Planning strategies and incentives which promote the continuation of productive agricultural areas and the protection of environmentally sensitive lands.
Urban service areas.
Urban growth boundaries.
Access management controls.
Evaluation of factors. Each of the land use types and land use combinations analyzed in paragraph (5)(h) above will be evaluated within the context of the features and characteristics of the locality, individually and together (as appropriate), as listed in paragraph (5)(i). If a local government has in place a comprehensive plan found in compliance,
the Department shall not find a plan amendment to be not in compliance on the issue of discouraging urban sprawl solely because of preexisting indicators if the amendment does not exacerbate existing indicators of urban sprawl within the jurisdiction.
Innovative and flexible planning and development strategies. Notwithstanding and as a means of addressing any provisions contained in Rules 9J-5.006(3)(b)8., 9J- 5.011(2)(b)3., 9J-5.003(140), F.A.C., and this subsection, the Department encourages innovative and flexible planning and development strategies and creative land use planning techniques in local plans. Planning strategies and techniques such as urban villages, new towns, satellite communities, area-based allocations, clustering and open space provisions,
mixed-use development and sector planning that allow the conversion of rural and agricultural lands to other uses while protecting environmentally sensitive areas, maintaining the economic viability of agricultural and other predominantly rural land uses, and providing for the cost- efficient delivery of public facilities and services, will be recognized as methods of discouraging urban sprawl and will be determined consistent with the provisions of the state comprehensive plan, regional policy plans, Chapter 163, Part II, and this chapter regarding discouraging the proliferation of urban sprawl.
Of the 13 urban sprawl indicators in Rule 9J- 5.006(5)(g), Petitioners alleged the existence of only 2, 4, 6, 7, 8, 9, and 10. While there was evidence from which Petitioners reasonably could argue that the Plan Amendments promote urban sprawl, all of the Rule's indicators are at least fairly debatable.
Indicator 2
As to Indicator 2, Petitioners' arguments on urban sprawl hinge in large part on characterization of Mecca as being rural land in the midst of likewise rural and conservation land far distant from any land use that could be characterized as urban or suburban. But while Mecca is distant from most of the Urban/Suburban Tier, neither the Village of Wellington nor Royal Palm Beach, both in the Urban/Suburban Tier, is very far away. The Acreage to Mecca's south, moreover, can be characterized as either urbanizing or suburban, but not rural. To the extent that Mecca is separated from other urban or suburban uses to the east by conservation lands (namely, the Loxahatchee Slough and Grassy Waters Preserve, a/k/a the West Palm Beach Water Catchment Area), no urban, suburban or even rural development of those conservation lands should be expected, making it fairly debatable whether "leaping over" those undeveloped lands should be considered an indicator of sprawl. In that sense, those conservation lands are similar to bodies of water.
The “patchwork” pattern of developed, rural, and
conservation uses near Mecca, including the adjacency of extensive residential development in The Acreage, also is significant. Nearby subdivisions including Jupiter Farms and Caloosa add further context for the sprawl analysis. The
multi-use development at the SCO allowed by the Amendments may remediate the existing sprawl pattern near Mecca.
Indicator 4
As to Indicator 4, it is at least fairly debatable whether conversion of rural land to urban uses on Mecca is premature in light of the Scripps opportunity and existing development pressures in the area.
According to expert planning testimony for DCA and the County, the County is obliged to plan for growth in accordance with GMA and Rule 9J-5 up to its "sustainable carrying capacity," which has not been reached. Whether or not they believe the County has the option to plan to slow or stop growth before reaching "sustainable carrying capacity," it is clear from the evidence that the County is not doing so, but instead is planning for continued growth within the framework of its Plan until reaching what it considers to be "build-out" conditions.
Given the County's basic growth policy, the County’s analysis of population projections for the next 20 years, compared to available vacant lands planned for residential use, shows the County has a “tight” plan with a restricted supply of land for development.
This land use needs analysis shows that the eastern half of Palm Beach County (which includes Mecca) is
experiencing intensive growth pressures due to the restricted supply of developable land, and that it will likely build out in approximately 20 years. Conservative assumptions in the County’s analysis suggest build-out in this area could occur even sooner.
In its 1997 EAR, the County also concluded that eastern Palm Beach County would build out in approximately 20 years. The report noted that the approaching build-out of Dade and Broward counties to the south in the near future would further exacerbate growth pressures in Palm Beach County.
Industrial lands in eastern Palm Beach County are expected to be exhausted by 2026. Because communities typically need greater locational variety for industrial uses compared to other uses, and in light of the many different activities that constitute an industrial use, the amount of land in eastern Palm Beach County designated for industrial use may be adequate but is not excessive. Besides, a numeric analysis is not necessary to justify industrial uses since they may be goal-based and aspirational. Seeking to diversify the local economy is an appropriate goal to support additional industrial land. Having a committed end-user for an industrial site is appropriate data to consider in evaluating such a land use change. Onsite residential and commercial
uses will support the industrial use and better achieve a balance of uses, which will relieve the necessity to be evaluated against a numeric need test.
Likelihood of Economic Benefits
Petitioners argue that the proposed development at Mecca is not needed because significant economic benefits are so unlikely that the costly planned use of Mecca's 1,919 acres cannot be justified. Ordinarily, the likelihood of success of planned land uses would not be relevant to the compliance of a comprehensive plan or plan amendment. In this case, however, the County's vision for a Scripps-anchored biotechnology cluster at Mecca was the impetus for the major and important changes embodied in the Plan Amendments and is part of the demonstration of need. For that reason, consideration of the issue is appropriate in this case.
The evidence is clear that the County's vision is not guaranteed success as planned and that there are significant risks involved. To maximize economic benefits, the County will have to not only attract R&D but also generate commercial spin-offs, where maximum economic benefits result. R&D requires research funding, and commercial spin-offs require venture capital. It also is essential to establish relationships with hospitals or clinics where clinical trials can take place.
The predominant source of biotech research funding has been the National Institutes of Health (NIH). In the mid- 1990s, NIH funding increased dramatically, but significant increases in the coming years cannot be counted on, and other sources of research funding will have to replace the deficit. To the extent that pharmaceutical companies are resorted to for this purpose, they may require participation in any resulting commercialization, which could reduce local economic benefits if the funding source is not local.
The evidence was that, over the last 30 years or so, significant economic benefits from biotechnology clusters achieving effective commercialization have been concentrated in just nine areas of the country. One is San Diego, California; none are in Florida. These nine areas also have garnered a disproportionate share of NIH research funding (although the percentage has declined a little in the last few years.) They also tend to have scientists inclined towards commercialization of the results of research and businessmen having the special abilities needed in the unique world of biotech, where years can pass before a business begins to see profits, and many start-ups fail. These nine areas also have access to venture capital, a good percentage of which has tended to be local, since many venture capitalists also want to be more active in monitoring and participating in the
businesses they fund than most other investors. On the other hand, there was evidence acknowledging that at least some venture capital will seek out and follow good opportunities for profit wherever they may exist.
Historically, at least through 2001, the biotech industry has become increasingly concentrated in these nine areas of the country, and they continue to have competitive advantages that the County's vision for the SCO would have to overcome. (On the other hand, several of these nine areas also have competitive disadvantage in the form of high taxes, high real estate costs, high cost-of-living, and less-than- ideal quality of life. So far, however, their advantages have surpassed their disadvantages.) There also is competition from many other cities and counties throughout the country desiring, like Florida and the County, to develop a biotechnology cluster. Recognizing the intense competition, the County's vision is to create a world-class setting for its effort at Mecca.
Allowable facilities at the SCO include not just R&D space, but also a clinical hospital of up to 300 beds, a university campus of up to 2,000 college and university students, public facilities supporting environmental amenities, community
facilities and retail facilities in a “town center,” and 2,000 or more housing units, including affordable housing.
The SCO contemplates a mixture of uses that is hoped will lead to synergistic relationships and exchange of “tacit knowledge,” which are important to the success of a biotechnology cluster. Scripps Florida, as the anchor institution, will bring critical world renown and credibility. The principles of adjacency within the SCO are intended to promote synergy that transcends local competition and attracts regional and national users.
In planning the SCO, Scripps’ experience in La Jolla and the views of Scripps officials were taken into account. Scripps’ campus at Torrey Pines Mesa has been in existence for almost 30 years, and has worked well. Scripps attempts to keep its buildings close to one another and has met with difficulty finding scientists willing to fill workspace four miles from the main Scripps campus.
The FAR for the 500 acres of R&D use at the SCO is very low, at 0.39.6 By comparison, there was evidence that the FAR of the 900-acre University of Florida campus in Gainesville, Florida, is 2.00. Petitioners contend that much less than 500 acres is needed for the 8.5 million square feet of R&D provided in the SCO.
However, the County found that Scripps’ buildings in
California are constructed in horizontal fashion, with three, four and rarely five stories. Taller buildings have lower net-to-gross floor area, so they have significant added cost. Scripps considers close-by affordable housing desirable,
especially for graduate and post-doctoral students. For other occupants of the SCO, low-rise construction makes it easier for companies to add space as they grow. High-rise construction is more expensive, harder to finance because of pre-leasing requirements, and less efficient. Based on the evidence, the FAR is fairly debatable.
Venture capital from within and outside Florida is growing, as is capital interest in the Scripps initiative in Florida. Four clinical hospitals have expressed interest in participating in the SCO. In the year after announcement of Scripps Florida, the number of new life-science projects announced in Florida quadrupled in comparison to recent years.
