STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
WEST BEACHES NEIGHBORHOOD ) DEFENSE FUND, INC., CORNELIA F. ) HAMMOND; AND ESTELLE M. HICKS, )
)
Petitioners, )
)
vs. )
) BAY COUNTY AND DEPARTMENT OF ) COMMUNITY AFFAIRS, )
)
Respondents. )
Case No. 06-1220GM
)
FINAL ORDER
Pursuant to notice, a formal hearing was held in this case on June 26 and 27, 2006, in Panama City, Florida, and on
June 30, 2006, in Tallahassee, Florida, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioners: Diane C. Brown, Qualified Representative
241 Twin Lakes Drive
Laguna Beach, Florida 32413
For Respondents: Terrell K. Arline, Esquire
3205 Brentwood Way
Tallahassee, Florida 32309
Kelly A. Martinson, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
STATEMENT OF THE ISSUE
At issue in this case is whether Sections 403, 404, 410, 503, 506, 703, 704, 705, 706, 707, 708, 1805, 1903, 1904, 1905,
1909, 1911, and 2710 of the Bay County Land Development Regulations (the "LDRs"), as adopted by Bay County Ordinance No. 04-30 on September 21, 2004, are inconsistent with the Bay County Comprehensive Plan (the "Plan").
PRELIMINARY STATEMENT
On September 21, 2004, Bay County (the "County") amended the LDRs by adopting Ordinance No. 04-30. On September 20, 2005, Petitioners West Beaches Neighborhood Defense Fund, Inc., Brenda Harrison, Diane C. Brown, Cornelia F. Hammond, and Estelle M. Hicks filed a petition challenging certain of the LDR provisions, including those listed above, as inconsistent with the Plan. The County did not respond within the 30 days provided by Subsection 163.3213(3), Florida Statutes (2006).1 On October 31, 2005, the Petitioners timely filed their petition with the Department of Community Affairs (the "Department"), also, pursuant to Subsection 163.3213(3), Florida Statutes.
The Department conducted an informal investigation as mandated by Subsection 163.3213(4), Florida Statutes, including the conduct of an informal meeting with Petitioners and the County on December 16, 2005, in Panama City. On March 21, 2006, the Department issued a Determination of Consistency of a Land
Development Regulation (the "Determination") that found all, but five of the challenged LDRs to be consistent with the Plan.2
On April 10, 2006, Petitioners filed a Petition Challenging Bay County Land Development Regulations and Request for Administrative Hearing (the "Petition") at the Division of Administrative Hearings. The case was assigned to an Administrative Law Judge and set for hearing on May 22
through 24, 2006. The case was continued once on Petitioner's motion and was held on the dates set forth above.
On May 5, 2006, the County filed a Motion to Dismiss Diane C. Brown, Brenda Harrison, and West Beaches Neighborhood Defense Fund, Inc., on res judicata and collateral estoppel
grounds, based on their participation in an earlier challenge to the LDRs that was dismissed with prejudice due to its having been untimely filed. See D. Heath Trammell, Brenda Harrison, Loretta B. Moore, and Diane Brown v. Bay County and Department of Community Affairs, Case No. 05-1558GM (Final Order of Dismissal, July 11, 2005).3 On May 22, 2006, a Final Order of Dismissal was entered that dismissed Ms. Brown and Ms. Harrison as parties based on res judicata, but finding the allegations insufficient as to West Beaches Neighborhood Fund, Inc. Also, on May 22, 2006, an order was entered granting the motion of Ms. Hammond and Ms. Hicks to accept Ms. Brown as their qualified representative.
On November 6, 2006, based upon the complete record of the formal hearing in this case, an order was entered finding that West Beaches Neighborhood Fund, Inc., was in fact controlled by Ms. Brown and, therefore, dismissing the corporate entity on the same res judicata basis as Ms. Brown was dismissed. Ms. Hammond and Ms. Hicks remained as the sole Petitioners.
At the hearing, Petitioners presented the testimony of fact witnesses Barbara Harmon, Lee Hinman, Robert Hurst, and Diane Brown. Petitioners, also, presented the testimony of David J. Russ, an expert in comprehensive planning; Dr. Sydney Bacchus, an expert in Florida ecology and habitat, hydroecology, water chemistry, plant pathology and physiology, wetland and aquatic ecology, and wetland and riverine restoration; and the adverse testimony of Elliott Kampert, the County's principal planner and an expert in comprehensive planning, land use planning and land use regulations. Petitioner's Exhibits 1 through 21, 23 through
31, and 33 through 42 were admitted into evidence.
The County presented the expert testimony of Mr. Kampert.
County Exhibits 1 through 5 were admitted into evidence.
The Department presented the testimony of Gerald Goosby, an expert in comprehensive planning under Chapter 163, Florida Statutes and Florida Administrative Code Chapter 9J-5. The Department's Exhibits 1 through 3 were admitted into evidence.
The Plan and the LDRs were admitted into evidence as Joint Exhibits one and two, respectively.
A four-volume Transcript was filed at the Division of Administrative Hearings. The first two volumes were filed on August 4, 2006, and the second two volumes were filed on August 7, 2006. The parties filed their Proposed Final Orders
on December 20, 2006.
FINDINGS OF FACT
Based upon the evidence presented at the final hearing, the following relevant findings of fact are made:
Standing
Petitioners Cornelia F. Hammond and Estelle M. Hicks reside within Bay County and own residential property in unincorporated Bay County.
A "substantially affected person" may challenge a land development regulation pursuant to Subsections 163.3213(2)(a) and (3), Florida Statutes. The parties have stipulated that Petitioners are substantially affected persons and have standing to bring this administrative challenge.
The Challenged LDRs
Section 403
Section 403, titled "Discouraged Activities," states that it is the "specific intent" of the LDRs "to promote homeowner's quiet use and enjoyment of property, and to minimize
the potential for public nuisances." In furtherance of that intent, Section 403 lists activities that are "discouraged" in all new subdivisions with individual lots of less than one-half acre created after the effective date of the LDRs. The list includes: the raising or keeping of farm animals or livestock; raising, keeping, or boarding animals as a business activity; commercial activities other than those associated with home occupations; the storage or accumulation of wrecked motor vehicles, junk, derelict vessels, or debris; storage of building materials used as part of a business activity; the use of recreational vehicles for residential purposes; and any activity that would result in excessive and ongoing noise, odor, glare, fumes, dust, telecommunications interference, or other public nuisance.
Petitioners allege that this LDR is inconsistent with Plan Objectives 8.5 and 8.9 and Policies 1.2.1.2, 1.2.1.4, 1.2.1.5, and 1.2.1.9, because it "discourages" rather than prohibits the listed activities, and because it applies only to new subdivisions.
Chapter 8 is the Housing Element of the Plan.
Objective 8.5 states that it is the Plan's objective to "[p]reserve and protect the character, compatibility, and aesthetics of residential areas and neighborhoods through the enforcement of land use regulations."
Policy 8.5.1 is the provision directly implemented, in part, by Section 403. Policy 8.5.1 provides:
Specific criteria will be included in the Land Use Code4 for the preservation and protection of residential areas. These criteria will include, but may not be limited to:
Maintaining compatibility between types of residential buildings;
Ensuring that residential areas will be used primarily for residential purposes;
Avoiding overcrowding of residential units;
Avoiding accumulations of junk and debris;
Avoiding nuisances such as excessive noise, dirt, glare, odors, noxious fumes and telecommunications interference, and;
Avoiding the raising or keeping of farm animals.
Petitioners criticize Section 403 as deviating from Policy 8.5.1, because Section 403 does not contain all of the criteria listed in the policy, because Section 403 uses the word "discourage" rather than the policy language of "avoiding," and because Section 403 limits its application to new subdivisions with lots of one-half acre or less created after adoption of the LDRs.
The County points out that neither "discourage," nor "avoiding" constitutes language of absolute prohibition and,
therefore, the LDR does not deviate from the objective or the policy. The County concedes that Section 403 applies only to subdivisions created after the effective date of Ordinance No. 04-30, but notes that the County has adopted a nuisance
ordinance (Ordinance No. 04-37, as amended by Ordinance No. 05-
35) that applies to all real property. The nuisance ordinance classifies activities, such as failure to store garbage within a sealed container and exceeding certain sound levels, as public nuisances subject to citation and fines. The County reasonably decided to limit the application of Section 403 to subdivisions created after the effective date of Ordinance No. 04-30 to accommodate existing activities that would otherwise be prohibited.
Petitioners point to no statute, rule, or Plan provision stating that an LDR implementing a certain policy is required to implement each and every aspect of that policy. The fact that Section 403 fails to expressly implement Policy
8.5.1.1 and 8.5.1.3 does not render it inconsistent with the Plan.
