7 STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF COMMUNITY AFFAIRS ) and SOUTHWEST FLORIDA REGIONAL )
PLANNING COUNCIL, )
)
Petitioner, )
and ) CASE NO. 75-1237
) SARASOTA COUNTY, ENGLEWOOD WATER ) DISTRICT, and ENGLEWOOD COMMUNITY ) ORGANIZATIONS, )
)
Intervenors, )
)
vs. )
) GENERAL DEVELOPMENT CORPORATION, )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for hearing before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on February 25, 1980. The hearing recessed on March 5, 1980, resumed on June 23, 1980, and concluded on June 27, 1980. The transcript of the final hearing was filed on September 25, 1980. With the exception of the Englewood Community Organizations (ECO), the parties stipulated to a series of extensions of time for filing posthearing submissions, which were in fact filed on December 3 and 4, 1980, and to an extension of time for entry of the recommended order until January 5, 1981. GDC's reply brief was filed on December 29, 1980.
ECO was not represented by counsel, but Mr. John W. Field was present on behalf of ECO for most of the proceedings and Mr. C. G. Chambers, who spoke on behalf of ECO at the conclusion of the hearing, was present for much of the remainder. All other parties were represented by counsel:
C. Laurence Keesey, Esquire Room 204, Carlton Building Tallahassee, Florida 32301
For Department of Community Affairs,
David E. Bruner, Esquire 966 North Collier Boulevard Marco Island, Florida 33937
For Southwest Florida Regional Planning Council,
Richard E. Nelson, Esquire and Richard L. Smith, Esquire
2070 Ringling Boulevard
Sarasota, Florida 33578 For Sarasota County
Robert A. Dickinson, Esquire
70 South Indiana Avenue Englewood, Florida 33533
For Englewood Water District
Parker D. Thomson, Esquire Kenneth W. Lipman, Esquire and Douglas M. Halsey, Esquire 1300 Southeast First National
Bank Building Miami, Florida 33131
Wayne L. Allen, Esquire 1111 South Bayshore Drive Miami, Florida 33131
For General Development Corporation.
Early on in the proceedings, Allen J. Levin, Esquire, appeared on behalf of the City of North Port. At the final hearing, he took the position that North Port "should not be compelled to participate as a lower tribunal, appealed to a higher tribunal," (T. 24), and the City of North Port has not participated as a party since.
On or about December 20, 1974, after an earlier application had been withdrawn, General Development Corporation (GDC) filed an application for development approval (ADA) with the City of North Port (North Port) seeking approval to develop Units 5, 6, and 7 of Myakka estates (Phase I). The ADA, GDC Exhibit No. 15, eventuated in a Development Order issued by North Port on June 26, 1975, GDC Exhibit No. 26, from which petitioners Southwest Florida Regional Planning Council (SWFRPC) and the Division of State Planning, to whose function the Department of Community Affairs (DCA) has succeeded, appealed to the Florida Land and Water Adjudicatory Commission (FLWAC), pursuant to Section 380.07(2), Florida Statutes (1979). The FLWAC referred the matter to the Division of Administrative Hearings for "a hearing pursuant to the provisions of Chapter 120." Section 380.07(3), Florida Statutes (1979). Thereafter, Sarasota County (County), Englewood Water District (EWD), and ECO intervened on the side of petitioners.
In February of 1976, GDC sought interlocutory review in the District Court of Appeal, First District, of certain prehearing rulings by the original hearing officer. General Development Corporation v. Florida Land and Water Adjudicatory Commission, 368 So.2d 1323 (Fla. 1st DCA 1979). Administrative proceedings were stayed pending appellate disposition, and proceedings in the District Court of Appeal were themselves interrupted by an unsuccessful challenge in the Supreme Court to the District Court's jurisdiction. State ex rel. Sarasota County v.
Boyer, 360 So.2d 388 (Fla. 1978).
Before GDC filed the ADA which gave rise to the present case, GDC had filed, on or about May 13, 1974, an application for development approval covering "the Master Plan for Myakka Estates." GDC Exhibit No. 1 (Master ADA).
The Master ADA eventuated in a Development Order entered by the City on September 9, 1974, Resolution No. 74R-11. GDC Exhibit No. 11 (Master Development Order). Sarasota County's attempt to appeal the Master Development Order proved unavailing, Sarasota County v. General Development Corporation, 325 So.2d 45 (Fla. 2d DCA 1976), and the Master Development Order remains undisturbed. The Master Development Order covers all of Myakka Estates, including Phase I.
With respect to another portion of the area covered by the Master Development Order, viz, Units 1 through 4 of Myakka Estates, the Division of State Planning determined that GDC's "rights have vested pursuant to Section 380.06(12), Florida Statutes." GDC Exhibit No. 10. This determination of vested rights is not at issue in these proceedings.