Workforce training and educational improvement are contemplated as support for and results of the SCO. The State has implemented and funded workforce programs in the life sciences, including in the County.
The County has participated in the development of a consortium of Florida institutions of higher learning aimed at creating a specialized campus in the SCO. Scripps Florida is obligated to establish accredited science degree programs and
internship programs for educators and secondary, post- secondary, graduate and post-doctoral students.
Petitioners’ economic witness testified that the County lacks key competitive ingredients for developing a successful biotechnology cluster. Other witnesses, however, explained the level of efforts that the State, the County, and Scripps Florida are making to bring those ingredients to fruition. In addition, while Petitioners’ economic witness recited past experience of the biotechnology industry and forecast limited success for Scripps Florida primarily based on year seven, the last year of presently-committed State funding, he acknowledged that biotechnology research parks tend to experience a slow ramp-up, and the County anticipates a 30-year build-out. Of course, other sources of needed funding would have to be found after year seven.
The evidence was that the chances for successful development of a biotechnology cluster at Mecca will decrease if no universities or hospitals are established onsite at Mecca and will decrease the longer it takes to establish them. If the planned biotechnology cluster does not succeed as well as planned, the SCO incorporates flexibility for absorption of R&D floor space by other types of research and development occupants.
Often, when a large development project does not
succeed as planned, pressures develop for investors to change the project's characteristics in an attempt to cut losses and increase profitability by selling land more quickly. In the case of the SCO, the investors are the taxpayers of Palm Beach County. It cannot be predicted what kind of pressures the County would feel, or what changes to the planned build-out would occur, if the SCO does not succeed as planned.
Based on all the evidence, it is fairly debatable whether the likelihood of economic benefit is enough to justify the planned use of Mecca's 1,919 acres.
Other Alternatives
Petitioners also contend that the proposed development at Mecca is not needed because better alternatives exist. Specifically, they contend that the Scripps project could be sited: on the Briger site adjacent to the Florida Turnpike on its west and straddling I-95 in the City of Palm Beach Gardens; on Parcel 19 just west of I-95 and the Florida Turnpike, straddling Indiantown Road in the Town of Jupiter; or in the Park of Commerce (a/k/a Florida Research Park) in the unincorporated County near Mecca in the northeast quadrant of the intersection of the Beeline and SPW.
Although the County had a contract with Scripps Florida to be located at Mecca, during the review process the BCC requested a study of possible alternative sites. The
number of sites reduced rather quickly to three: Briger; Parcel 19; and the Park of Commerce. Data and analysis at the time of adoption of the Plan Amendments indicated that each of these alternative sites had flaws and risk factors, making it fairly debatable whether Scripps should be sited at any one of them instead of at Mecca.
All three proposed alternatives have less acreage than Mecca and do not provide the same opportunities for affordable housing, open space, or flexibility of design, so as to be able to be developed in accordance with the vision the County has for development on its own 1,919 acres at Mecca.
The Park of Commerce has limited opportunity for affordable housing, is limited in permitted uses, and is limited in flexibility by existing and platted infrastructure and industrial uses. It is now being used for industrial purposes--a railroad, a General Motors distribution facility, and a Walgreen's distribution facility--not considered to be consistent with the County's vision for a biotechnology research park. In addition, it may become necessary in the future to construct an overpass at the Beeline and SPW directly over the only suitable location for construction of the Scripps facilities at that site.
Parcel 19 cannot accommodate affordable housing and
would require $75 million in construction of major interchanges at I-95 and Indiantown Road, after which Indiantown Road still would be seriously over capacity, creating great traffic problems. In addition, it would be difficult to achieve the County’s targeted development program of 8 to 8.5 million square feet of R&D uses.
The 682-acre Briger site favored by the Petitioners is bisected by I-95 into two triangular pieces. It would not meet the acreage requirements of the County’s contract with Scripps Florida unless the City of Palm Beach Gardens waives certain upland preservation requirements. In addition, at this time Briger remains on the County’s list of properties for acquisition for preservation (although its placement on the list may be out-of-date since Briger's hydrologic connection to the Loxahatchee River Slough has been more disrupted by development since its listing). Even if the Scripps contract requirements could be met, it would require higher vertical construction, which would be less compatible with surrounding residential uses, would provide less open space, and would have reduced flexibility. The County's complete vision for onsite incorporation of uses and amenities would not fit on Briger. For example, the university tie-in, the hospital, and residential features would have to be offsite.
Briger might have a short-term marketing advantage over Mecca (in part because hospitals and FAU's Jupiter campus already exist in close enough proximity). Briger also would be closer to major transportation facilities, but that advantage would not necessarily offset Briger's deficiencies. It is fairly debatable whether long-term success would be more likely at Mecca or at Briger.
All four sites–-Mecca, Briger, Parcel 19, and the Park of Commerce-–are located in the eastern half of Palm Beach County, where growth pressures are strong, the County’s Plan is "tight," and build-out is anticipated within the next
30 years, even without the SCO, based on County data compilations for land use need purposes.
Natural Resources Protection and Conservation
While they may not protect and conserve natural resources in an absolute sense (as is rarely if ever possible when development takes place near natural areas), it is at least fairly debatable whether measures in the Plan and Plan Amendments to protect and conserve natural resources are adequate. See Findings 146-182, infra.
Indicator 6
As to Indicator 6, significant new infrastructure will have to be extended to Mecca under the Plan Amendments. Development closer to existing roads and, to a lesser extent,
the existing USA and LUSA might make more use of existing facilities and services possible. But the evidence was that most of the $15 million of centralized water and sewer lines that will serve the SCO at Mecca already are planned for extension of service to the UT Overlay. Many of the road improvements planned for the SCO at Mecca also are already planned. See Findings 116-117 and 152-155, infra. In addition, it is at least fairly debatable whether and to what extent greater use could be made of existing public facilities and services by locating the Scripps elsewhere in the County, or whether location elsewhere in the County would be better or even possible, especially given the County's complete vision for development of the SCO at Mecca. See Findings 85-92, supra. Given the decision to develop at Mecca, there was no evidence that existing public facilities and services will not be used to the maximum extent possible.
Indicator 7
As to Indicator 7, there is no reason to believe that the development at Mecca resulting from the Plan Amendments will not maximize the use of future public facilities and services. (The County has not planned to provide centralized water and sewer service to the Vavrus property because it does not have the legal right or ability
to provide services within the boundaries of the City of Palm Beach Gardens.)
Indicator 8
As to Indicator 8, a disproportionate increase in the cost in time, money, and energy may result from providing and maintaining facilities and services to the SCO. However, while this indicator may be in evidence short-term due to the cost of constructing facilities to the SCO, over time these costs would be ameliorated as more development occurs in the area.
Indicator 9
As to Indicator 9, as depicted on Map H of the DRI application, which is referenced in new Policy 1.2-f as a “land use/site planning measure,” it is at least fairly debatable whether the Plan Amendments provide a clear separation between rural and urban uses. The only rural uses adjacent to Mecca are the Vavrus land to the east, and Map H depicts a 50-foot buffer there. There was evidence that the 50-foot buffer on the east is sufficient for the current use and the rural residential land use designation (1 du/10ac) placed on the Vavrus site at this time by the City of Palm Beach Gardens. The Mecca project has been designed so that, if there are changes in the future in the land use on the
Vavrus property, those buffers would continue to provide compatibility.
Indicator 10
As to Indicator 10, no language contained in the Plan Amendments discourages or inhibits infill or redevelopment, and the Plan still contains several provisions encouraging infill and redevelopment. On the other hand, development occurring at Mecca obviously will not result in infill or redevelopment. To the extent that the availability of economic incentives for infill and redevelopment is limited, the significant economic incentives committed to the Mecca project will not be available for infill and redevelopment. However, it is at least fairly debatable whether the infill and redevelopment measures in the Plan will be compromised by the Amendments in view of the increasing growth pressures in the County and the “tight” supply of land for development.
The Plan Amendments include numerous anti-sprawl development controls that also are considered in the urban sprawl analysis. The principal controls are in the structure of the Plan Amendments, primarily the minimum and maximum amounts established for specific uses, a requirement for phasing, and a required balance of residential and non- residential uses for each phase.
To mitigate sprawl, development controls should be meaningful and predictable, but also flexible. They need not include numeric setbacks and building spacing requirements, or a site plan. It is at least fairly debatable that the controls in the Amendments satisfy the State’s criteria. Cf. Rule 9J-5.006(5)(j).
Petitioners' Evidence
One planning witness for Petitioners who opined that the Amendments constitute sprawl did not consider the extent, amount or frequency of any indicator, contrary to Rule 9J-5.006(5)(d). He also opined there is no need for the Amendments. However, in analyzing this issue, he only reviewed portions of the Plan and a six-page summary of the EAR prepared by Petitioners’ counsel. He did not examine the 2003 Population Allocation Model or the County’s population projections and land use need analysis.7
Another planning witness for Petitioners rendered opinions about the interpretation of several indicators in the urban sprawl rule, but his testimony did not constitute expert opinions as to whether the Amendments constitute sprawl, or are "in compliance."
A third planning witness for Petitioners, from the TCRPC, opined that the Amendments are sprawl, as is the existing development near Mecca. However, he admitted the
definition of “sprawl” in the TCRPC's SRPP is not the same as the definition in Rule 9J-5.