Petitioners contend that, by "discouraging" rather than prohibiting the listed activities, Section 403 is inconsistent with Objective 8.9, which states that it is the Plan's objective to "[p]rotect residential property values and ensure that each homeowner has the opportunity for quiet use and
enjoyment of their residence." Petitioners, further, contend that this failure to "fully implement" Policy 8.5.1.1 renders Section 403 inconsistent with certain provisions of Policy 1.2.1, which provides, in relevant part:
Findings and Purposes: This Plan is predicated upon and intended to promote the following findings and purposes:
* * *
1.2.1.2: Encourage the most appropriate use of land, water and resources consistent with the public interest.
* * *
: Deal effectively with future problems that may result from the use and development of land within unincorporated Bay County.
: To preserve, promote, protect and improve the public health, safety, comfort, good order, appearance, convenience, law enforcement and fire prevention, and general welfare.
* * *
1.2.1.9: To recognize and respect judicially acknowledged or constitutionally protected private property rights. It is the intent of this Plan that all provisions, requirements, regulations, ordinances, or programs adopted under authority of this Plan be developed, implemented and applied with sensitivity for private property rights and not be unduly restrictive, and property owners must be free from actions by others which would harm their property. Full and just compensation or other appropriate relief must be provided to any property owner for a governmental action that is
determined to be an invalid exercise of the police power which constitutes a taking, as provided by law. Any such relief shall be as provided by law.
Petitioners contend that Section 403's failure to include the requirement of Policy 8.5.1.3 that overcrowding of residential units should be avoided constitutes a conflict with Policy 3.6.1.2, which requires the LDRs to ensure the compatibility of adjacent uses and provide for open space.
None of Petitioner's contentions is well-founded in terms of establishing Section 403's inconsistency with the Plan. As noted above, there is no requirement that an LDR implementing a given Policy must implement each and every aspect of that Policy. Petitioner's evidence on this issue consists of resident's anecdotal complaints that adjacent seasonal/resort uses cause increased noise, traffic, and safety hazards, evidence, which did not establish inconsistency between the LDR and the Policy.
Petitioners contention that Section 403 would be more effective if it prohibited rather than "discouraged" the listed activities is inarguable, but beyond the scope of this proceeding. In its Plan, the County has chosen to "avoid" the listed nuisances. For better or worse, the Plan's language is hortatory, not mandatory. Section 403 is not inconsistent with
Policy 8.5.1 or with the other Plan provisions cited by Petitioners.
Section 404
Section 404 delineates the allowable uses, conditional uses, and accessory uses and structures allowed in the R-1 single-family residential zoning category. The allowable uses include: single-family dwellings built to Florida Building Code Standards pursuant to Chapter 553, Florida Statutes; community facilities such as neighborhood centers, golf courses, swimming pools, and tennis courts; family day care homes; not-for-profit parks and playgrounds; and "low impact public utilities."
Conditional uses are those that may be allowed in the R-1 zones subject to such conditions as are necessary to preserve the integrity of the zone. Conditional uses include: public or private schools and houses of worship, subject to buffering and traffic impact mitigation; community residential homes provided they are not located within 1,000 feet of one another and do not substantially alter the nature and character of the surrounding area; electric power substations, to be evaluated on a case-by-case basis; and "others as determined by criteria specified in Chapter 12." Chapter 12 of the LDRs sets forth the application and permitting procedures for conditional uses, which are "intended to provide additional flexibility in the zoning process where a particular use might not be
specifically allowed in a particular zone, but would still be compatible with allowed uses in that zone when certain qualifying conditions are applied."
Accessory uses and structures, such as unattached garages, carports, swimming pools, storage sheds and docks, are allowed only when a principal use or structure already exists. They must be located in side or rear yards, unless the lot is abutting a body of water, when they may be placed in front of the principal use or structures.
Petitioners contend that Section 404 allows incompatible uses in single-family zones and is inconsistent with Objectives 3.9, 8.5, and 8.9, and Policies 3.9.1, 8.5.1, 8.9.1, 1.2.1.2, 1.2.1.4, 1.2.1.5, 1.2.1.9, and 2.1.2.2 of the Plan. Petitioners contend that Section 404 is inconsistent with the listed Plan provisions for the following reasons: while it requires buffering for schools and churches, it does not require buffering between single-family homes and other uses that are known to create nuisances; it allows electrical power substations, which are known health risks; it creates uncertainty by authorizing unspecified conditional uses so long as they are consistent with the criteria of Chapter 12 of the LDRs; it contains no restrictions on noise that is incompatible with the quiet use and enjoyment of a homeowner's residence; and it does not allow manufactured homes.
As to the first reason, Petitioners have offered insufficient support for their contention that the absence of language requiring a buffer between residences and uses that are known nuisances is inconsistent with the Plan. Petitioners offer a list of "nuisances" that includes parks, playgrounds, and community facilities, which are not commonly considered "nuisances" in residential areas.
Housing Element Policy 8.5.1 of the Plan requires the LDRs to include criteria that maintain compatibility between types of residential buildings, and Policy 8.9.1 requires the County to establish zoning districts in the LDRs that promote compatibility between residential uses and reduce the potential for public nuisances. The County has elected to require buffering in the R-1 zone between residences and churches and schools, but not to require buffering between residences and parks, playgrounds, and community facilities, or between residences and "nuisances" generally. Section 404.2.f provides that "other" conditional uses are required to seek permits under Chapter 12, a process through which compatibility is addressed and buffers could be required as a condition of approving the conditional use.
As to the Petitioner's claim regarding electrical power substations, Subsection 163.3208(4), Florida Statutes (2006), requires local governments to allow new electrical
substations as a permitted use in all comprehensive plan categories and zoning districts, except those designated as preservation, conservation, or historic preservation.
Subsection 163.3208(6), Florida Statutes, provides express conditions for the placement of electric substations in residential areas, requiring the utility to consult with local government regarding site selection and to propose at least three alternative sites, including sites within nonresidential areas. The local government has the authority to make the final decision as to substation placement.
Further, electrical substations are classified as conditional uses by Section 404 and, therefore, must meet the requirements of Chapter 12 of the LDRs in order to be approved. One such requirement, in Section 1206.1, is that the conditional use must be "consistent with all applicable provisions of the Plan." Table 3A of the Future Land Use Element ("FLUE") specifically lists public utilities as an allowable use in the Residential land use category.
Section 1206.2 provides that a conditional use request "shall not adversely affect adjacent properties in terms of creating a nuisance, reduction in property values, or other quantifiable measure." Section 1206.3 provides that the request must be "compatible with the existing or allowable uses of adjacent properties." Section 1206.7 provides that the request
"will not adversely affect the public health, safety or welfare." Section 1205 grants the County's Planning Commission the authority to impose such conditions and safeguards on conditional uses "as deemed necessary to protect and enhance the health, safety and welfare of the surrounding area."
In summary, electrical power substations are naturally and appropriately considered "public utilities" and are, therefore, specifically allowed in residential areas under the Plan. Section 404.2.e lists electrical power substations as conditional uses "to be evaluated on a case-by-case basis." As conditional uses, electrical power substations are subject to the review process of Chapter 12 of the LDRs. The health risks of the substations must be considered under Section 1206.7, which prohibits adverse effects on the public health, safety or welfare. Finally, state law in the form of Section 163.3208, Florida Statutes, has preempted any authority the County may have had to completely prohibit electrical substations in residential areas.
Petitioners have, also, alleged that Section 404.2.f allows any number of unidentified potential uses that could create nuisances and destroy the character, compatibility and aesthetics of their neighborhoods, which would be inconsistent with Objective 8.5 of the Plan, and that could interfere with the quiet use and enjoyment of their property, which would be
inconsistent with Objective 8.9. Petitioners have pointed to no statute, rule, or Plan provision that would require the County to list every possible conditional use for the R-1 zoning category in the LDR. Section 404.2.f simply clarifies that any conditional use not expressly named in Section 404.2 is subject to the permitting criteria of Chapter 12 of the LDRs, which themselves limit conditional uses to those compatible with existing or allowable uses of adjacent properties and that do not create nuisances.
Regarding the alleged lack of noise standards, Petitioners have referenced no provision of the Plan requiring noise to be addressed in the LDR that sets forth allowable uses in the R-1 zoning category. The conditional use requirements of Chapter 12 are intended to ensure compatibility of adjacent uses and forestall the creation of nuisances. As noted above, the County, also, has a nuisance ordinance that applies to all property.