ISSUES PRESENTED
The question in this case is whether GDC should be authorized to go forward with development of some 2,000 acres, a portion of the Myakka Estates project it has planned for North Port in south Sarasota County, and, if so, on what terms.
In the prehearing order dated February 8, 1980, the legal issue was stated broadly as "whether the proposed development [Phase I] comports with the standards of Chapter 380, Florida Statues (1979), as set forth in Section 380.06(8) and (11), Florida Statutes (1979) [now 380.06(11) and (13), Florida Statues (Supp. 1980)]." An important question is what legal effect the Master Development Order should be given in the present case.
In the same prehearing order, factual issues were stated to include whether the "location . . . [and] approval of the proposed land sales development is consistent with the report and recommendation of the SWFRPC in light of the State, County, and North Port comprehensive plans"; whether "the proposed development will, individually and in combination with approved development, overburden the public school system . . . . overburden the public roads . . . [or] create a negative economic impact upon county and municipal governments"; and whether "GDC has provided for sufficient potable water."
FINDINGS OF FACT
GDC proposes to develop 8,135 acres in North Port in Sarasota County, just north of the Charlotte County line, as a new community, to be called Myakka Estates. Phase I, the group of three units slated for development next after the "vested portion" of the project, is designed to occupy a 2,016.56-acre tract within the larger parcel, west of and well upland from the Myakka River, and approximately four miles inland from the Gulf of Mexico.
PRESENT CONDITION OF LAND
The highest elevation on Phase I is 13 feet above mean sea level. About three quarters of Phase I is covered with slash pine, southern pine, and saw palmetto. Pasture lands, about seven percent of the Phase I tract, are covered with grasses, sedges, other herbaceous plants, and only occasional trees. Freshwater marsh ponds and other marshy areas are distributed more or less evenly over the property in a karstic gestalt, except that an uninterrupted stretch of marsh along the western boundary marks the eastern edge of the northern reaches of Ainger Creek, which further downstream flows across the southwest tip of the property. in the wet areas, limnophilous vegetation, including sportios bakeri, cyperus spp., cladium mariscoides, rhychospora ap.,
hypericum aspalathoides, xyris iridefolia, eriocaulon decangulare, eleocharis equistoides, pontederia cordota, bacopa caroliniana, and hydrocotyle umbellata, predominates.
Opossums, eastern moles, raccoons, otters, and bobcats have been spotted on the Phase I property. Among other mammals whose range includes the Phase I property are shrews, bats, black bear, longtail weasel, mink, Florida panther (Burt and Grossenheider) skunks, gray fox, mountain lion, squirrels, southeastern pocket gophers, rats, mice, rabbits, whitetail deer, and armadillo. People have seen eastern rattlesnakes, pygmy rattlesnakes, water moccasins, eastern garter snakes, yellow rat snakes, anolis carolinensis (a lizard), snapping turtles, common musk turtles, box turtles, gopher tortoises, spiny softshell turtles, bull frogs, leopard frogs, cricket frogs, green tree frogs, and American toads on the Phase I property. There is reason to believe that numerous other snakes, frogs and lizards inhabit the property.
On high ground in the Phase I property, people have seen turkey vultures, black vultures, red-tailed hawks, red-shouldered hawks, kestrels, bobwhites, turkeys, mourning doves, ground doves, flickers, red-billed woodpeckers, eastern kingbirds, blue jays, Carolina wrens, mockingbirds, catbirds, robins, loggerhead shrikes, meadowlarks, red-wings, boat-tailed grackles, cardinals, Florida sandhill cranes, and bank swallows. On westland portions of Phase I, people have seen pied-billed grebes, anhingas, great blue herons, American egrets, ivory egrets, Louisiana herons, little blue herons, green herons, least bitterns, wood storks, white ibis, red-winged blackbirds, purple grackles, killdeer, southern bald eagles, and limpkins. Limpkins, wood storkes, southern bald eagles, and Florida sandhill cranes are endangered species.
Various fishes live in waters on the Phase I property, including lake chumbuckers, golden shiners, yellow bullheads, flagfish, golden topminnows, four different killifishes, mosquito fish, sailfin mollies, warmouths, bluegills, and three kinds of sunfish. The common prawn the Florida crayfish, and the neritina reclivata also inhabit one or more water bodies on the Phase I tract. Insect populations are relatively low because of the abundance of piscine insectivores.
Before GDC acquired the property, men dug ditches which connect several ponds and cause stormwater to drain through them into Ainger Creek which empties into Lemon Bay. Drainage into the ponds and connecting ditches is by sheet flow. Cow dung in the pastures is concentrated around certain ponds, where cattle drink; and may account for some of the nonhuman fecal coliform bacteria that are to be found in Lemon Bay. Part of the Phase I property drains by sheet flow into the Myakka River.