Urban Sprawl Summary
Based on the foregoing, the determinations by the County and DCA in this case that the Plan Amendments are consistent with the state comprehensive plan, regional policy plan, the GMA, and Rule Chapter 9J-5 regarding discouraging urban sprawl, including provisions concerning the efficiency of land use, the efficient provision of public facilities and services, the separation of urban and rural land uses, and the protection of agriculture and natural resources are subject to fair debate.
Capital Improvements
In this category, Petitioners contend that the Plan Amendments are inconsistent with Section 163.3177(3)(a) and Rule 9J-5.016(2) and (3)(b). The statute provides:
The comprehensive plan shall contain a capital improvements element designed to consider the need for and the location of public facilities in order to encourage the efficient utilization of such facilities and set forth:
A component which outlines principles for construction, extension, or increase in capacity of public facilities, as well as a component which outlines principles for correcting existing public facility deficiencies, which are necessary to implement the comprehensive plan. The components shall cover at least a 5-year period.
Estimated public facility costs,
including a delineation of when facilities will be needed, the general location of the facilities, and projected revenue sources to fund the facilities.
Standards to ensure the availability of public facilities and the adequacy of those facilities including acceptable levels of service.
Standards for the management of debt.
The Rule provides:
Capital Improvements Analysis Requirements. The element shall be based upon the following analyses which support the comprehensive plan pursuant to subsection 9J-5.005(2), F.A.C.
Current local practices that guide the timing and location of construction, extension or increases in capacity of each public facility;
The general fiscal implications of the existing deficiencies and future needs for each type of public facility. This analysis shall be based on the needed improvements, as identified in the other local government comprehensive plan elements, and shall address the relative priority of need among facility types, and shall support the future land use element;
The costs of needed capital improvements for mitigation of existing deficiencies, replacement and new growth needs pursuant to the future land use element and shall explain the basis of cost estimates;
The impact of new or improved public educational and public health care systems and facilities on the provision of infrastructure;
The use of timing and location of capital improvements to public facilities to support efficient land development and goals, objectives, and policies in the future land use element. This analysis must take into consideration plans of state agencies and water management districts that provide public facilities within the
local government jurisdiction; and
An assessment of the local government's ability to finance capital improvements based upon anticipated population and revenues including:
Forecasting of revenues and expenditures for five years;
Projections of debt service obligations for currently outstanding bond issues;
Projection of ad valorem tax base, assessment ratio and millage rate;
Projections of other tax bases and other revenue sources such as impact and user fees;
Projection of operating cost considerations; and
Projection of debt capacity.
Requirements for Capital Improvements Goals, Objectives, and Policies.
* * *
(b) The element shall contain one or more objectives for each goal and shall address:
The use of the capital improvements element as a means to meet the needs of the local government for the construction of capital facilities necessary to meet existing deficiencies, to accommodate desired future growth and to replace obsolete or worn-out facilities;
The limitation of public expenditures that subsidize development in high hazard coastal areas;
The coordination of land use decisions and available or projected fiscal resources with a schedule of capital improvements which maintains adopted level of service standards and meets the existing and future facility needs;
The extent to which future development will bear a proportionate cost of facility improvements necessitated by the development in order to adequately maintain adopted level of service standards; and
The demonstration of the local government's ability to provide or require provision of the needed improvements identified in the other local government comprehensive plan elements and to manage
the land development process so that public facility needs created by previously issued development orders or future development do not exceed the ability of the local government to fund and provide or require provision of the needed capital improvements.
There was no evidence that the Plan does not contain a CIE meeting these requirements or, more germane to this case, that the Plan Amendments undo the Plan's CIE, which already has been determined to be "in compliance." Actually, while seemingly focusing here on capital improvements other than those related to traffic circulation, Petitioners attempt to use these requirements primarily as additional bases for their urban sprawl arguments, supra, and their transportation concurrency and data and analysis arguments, infra.
Chapter 2003-420, Laws of Florida, provides that the County in which Scripps is located shall have the exclusive right to provide central water and sewer service to the project. The County intends to provide such service to the SCO via lines extending from Okeechobee Boulevard and SR 7 about 12.5 miles away.
The County has enough plant capacity to serve the SCO through build-out. Assuming Scripps Florida is located at the SCO, it would be expected to pay guaranteed revenue fees, connection fees, and on-line rates (which could be special rates set for Scripps and Mecca.) The evidence was that the
total cost of construction for the lines to serve the SCO, while substantial at approximately $15 million (some of which would be expended with or without the SCO), is a relatively small percentage (5-6 percent) of the County's overall capital improvements budget, is relatively minor in light of the County’s strong financial condition, will enhance the use of existing assets and rate stability for customers, represents a least-cost and efficient approach for the area to be served, and will not cause other water and sewer needs to go unmet.
The County’s 2005-2010 Capital Improvements Schedule (CIS) is financially feasible, as are each year’s program in the CIS. The CIS is based on best available data.
Capital outlays to support the SCO will not deprive the County of money for other needed projects or distort the County’s fiscal priorities.
Transportation Concurrency
The Petitioners' focus here is on the CRALLS designations. CRALLS designations have been assigned to 37 different road segments and 6 intersections, not only near Mecca but also as far north as Indiantown Road, as far south as Okeechobee Boulevard, and as far east as I-95. They are set at vehicle loadings that match the traffic loads expected with development of the SCO. They only apply to the SCO.
Other developments cannot rely on them but must use an applicable LOSS.
In part, Petitioners frame their arguments on inconsistency with statutes and rules governing interim LOSS designed to correct existing deficiencies and set priorities for addressing backlogged facilities; Transportation Concurrency Management Areas used to promote infill and redevelopment; and Transportation Concurrency Exception Areas used to reduce the adverse impact transportation concurrency may have on urban infill and redevelopment and to achieve other goals and policies of the state comprehensive plan, such as promoting the development of public transportation. See Section 163.3180(9) and Rule 9J-5.0055(4)-(6). However, DCA and the County have made no effort to defend its CRALLS under those provisions.8 Rather, their position is that a CRALLS designation is a specialized LOSS that is "in compliance" without resort to those provisions of the law.
DCA and the County seemed to come close to
defending the CRALLS in part on the ground that the County has absolute discretion to establish these CRALLS and that they are not even subject to review for adequacy. Such a legal position would be untenable. Cf. Conclusion 217, infra.
Assessment of the adequacy of the CRALLS is required.
The transportation issues associated with the SCO
are unprecedented in the County because of its size, location, and 30-year build-out. To address the challenges posed by these factors, the County relied on a combination of strategies to address transportation, including road improvements, CRALLS, adopting development controls for the SCO, and requiring mitigation.
The initial transportation issue for the SCO was posed by FLUE Policy 3.5-d. This policy prohibits land use changes expected to generate significant impacts on any roadway segment projected to fail to operate at LOSS "D" based on the adopted Long-Range Transportation Plan. This policy is self-imposed and not required by the State. The SCO would generate trips beyond the significance thresholds in FLUE Policy 3.5-d. The County Engineer supported an exemption from this policy for the SCO because traffic considerations should not outweigh the economic and other land use goals the County is pursuing with the SCO.
The first traffic analysis for the SCO was included in the DRI application, and was predicated on 10.5 million square feet of R&D. Later, in conjunction with re-zoning, the County’s consultants prepared a concurrency analysis for 8.5 million square feet of R&D, reflecting the maximum allowed by the Plan Amendments.
All traffic analyses were performed as they would
have been for a private developer, with methodologies approved by the County in collaboration with FDOT, TCRPC and Martin County. Assumptions were conservative, representing a worst- case scenario. SCO-related road improvements approved by the County in its five-year road program for 2005-2009 included 18 segments and three intersections at a total cost of $179.7 million. Of these, eight projects totaling $64.8 million were not new or changed in their amount of funding.
The SCO-related improvements in the five-year road program were incorporated into the CIS for 2005-2010. An additional $26 million for these projects was included for 2010. Approximately 70 percent of the improvements needed for the SCO was previously identified on the 2020 Roadway System Map.
In addition to these construction projects, the County also lowered the LOSS on some roads and intersections that would be impacted by the SCO over the next 30 years. In doing so, the County utilized its long-standing policy of establishing a CRALLS designation for each such road segment or intersection.
The County is authorized under its charter to set LOSS's for all major roadways in unincorporated areas and municipalities except for the FIHS. The State sets the LOSS
on roads in the FIHS. The County's generally applicable LOSS is LOSS “D”.
Since 1989, the County has utilized the CRALLS strategy to establish an alternative LOSS on some roads due to physical or policy constraints. Examples of physical constraints include natural features, waterways, right-of-way limitations, and other roads; neighborhood opposition to a wider road would be an example of a policy constraint. CRALLS designations are not limited to the Urban/Suburban Tier; they may be adopted for land in any tier. Under TE Policy 1.2-f, CRALLS designations by the BCC must be based on data and analysis. These data and analysis must address 11 criteria in the County’s Unified Land Development Code (ULDC).
CRALLS standards typically are expressed as a numeric limit on trip loadings on the road segment or intersection in question, rather than reliance upon the conventional, generalized “A”-“F” standards used by transportation engineers.
Since 1993, Chapter 163 and Rule 9J-5 have granted a local government discretion to adopt LOSS for seven types of public facilities, including roads other than FIHS roads. The only State requirements are that LOSS's must be adequate, based on data and analysis, and established for each facility type. Local governments are not prohibited from adopting
LOSS's for different facilities within a service type or even project-specific LOSS's that overlay the more generally applicable LOSS for a facility or facility type.