Finally, Petitioners complain that manufactured homes are not listed as allowable uses in the R-1 single-family zone despite the fact that Table 3A of the FLUE portion of the Plan includes "manufactured housing" among those land uses that are allowable in residential areas. Objective 8.7 of the Plan is to provide for the location of affordable housing, including manufactured housing, in residential districts while avoiding
"undue concentrations" of affordable housing in any one area. Policy 8.7.2 of the Plan provides:
The Board recognizes that mobile homes and/or manufactured houses are commonly used to provide affordable housing. The Board will provide for the placement of these structures by designating certain land use districts in the Land Use Code in which mobile homes, manufactured homes, mobile home parks, and mobile home subdivisions will be allowed. These areas will be designated in such a way as to avoid undue concentrations in any one particular geographic area.
Manufactured homes are listed, either specifically or by reference to another zoning category, as allowable uses in the R-2 (Duplex Dwellings and Manufactured Housing Zones)
and R-3 (Duplex, Triplex, and Quadraplex Zones), but not in the R-1 (Single-Family Zones) zoning category. An exception is a manufactured home that meets the Florida Building Code Standards of Chapter 553, Florida Statutes, which is allowed in all residential zoning districts.
That fact that Table 3A of the FLUE allows manufactured housing in residential areas does not mean that manufactured housing must be allowed in every zoning category included under the "residential" designation. Petitioners have failed to demonstrate that Section 404 is inconsistent with the Plan.
Section 4105
Section 410, titled "Bulk Regulations," sets forth the bulk regulations for all residential zoning categories. Petitioners have alleged that this LDR is inconsistent with Objectives 3.9, 8.5 and 8.9, and Policies 1.2.1.2, 1.2.1.4, 1.2.1.5, 1.2.1.9, 3.6.1, 3.9.1, 3.9.2, and 8.5.1.
Section 410 includes Table 4.1, which establishes standards for each residential zoning category set forth in Chapter 4 of the LDRs. These bulk regulations include maximum densities, minimum lot frontages, yard setbacks, maximum building heights, and impervious surface ratios for each zoning category, further divided into urban, suburban, and rural community areas.
Petitioners allege that the failure of the bulk regulations to mandate a minimum lot size and the allowance of
15 dwelling units per acre in the urban R-2 and R-3 zones would allow a developer to enter an existing neighborhood, buy an adjacent vacant parcel or assemble several lots and build at a higher density than the existing neighborhood.
Petitioners point out that R-2 zoning covers the majority of land in Laguna Beach, and that the overall density in that area is about eight to ten units per acre. However, under Section 410, a developer could assemble an acre and build up to 15 dwelling units per acre. This density is nearly double
the eight units per acre allowed in the R-1 zoning category. Petitioners contend that such increased density in existing neighborhoods has the potential to destroy the character, compatibility and aesthetics of these neighborhoods, which is inconsistent with Objective 8.5, and the potential to create nuisances with excessive noise and traffic, inconsistent with Policy 8.5.1. These impacts would have the cumulative effect of interfering with the residents' quiet use and enjoyment of their homes and would devalue their property, inconsistent with Objective 8.5.
Despite the Petitioners' concerns, the Plan contains no minimum lot size requirements in the Residential FLUE category. Therefore, no minimum lot size is required for the residential zoning bulk regulations. The Residential FLUE category in Table 3A of the Plan allows a density of no more than 15 dwelling units per acre in urban/coastal areas. The provisions of Section 410 are identical to those of the Plan, limiting density to 15 dwelling units per acre in the urban areas of the R-2 and R-3 zones. While they have voiced legitimate concerns regarding the impact of increased densities imposed on existing neighborhoods, Petitioners have failed to demonstrate that Section 410 is inconsistent with the Plan.
Section 503
Petitioners have alleged that Section 503, dealing
with the SR-1 Seasonal/Resort Residential zoning category, is inconsistent with Objectives 8.5 and 8.9 and Policy 3.9.1, because the allowable uses under this LDR do not protect existing neighborhoods in or adjacent to the SR-1 zones, specifically the existing single-family residential neighborhoods in the Beaches Special Treatment Zone south of
U.S. 98. The alleged incompatible allowable and conditional uses include motels/hotels, condominiums, beach rental vendors, and parking garages.
The Seasonal/Resort FLUE category in Table 3A of the Plan states that the purpose of the category is "[t]o provide areas for a functional mix of compatible seasonal/resort land uses where the clientele are predominantly seasonal or temporary visitors and tourists." Listed allowable uses include condominiums, multi-family structures, motels, hotels, lodges, restaurants, convenience stores, and lounges and bars as accessory uses to multi-family structures, hotels, motels, or restaurants.
Under the heading "Development Restrictions," Table 3A expressly provides that year-round, permanent residences should not be located in the seasonal/resort areas. Petitioners complain that the seasonal/resort land use category and the SR-1 and SR-2 zoning categories were assigned to many existing R-1 single-family residential structures, and that many of these
homeowners have petitioned the County to change their designation from seasonal/resort back to residential. However, Petitioners have not shown that the SR-1 category described in Section 503 of the LDRs is inconsistent with the criteria of the Seasonal/Resort FLUE category set forth above.
Section 503.1.a specifically recognizes that the R-1 uses in the seasonal/resort area are not nonconforming. Elliott Kampert, the County's chief planner, testified that many, if not most, of the single-family residences in this area were non- homestead properties being used as rental properties by their owners. Petitioners counter that the Plan does not distinguish between full-time, seasonal, or rental uses in applying compatibility standards or requiring protection of the character and aesthetics of residential areas and the opportunity for the quiet use and enjoyment of homes.
Policy 3.9.1 of the Plan defines "compatibility" as "a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition." This is the same definition of "compatibility" found in Florida Administrative Code Rule 9J-5.003(23). Petitioners contend that Section 503 is inconsistent with Objective 3.9 generally and with Policy 3.9.1 in particular.
Petitioners argue that, because SR-1 is a residential zone that has been applied to existing neighborhoods, Objectives
8.5 and 8.9 are also relevant. Objective 8.5 requires the preservation and protection of the character, compatibility and aesthetics of residential areas and neighborhoods "through the enforcement of land use regulations." Objective 8.9 requires protection of residential property values and ensures the homeowner's quiet use and enjoyment of his residence. Petitioners contend that the development allowed under Chapter 5 of the LDRs, including 60-foot high motels/hotels, 100-foot high condominiums and apartment houses, and 45-foot high parking garages, will interfere with the quiet use and enjoyment and change the character and aesthetics of the existing single- family neighborhoods.
The stated purpose of the Seasonal/Resort FLUE category is to accommodate primarily seasonal or temporary visitors and tourists. Table 3A of the Plan expressly states that year-round, permanent residences should not be located in this area. Therefore, the allowable and conditional uses listed for the SR-1 category in Section 503 of the LDRs are appropriate and consistent with the relevant portion of the Plan. Petitioners' arguments, at most, demonstrated that the Seasonal/Resort criteria and standards set forth in Table 3A are inconsistent with Objectives 8.5 and 8.9 of the Plan, to the
extent that the County has imposed the Seasonal/Resort designation to existing residential neighborhoods despite the express criterion that permanent residences should not be located in this area. Internal inconsistencies in the Plan are beyond the limited scope of this proceeding. Petitioners have failed to demonstrate that Section 503 is inconsistent with the Plan.
Section 5066
Section 506 includes Table 5.1, which establishes standards for each seasonal/resort zoning category set forth in Chapter 5 of the LDRs. These bulk regulations include minimum lot areas, maximum densities, minimum lot frontages, minimum setbacks, maximum building heights, and impervious surface ratios for each zoning category. Petitioners contend that this LDR is inconsistent with Objectives 3.11, 8.5, and 8.9, as well as Policies 1.2.1.2, 1.2.1.4, 1.2.1.5, 1.2.1.9, and 3.9.1 of the Plan.
Section 506 allows residential structures to be built three feet from the side-yard property line, commercial structures to be built ten feet from the side-yard property line, and contains no floor-to-area ratios. The LDR allows heights up to 60 feet for residential structures and up to 230 feet for commercial structures. Petitioners complain that Section 506 would allow construction of a 230-foot tall hotel
ten feet from the property line of an existing single-family home. Petitioners contend that the setback provisions do not require sufficient side yards to preserve the integrity of the area or to protect adjacent property from the ill effects of the allowed uses.
Petitioners, also, contend that Section 506 lacks objective measurements of density or intensity to control the bulk and mass of new construction. Table 5.1 includes height limits and impervious surface ratios, but does not include floor-to-area ratios, which Petitioners argue are necessary in order to have meaningful density and intensity controls.