The topsoil is sandy on the Phase I tract. In the vicinity of Ainger Creek, Pompano find sand and Keri find sand predominate. These sands, Delray fine sand and Plummer fine sand, are found in most of the low-lying areas on the property. Leon fine sand covers most of the high ground. There is a strip of Immokalee fine sand along the northern border of the Phase I tract other than as pasture or for tree farming would be energy intensive. One expert proposed hydroponic cultivation.
ANNEXATION
GDC acquired the Myakka Estates property from a rancher in 1970 or 1971, then took steps to cause the parcel to be annexed by the City of North Port, within the municipal boundaries of which other substantial GDC development
was already located. The annexation took place notwithstanding the absence of any bridge or road connecting the Myakka Estates parcel to the rest of North Port. These two parts of the City of North Port touch at a corner but are not otherwise contiguous. Some 100,000 lots have been platted in North Port east of the Myakka river; over 90,000 were still vacant at the time of the hearing. At
68 square miles, North Port, with a population of five to eight thousand, is second in land area only to the consolidated City of Jacksonville, the municipality with the largest land area in the state.
LAND USE RESTRICTIONS
By ordinance of the City of North Port, the entire Myakka Estate parcel is zoned agricultural and has been at all pertinent times. On September 9, 1974, however, North Port entered the Master Development Order authorizing development of all "non-vested" portions of Myakka Estates. In consideration of the Division of State Planning's forbearance from taking an appeal of the Master Development Order to the Land and Water Adjudicatory Commission, GDC agreed to submit "supplemental Applications for Development Approval as a condition to development of specific increments of the master residential plan," GDC Exhibit No. 12, a requirement also imposed by the Master Order itself. North Port has a subdivision ordinance with which, according to the uncontroverted evidence, the proposed Phase I development is in compliance.
In June of 1979, North Port adopted a Comprehensive Development and Growth Management Plan, GDC Exhibit Nos. 23 and 91, in accordance with Section 163.3184, Florida Statutes (1979). Because of the pendency of the present proceedings, the SWFRPC and the DCA objected to inclusion of Phase I in the North Port plan. As a result of the objections, the plan makes little reference to Phase I although it notes that planning for Phase I "was conducted in conformance with present standards and was recently approved by the [North Port] Planning Commission and City Commission [apparently by adoption of the Development Order challenged in these proceedings]." GDC Exhibit No. 91, at 28. Stated as an objective of North Port's Comprehensive Development and Growth Management Plan, at p. 22, is
To encourage growth that is relatively contiguous to the existing developed area and encompasses within the 25-year period the area bounded on the north by McCarthy Boulevard and Snover Waterway, on the east by Blue Ridge Waterway, and on the south and west by the city limits. GDC
Exhibit No. 91.
Other stated objectives are to "encourage consistency with and between Florida's Growth Management and Land Development Elements" and Sarasota County's Land Use Plan. It was uncontroverted that plans by General Development Utilities to furnish water and sewer service to Phase I are in conformity with provisions of the North Port plan on those subjects.
Sarasota County has never adopted a comprehensive plan in accordance with Section 163.3184, Florida Statutes (1979), but the county does have the Land Use Plan, GDC Exhibit No. 93, referred to in the North Port plan.
The Sarasota County Land Use Plan map designates the unincorporated area adjacent to Myakka Estates as appropriate for agriculture. The county has zoned the area along South River Road (formerly State Road 777), immediately
adjacent to Myakka Estates, "QUE-1", Open Use, Estate, one dwelling unit per five acres, and the area further west "OUR", Open Use, Rural, one dwelling unit per ten acres. According to a map that is part of the Sarasota County Land Use Plan, Myakka Estates falls in the "low density residential" category, 1.1 to 4.5 units per acre. By its terms, however, this plan applies only to unincorporated areas of Sarasota County.
The portion of the Phase I property lying in the easterly half of Section 33, Township 40 South, Range 20 East is within the jurisdiction of the Englewood Water District, which was created by Chapter 59-931, Laws of Florida. At the time of the final hearing, the whole area of EWD was on septic tanks and EWD's water lines did not reach Section 33. Some 166 lots are planned for the portion of Phase I over which EWD has jurisdiction. EWD has a policy of not permitting other water systems within the area served by the district. Its current regulations containing specifications for water and sewer mains and the like were adopted on June 19, 1980.
The Florida State Comprehensive Plan, GDS Exhibit No. 92, is an internally inconsistent compilation of "goals", "objectives", and "policies". It was adopted by executive order and approved by the Florida Legislature in 1978. In their proposed recommended orders, the parties identified the following items as being in controversy:
Ensure that the expansion of public facilities for economic development is in accordance with local government comprehensive plans and the State Comprehensive Plan.