Of the 37 road segments and six intersections given project-specific CRALLS designations in the Amendments, the designations on nine road segments will become ineffective when the roads are widened as planned.
Another seven segments may eventually have their CRALLS designations repealed as unneeded. These segments are projected to be no more than 12 percent over generalized LOS “D”, and the County’s experience is that a detailed arterial analysis generally will show such a segment actually operating at LOS “D” when site-specific factors are considered.
Seven segments and one intersection already had CRALLS designations, but the CRALLS was changed to accommodate the SCO. An additional nine segments and four intersections were expected to have a CRALLS designation even without the SCO, due to pre-existing conditions. On all but two of these, the SCO accounted for 5% or less of the trip loadings.
Five segments and one intersection received a CRALLS designation solely because of the SCO. These include three segments of PGA Boulevard, two segments of SPW, and the Northlake Boulevard to Orange Boulevard intersection.
In analyzing an LOSS for adequacy, a local
government should consider both technical and policy issues. Technical issues for roads include the actual amount of traffic to be allowed on a road segment or intersection at the peak hour in the peak season. Policy issues involve comparing increased congestion to other planning principles, such as preventing sprawl, promoting economic development, and neighborhood opposition to wider roads. There is not a limiting list of planning principles to consider in evaluating adequacy.
The County Engineer concluded that these CRALLS designations were appropriate and adequate LOSS's. He based his opinion on the amount of traffic on each segment or intersection, how the road would function, fiscal issues, his knowledge of the area, residents’ opinions, and other factors. He noted that the maximum trips in each CRALLS designation are for the peak hour in the peak season; the peak season represents a 15 percent increase over the off-peak season.
The CRALLS determinations were supported by the best available data. Among other things, the data and analysis addressed the 11 criteria identified in the ULDC.
As transmitted, the Amendments included a number of temporary CRALLS designations. In its Objections, Recommendations and Comments (ORC), DCA objected that temporary CRALLS designations without an accompanying long-
range CIS were inconsistent with Chapter 163 and Rule 9J-5. DCA suggested the County identify improvements for those CRALLS that were indeed temporary, and assign permanent CRALLS to those segments for which no improvements were planned.
Of the 43 CRALLS designations in the Amendments as adopted, all but two were permanent. The CRALLS designations on two segments of Northlake Boulevard were to be “no longer in effect” after the extension of PGA Boulevard. These CRALLS designations are supported by a fully-funded extension of PGA Boulevard from SPW to the Beeline in the CIS.
Considering the road improvements in the adopted CIS and the CRALLS designations adopted in the Amendments, the County will achieve and maintain the LOSS's on roads affected by the Amendments through 2009.
In addition to road improvements and adopting CRALLS, the County adopted “best planning practices” for transportation in the Amendments. These included a variety of requirements in FLUE Policy 2.8-c, 1.-3., emphasizing bicycle and pedestrian mobility, project design measures like slip roads, and mixing uses to enhance internal trip capture. Policy 2.8-c, 9., included several requirements intended to foster public transportation at the SCO. Policy 2.8-d required a balance of residential and non-residential uses in each five-year project phase.
Finally, the Amendments include required mitigation measures in conjunction with the CRALLS designations, including road construction and design principles for the SCO.
Petitioners’ transportation witness opined that the CRALLS designations were not adequate and, in some cases, not feasible. But for several reasons, his opinions were not beyond fair debate. First, he based his opinion on the traffic analysis of 10.5 million square feet of development in the DRI application, which was later reduced to a maximum of
8.5 million, unbeknownst to the witness. Second, his technical analysis was general and did not take into account the County’s actual experience, which is not professionally acceptable data and analysis for purposes of a plan amendment. For example, some CRALLS loadings he said were impossible to achieve are already being met or exceeded in the County on actual roads, and traffic on some roads flows at speeds equivalent to LOS “D” even though trip loadings greatly exceed the LOS "D" numbers on the generalized LOS tables. Third, his opinion did not take into account the possibility that required on-site affordable housing and CRALLS mitigation measures in the Plan Amendments might increase internal trip capture and reduce trips on the external roadway system. Fourth, he assumed that the only policies the County could consider when evaluating the adequacy of a CRALLS designation
are infill, redevelopment, and promotion of “forgotten modes” of transportation like bicycles; he did not consider economic development, urban sprawl, growth pressures, and other planning principles.
Data and Analysis
Paragraph 75 of the Amended Petition, labeled "Data and Analysis," alleges that the Plan Amendments are:
not clearly based on the relevant and appropriate and professionally-accepted data and analysis regarding: impacts to adjacent natural areas; compatibility with adjacent land uses; impacts to the Loxahatchee River and restoration thereof; the Comprehensive Everglades Restoration Plan [CERP] and components thereof; impacts to rural communities; the availability and necessity of infrastructure and the provision thereof to support the project; the necessity for and the amount of land needed to accommodate the project; the availability and suitability of alternative sites for the project; the character of the undeveloped land and the surrounding community; the economic impacts of the proposed plan amendments; [and]9 the likelihood of developing an economically significant biotech industry as [a] result of the plan amendments . . . as required by sections 163.3177(6)(a), (8) and (10)(e), Fla. Stat. and Rule 9J-5.005(2) and (5)10 and 9J-5.006(2) and 9J-5.013(1) F.A.C.11
Section 163.3177(6)(a) requires that the future land use plan be based on appropriate data and analysis. Section 163.3177(8) requires all elements of comprehensive plans to be "based upon data appropriate to the element involved."
Section 163.3177(10)(e) states the Legislature's intent that
goals and policies be "clearly based on appropriate data"; states that DCA "may evaluate the application of a methodology utilized in data collection or whether a particular methodology is professionally accepted"; and states that DCA "shall not evaluate whether one accepted methodology is better than another." Rule 9J-5.005(2) states in pertinent part:
(a) 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 upon 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.
Rule 9J-5.006(2) describes the Land Use Analysis Requirements for the FLUE.
It should be noted that new FLUE Policy 2.8-f in the Plan Amendments provides: "If the Scripps Research Institute does not move forward on the Mecca site, Staff shall bring to the BCC for initiation proposed amendments to consider removing any text and maps related to the [SCO] from the Comprehensive Plan." While Petitioners characterize this Policy as an admission that the Plan Amendments are not "in compliance," the Policy actually is prudent and would allow reconsideration of planning for Mecca and vicinity with a Scripps-anchored biotechnology cluster effort located
elsewhere in the County (or even without any Scripps-anchored biotechnology cluster effort in the County, if that were to occur) as part of the EAR-based and sector planning efforts of the County.
Some parts of the data and analysis would not be "professionally accepted" and, standing alone, would not be adequate to support the Plan Amendments. For example, the Washington Economic Group report is not "professionally accepted" because: it does not explain its methodology; it is based on an erroneous assumption that the plan for Scripps Florida, which is planned to be smaller than Scripps California, will generate the level of biotechnical industry found in all of San Diego, which includes not only Scripps, but also the University of California at San Diego and the Salk Institute in its cluster; it overestimates the importance of Scripps' role in the San Diego cluster; and it double- counts Scripps employment in its employment estimates. But other data and analysis corrected these errors.
The amount of data and analysis supporting the Plan Amendments is voluminous. Petitioners' data and analysis arguments essentially are that the same evidence they presented as to the substantive areas of concern proves alleged failures of data and analysis to be "professionally accepted" and adequate. As indicated elsewhere in this RO,
Petitioners' evidence did not prove their case as to substantive areas of concern beyond fair debate; likewise, they did not prove beyond fair debate that the totality of the data and analysis supporting the Plan Amendments were not "professionally accepted" or were inadequate.
Internal Consistency
The Amended Petition alleges numerous internal inconsistencies. Section 163.3177(2) requires: "The several elements of the comprehensive plan shall be consistent
. . . ." Rule 9J-5.005(5) repeats this admonition in subparagraph (a), and subparagraph (b) adds: "Each map depicting future conditions must reflect goals, objectives, and policies within all elements and each such map must be contained within the comprehensive plan."
Petitioners allege inconsistency with the following statements in section B., the Assessment and Conclusions section of the Introduction to the FLUE, that the updated 1989 Plan implements the direction provided by the BCC to:
strengthen and facilitate revitalization and redevelopment and infill development programs;
protect agricultural land and equestrian based industries;
balance growth through the County;
* * *
8. establish a timing and phasing program to provide for orderly growth;
* * *
coordinate growth with the provision
of infrastructure;
define how growth/services will be managed in rural residential areas;
define service areas and the type of services to be provided within each service area; and
provide criteria for expanding the Urban/Suburban Tier.
Petitioners allege inconsistency with the following GOPs of the FLUE:
Goal 1, to establish the Tier System.
Policy 1.1-b, establishing criteria for redesignation of a Tier.
Policy 1.1-d, not to modify the Tier System if redesignation would exhibit the characteristics of urban sprawl, as defined by Rule 9J-5.006.
Objective 1.4, for a Rural Tier to protect and maintain rural residential, equestrian, and agricultural areas.
Policy 1.4-k, not to make future land use decisions that increase density and/or intensity requiring major new public investments in capital facilities and related services in the Rural Tier.