The County correctly responds that the Plan does not establish minimum setbacks or floor-to-area ratios for buildings in the Seasonal/Resort FLUE category and, therefore, neither the minimum setbacks prescribed in Table 5.1, nor the lack of floor- to-area ratios in Table 5.1 is in derogation of any provision of the Plan. Petitioners have failed to demonstrate that Section
506 is inconsistent with the Plan.
Section 703
Petitioners contend that Section 703, which sets forth the allowable, conditional, and prohibited uses in the Conservation Preservation Zone, is inconsistent with the Plan, because it does not address maintaining water quality standards. Table 3A of the FLUE, in stating the purpose, uses, density and
intensity allowed in the Conservation Preservation Zone, states the following "Development Restriction": "No development allowed that can be reasonably expected to degrade water quality standards." Petitioners contend that this statement should have been incorporated into the text of Section 703.
Petitioners contend that Section 703 allows uses with the potential to degrade water quality, such as public utilities and infrastructure, docks, piers, seawalls, jetties, groins, boathouses, and "other similar uses."7 Petitioners contend that incorporating the specific language from Table 3A into Section 703 would enable the County to address potential development that could impair water quality.
The County points out that environmental standards are set forth in a separate chapter of the LDRs, Chapter 19. Section 1904.2.e of the LDRs provides: "No new development will be permitted that would reasonably be expected to cause violation of state or federal water quality standards."
Chapter 18 of the LDRs sets forth the development review process and specifically references Chapter 19 in the provisions stating the environmental information that must be included in a development application. Petitioners have failed to demonstrate that Section 703 is inconsistent with the Plan.
Section 704
Petitioners contend that Section 704, which sets forth
the allowable, accessory, and prohibited uses in the Conservation Recreation Zone, is inconsistent with the Plan, because it is inconsistent with the development standards set forth in Table 3A of the FLUE for the Conservation Recreation land use category. Table 3A states that the purpose of the Conservation Recreation Zone is "[t]o provide areas that are used jointly for both conservation and recreation purposes."
Table 3A sets forth the allowable uses in the Conservation Recreation Zone: "Agriculture (when BMPs are used), Recreation, Public/Institutional, Residential, Commercial on upland areas when used in conjunction with the overall recreation function (e.g. ranger quarters, concessionaires, etc.), docks, piers, seawalls, groins, buoys, "eco-parks" and other similar uses, and public utilities." Table 3A sets forth the following development restriction: "Development is limited to that which supports conservation/recreation purposes." Table 3A lists density and intensity criteria as "not applicable" for the Conservation Recreation Zone.
Section 704 lists all allowable and conditional uses in the Conservation Preservation Zone as allowable uses in the Conservation Recreation Zone. In addition, Section 704 lists the following as allowable uses in the Conservation Recreation Zone:
Outdoor recreation uses including: parks, recreation areas, campgrounds, preserves, nature trails, historic sites, or other similar uses; hunting or gun clubs or lodges; canoe, kayak or other small boat rentals; fishing camps or lodges; horseback riding stables and trails; youth, institutional, or day camps or lodges; and, other similar outdoor recreation uses.
Petitioners argue that the allowable uses listed in Table 3A, in conjunction with the lack of density and intensity criteria, establishes that only uses of limited impact are to be allowed in this area, with the standard for structural development limited to structures necessary to support the allowable recreational uses, such as ranger stations and concessionaires. "High density, high intensity" structures such as hunting, gun, fishing, youth, and recreational lodges are outside the conservation purposes of Table 3A and, are therefore, inconsistent with the Plan.
Section 708 of the LDRs contains Table 7.1, the bulk regulations for all of the Conservation Zones described in Chapter 7. Table 7.1 requires a minimum lot area of 20 acres for construction in the Conservation Recreation Zone, with minimum front, rear, and side setbacks of 100 feet, maximum lot coverage of ten percent and a floor area ratio of 20 percent.
A lodge constructed under these criteria would not constitute a "high density, high intensity" structure inconsistent with Table 3A of the Plan.
Table 3A includes "designation criteria" for the Conservation Recreation Zone that expressly include the following: St. Andrews State Recreation Area and Aquatic Preserve, Pine Log State Forest, Econfina Creek Water Management Area, Shell Island, and Class III waters. Mr. Kampert, the County's planner, stated that the St. Andrews facility has camping sites for RVs and commercial uses such as a snorkel, dive shop, and camping shop. Pine Log State Forest includes RV camping sites with restroom facilities and showers. It is established that the state allows these types of uses in the management of its recreational areas and, therefore, that the Plan contemplates the same uses in the Conservation Recreation Zone.
Petitioners, also, complain that Section 704.2.b lists "public/institutional uses" as allowed as accessory uses and structures, but does not provide examples of the type of development that would be allowed under this term. Petitioners cite no requirement that the County must publish a list of examples under each use category within the LDRs. Examples of Public/Institutional Uses are included in Table 3A of the FLUE under that land use category. In any event, such uses would be limited "to that which supports conservation/recreation purposes." Petitioners have failed to demonstrate that Section 704 is inconsistent with the Plan.
Section 705
Section 705 lists the allowable and prohibited uses in the Conservation Habitation Zone. Included in the allowable uses under Section 705 are both bird sanctuaries and communications towers. Petitioners complain that communications towers present hazards to birds and that allowing such towers is inconsistent with Table 3A of the FLUE regarding Conservation areas.
Petitioner's evidence regarding the dangers that cell phone towers present to migrating and local resident birds is credited, but not relevant to a determination whether the LDR is inconsistent with the Plan.
Petitioners contend that communications towers constitute a commercial/industrial use and, thus, are inconsistent with Table 3A's description of the Conservation FLUE category. However, Table 3A of the FLUE lists allowable uses in the Conservation category to include "public utilities, and other similar uses." It was not unreasonable for the County to determine that communications towers are more akin to public utilities than to commercial/industrial uses, and to allow their placement in the Conservation Habitation Zone.8 Petitioners have failed to demonstrate that Section 705 is inconsistent with the Plan.
Section 706
Section 706 is titled "Innovative Development Techniques." Section 706 is intended to implement Objective
6.18 of the Conservation Element of the Plan. Objective 6.18 provides that its purpose is to "[p]rovide landowners with beneficial use of their property when environmental restrictions cause the loss of full development potential through use of innovative and flexible development strategies." Policy 6.18.1 of the Plan provides that owners or developers facing development restrictions due to the presence of locally significant environmental resources on their property may use the "innovative land development techniques" of clustering and mitigation.
Petitioners contend that the first sentence of Section 706 is inconsistent with the standards set forth in Table 3A for Conservation Preservation and Conservation Recreation land use categories. The first sentence of Section 706 provides: "Conservation zones are intended to accommodate limited development while, also, conserving and protecting valuable natural resources." Petitioners argue that the Conservation Preservation and Conservation Recreation categories do not allow any development at all.
Petitioner's contention would be correct only if Section 706 were read to negate or override Sections 703 and
704. Sections limit development in the Conservation Preservation and Conservation Recreation Zones, respectively, through the provision of limited allowable uses and prohibited uses. Nothing in Section 706's provision for innovative development techniques trumps the limited allowable uses of the Conservation Preservation or Conservation Recreation Zones.
Petitioners, also, complain that Section 706 is inconsistent with Policy 6.18.1, which states in relevant part that "owners or developers may use, or be required to use, the following innovative land development techniques." (Emphasis added.) Petitioners emphasize the underscored language to argue that the County has retained the right to impose clustering on developers, whereas Section 706 merely "encourages" clustering. On this point, there is no inconsistency between the LDR and the Plan, because the latter does not require the County to impose mandatory clustering on owners or developers. Petitioners are probably correct that Section 706 would prove more effective if it required clustering, but Policy 6.18.1 of the Plan does not mandate that outcome.
Section 706 allows the use of "density transfers," defined as "[t]he transfer of all or part of the allowable density on a lot or parcel of land to another lot or parcel of land." Petitioners argue that the LDR does not provide specific and detailed criteria for the application of density transfers,
which renders it inconsistent with Policies 1.2.1.2, 1.2.1.4, 1.2.1.5, and where transfers impact existing residential areas, Objectives 8.5 and 8.9.
The density transfers are contemplated only for conservation zones, not existing residential areas. The lack of specific criteria to implement the concept of density transfers does not render Section 706 in conflict with the cited Plan provisions. It is noted that the Plan is silent as to density transfers, but it is, also, found that density transfers are not in conflict with the Plan.9
Finally, Petitioners allege that allowing developers to deviate from the bulk requirements for Conservation zones in Table 7.1 of the LDRs may lead to development inconsistent with the Plan. The County contends that allowing deviations from the bulk requirements is not inconsistent with the Plan, because deviations are allowed only when it can be shown that they are "necessary and desirable to avoid or preserve natural resources." Petitioners respond that the terms "necessary" and "desirable" are so vague as to be meaningless in terms of establishing an objective standard for development review. However, Section 706 expressly provides that requests for the use of innovative development techniques in Conservation zones are to be evaluated on a case-by-case basis, indicating that the County intends for the common understanding of those terms to be
elucidated and amplified through the permitting process. Petitioners have failed to demonstrate that Section 706 is inconsistent with the Plan.