Consider the projected availability of energy when making economic development decisions.
Physical, natural, economic, and human resources should be managed and developed in ways that avoid unnecessary long-term energy- intensive investments.
Incorporate energy as a major consideration into the planning and decision-making processes of state, regional, and local governments.
Encourage land use patterns that by design, size, and location minimize long-term energy commitments to construction, operation, maintenance, and replacement.
Encourage a careful, ongoing evaluation of governmental expenditures and revenues in light of future uncertainties about energy supplies and related economic implications.
To ensure the orderly long-range social, economic, and physical growth of the state.
Identify the costs and benefits of growth to local and state governments and explore methods for allocating these costs to the citizens equitably.
Housing should be produced in a mix of types, sizes, and prices that is based on local and regional need and that is consistent with the state's growth policy.
Land use and development should proceed in
an orderly manner that produces an economically efficient and personally satisfying residential
environment with with minimal waste of our land resources.
The provision of public facilities, utilities, open space, transportation, and other services that are required to support present and projected housing and community development needs should be ensured.
Develop environmentally responsive land planning methods that reduce the stress that new develop- ments place on their communities' energy needs, water needs, sewage treatment facilities, transportation, flood control systems, and
social, and educational services, and thus reduce the overall taxes and cost of the services needed to satisfy these demands.
Consider energy implications in the review
of applications for developments having regional impact (DRI).
Land development should be managed in a manner consistent with the values and needs of the citizens of the state and with the concept of private property rights.
Agricultural lands, especially those most seriously threatened, should be maintained and preserved for the production of food and fiber products.
Influence the timing, distribution, type, density, scale, and design of development by coordinating land development proposals in state and local comprehensive plans and public investment programs in order to ensure the availability of adequate public facilities, services, and other resources.
Allocate an equitable share of the cost of expanding public facilities to the newly served residents.
Base land development decisions on quantita- tive knowledge of the short- and long-term capabilities of the hydrologic units to provide adequate supplies of water.
Coordinate land use planning and water management to ensure the long-range maintenance and enhancement of water quantity and quality.
Accommodate new development by using water from the local hydrologic basins rather than
through surface water transfer between hydrologic basins.
Protect groundwater supplies from saltwater intrusion by the regulation of withdrawals, maintenance of adequate recharge of groundwater, and prevention of saltwater movements inland through coastal canals.
Maintain groundwater levels to insure that water levels are not drawn to such a degree that sustained yield is adversely affected or that natural resource degradation takes place.
Protect groundwater supplies from saltwater
intrusion by the maintenance of a sufficient amount of groundwater in coastal aquifers to prevent intrusion through regulation of withdrawals, maintenance of adequate recharge, and sufficient controls on coastal canals.
Protect and maintain groundwater supplies and aquifer recharge areas through water- and land- management practices and, where necessary, through regulation of development activities.
Allow alteration of groundwater movements within or between aquifers only where it can be shown that such alterations are not harmful to surface and groundwater resources.
Develop minimum service standards for utility systems.
Encourage the provision and maintenance of adequate utility systems in already developed areas. In areas where utility systems are over- burdened, manage growth while remedial measures are expedited to restore utility systems to a condition of adequacy.
Encourage the effective use of utility systems, energy, land, and finite resources by evaluating and revising, if necessary, laws and regulations that may bar innovative development patterns, designs, and materials.
Although authorized to do so by statute, Section 380.06(2)(a), Florida Statutes (Supp. 1980), the Administration Commission has not adopted guidelines and standards for developments of regional impact by administrative rule.
PROPOSED DEVELOPMENT
After development, water would cover 59.41 acres of Phase I and mostly low lying "open space/green belts" would account for another 504.69 acres. An additional 143.32 acres are planned for recreational uses. Roads and utility easements would account for 398.54 acres.
GDC has agreed to construct a municipal services building in the vested portion of Myakka Estates, on a parcel across the street from Phase I.
In Phase I, GDC plans to set aside 20.06 acres for an elementary school and 6.97 acres for neighborhood retail outlets. GDC has announced its intention to donate the school site to the Sarasota County School Board. Other school sites have been set aside within Myakka Estates. A large commercial area on a major arterial road is planned for the vested portion and a golf course and other recreational facilities, as well as an industrial site, are planned for later phases of development.
Over a 33-year period, GDC plans to build 1,056 multifamily units on
92.61 acres and expects 2,859 single family detached houses to be built, by GDC and other contractors, on lots averaging approximately a quarter of an acre and aggregating 790.06 acres. The average envisioned for Phase I is 1.94 dwelling units per acre as compared to 2.33 dwelling units per acre for Myakka Estates as a whole.