Objective 2.1, to designate sufficient land area in each land use designation to manage and direct future development to appropriate locations to achieve balanced growth.
Policy 2.1-f, not to exceed the natural or manmade constraints of an area considering assessment of soil types, wetlands, flood plains, wellfield zones, aquifer recharge areas, committed residential development, the transportation network, and available facilities and services; and not to
underutilize existing or planned capacities of urban services.
Policy 2.2-b, requiring: an adequate justification and a demonstrated need for proposed future land use; for residential density increases to demonstrate that the current land use is inappropriate; for a review and determination of compatibility with existing and planned development in the immediate vicinity; and an evaluation of impacts on the natural environment, availability of facilities and services, adjacent and surrounding development, future land use balance, prevention of urban sprawl as defined by Rule 9J- 5.006(5)(g), Community Plans and/or recognized Planning Area Special Studies, and municipalities in accordance with Intergovernmental Coordination Element Objective 1.1.
Policy 2.2-d, to ensure consistency of the County's ULDC with the appropriate elements of the Plan.
Objective 2.6, to establish a transfer of development rights (TDR) program.
Policy 2.6-b, requiring the TDR program to be the method for increasing density within the County unless an applicant can justify and demonstrate need and that the current designation is inappropriate, or is using the Voluntary Density Bonus program, as outlined in the Housing Element and the ULDC.
Policy 2.6-f, limiting potential TDR receiving areas to the Urban/Suburban Tier, Planned Development Districts and Traditional Development Districts requesting a density increase, and subdivisions requesting a bonus density above the standard density.
Policy 2.6-h, prohibiting designation of receiving areas which would result in a
significant negative impact upon adjacent Environmentally Sensitive Land.
Policy 2.6-i, prohibiting designation of receiving areas which would be incompatible with surrounding existing and future land uses.
Goal 3, to define graduated service areas for directing services to the County's diverse neighborhoods and communities in a timely and cost-effective manner.
Objective 3.1, to establish graduated service areas to distinguish levels and types of services needed in a Tier.
Policy 3.1-a, to establish the USA, LUSA, and RSA considering: the density and intensity of land uses depicted in the FLUE Atlas; the cost and feasibility of extending services; the necessity to protect natural resources; and the objective of encouraging reinvestment in the Revitalization and Redevelopment Overlay.
Objective 3.4, to require a RSA which meets the needs of rural development and use without encouraging the conversion of rural areas to more intense uses.
Policy 3.4-a, for the RSA to include those areas of the County where the extension of urban LOS's is neither foreseen during the long range planning horizon nor warranted by development patterns or densities and intensities allowed.
Policy 3.4-c, not to provide or subsidize centralized potable water or sanitary sewer in the RSA unless: required to correct an existing problem; required to prevent a projected public health hazard; required to prevent significant environmental degradation; or required by the Public Health Department for development in the
Rural Tier adjacent to water and/or sewer lines which
existed prior to adoption of the Plan in 1989.
Objective 3.5, to require availability of services concurrent with impacts of development, to ensure consistency of decisions regarding location, extent, and intensity of future land use (particularly urban expansion), with types of land use and development established in each Tier.
Objective 4.1, to develop and implement a Community Planning and Neighborhood Planning program, consider the program's plans for more livable communities with a strong sense of place and identity for the various regions in the County.
Policy 4.1-c, to consider the objectives and recommendations of all Community and Neighborhood Plans, including recognized Planning Area Special Studies, prior to extending utilities or services, approving land use amendments, or issuing development orders for rezoning, conditional use, or Development Review Committee approval.
Goal 5, to provide for the continual protection, preservation, and enhancement of the County's various high quality environmental communities.
Petitioners allege inconsistency with the following parts of the Conservation Element (CE):
Objective 2.1, to preserve and protect native communities and ecosystems to ensure that representative communities remain intact, giving priority to significant native vegetation.
Policy 2.1-g, to ensure that management plans are developed for County-owned or County-managed natural areas and that uses
allowed on these lands are compatible with them and preserve their natural character.
Objective 2.4, to protect and preserve endangered and threatened species, species of special concern, and their associated habitats.
Petitioners allege inconsistency with the following GOPs of the CIE:
Objective 1.1, to maintain minimum LOSS's for various facilities, including traffic circulation, and to issue development approvals based on ability to maintain those LOSS's.
Objective 1.4, to identify and fund services and capital improvements required by the Plan.
Policy 1.4-a, to fund projects and programs to (not in order of importance): correct public hazards; eliminate existing deficiencies in LOS's; provide capacity for projects in the USA approved through development orders; provide for renewal and replacement of, and improvement to, existing public infrastructure and physical assets; maintain LOS's as new growth occurs; increase existing LOS's to desired LOS's; and implement the GOPs in the Plan.
Policy 1.5-c, not to provide urban LOS's in the RSA except where allowed under CIE Objective 1.1, required to correct a public health hazard, or required by the Public Health Department for development in the Rural Tier adjacent to water and/or sewer lines which existed prior to adoption of the Plan in 1989.
(Other internal consistencies mentioned in Petitioners' PRO were not alleged or heard by consent and may not be considered. See Conclusion 212, infra.)
The evidence did not prove beyond fair debate that the Plan Amendments cause the elements of the Plan to be internally inconsistent, or cause the depictions of future conditions in the FLUE Atlas not to reflect the GOPs within all elements of the Plan.
Natural Resources
Impacts on the Mecca Site
As a result of its use for citrus growing and mining, Mecca itself is devoid of significant environmental value. The South Florida Water Management District (SFWMD) has found no jurisdictional wetlands on it. There are no native plant communities; in fact, there is virtually no native vegetation anywhere on the site.
Mecca is used by wildlife in limited and intermittent ways. The main wildlife use is localized foraging by species such as sandhill cranes and wood storks in the impoundment and irrigation ditches. Mecca does not provide suitable habitat for nesting or denning. A listed species survey revealed no gopher tortoises or snail kites.
The surface water management system for the first
535 acres of the SCO has received a construction permit, and the system for the total site was conceptually approved based on water quantity and water quality compliance. See Florida Wildlife Federation, et al., v. SFWMD, et al., SFWMD Order No.
2004-208 FOF ERP, DOAH Case Nos. 04-3064 and 04-3084, 2004 WL
2770101 (DOAH December 3, 2004; SFWMD Final Order December 8,
2004).
No significant adverse impacts to natural resources on Mecca itself would result from development of the SCO on Mecca.
Impacts of Development on Mecca
on Natural Areas Surrounding Mecca
The lands surrounding Mecca are more significant environmentally. They include Corbett WMA to the west, Hungryland Slough to the north and northeast, the Vavrus property to the east, and the North County Airport Preserve (Conservation lands to the west, south, and southeast of that Airport) east of the Vavrus property. Farther away to the east and northeast is the Loxahatchee Slough and the Northwest Fork of the Loxahatchee River, including its federally- designated Wild and Scenic and Outstanding Florida Water portion. Farther away to the southeast is the Grassy Waters Water Preserve Area, which is both a high quality natural wetlands area and an important source of drinking water for the City of West Palm Beach.
New FLUE Policy 2.8-c requires the adoption of design standards for the SCO which, among other things, will at a minimum address:
4. Protection of conservation lands to the north and west of the SCO and include a passive recreational wetland system to enhance the quality of surrounding areas of environmentally sensitive lands.
In accordance with this Policy, Map H designates a 247-acre, 500-1,000 foot wide flow-way along the entire north and west sides of Mecca. The flow-way will consist of braided channels through a freshwater marsh, as well as forested wetland and upland tree islands. These wetlands will enhance recreation and wildlife use. The mining lake and a new, separate lake on the south end of the site will have littoral shelves and plantings conducive to wildlife use. In addition to providing onsite environmental benefits, the flow-way will help protect adjacent environmental lands to the west and north from the effects of development on Mecca itself.
Impacts of Road Construction
on Natural Areas Surrounding Mecca
SPW as currently depicted in the Plan runs directly along the western border of Mecca immediately adjacent to Corbett WMA. By virtue of the Amendments, the road alignment has been moved eastward onto Mecca, with the flow-way on its west as a buffer between the actual road and Corbett. This road alignment and buffer can be expected to have less of an impact on Corbett than would an alignment without a buffer.
In addition to the impacts of development on Mecca
itself, the Plan Amendments also affect road construction offsite that have environmental impacts.
The extension of SPW from south of Mecca north to the Beeline through the Hungryland Slough was planned and included in the Plan's 2020 Roadway System Map before the Amendments were adopted, but was not in the County's five-year road program through 2009. The Amendments enlarged the planned roadway from four to six lanes and accelerated its construction to 2007.
The extension of PGA Boulevard west from the Beeline to Mecca was not depicted in the Plan prior to the Amendments. The Plan Amendments identify a new 260-foot wide ROW on the new TIM; although the ROW could accommodate ten lanes of roadway, a six-lane road is depicted on the new 2020 Roadway System Map. The new road construction is expected to impact a number of wetlands on private property, but the exact extent of this impact is not known as its precise alignment has not been selected, and the general alignment depicted in Ordinance No. 2004-39 does not allow an exact assessment of potential environmental impacts.
In order to examine potential impacts of the PGA Boulevard Extension, the County studied the “worst case scenario” for the extension if it were completed in a straight-line from the Beeline to Mecca. A road constructed
on this alignment would directly impact over 45 acres of wetlands, and have an indirect impact upon another 56 acres of wetlands.