Section 707
Section 707 contains nine special regulations that apply in the Conservation zones. Section 707.5 provides:
Development will be under-taken [sic] so as to avoid activities that would destroy wetlands or the natural functions of wetlands except for activities authorized by permits issued by federal or state authorities.
Petitioners allege that Section 707.5 is inconsistent with Objective 6.11 and Policies 6.7.4 and 6.18.1 of the Plan, because the intent of those Plan provisions is to preserve and protect wetlands. Petitioners, therefore, contend that Section
707.5 is less restrictive than the Plan, because it allows state and federal permits to trump the wetland protections set forth in the Plan.
Objective 6.11 of the Plan is to "[p]rotect and conserve wetlands and the natural functions of wetlands." Policy 6.7.4 sets forth development standards applicable in designated Ecosystem Management Areas. Policy 6.7.4.5 provides that development will be undertaken "to avoid activities that would destroy wetlands or the natural functions of wetlands." Section 707.5 of the LDRs is taken verbatim from Policy 6.7.4.5
of the Plan, except for the addition of the phrase, "except for activities authorized by permits issued by federal or state authorities." Policy 6.18.1 is the "innovative development techniques" provision discussed in Section H, supra.
The County points out that Objective 6.11 states that the County will "protect and conserve" wetlands, not "preserve" them from development altogether. Petitioners contend that nothing in the Plan distinguishes between "jurisdictional wetlands," those that by definition are regulated by state and federal permitting agencies, and "isolated wetlands" unregulated by state and federal agencies. However, Policy 6.11.1 adopts by reference the definition of "wetlands" as used by the Department of Environmental Protection and set forth in Subsection 373.019(25), Florida Statutes (2006).10 Objective 6.1 of the Plan calls for the elimination of "needless duplication of government and regulatory activities relative to protection of natural resources." Policy 6.1.1 goes on to say that the County "will, to the maximum extent practicable, rely upon state laws and regulations to meet the conservation goals and objectives of this Plan."
Despite Petitioner's contentions, nothing in the Plan clearly indicates11 that isolated wetlands are to be afforded the same protections as jurisdictional wetlands. The Plan defines "wetlands" by reference to the Department of Environmental
Protection's definition, a clear indication that the Plan is concerned only with jurisdictional wetlands. Section 707.5 defers to the federal and state wetlands permitting authorities in the same manner as the Plan itself. Petitioners have failed to demonstrate that Section 707 is inconsistent with the Plan.
Section 708
The bulk regulations for the Conservation zones are contained in Table 7.1 of Section 708 of the LDRs. A minimum lot area of 20 acres and a maximum building height of 50 feet are provided for the Conservation Recreation zone.
Petitioners allege that that provision of a minimum lot area is inconsistent with the Conservation Recreation FLUE category contained in Table 3A of the Plan, because no minimum lot area is included therein. Petitioners claim that a minimum lot area precludes smaller parcels from being placed in the Conservation Recreation category, thereby decreasing opportunities for acquiring and conserving smaller areas of ecologically valuable resources. Petitioners, also, argue that allowing buildings up to 50 feet in height is inconsistent with the Conservation Recreation FLUE category, because such a building height is not necessary to accommodate the allowable uses.
Contrary to Petitioner's allegation, the minimum lot area in Table 7.1 is not inconsistent with the Plan. Table 3A of
the Plan does not set forth minimum lot areas as such for any land use category.12 Petitioner's policy argument regarding smaller parcels is logical, but unsupported by any specific Plan provision. Finally, the County demonstrated that a 50-foot building height is reasonable for uses such as fire towers in the Conservation Recreation zone. Petitioners failed to demonstrate that Section 708 is inconsistent with the Plan.
Section 1805
Section 1805 lists all the information that must be included in a development permitting application. Section 1805.2.b sets forth the environmental information to be included in the applicant's site development information package. Petitioners allege that Section 1805.2.b is inconsistent with the Plan, because it does not require applicants to depict wetland buffers or the jurisdictional wetland line on their site plans.
Policy 6.11.3.1 of the Plan provides: "Wetlands will be delineated and depicted on all site plans included in applications for development approval." The policy does not require the depiction of wetland buffers. Consistent with Policy 6.11.3.1 of the Plan, Section 1805.2.b of the LDRs requires the applicant's site plan to depict wetland areas. Petitioners failed to demonstrate that Section 1805 is inconsistent with the Plan.
Section 1903
Section 1903 of the LDRs provides a list of what the County considers to be "significant natural resources." The list is identical to the list of "locally significant natural resources" contained in Policy 6.2.1 of the Plan, except that "shellfish beds" were added to the LDR list. Petitioners contend that Section 1903 should go beyond the list in Policy
6.2.1 and include all natural resources that are protected under the Plan. In particular, Petitioners claim that native aquatic flora and fauna, that help protect water quality and provide habitat, should be included in Section 1903, because their protection is a part of several Objectives in the Conservation Element of the Plan, including Objectives 6.7, 6.8, 6.9, 6.14, 6.15, 6.16, 6.17, 6.19, 6.20, 6.21, and 6.22.
Petitioners argue that nothing in the statutes or rules restrict the County from adopting LDRs that go beyond the specific language of the Plan, provided the additional language is consistent with and further the objectives of the Plan. Petitioners point to the addition of the language relating to shellfish beds as an example of acceptably expanding the list of significant natural resources contained in Policy 6.2.1.
Petitioners are correct in noting that the County could, further, expand the list of significant natural resources in the LDRs. This is not to say, however, that the County is
required to expand the list beyond the resources listed in the Plan, and Petitioners concede that Section 1903 contains all of the resources identified in Policy 6.2.1 of the Plan.
Petitioners have failed to demonstrate that Section 1903 is inconsistent with the Plan.
Section 1904
Section 1904 sets forth the environmental standards with which all development must be designed and constructed to comply. The stated purpose of the standards is "to protect and conserve significant natural resources," a reference to the list of resources provided in Section 1903.
Petitioners contend that the expanded list of natural resources they sought to be included in Section 1903 should, also, be added to Section 1904. For the same reasons stated in Section M, supra, there is no requirement that the LDRs go beyond the Plan regarding the list of significant natural resources identified for protection.
Section 1904.4 provides setbacks for development adjacent to any water body. All principal and accessory structures must be located no closer than 30 feet from the mean high water or ordinary high water line or within 30 feet of any Department of Environmental Protection jurisdictional line, whichever is more restrictive. Natural vegetation is to be preserved within the setback area. The stated purpose of the
setback is to "provide a buffer between surface waters and development, preserve quality, limit sediment discharges, erosion, and uncontrolled stormwater discharges, and provide wildlife habitat."
Petitioners allege that the 30-foot setback is insufficient to accomplish the stated purpose, because subsurface impacts can extend well beyond a 30-foot setback. Dr. Bacchus testified as to the extensive scientific documentation that coastal areas are eroding. This natural erosion, coupled with the rise in sea levels caused by global warming, means that a 30-foot setback, even if it were scientifically based at the time it was adopted, would no longer have a valid basis. The situation will be exacerbated by the continued increase in Bay County's population, meaning that more and more water will be withdrawn causing the land mass to compress and collapse. The sea level encroachment will, thus, be far greater than the sea level rise alone would predict.
The County notes that the setback language of Section 1904.4 is substantively identical to Policy 6.7.4.6 of the Plan, which applies to Ecosystem Management Areas, areas where "extraordinary regulatory standards may be applied to protect natural resources." Though not all surface waters are necessarily included in the Ecosystem Management Area
designation, Section 1904.4 provides the same buffer they would enjoy were they so designated.
Petitioners point to no specific Plan provision with which Section 1904 conflicts. Dr. Bacchus credibly testified that a larger buffer area would provide greater protection to the surface waters encroached upon by adjacent development. However, the standard in this proceeding is not whether the LDRs could be improved upon, but whether they are inconsistent with the Plan. Petitioners failed to demonstrate that Section 1904 is inconsistent with the Plan.
Section 1905
Section 1905 sets forth a list of development restrictions for those areas designated Ecosystem Management Areas by Policy 6.7.3: "Undeveloped, unplatted land in the Rural or Suburban Service Areas adjacent to Class II waters and Outstanding Florida waters, tributaries and headwaters thereto."