In the vested portion of Myakka estates and in the contiguous area to the south GDC is developing "multiple cores". Similarly, two distinct
neighborhoods are contemplated in Phase I. GDC plans to build multifamily housing complexes in the neighborhood "cores" to be surrounded by single family detached houses, with vacant lots in between these neighborhood centers.
GDC hopes to sell 1,927 unimproved lots in Phase I on an installment basis. Typically the purchaser would undertake to make installment payments over a ten-year period and GDC would agree to construct central water and sewer distribution systems and to pave access roads by the end of the period. A purchaser would be permitted to make prepayment but GDC would only be obligated to convey the lot at the end of the agreed term. GDC plans it so that installment payments will provide GDC enough money to install water and sewer systems and pave roads before GDC is obligated to convey the improved lots. All expenses of hocking up to the water or sewer system, including extending mains, where necessary, are to be borne by the purchaser. the purchaser must secure a building permit before GDC becomes obligated to furnish water. In the event GDC is unable to perform, however, the contract requires the purchaser to choose between accepting a refund of the purchase price and exchanging the lot for another lot. Under certain circumstances the lot owner is allowed a credit against purchase of a home from GDC in addition to the equity in the lot. In 1979, three quarters of the houses GDC sold were sold to lot owners who exercised their option to exchange the equity in houses in a core area, and 99 percent of the houses GDC sold in North Port were located in "core areas".
At the time of the hearing, there were already hundreds of thousands of unimproved lots in Lee, Charlotte, and south Sarasota Counties and hundreds of miles of little used roads providing access to the lots.
AIR POLLUTION
The uncontroverted evidence was that air pollution anticipated as a result of the proposed development, chiefly from automobile exhaust, would not violate state or federal air quality standards.
STORMWATER
The planned stormwater drainage system has been designed to retain one inch of runoff before discharge from the Phase I property and to prevent flooding of the portions of the property slated for development during storms of up to 25 years return frequency and 24-hour duration. Stormwater in the Ainger Creek watershed will drain from roads and lawns into front- and sideyard swales, to broader, shallow, grassy collector swales, through a series of shallow ponds (with a maximum depth of six feet) equipped with control structures and into Ainger Creek in which GDC has already constructed a weir with a flap gate. Some stormwater will percolate through the sandy soils into the groundwater and, except under the most extreme conditions, groundwater will reach Ainger Creek only after most pollutants have been precipitated or filtered out biologically. Water in the Myakka River watershed will reach the river by sheet flow which, depending on conditions, will also be diminished by percolation and purified by precipitation and biological filtration.
Under extremely wet conditions, water entering the Myakka River and Lemon Bay from Ainger Creek will contain pollutants normally associated with residential development, mostly high concentrations of nutrients and small concentrations of heavy metals. GDC's employee's testimony that water entering Lemon Bay will be of a higher quality after development than at present, although uncontroverted, is rejected as incredible, although it could conceivably hold true under mild meteorological conditions.
Ainger Creek's flood plain extends east from the thalweg some distance into the Phase I property. See GDC Exhibit Nos. 69, 70, 71, and 72. On preliminary flood insurance rate maps, the United States Department of Housing and Urban Development (HUD) has identified special flood hazard zones along the creek which include 169 acres in proposed Unit 5 in which a minimum elevation of ten feet has been recommended for any habitable space (A-9) and 263 acres in Sections 26, 33, and 34 in which a minimum elevation of 11 feet has been recommended for any habitable space (A-10). The lowest street elevation proposed for the A-10 zone is seven feet. GDC normally adds two to two-and-a- half feet of fill to existing grade before erecting houses, but can add more.
The weir across Ainger Creek and the proposed control structures where water outfalls into swales allow the retention upstream of water which otherwise might have flowed into Lemon Bay. Water retained on the Phase I property and elsewhere upstream can percolate through the topsoil and replenish the groundwaters. The weir on Ainger Creek acts as a barrier against the movement of salt water upstream. For both of these reasons, the proposed drainage system should decrease any danger of saltwater intrusion into freshwater aquifers in the area. In the event substantial amounts of salt water (or some pollutant) are introduced into Ainger Creek upstream of the weir, the weir is designed to permit the Creek to be flushed.
ECONOMIC IMPACT ON PRIVATE SECTOR
Except in the core areas, where GDC plans to market improved real estate, contractors other than GDC would have an opportunity to bid on construction contracts for new houses, a decade or so after installment land sales proposed for Phase I begin. Even before construction of housing, roads would have to be paved, water and sewer pipes would have to be laid, and other utilities would have to be installed.