SFWMD considered this “worst case scenario” as part of its review of secondary impacts for purposes of the conceptual permit it issued for the SCO, which assumed that impacts will be lessened during subsequent permitting as a result of SFWMD's avoidance, minimization, and mitigation requirements. See Florida Wildlife Federation, et al., v. SFWMD, et al., SFWMD Order No. 2004-208 FOF ERP, supra.
Habitat Fragmentation
The integrity of natural areas is very important to wildlife. For one thing, the ability of wildlife to move around and mix to enlarge the gene pool increases the structural stability of wildlife populations. Loss of enough integrated habitat can be very damaging to particular species of wildlife. As habitat becomes further and further fragmented by development, the remaining connections among areas of quality habitat become increasingly important in general and especially for particular species of wildlife. Development and roads built through natural areas result in road kill and habitat fragmentation, which compromises the quality of the natural areas.
Before the Plan Amendments, through at least 2009,
wildlife would have had the ability to use Mecca and especially Hungryland to move between Corbett, Vavrus, the North County Airport Preserve, without having to cross any major roads until coming to the Beeline and Northlake Boulevard, which separate those areas from the Loxahatchee Slough northeast of the Beeline and north and south of existing PGA Boulevard, and from the Grassy Waters Preserve south of Northlake Boulevard. At some point between 2009 and 2020, a four-lane extension of SPW was planned to be added.
As a result of the Plan Amendments, the SPW extension will be accelerated to 2007 and constructed with two additional lanes. As a result, the Plan Amendments will tend to reduce connectivity, increase fragmentation of natural habitats, and probably increase road kill of deer, alligators, various kinds of turtles, otters, and snakes.
While not part of the Plan Amendments, planned protection measures include fencing to separate Corbett from the Mecca project and wildlife crossings and bridging installed along with the widening of SPW north of Mecca and the extension of PGA Boulevard to Mecca in an attempt to retain the linkage of open wetland and upland areas to the west, north and east, consistent with CE Objective 5.1.
Unfortunately, even if the fencing and wildlife crossings and bridging are 100 percent effective for larger
animals (which they probably will not be), it should be recognized that many smaller animals will benefit little from them if at all. In particular, increased road kills of listed indigo snakes should be expected due to their large habitat home range (200-acre home range for males).
Fire Management
Virtually all plant communities in the vicinity of Mecca are fire dependent--in order to be maintained in their natural state, they must be burned approximately every three years, or they will be invaded by exotic species, and their habitat values will be reduced. The inability to maintain a regular burn schedule also poses a public safety threat due to the increased risk of wildfires.
Fire management is compromised near roadways and developed areas due to health concerns, reduced visibility, and increased wildfire threat. Caution is used when burning near roadways so as not to cause (traffic accidents,) or to be blamed unfairly for causing them, which can be just as bad for the public relations that have to be maintained to successfully fire-manage natural lands. If an airport, hospital, school, or community is within two miles of a burn area, it is considered a smoke-critical area. If Mecca is developed as proposed, it will be considered a smoke-critical area for many burns in Corbett, which will not be able to be
burned if the wind is blowing from the west. In Corbett, which has a lot of lighter wood, fires often smolder for weeks, further constraining fire management.
For these reasons, the development allowed by the Plan Amendments will negatively impact the management of Corbett. However, there are alternative fire-management techniques that can be used, if necessary, in natural areas adjacent to Mecca. In addition, with or without the SCO, the County was planning a four-lane extension of SPW along the eastern boundary of Corbett, which would be a constraint on fire management.
Light Impacts
The proposed development on Mecca will add light sources that will alter the nighttime sky viewable from Corbett, Hungryland, and the Loxahatchee Slough. Depending on the extent, such an alteration would reduce recreational values of Corbett.
Lights also can interrupt bird migration and be harmful to migratory birds. The area surrounding Mecca is important for migratory birds because the lack of lighting provides a dark sky and safe route for migration.
Special downward-directed lighting that can reduce the adverse impacts from lighting is intended to be used on
the Mecca project although a clear requirement to use them is not included in the Plan Amendments.
Noise, Pollution, and Mosquito Control
Noise and other roadway disturbance cause behavioral problems in wildlife, disrupt bird-nesting for considerable distances, and negatively impact prey and predator by interfering with offensive and defensive mechanisms. However, it should not be anticipated that these kinds of impacts will be significant. In most cases, they probably will disturb the human recreational users of these public lands more than the wildlife.
Fertilizer and pesticide use on Mecca may be harmful to wildlife on adjacent properties. But there are ways to control their ill effects through land development regulation consistent with provision in the CE of the Plan.
Mosquito control is typically required in urban developments, and is accomplished through the use of pesticides that are not only targeted towards mosquitoes, which are an important part of the food chain, but also kill a wide variety of insects, spiders, and invertebrates. This reduces the populations of these species, negatively impacts species that rely on them for food, can be expected to result in less food for birds such as tree swallows, which feed heavily on mosquitoes, as well as dragonflies, and numerous
species that rely on mosquito larvae in the aquatic environment.
Loxahatchee River Basin
Petitioners contend that it is unacceptably poor planning to develop the SCO on Mecca at this time and eliminate it as an option for use for water storage as part of efforts to restore the Loxahatchee River.
The Loxahatchee River has been negatively impacted by development in its basin. Such development has resulted in several changes, including the redirection of water discharge to other basins and an unnatural increase in stormwater drainage.
These changes to the drainage patterns have resulted in several problems, including excessively high flows in the river following rainfall events, and reduced base flows during the dry season. Excessive flows during the wet season have resulted in erosion of the stream bed, sedimentation blocking the channel at times, and sometimes water quality problems and fish kills. Reduced base flows during the dry season have contributed to allowing saltwater intrusion up the river channel. (Other contributing factors include straightening and stabilization of the inlet to reduce the need for maintenance dredging and the removal of a large oyster bar from the riverbed for navigation purposes.)
Saltwater intrusion has altered aquatic ecosystems and caused a change in the vegetation along the riverbanks.
Specifically, freshwater cypress-dominated wetlands used to occur as far seaward as 6.2 miles from the river mouth; now mangroves have replaced the cypress swamps as far inland as river mile 9.2, and the cypress wetlands to river mile 10.2 are stressed.
Restoration of the Loxahatchee River is an objective of CERP, North Palm Beach County Part One. One component of North Palm Beach County Part One was for SFWMD to acquire rock mine pits for water storage from Palm Beach Aggregates near where the L-8 canal meets the C-51 canal. SFWMD plans to channel water through canals into these pits during wet season or high rainfall events, then discharge the water from the pits back through the canals during dry season. One destination for this fresh water during the dry season would be the Loxahatchee River.
Until recently, prior to the Scripps opportunity, the North Palm Beach County Part One CERP team also was considering use of Mecca for water storage as a possible management measure in the overall CERP strategy for restoration of the Loxahatchee River. Mecca was considered for two main reasons. One was its location on the west leg of the C-18 canal, which receives discharges from the C-18 basin
and flows into the Loxahatchee River. Water could be fairly easily stored there during the wet season and released to the river during the dry season. The other was its disturbed condition, being an orange grove and sand mine. The only other potential water storage sites near the C-18 canal without pristine wetlands that would be unsuitable and undesirable sites for a water storage facility is approximately 1,500 acres of disturbed agricultural land on Vavrus. (The other two-thirds of the Vavrus property has high-quality wetlands habitat.) However, Mecca was not specifically mentioned in any component of CERP, North Palm Beach County Part One, and consideration also was being given to restoring the Loxahatchee River without using Mecca for water storage.
No decision was made to use Mecca for water storage, and no steps were taken to purchase Mecca for this purpose. When the Scripps opportunity arose, the County purchased the property for development of a biotechnology research park and applied to SRWMD for a surface water storage and management system and environmental resource permit. One issue was whether the permit would be consistent with the objectives of SFWMD, including CERP. SFWMD did a preliminary study, which included modeling, and determined that Mecca would not be needed for water storage, finding that water
storage capacity available in the Palm Beach Aggregates rock mine pits was sufficient, given the pits’ location, depth, and access to nearby canals. SFWMD already had a contract for use of 48,000 acre-feet feet of storage capacity, which is more than seven times the achievable storage at Mecca. In addition, SFWMD was negotiating to acquire the right to double that storage capacity at Palm Beach Aggregates. Based on the County's plans to develop the SCO on Mecca, and the options available for restoring the Loxahatchee without water storage on Mecca, the CERP team eliminated the Mecca option. Instead, SFWMD and the County coordinated on the role the SCO might play in the recovery effort.
SFWMD concluded that Mecca could be used to advantage as part of the water conveyance system between the rock mine pits and environmental areas, including the Loxahatchee River. Establishing a flow-way from the south to north of Mecca would give SFWMD another route with which to move water, would reduce dependence on Lake Okeechobee for fresh water, and would provide greater base flows to the Loxahatchee.
Based on SFWMD input, the County designed for Mecca a flow-way that will allow flow up to 1,000 cubic feet of water per second (cfs) to assist recovery efforts for the Loxahatchee. Construction at Mecca is phased to assure that
the existing onsite impoundment will be in place until the flow-way is functioning. This conveyance system will benefit offsite resources and improve water quality, and is consistent with and complementary to SFWMD’s CERP implementation.