Policy 6.7.4.5 of the Plan provides: "Development will be undertaken so as to avoid activities that would destroy wetlands or the natural functions of wetlands." Section 1905.4 of the LDRs provides: "Development will be undertaken so as to avoid activities that would destroy wetlands or the natural functions of wetlands except for activities or permits issued by state and federal agencies."
Petitioners contend that Section 1905.4 is inconsistent with Policy 6.7.4.5, because it includes the quoted phrase deferring local jurisdiction to permits issued by state and federal authorities. This is the same argument raised by Petitioners regarding Section 707. See Section I, supra. Petitioners, also, contend that Section 1905.5, providing the same 30-foot setback as discussed in relation to Section 1904, is inadequate for the same reasons discussed in Section N, supra.
Petitioners' chief concern is the protection of wetlands, and they argue with some force and no little persuasiveness that state and federal agencies do not adequately enforce wetlands regulations. However, it is not within the authority of this tribunal to substitute its judgment for the County's legislative determination to defer to the permitting authority of state and federal agencies. For the same reasons given in Sections I and N of this Order, Petitioners have failed to demonstrate that Section 1905 is inconsistent with the Plan.
Section 1906
Section 1906 sets forth development restrictions in the Deer Point Reservoir Protection Zone, established to protect the water quality of the Deer Point Reservoir at or above the ambient levels at the time the County adopted Ordinance 94-12, which established the boundaries of the protection zone and
provided standards for land uses in order to protect the water quality of the reservoir.
The Deer Point Lake Reservoir is a Class I water that was created in 1961 through the construction of a dam across the northern portion of North Bay, and is the primary source of drinking water for most of the municipalities in the County.
Petitioners complain that Section 1906.5 allows on- site sewage disposal systems within the Deer Point Reservoir Protection Zone, provided that the minimum setback for septic tanks and their drainfields is 100 feet from the mean high water or ordinary high water line. Dr. Bacchus credibly testified that allowing septic tanks to proliferate in the Deer Point Lake watershed will cause the water to become extremely eutrophic, due to the leaching of nutrients through the shallow surficial aquifer. There will be problems with aggressive alien species and fish kills, causing the recreational benefits of the area to plummet.13
Again, even if Dr. Bacchus' expert testimony is fully credited, it does not resolve the question whether Section 1906 is inconsistent with the Plan. Policy 6.6.1.5 of the Plan expressly provides that septic tanks are allowed near Class I waters, provided they are no closer than 100 feet from the shoreline. Policy 6.7.4.4 of the Plan provides that, in the Ecosystem Management Areas, septic tanks must be located at
least 100 feet upland of the mean high water line, ordinary high water line, or DEP wetland jurisdiction line. Petitioners have failed to demonstrate that Section 1906 is inconsistent with the Plan.
Section 1909
Section 1909 sets forth restrictions, constraints and requirements on development activities in wetlands. Petitioners argue nine points of alleged inconsistency. First, Petitioners contend that Section 1909's defining "wetlands" by reference to Florida Administrative Code Rule 62-340.200(19) is inconsistent with the Plan, because the Plan covers both jurisdictional and isolated wetlands. The cited rule provides:
"Wetlands," as defined in subsection 373.019(25), F.S., means those areas that are inundated or saturated by surface water or ground water at a frequency and a duration sufficient to support, and under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soils. Soils present in wetlands generally are classified as hydric or alluvial, or possess characteristics that are associated with reducing soil conditions. The prevalent vegetation in wetlands generally consists of facultative or obligate hydrophytic macrophytes that are typically adapted to areas having soil conditions described above. These species, due to morphological, physiological, or reproductive adaptations, have the ability to grow, reproduce or persist in aquatic environments or anaerobic soil conditions. Florida wetlands generally include swamps, marshes, bayheads, bogs, cypress domes and strands, sloughs, wet
prairies, riverine swamps and marshes, hydric seepage slopes, tidal marshes, mangrove swamps and other similar areas. Florida wetlands generally do not include longleaf or slash pine flatwoods with an understory dominated by saw palmetto.
The rule's definition is virtually identical to that contained in Subsection 373.019(25), Florida Statutes. See footnote 10, supra. As noted in Section I, supra, Policy 6.11.1 of the Plan adopts by reference the definition of "wetlands" set forth in Subsection 373.019(25), Florida Statutes. For the reasons set forth in Section I, supra, Petitioners have failed to demonstrate that the intent of the Plan was to include any wetlands other than the jurisdictional wetlands defined by statute and the Department of Environmental Protection's rule.
Petitioner's second point is that Section 1909.2 contains the same exception to the general avoidance of development impacts on wetlands as found in Sections 707.5 and 1905.4: "except for activities authorized by permits issued by federal or state authorities." For the reasons set forth in Sections I and O, supra, this language has not been shown to be inconsistent with the Plan.
Petitioner's third point is that Section 1909.3 provides the same 30-foot wetland buffer set forth in Section 1904.4. For the reasons set forth in Section N, supra, the 30- foot buffer has not been shown to be inconsistent with the Plan.
Petitioner's fourth point is that the last sentence of Section 1909.3.e is inconsistent with the Plan. This sentence states: "A variance may be granted to allow an accessory use to violate the setback requirement, but by no more than twenty (20) percent."14 Petitioners allege that this language is inconsistent with Objectives 6.11 and 6.18 and their implementing Policies, as well as Policy 6.7.4, because the Plan's provisions contain no express exemption that allows accessory structures to be placed in the wetland buffer. Petitioners, further, contend that the Section 1909.3.e provides no guidelines to ensure that a requested variance is only for a use required to provide the owner with a reasonable use of the property. Petitioners note that "accessory uses" listed in the Plan and LDRs include guesthouses, swimming pools, storage sheds/greenhouses, satellite dishes, jet ski rentals, beverage or food shops, and parking garages.
Objective 1.8 in the Administrative Prccedures Element of the Plan is intended to "provide avenues of hardship relief from those aspects of the Plan that have the effect of regulating the use of land, consistent with the provisions of Chapter 163, Florida Statutes." Policy 1.8.1.1 describes the County's variance process, the purpose of which is described as follows:
The Plan variance process is designed to provide relief from the requirements of the Comprehensive Plan in those cases where strict application of these requirements could result in an unconstitutional taking or unnecessary hardship prohibiting the use of land in a manner otherwise allowed under this Plan.
Policy 1.8.1.1 sets forth nine standards with which an applicant must demonstrate compliance. The ninth standard requires the applicant to prove that the property "cannot be put to a reasonable use which fully complies with the requirements of this Plan unless the variance is granted." This limitation obviates Petitioner's concerns about the potential for granting variances for frivolous accessory uses. The fact that a requested accesory use must go through the variance process set forth in Policy 1.8.1.1 and elaborated in Section 208 of the LDRs ensures consistency.15
Petitioner's fifth point is that Section 1909.3.g is inconsistent with Objective 6.11 and Policies 6.7.4 and 6.18.2. Section 1909.3.g provides: "In situations where the width of the buffer area exceeds the width of the wetland, the buffer may be reduced to the same size as the width of the wetland. The quality of the wetland will determine this possibility." This subsection addresses situations in which the 30-foot buffer is wider than the wetland itself. Mr. Kampert testified that he was unaware that this situation had ever occurred in the County.
Dr. Bacchus testified that she was unaware of any proven correlation between the width of the buffer and the width of the wetland in terms of protecting the wetland. She was unaware of any studies, research or other scientific documentation supporting the language regarding buffer reduction, and did not believe it would be possible to state a scientific basis for reducing the buffer to the width of the wetland.
Policy 6.7.4.6 of the Plan states that the wetland buffer requirement, "including possible alternatives, may be further addressed in the Land Use Code."16 Allowing the width of the buffer to equal the width of the wetland when the wetland is less than 30 feet wide is an "alternative" that is not inconsistent with any specific provision of the Plan. The County is not required to demonstrate the scientific basis for the LDR.
Petitioner's sixth point regards Section 1909.3.h, which provides:
Alternative project design and construction may be allowed in lieu of the required buffer when it can be demonstrated that such alternative method provides protection to the wetland or its habitat value that is equal to or greater than the vegetated buffer.
Petitioners contend that this provision is inconsistent with Objective 6.11 and Policies 6.11.3.2 and
6.7.4.5. Both policies state that development will be undertaken so as to avoid activities that would destroy wetlands or their natural functions.