Thousands of people living on the new unpopulated Phase I property would mean additional jobs in the private and public sectors. Since there are already more than 641,000 vacant subdivision lots in the Charlotte Harbor area, however, the region is presumably in little danger of losing out on additional population for want of land developments.
FISCAL IMPACT ON LOCAL GOVERNMENT
Using census and other population data and reviewing GDC's sales records in other land developments, J. Thomas Campbell, a GDC employee, has projected a 47-year development or build-out schedule for Myakka Estates, forecasting, among other things, how rapidly housing units will be built in Phase I.
Taking the build-out schedule as a given, Paul G. Van Buskirk, a GDC consultant, assumed an average household size increasing linearly through time and projected population growth in Phase I year by year for 33 years. Mr. Van Buskirk made assumptions about average household size, the proportion of population over age 65, and the proportion of population of school age, only after examining data of this kind from ten other communities housing mainly retired persons, which he thought would be comparable. He distributed school children among elementary, middle, and high schools on the hypothesis that the proportion would be the same as obtained in the Tampa-St. Petersburg area.
In 1975, Mr. Van Buskirk projected streams of revenue and expenditure for local governments attributable to Phase I, forecasting a surplus for North port, Sarasota County, and the Sarasota County School District (School District). He assumed the value of an average house to be $40,000 in 1975 dollars, that market value would be the same as assessed value, and that then current mileages would remain constant. He also projected, in 1975, a tax base in North Port of $119,000,000 in 1979, in 1979 dollars. In fact, North Port's 1979 tax base was $122,000,000. In 1975, he projected a surplus for North Port in 1979 of $905,000 in 1979 dollars ($662,000 in 1975 dollars). In 1979, the surplus was, in fact, slightly more than $700,000. The difference between the projected surplus and the actual surplus is attributable to North Port's decision to retain the same level of services it had in 1975 while lowering the ad valorem tax rate. In his 1975 calculations, Mr. Van Buskirk made no attempt to reduce later years' dollar figures to then present values.
In response to criticism by Dr. Fishkind, Sarasota County's economist, Mr. Van Buskirk reduced revenues and expenditures he had projected to present values, by assuming a discount rate of 7.5 percent. This discount rate was chosen to represent the cost of money obtainable by selling tax exempt bonds. At the same time, he posited a ten percent return compounded annually on projected surpluses. After this revision, as before, he forecast a favorable fiscal impact on North Port, Sarasota County, and the School District.
CITY OF NORTH PORT
The weight of the evidence showed that the fiscal impact of development of Phase I on the City of North Port would probably be favorable. Mr. Van Buskirk's model predicted fiscal developments in North Port with impressive accuracy. The large surpluses projected for the early years of development could not be counted on, however, because they would add to the already existing surplus ($8,000,000 in June of 1980) and to political pressures to lower taxes in such circumstances. North Port's recent reduction in millage, in the face of a growing surplus, evidences a predictably recurring tendency. Even though Phase I is ten miles from the center of North Port, the municipal services building GDC has agreed to build should make this distance a relatively insignificant factor in delivering some municipal services, according to Dr. Fishkind. Volume X, pp. 113-114.
SARASOTA COUNTY
In projecting what expenditures Sarasota County would make, if Phase I is developed according to schedule, Dr. Fishkind subtracted water and sewer costs but no others from per capita base-year figures to arrive at a per capita figure of $137.02 in 1975 dollars, to which he added special costs projected by Sheriff Hardcastle for law enforcement and Mr. Longworth for roads. Because all three of these figures are significant overstatements, Dr. Fishkind overstated expenditures significantly when he calculated Phase I's negative fiscal impact on Sarasota County over the course of the development as $8,100,000 in 1979 dollars. Dr. Fishkind also failed to include surpluses that would be furnished to county government early on in the development.
Mr. Van Buskirk's base year per capital figure is a closer approximation of per capita costs that would be fairly attributable to residents of Phase I, but road and law enforcement costs are probably understated. No increase in real sots is projected and the combined effect of using a 100 percent assessment ratio and ignoring costs of sales is to overstate tax revenues. When Mr. Van Buskirk assumed a 79 percent assessment ratio and an
average house value of $35,000 in 1975 dollars, he still projected a $449,000 positive fiscal impact on Sarasota County from development of Phase I. That calculation also included the ten percent interest compounded annually imputed to surpluses, however, without any showing that surpluses from Phase I would be invested rather than expended for some other county purpose, making simple discounting appropriate. Although the evidence is far from clear, it suggests, on balance, that the fiscal impact of Phase I on Sarasota County would be negative.