Petitioners' witnesses criticized the decision to proceed with development of the SCO on Mecca at this time on the ground that CERP's implementation report (a/k/a "tentatively selected plan") has yet to be approved. However, approval requires not only agreement by the State and federal agencies involved but also a vote of the United States Congress, which may not occur until 2008. It is a fairly debatable policy question whether to postpone a decision on developing the SCO at Mecca until Congress approves an ultimate CERP implementation plan.
Petitioners' witnesses also criticized the modeling relied on by SFWMD to eliminate the Mecca option. They pointed out that the modeling was not peer-reviewed and that it assumed 80,000 to 100,000 acre-feet of storage at the rock mine pits. But this point, too, is fairly debatable. First, while peer-review is required in the CERP planning process, it is not required of data and analysis under the GMA. See Finding 136, supra. Second, the purpose of the modeling was to supplement modeling already done assuming 48,000 acre-feet of storage for comparison purposes. It was not intended to
answer the ultimate question of CERP planning process--whether the CERP implementation plan will meet CERP objectives, including restoration of the Loxahatchee. In addition, based on the evidence, prospects for obtaining the additional storage seem reasonably good. Third, water from the rock mine pits is only one of four sources of flow needed for restoration of the Loxahatchee. The combination of sources CERP will use has not been determined yet. Preliminarily, it is estimated that base flows from the south will be required to maintain 65 cfs minimum flows at the Lainhart Dam. Based on the evidence, the prospects for being able to maintain those flows using water from the rock mine pits are reasonably good. Other necessary flow will be sought from the Palmar/Cypress Creek and Kitchen Creek areas to the north.
Fourth, as for reducing high flows during the wet season, it is fairly debatable whether the plan to use the Palm Beach Aggregates rock mine pits alone for water storage will work well enough. It could be that, despite capacity limitations on storage potential in the C-18 basin, some storage there may prove beneficial, perhaps in conjunction with aquifer storage and recovery wells (ASRs), along with the rock mine pits.
Even with the Plan Amendments, there remains some potential at this time that a limited portion of Mecca and disturbed portions of Vavrus could be used for this purpose if needed.
Petitioners' witnesses also complained that use of the rock mine pits along with a flow-way through Mecca will require potentially costly land acquisition and permitting and modification of existing canals and construction of new canals, as well as larger pumps, and that water will be lost in transit between the rock mine pits and Mecca through evaporation. But there was no evidence that those factors will in fact harm or jeopardize restoration of the Loxahatchee River. Meanwhile, it is significant that the flow-way on Mecca will be provided by the County and will not cost SFWMD or CERP anything.
Natural Resources Summary
As can be seen, development of the SCO at Mecca will not be without some adverse impacts to natural resources and the environment. However, the County's determination that the benefits of the SCO outweigh the harm of those impacts, so as not to cause the Plan Amendments to be "in compliance," is a policy decision that is at least fairly debatable.
Community Character and Compatibility
It is obvious that the Plan Amendments will result in a complete change in the character and use of the Mecca site. Without question, development of the SCO at Mecca will impact adjacent lands and the character of the nearest communities. The question raised, however, is whether the
changes at Mecca are compatible with the character and uses of the surrounding lands.
New FLUE Policy 2.8-c requires, among other things: urban uses allowed by the SCO to have a defined edge; protection of conservation lands to the north and west by a passive recreational wetland system to enhance the quality of surrounding environmentally sensitive lands; and compatibility with and minimization of impacts on land uses adjacent to the SCO.
Map H of the DRI application shows wetland and other buffers on the north, west, and south sides of the SCO, and a 50-foot upland buffer along the Vavrus property to the east.
There was evidence that the 50-foot buffer on the east is sufficient for the current use and the rural residential land use designation (1 du/10ac) placed on the Vavrus site at this time by the City of Palm Beach Gardens. The Mecca project has been designed so that, if there are changes in the future in the land use on the Vavrus property, those buffers would continue to provide compatibility.
Corbett WMA and the Hungryland preservation lands in Unit 11 will be buffered by passive recreational wetlands
500 to 1,000 feet wide, based on Map H. Corbett WMA will be benefited by moving Seminole Pratt-Whitney (SPW) Road to the
east of the SCO westerly buffer and converting the existing roadbed to an equestrian trail.12
To the south, The Acreage is an example of urban or suburban sprawl. A residential development platted in 1.25- acre lots, it has all internal roads in place and in use. There was ample evidence that development of the SCO can be compatible with The Acreage.
The southerly buffer between the nearest residence in The Acreage and development in the SCO would be about 800 feet. SPW already is in the 2020 TIM and Roadway System Map as a four-lane paved road through The Acreage and north past Mecca and the Beeline to Indiantown Road. However, SPW Road already has a 120-foot-wide ROW, which can accommodate a six- lane road, and The Acreage Neighborhood Plan calls for construction of this road from Northlake to the Beeline Highway, as well as extension of SR 7 north from Okeechobee Boulevard to Northlake.
There is already heavy traffic on the few major through-roads in The Acreage, and that will increase incrementally. At the same time, some work trips from The Acreage to areas of the County farther east could be offset by employment opportunities in the SCO.
The North County Airport has a five-mile runway buffer zone precluding educational uses. That buffer zone was
accommodated on the SCO by the arrangement of uses on Map H. The new extension of PGA Boulevard from the SCO to the Beeline Highway will be subject to FAA setback requirements, but there are options for addressing that issue when an alignment is selected.
The 28-acre Accessory Site is located on the west side of SPW Road just south of the SCO. Its use for construction of SPW Road, a connector canal, and an FPL substation is compatible with the existing FPL transmission line on the property. The substation will be sufficiently buffered by canals and SPW Road from The Acreage to its east and south.
Many residents in the communities in the vicinity of Mecca desire to preserve the character of their communities or, it seems, even restore it to what it was before the growth the County has seen in this area over the last several years. Several own horses and desire to continue to ride their horses along the roads in the area. However, as indicated, with or without the Plan Amendments, growth in the area was expected, the County was planning to build roads in the area, and traffic was expected to increase.
Based on the foregoing, it is fairly debatable whether the Plan Amendments are compatible with community character and surrounding land uses.
Regional and State Plans
Section 163.3177(10) states in pertinent part: for the purpose of determining whether
local comprehensive plans are consistent with the state comprehensive plan and the appropriate regional policy plan, a local plan shall be consistent with such plans if the local plan is "compatible with" and "furthers" such plans. The term "compatible with" means that the local plan is not in conflict with the state comprehensive plan or appropriate regional policy plan. The term "furthers" means to take action in the direction of realizing goals or policies of the state or regional plan. For the purposes of determining consistency of the local plan with the state comprehensive plan or the appropriate regional policy plan, the state or regional plan shall be construed as a whole and no specific goal and policy shall be construed or applied in isolation from the other goals and policies in the plans.
Treasure Coast Strategic Regional Policy Plan (SRPP)
In the Amended Petition, the Petitioners did not allege the Amendments are inconsistent with the SRPP, as a whole. Only allegations in the Amended Petition may be considered. See Conclusion 212, infra.
Notwithstanding testimony from Petitioners’ TCRPC witness that the Plan Amendments were not consistent with some provisions of the SRPP, he did not testify that they were inconsistent with the SRPP as a whole.
The Amendments further some parts of the SRPP. These include SRPP Goal 3.6 and SRPP Goal 3.7 of the Economic
Development element, and their supporting strategies and policies.
Petitioners' TCRPC witness testified there were five inconsistencies between the Amendments and the SRPP. However, he admitted that he did not recommend that TCRPC file formal objections to the Amendments with DCA on three grounds he cited for inconsistency at hearing --proximity to the Corbett WMA and other natural resources, the CRALLS designations, and proximity to the North County Airport.
In discussing some provisions, this witness failed to give the SRPP its proper context. Many goals, strategies, and policies in the SRPP use directive verbs intended to be recommendations to a local government, not requirements.
As one of his five grounds of inconsistency with the SRPP, Petitioners' TCRPC witness opined that Regional Goal
4.1 and its supporting measures require the County to prepare a regional plan before urban development may be allowed at Mecca, and to ensure such development meets the SRPP’s definition of a new town, village or city. However, this goal and its key provisions use the verb “should” and therefore are not mandates. Further, a plain reading of these provisions shows no requirement for the County to complete a regional plan as a pre-requisite for urban development.
Also, the TCRPC witness opined that SRRP Policies
9.1.1.1 and 7.1.3.1 prohibit CRALLS designations outside urban areas. However, a plain reading of these policies shows no basis for such an assertion, and the witness later admitted the SRPP does not prohibit CRALLS designations in rural areas. Moreover, his testimony on this point was contradicted by his testimony that the SRPP is only “advisory.”
State Comprehensive Plan
The State Comprehensive Plan (SCP) is a very broad, direction-setting document. The SCP provides over-arching policy guidance, and does not impose or authorize the creation of regulatory authority.
The Amended Petition alleged that the Amendments are inconsistent with the goals of the SCP regarding Land Use, Water Resources, Natural Systems and Recreational Lands, Transportation, and Urban and Downtown Revitalization, as well as numerous policies under these goals. Based on these allegations, Petitioners alleged that the Amendments are inconsistent with the SCP as a whole.
To the contrary, the record evidence demonstrates that all relevant issues regarding water and other natural resources, land use, and transportation were taken into account by the County and are addressed in the Amendments. Additionally, the Amendments are consistent with and further
numerous goals of the SCP not mentioned in the Amended Petition.