The County points again to the "possible alternatives" to wetland buffers contemplated by Policy 6.7.4.6 of the Plan, and argues that alternative project design and construction within the parameters outlined in Section 1909.3.h must certainly be considered a reasonable alternative within the meaning of Policy 6.7.4.6. The County, further, notes that any impact of alternative project design would be minimal, because Section 1909 does not apply to wetlands in conservation zones or Ecosystem Management Areas, which contain most of the large wetland systems in the County. These areas have their own sections of the LDRs. See Section 707 (special regulations applicable to conservation zones) and Section 1905 (development restrictions for Ecosystem Management Areas).
Petitioner's seventh objection regards Section 1909.5, which provides:
In the event a lot or parcel of property is rendered totally undevelopable by avoidance of wetlands the property may be developed when: 1) disturbance of wetlands is the minimum necessary to build an allowable use, and 2) mitigation is provided consistent with applicable law.
Petitioners contend that Section 1909.5 is inconsistent with Objective 6.18 and with Plan provisions
calling for the protection of wetlands and their natural functions. Petitioners argue that Objective 6.18 establishes the conditions for development of property that is rendered totally undevelopable, because of environmental restrictions such as wetlands avoidance. Section 1909.5 provides for an "allowable use," seemingly a more lenient standard than the "beneficial use" standard of Objective 6.18. Petitioners note that an "allowable use" would appear to be any use listed in the zoning criteria for a particular parcel, which would likely be more intensive than a "beneficial use" under the standard provided by Objective 6.18.
In response, the County simply points out that the language of Section 1909.5 is taken verbatim from Policy
6.11.3.5 of the Plan and, therefore, is not inconsistent with the Plan.
Petitioner's eighth point regards Section 1909.6, which provides:
In order to adequately monitor the loss of wetlands within Bay County, all fill permits granted by an agency other than Bay County shall be reported to Bay County Planning and Zoning Division. This notification is the responsibility of the applicant, and shall be concurrent with the application for development order, where applicable. Before the issuance of the Development Order, the applicant shall file a verified copy of the permit(s).
Petitioners first complain that Section 1909.6 deviates from the intent of the Plan by limiting data gathering to jurisdictional wetlands, a variation of the argument already disposed of in Section I, supra. Petitioners, further, argue that Section 1909.6 is insufficient, because it leaves permit reporting to the applicant and provide no enforcement provisions. The standard in this proceeding is not whether the LDR falls short of Petitioner's desires and expectations, but whether it is inconsistent with the Plan. Petitioners have shown no inconsistency in Section 1909.6
Petitioner's ninth point regards Section 1909.7, which provides:
Violations of this section, or noncompliance cases, may be required to implement appropriate corrective measures developed in consultation with the Planning Official and other appropriate agencies. In addition, triple application fees may apply, such as development order application fees, if this section is violated.
Petitioners contend that this provision is inconsistent with the Plan's protection of natural resources, because the penalties are not mandatory, and in any event are not severe enough to deter intentional destruction of wetlands. However, Petitioners point to no particular Goal, Objective, or Policy of the Plan that sets forth enforcement criteria for the wetlands provisions. Again, Petitioners here urge the
imposition of their policy preference on the County, rather than demonstrate that Section 1909.7 is inconsistent with the Plan.
In summary, Petitioners have failed to demonstrate that Section 1909 is inconsistent with the Plan.
Section 1911
Objective 6.16 of the Plan is to "[p]rotect and conserve selected trees and important vegetative communities." Policy 6.16.1 provides that the County will maintain tree protection regulations as part of the LDRs, and that these regulations will include criteria for: the type and size of protected trees; exemptions; conditions for tree removal; replacement of removed trees; protection of trees during development; and preservation of certain large trees.
In furtherance of Objective 6.16, the County adopted Section 1911, which provides lengthy and detailed provisions for tree protection and allowable removal of "protected" trees, defined as any hardwood tree or coniferous tree other than pine with a diameter at breast height of 18 inches or more.
Section 1911.5 establishes standards for "historic," "specimen," "champion," and "heritage" trees. Petitioners claim that Section 1911.5 is inadequate, because it fails to establish how these trees are to be identified in order to qualify for protection.
Section 1911.5 in fact states that historic and specimen trees are to be designated as such by the County Commission, after a public hearing on the designation "with due notice to the owner of the tree." Thus, it appears that any member of the public, not just the landowner, may bring a tree to the County's attention.
A champion tree is one that has been designated by the Florida Division of Forestry as the largest of that species in the State of Florida or by American Forests (a nonprofit conservation organization that has maintained the "National Register of Big Trees" since 1940) as being the largest of that species in the United States. Anyone is eligible to nominate a tree as a "champion" tree.
A heritage tree is defined as any tree with a diameter of at least 30 inches. Section 1911.5 does not include any means for official recognition of a heritage tree, though it is noted that a heritage tree would, also, meet the definition of a "protected" tree.
As noted above, Section 1805 of the LDRs sets forth the information that a developer must include with his application and site plan. Section 1805.2.b sets forth the environmental information that must be included on the site plan. Section 1805.2.b.vi requires the inclusion of the "location and size of all protected trees."
The County concedes that the LDR includes no procedure for the County itself to go out into the field and identify qualifying trees. Objective 6.16 does not require the County to proactively identify qualifying trees. Petitioners have failed to demonstrate that Section 1911 is inconsistent with the Plan.
Section 2710
Section 2710 regulates the location and construction of communications towers. Section 2710.3 provides the following location standards for a "communications tower," defined as a structure greater than 35 feet in height that is designed to support communications transmission or receiving equipment:
Except as provided in subsection 2,17 the following standards and criteria shall apply to the location of new or expanded communications towers:
Communications towers may be allowed in all land use districts or zones when all of the following standards and criteria are met.
The applicant shall make every effort to locate his communications tower in a non-residential land use district or zone.
No other industrial or commerically zoned property is available to the applicant for this intended use.
The proposed location will minimize the impact of the antenna structure due to the height, use or appearance of the adjacent structures or surrounding area.
There are no existing building structures located within the area that are available to the applicant for this intended purpose.
No other existing antenna structure located within the area is available for purposes of co-location.
The antenna structure and its proposed height is the minimum necessary by the applicant to satisfy the applicant's communication system needs at this location.
The applicant must provide a written, notarized statement to the Planning Division demonstrating compliance with (i)
through (vi). Requests to locate communications towers in residential districts or zones can only be approved by the Planning Commission at a duly noticed public hearing by comptetent substantial evidence demonstrating compliance with (a) through (h) above18 and all other applicable provisions of this Chapter [27, dealing with guidelines and standards for the design, installation, construction and maintenance of utility facilities].
Petitioners allege that allowing communications towers in all land use districts or zones is inconsistent with Objectives 3.9, 8.5 and 8.9 and Policies 3.9.1 and 8.5.1 of the Plan, because communications towers are not compatible with and should not be placed in residential areas.
The Plan lists public utilities as an allowable use in all FLUE categories, including the Conservation and Residential categories. The Plan does not define "public utility." The LDRs define a "public utility" as "[a] regulated
utility provider with a franchise for providing to the public a utility service deemed necessary for the public health, safety, and welfare." The LDRs define "utility, public or private" as
(1) Any agency that, under public franchise or ownership, or under certificate of convenience and necessity, or by grant of authority by a governmental agency, provides the public with electricity, gas, heat, steam, communication, transportation, water, sewage collection, or other similar service; (2) a closely regulated enterprise with a franchise for providing a needed service.
Based on the above definitions, which Petitioners have not challenged, the County has reasonably concluded that telecommunications providers are public utilities and that their telecommunications towers may, therefore, be placed in residential areas, subject to the conditions set forth in Section 2710.3
Section 2710.3.a.i requires the applicant to make every effort to avoid locating a comunications tower in a residential area. Section 2710.3.a.ii requires the applicant to demonstrate the unavailability of any industrial or commercially zoned property for the tower. Section 2710.3 requires the five- member Planning Commission, the appointed local planning agency for the County pursuant to Section 163.3174, Florida Statutes,19 to approve all requests to locate communications towers in residential areas at a public hearing in which the applicant
demonstrates compliance with the listed criteria. These are consistent, reasonable requirements for the placement of a public utility. Petitioners have failed to demonstrate that Section 2710 is inconsistent with the Plan.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Sections 120.569, 163.3213, and Subsection 120.57(1), Florida Statutes.
Where the Department has found an LDR to be consistent with the local comprehensive plan, the parties shall be "the petitioning, substantially affected person, any intervenor, the state land planning agency, and the local government." § 163.3213(5)(a), Fla. Stat.
Subsection 163.3213(3), Florida Statutes, provides that "a substantially affected person, within 12 months after final adoption of a land development regulation, may challenge a land development regulation on the basis that it is inconsistent with the local government comprehensive plan." Ordinance
No. 04-30 was adopted on September 21, 2004, and the Petition was filed on September 20, 2005.