CHARLOTTE COUNTY
Charlotte County's public roads, recreation facilities, and schools would be used by the residents of Phase I, if all goes as planned, and Charlotte County would not have the offsetting benefit of ad valorem taxes from Phase I, although it would receive certain offsetting benefits on account of additional students under the current intergovernmental agreements. Phase I's development would have a negative fiscal impact on Charlotte County and the Charlotte County School District.
SCHOOL DISTRICT
Phase I is some five miles from Englewood Elementary School, ten miles from Venice Gardens Elementary and five to seven miles from Lemon Bay Junior- Senior High School in Charlotte County which accepts students from Sarasota County under the terms of an intergovernmental agreement. These schools are presently operating at or above capacity. Under current conditions, a major development anywhere in Sarasota County would be a burden to the school system.
A survey of the school district's capital requirements for the next five years suggests some $67,445,817 will be needed for new construction. Of this, Sarasota County expects to receive $15,797,414 from State sources. Phase I is not expected to house any school children in the next five years, however.
In the tenth year of development, the projection is that 489 elementary students, 245 junior high students, and 244 senior high students would live in Phase I, necessitating the construction of at least the first "phase" of an elementary school. Exclusive of site acquisition costs, an elementary school costs about $4,000,000; a junior high school costs about
$19,000,000; and a senior high school costs about $18,000,000.
If development of Phase I occurs at or above the rate projected by GDC, the net fiscal impact on the School District would probably be negative, but if development lags significantly behind predictions, as Dr. Fishkind testified was likely, the additional years of tax revenues before Phase I places major demands on the school system could well result in a positive fiscal impact on the School District from development of Phase I.
POTABLE WATER
General Development Utilities (GDU), a subsidiary of GDC, has a franchise from North Port to furnish water within the city limits, including Myakka Estates, except in the portion of Section 33 where EWD has jurisdiction. GDU is a private, not a public, utility, but its use of ground and surface waters renders the water used unavailable to another utility. At an existing water treatment facility on Myakkahatchee Creek, in North Port, about ten miles from Phase I, GDU treats 4.2 million gallons of water a day (mgd), but could treat 8 mgd.
GUD also operates a water treatment complex in Fort Ogden on the Peace River, six or seven miles downstream from Arcadia. At the time of the hearing, GDU had the ability to pump 1.5 mgd from the Peace River complex to North Port and Myakka Estates. The Peace River facility includes a raw-water intake structure, a reservoir, and a treatment plant. It has a capacity of 6 mgd although some of its components have larger capacities. The intake structure and 36-inch transmission lines can handle 30 mgd and the filter units have a capacity of 15 mgd. The reservoir covers some 90 acres and has a capacity of 800,000,000 gallons. In all, GDU has reserved 1,000 acres for use as a reservoir, although the need for such a large reservoir is not anticipated even by the year 2050. GUD does not plan to expand the existing reservoir for another ten years.
Southwest Florida Water Management District (SWFWMD) has permitted GDU to withdraw up to an average of 5 mgd from the Peach River not to exceed five percent of the day's flow. At Arcadia, the Peace River's daily flow varies seasonally from 32 mgd to ten billion gallons per day. Except for 36 days a year (on the average), 5 mgd is less than 5.7 percent of the low flow of the Peace River. GDU can fill its reservoir by diverting water from the Peace River at times of high flow, so as to get the best water quality, and cause the least proportional diminution of the river's flow.
GDU plans to withdraw an average of 13 mgd from the Peace River when capacity of the facility at Fort Ogden reaches 30 mgd. This is approximately
1.5 percent of the Peace River's approximately 800 mgd average flow at Arcadia. Some of the diverted water will never reach Charlotte Harbor because of evaporation at various points. Other water transported to Myakka Estates from the Peace River, whether treated at Fort Ogden or at North Port, would be used for irrigation, and some of this water would drain into Lemon Bay by Ainger Creek and never reach Charlotte Harbor. Most of the water diverted into the Peace River reservoir will eventually make its way through homes in GDC developments into wastewater plants, from there into the groundwater, and ultimately into Charlotte Harbor. Even when water from the Peace River reaches Charlotte Harbor by this route, however, there will ordinarily have been an interbasin transfer.
The quality of water in the Peace River is good. If it were necessary to augment river water at the Peace River plant, well water from aquifers in the vicinity would be available. Because this well water is brackish, however, it would be blended with the river water to produce a mixture low enough in chlorides to be potable. Surface water from Myakkahatchee Creek and Snover Waterway could also be transported to the Peace River reservoir, at a rate of
13.5 mgd. Myakkahatchee Creek discharges 20 billion gallons of water into Charlotte Harbor annually.
Treating water at the Peace River facility requires about two kilowatts per 1,000 gallons of water. Brackish water is available from well fields in the vicinity of Myakka Estates property, but treating brackish water by reverse osmosis requires about 11 kilowatts per hour. Phase I would, of course, add to future demand for potable water.