The Amendments contain a commitment that each phase of development must contain affordable housing for very low, low, and moderate income households. This commitment furthers the SCP goal to “increase the affordability and availability of housing for low-income and moderate-income persons ”
§ 187.201(4), Fla. Stat.
The Amendments have as their principal focus the creation of quality employment opportunities with Scripps Florida as anchor tenant. This purpose is consistent with and furthers the SCP policy to “[a]ttract new job-producing industries, corporate headquarters, distribution and service centers, regional offices, and research and development facilities to provide quality employment for the residents of Florida.” § 187.201(21)(b)(1), Fla. Stat.
Summary
Using the statutory definition of internal consistency, it is not beyond fair debate that the Plan Amendments are inconsistent with either the TCRPC's SRRP or the SCP.
CONCLUSIONS OF LAW
p. Standard of Review/Standard of Proof
Except for certain "amendments directly related to
proposed small scale development activities" and described in Section 163.3187(1)(c), DCA reviews all local government comprehensive plans and plan amendments for "compliance"-- i.e., for consistency "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 and with part III of chapter 369, where applicable."
§ 163.3184(1)(b), Fla. Stat.
When DCA determines that a local government's plan or plan amendment is "in compliance," administrative proceedings under Section 163.3184(9) may take place. Most administrative proceedings initiated after preliminary agency review and notice of the agency's intent to take final action are de novo proceedings under Sections 120.569 and 120.57(1) designed to "formulate final agency action, not to review action taken earlier and preliminarily." McDonald v Florida Department of Banking and Finance, 346 So. 2d 81 (Fla. 1st DCA 1977). But the Legislature has chosen to treat administrative review of comprehensive plan and plan amendment cases
differently. In proceedings under Section 163.3184(9), a different standard of review is established: "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." § 163.3184(9)(a), Fla. Stat.
The phrase “fairly debatable” is not defined in the GMA or in Rule Chapter 9J-5. The Supreme Court of Florida has opined, however, that the fairly debatable standard under Chapter 163 is the same as the common law “fairly debatable” standard applicable to decisions of local governments acting in a legislative capacity. In Martin County v. Yusem, 690
So. 2d 1288, 1295 (Fla. 1997), the Court stated that the fairly debatable standard is deferential and requires “approval of a planning action if reasonable persons could differ as to its propriety.” Quoting from City of Miami Beach v. Lachman, 71 So. 2d 148, 152 (Fla. 1953), the Court stated further:
Id.
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 validity.
Since the allegations in the Amended Petition were
not amended prehearing, and no additional allegations were
heard by consent, only the allegations in the Amended Petition may be considered. Cf. §§ 120.569, 120.57(1), Fla. Stat.; Fla. Admin. Code R. 28-106.201(2); Heartland Environmental Council v. Department of Community Affairs, DOAH Case No. 94- 2095GM, 1996 WL 1059751, at *19 (DOAH October 15, 1996; DCA
November 25, 1996).
Standing
A proceeding under Section 163.3184(9), may be initiated by an "affected person." An "affected person" is defined in Section 163.3184(1)(b). In this case, Respondents have stipulated, and it is clear from the evidence, that at least one Petitioner (Maria Wise-Miller) is an "affected person" under the statutory definition. It is unnecessary to determine as part of this expedited proceeding whether the other Petitioners also meet the statutory definition of "affected person." See Jim Durham, et al., v. Polk County¸ DOAH Case No. 03-0593GM, 2004 WL 364174 (DOAH February 24, 2004; Admin. Comm'n June 25, 2004).
It also is unnecessary and premature to determine whether any party would be entitled under Section 120.68(1) to judicial review of the final order entered in this case as "a party who is adversely affected." It is believed that such a determination, if it becomes necessary, can be made upon the evidence in the record.
Substantive Compliance Criteria
The pertinent substantive compliance criteria have been cited in the Findings.
Petitioners argued in their PRO that data and analysis were insufficient because they "were drafted by planning staff only after the elected officials had decided to place the project at the Mecca site." But there is no prohibition against this. See Zemel v. Lee County and Department of Community Affairs, 15 F.A.L.R. 2735, 2737 (DCA June 22, 1993), aff'd, 642 So. 2d 1367 (Fla. 1st DCA 1994)(data available at the time of adoption can be considered, and analysis up to the time of the hearing can be considered). See also Sierra Club v. St. Johns County and Department of Community Affairs, Case Nos. 01-1851GM and 01- 1852GM, 2002 WL 1592234 (DOAH May 20, 2002; DCA July 30, 2002), aff'd, 857 So. 2d 897 (Fla. 5th DCA 2003)(same).
DCA and the County seemed to come close to defending the CRALLS in part on the ground that the County has absolute discretion to establish these CRALLS and that they are not even subject to review for adequacy. Such a legal position would be untenable. Section 163.3180(10) gives local governments the discretion to establish LOSS for non-FIHS roads that need not be consistent with any LOSS established by the Florida Department of Transportation but must be adequate.
The adequacy of the LOSS established in a comprehensive plan is subject to compliance review. See Hillman, et al., v. Palm Beach County, et al., Final Order No. DCA98-GM-085, DOAH Case No. 98-0202GM, 1998 WL 866183, at *20-21 (DOAH April 17, 1998;
DCA May 20, 1998).
As found, considering all the pertinent compliance criteria, Petitioners did not prove beyond fair debate that the Plan Amendments are not "in compliance."
Disposition by ALJ, DCA, and Administration Commission
Under Section 163.3184(9)(b), Florida Statutes, if the ALJ recommends that a plan or plan amendment be found "in compliance," the recommended order (RO) is submitted to the DCA, which is required to allow for the filing of exceptions and either: (1) enter a final order finding the plan or plan amendment to be "in compliance"; or (2) submit the RO to the Administration Commission for final agency action if DCA determines that the plan or plan amendment is not "in compliance." If the former, DCA must enter its final order within ten working days from receipt of the RO. See
§ 403.973(15)(a), Fla. Stat. (If the latter, the Administration Commission would have ten working days from its receipt of the RO for entry of its final order.) Due to these time constraints, DCA has given notice that it is allowing two
days from entry of the RO for filing exceptions and one day after exceptions for filing responses to exceptions.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that DCA enter a final order determining that the Plan Amendments are "in compliance."
DONE AND ENTERED this 28th day of April, 2005, in Tallahassee, Leon County, Florida.
S
J. LAWRENCE JOHNSTON 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 28th day of April, 2005.
ENDNOTES
1/ Unless otherwise indicated, all statute sections refer to the 2004 codification of the Florida Statutes, and all rules refer to the current codification of the Florida Administrative Code.
2/ There also have been numerous other amendments to the Plan over the years.
3/ By County charter, however, the County has the authority to establish level of service standards on certain state and all county major thoroughfares even within municipal boundaries. Cf. Finding 122 and Conclusion 217, infra.
4/ Except that paragraph 59 on "economic feasibility" was dropped at the end of the hearing.
5/ Rule 9J-5.003(134) also defines "urban sprawl."
6/ This reflects construction of the maximum 8.5 million square feet of space. The earlier proposal for construction of 10 million square feet resulted in an FAR of 0.45, which also is quite low.
7/ He also disagreed with the suggestion that development controls can "overcome a sprawl determination." It is not clear whether his disagreement with that suggestion was contrary to Rule 9J-5.006(5)(j).
8/ The County employs some of these concurrency tools in other areas, so it knows how to use them when it wishes to do so.
9/ Reference to the abandoned allegation regarding "overall financial feasibility" has been omitted.
10/ However, little in this part of the Rule, which primarily addresses internal consistency, appears to relate to data and analysis.
11/ Paragraph 76 of the Amended Petition alleges that the Plan Amendments do not comply with Rules 9J-5.005(6) and 9J- 5.006(3), but neither of those Rule provisions relates to data and analysis.
12/ Since the restriction on the use of rifles within a quarter mile of development includes roads, the Plan Amendments would not further restrict the use of firearms in Corbett, since the SPW Road already defines the restriction.
COPIES FURNISHED:
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
Richard Grosso, Esquire
Environmental and Land Use Law Center, Inc. 3305 College Avenue
Fort Lauderdale, Florida 33314
Janet E. Bowman, Esquire Legal Director
1000 Friends of Florida Post Office Box 5948
Tallahassee, Florida 32314-5948
Lisa Interlandi, Esquire
Environmental & Land Use Law Center, Inc.
224 Datura Street, Suite 201 West Palm Beach, Florida 33401
Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
Gary P. Sams, Esquire Hopping, Green & Sams, P.A.
123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314
Andrew J. McMahon, Esquire
Palm Beach County Attorney's Office
301 North Olive Street, Suite 601 West Palm Beach, Florida 33401-470
E. Thom Rumberger, Esquire Rumberger, Kirk & Caldwell, P.A.
108 South Monroe Street, Suite 100 Post Office Box 10507
Tallahassee, Florida 32302-2507
Barry Silver, Esquire
1200 South Rogers Circle, Suite 8 Boca Raton, Florida 33487-5703
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within two days from the date of this Recommended Order and written responses to exceptions within one day from the filing of exceptions. Exceptions and responses should be filed with the agency that will issue the final order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| May 09, 2005 | Agency Final Order | |
| Apr. 28, 2005 | Recommended Order | It was at least fairly debatable that the Plan Amendments to accommodate the County`s Scripps project were "in compliance." |