The parties do not dispute that Petitioners' challenges were timely filed and that Petitioners Hammond and
Hicks are substantially affected persons and have standing to challenge the LDRs.
"The adoption of a land development regulation by a local government is legislative in nature and shall not be found to be inconsistent with the local plan if it is fairly debatable that it is consistent with the plan." § 163.3213(5)(a), Fla. Stat. This means that "if reasonable persons could differ as to its propriety," an LDR must be upheld. Martin County v. Yusem, 690 So. 2d 1288, 1295 (Fla. 1997). See also Martin County v. Section 28 Partnership, Ltd., 772 So. 2d 616, 621 (Fla. 4th DCA 2000)(where there is "evidence in support of both sides of a comprehensive amendment, it is difficult to determine that the County's decision is anything, but 'fairly debatable.'"). Petitioners have the burden of establishing beyond fair debate that the challenged LDRs are not consistent with the Plan.
Florida Administrative Code Rule 9J-5.023, also, prescribes certain criteria for determining consistency of LDRs with the comprehensive plan. The rule provides as follows:
A determination of consistency of a land development regulation with the comprehensive plan will be based upon the following:
Characteristics of land use and development allowed by the regulation in comparison to the land use and development proposed in the comprehensive plan. Factors which will be considered include:
Type of land use;
Intensity and density of land use;
Location of land use;
Extent of land use; and
Other aspects of development, including impact on natural resources.
Whether the land development regulations are compatible with the comprehensive plan, further the comprehensive plan, and implement the comprehensive plan. The term "compatible" means that the land development regulations are not in conflict with the comprehensive plan. The term "further" means that the land development regulations take action in the direction of realizing goals or policies of the comprehensive plan.
Whether the land development regulations include provisions that implement objectives and policies of the comprehensive plan that require implementing regulations in order to be realized, including provisions implementing the requirement that public facilities and services needed to support development shall be available concurrent with the impacts of such development.
The Findings of Fact in this case were based on the above standards. Petitioners failed to demonstrate that any of the challenged LDRs were inconsistent with the Plan.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
ORDERED that:
The challenged land development regulations adopted by Bay County Ordinance No. 04-30 are determined to be in compliance.
DONE AND ORDERED this 24th day of May, 2007, in Tallahassee, Leon County, Florida.
S
LAWRENCE P. STEVENSON
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2007.
ENDNOTES
1/ Unless otherwise noted, all references to the Florida Statutes are to the 2006 edition. As of the date of the hearing in this matter, Section 163.3213 had not been amended since 1996.
2/ The five LDRs that the Department found inconsistent with the Plan were the subject of West Beaches Neighborhood Defense Fund, Inc., Diane C. Brown, Brenda Harrison, Cornelia F. Hammond, and Estelle M. Hicks v. Bay County and Department of Community Affairs, Case No. 06-1042GM. The case was settled short of a formal hearing, and an order closing the file of that case was entered on January 19, 2007.
3/ The County alleged that West Beaches Neighborhood Defense Fund, Inc., was subject to the control of Ms. Brown and was, therefore, precluded from participating in any litigation barred to Ms. Brown.
4/ The Plan and the LDRs often refer to the latter as the "Land Use Code" or simply the "Code."
5/ In the Petition and in all their submissions, the parties have referred to the bulk regulations as "Section 409." Section
409 actually governs "R-5A Multi-Family Light Zones." Section
410 includes Table 4.1, the Residential Zoning Bulk Regulations, which are the subject of Petitioner's objections.
6/ In the Petition and in all their submissions, the parties have referred to the bulk regulations as "Section 505." Section
505 actually governs "SR-2 Seasonal/Resort Commercial." Section
506 includes Table 5.1, the Seasonal/Resort Bulk Regulations, which are the subject of Petitioner's objections.
7/ In fact, Section 703.1.a allows only such public utilities and infrastructure as are "necessary to support conservation preservation uses."
8/ At the hearing, Mr. Kampert mistakenly testified that the Plan allowed communications towers in the Conservation Habitation Zone, because the federal Telecommunications Act of 1996 preempted local regulation of cell phone towers.
(Mr. Kampert did not work for the County during the Plan's adoption process.) Other evidence established that the County had operated under no such misconception. Under the Telecommunications Act of 1996, state and local governments retain zoning authority over the placement of communications towers, provided that their decisions regarding placement are not discriminatory, take place within a reasonable time after a request for authorization has been made, and are substantiated by a written record. Adversely affected persons may commence an action in any court of competent jurisdiction. 47 U.S.C. s.
332(c)(7).
9/ Policy 6.18.2.5 provides: "Resource preservation may be through common open space, fee simple transfer, conservation easement, or other similar means." (Emphasis added). The underscored language at least arguably supports the concept of density transfers as a means of resource preservation. Policy
6.18.6 allows the County to create a Transfer of Development Rights bank for parcels that it may acquire on Shell Island. This is a further indication that the Plan is not hostile to the concept of density transfers.
10/ The text of Policy 6.11.1 actually references Section 373.016(17), a provision that does not exist. At the time the Plan was adopted, the definition of "wetlands" was found in Subsection 373.019(22), Florida Statutes (1997). The subsection
was renumbered by s.1 of 2005-291, Laws of Florida, but its substance was unchanged. The definition provides as follows:
For the sole purpose of serving as the basis for the unified statewide methodology adopted pursuant to s. 373.421(1), as amended, "wetlands" means those areas that are inundated or saturated by surface water.
11/ Petitioners argue that Objective 6.18 indicates an intent to protect wetlands and their functions and to permit their destruction only where the property owner would otherwise be deprived of all beneficial use of his property. Petitioners are here attempting to bootstrap their preferred notion of "environmental restrictions" into the text of Objective 6.18, which in fact offers no express definition of the environmental restrictions that cause the loss of development potential.
12/ Table 3A does include "dwelling units per acre" limits in the Residential, Agriculture, Rural Residential, and Seasonal Resort categories, which could arguably be analogized to a "minimum lot area" standard. Otherwise, Table 3A is silent as to minimum lot areas.
13/ Dr. Bacchus went on to state that, bad as septic tanks are as a cause of the degradation of coastal waters, central sewer and water systems create even larger problems with respect to water quality and the destruction of inland resources such as wetlands. Septic systems use relatively little water, whereas central sewage systems use a great deal of water, which causes more contamination. Dr. Bacchus opined that Florida's waters and natural habitats are not capable of absorbing the nutrient loads from centralized systems, and recommended waterless composting toilets as a realistic alternative to both septic systems and central sewer systems.
14/ The preceding text of Section 1909.3.e deals exclusively with encroachment into the buffer areas for utility construction purposes, which led the undersigned to question whether the quoted language was meant to deal exclusively with accessory uses to utility construction. The County's planner,
Mr. Kampert, testified that the last sentence of Section 1909.3.e is intended to apply to all accessory uses. His testimony is credited as the County's interpretation of its own LDR, to which the undersigned defers.
15/ It should be noted that Petitioner's own planning expert, Mr. Russ, opined that Section 1909.3.e was not inconsistent with the Plan.
16/ By its terms, Policy 6.7.4.6 of the Plan applies only to designated Ecosystem Management Areas. However, Policy 6.11.3.3 provides that the setback requirements of Policy 6.7.4 will be required for development in any jurisdictional wetland after the effective date of the Plan.
17/ Section 1910.2 exempts towers lawfully permitted before July 23, 1996, towers used for governmental purposes, towers used by amateur radio operators, and "towers otherwise governed by applicable federal or state laws or regulations."
18/ The reference to "(a) through (h)" is plainly a typographical error. It is presumed that the reference is intended to state "(i) through (vi)."
19/ Sections 202 and 203 of the LDRs set forth the duties, responsibilities and membership criteria of the Planning Commission.
COPIES FURNISHED:
Terrell K. Arline, Esquire 3205 Brentwood Way
Tallahassee, Florida 32309
Diane C. Brown
241 Twin Lakes Drive
Laguna Beach, Florida 32413
Kelly A. Martinson, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
Thomas Pelham, Secretary Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 100
Tallahassee, Florida 32399-2100
Shaw Stiller, General Counsel Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 325
Tallahassee, Florida 32399-2100
NOTICE OF RIGHT TO JUDICIAL REVIEW
A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of appeal with the Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
| Issue Date | Document | Summary |
|---|---|---|
| May 24, 2007 | DOAH Final Order | Petitioners failed to demonstrate beyond fair debate that the challenged land development regulations are inconsistent with the County`s comprehensive plan. |