SEWERAGE
By ordinance, North Port requires that new homes be equipped with 3.5- gallon flush toilets instead of the standard 5-gallon models. Since 40 percent
of the water used in the average household goes through the toilet, this is an important water conservation measure.
GDU plans to provide a sewer system for the whole of Myakka Estates including initially an activated sludge sewer plant with a rated capacity of 250,000 gallons a day to be located on a 40-acre parcel reserved for that purpose. Effluent from the plant would be discharged into a polishing pond then sprayed over soil planted with vegetation to take up nitrogen and phosphorus, through which it would percolate into the groundwater. Once the Myakka Estates plant reached capacity, sewerage would be transported to Gulf Cove in Port Charlotte, six miles from the Phase I property, where an existing plant with a capacity of 333,000 gallons a day now processes 100,000 gallons a day. At the Gulf Cove plant site, GDU has 163 acres available for plant expansion.
SOLID WASTE
Solid waste from Phase I would be taken to the existing North Port landfill some nine miles distant, as long as that could be used. A second layer of solid waste was being laid down there at the time of the hearing. Monitoring wells had been dug to detect leachates leaving the landfill.
A 90-acre site for a new landfill to serve all of North Port has been chosen within the 100-year flood plan of the Myakka River. GDC has agreed to construct the new landfill and lease it to North Port for operation by the city.
The use of solid waste for energy production is not feasible, unless quantities on the order of 200 tons a day are available. Part or all of Charlotte County produces about 100 tons a day of solid waste. Per capita, people produce about 5.5 pounds per day of solid waste.
LAW ENFORCEMENT
Because of the location proposed for Myakka Estates, traffic from Phase I to the already developed center of North port will travel outside the city limits for part of the trip. Travelers from Phase I bound for the commercial district in North Port will pass through unincorporated Sarasota County, except those taking the longer route through Charlotte County. Travel from Phase I to any other municipality in Sarasota County would require passing through unincorporated Sarasota County. At the time of the hearing, the nearest substation of the Sarasota County Sheriff's Office was approximately 30 miles from the Phase I property. At some point, as Myakka Estates becomes populated, depending upon traffic patterns, the Sheriff would create a new Sheriff's patrol zone at a cost of $180,000 (1980 dollars), if present policy on these matters holds. Not all of this amount could fairly be attributed to development of Phase I, although the costs of the proposed development (including Phase I) to the Sarasota County Sheriff's Office would be significantly greater than the costs would be if the same population moved into the area contiguous to the existing center of North Port.
North Port plans to furnish primary police protection within its city limits, staffing and equipping the 2,400 square feet municipal services center GDC has agreed to build in the vested portion of Myakka Estates. City prisoners are housed in the county jail, however, and the sheriff's office serves civil process in North Port.
In residential land developments in the Charlotte Harbor area, where the roads have typically been laid out rectilinearly, a problem in the interval
between road building and construction of housing has been the use of roads as airstrips by smugglers and as drag strips by racing enthusiasts.
TRANSPORTATION
Within Phase I, streets are to be laid out curvilinearly. Minor collectors are to feed major collectors which are to feed minor arterials which are to feed major arterials, with limited access to larger roads. Three and one-half miles of bicycle paths are planned. No mass transit system is
contemplated for Phase I nor would Phase I be able to accommodate a right-of-way for a mass transit facility. There is no mass transit system in Port Charlotte or North Port. The viability of Phase I depends on continued mass ownership and operation of automobiles.
U.S. Highway 41, a four-lane divided arterial, runs east and west north of the Myakka Estates property, then through the southwestern corner of the main part of North Port. When I-75 is finished, development may be skewed in its direction, drastically affecting traffic patterns; I-75 is slated to pass north of the property in two or three years. intersecting U.S. Highway 41, running south then southwest to the west of the Myakka Estates property, is South River Road (State Road 777), a two-lane arterial that ends in Englewood and currently handles about 2,000 trips daily. It will require four-laning when the number of daily trips reaches 10,000. South of the property in Charlotte County, another two-lane arterial, State Road 776 runs east-west, dead ending into State Road 771 which crosses the Myakka River at El Jobean and proceeds northeast to Murdock, where it intersects U.S. Highway 41, south of the main area of North Port. GDC has agreed to pave a two-lane road from the vested portion of the Myakka Estates property through Phase I to South River Road (State Road 777). by this route, a trip from the middle of Phase I to the commercial area in North Port would involve a trip of about ten miles.
The distance from the middle of Phase I to the nearest post office, which is in Englewood, is approximately 6.5 miles; to Gulf Cove, approximately six miles; to Murdock, approximately 11.5 miles; to a shopping district in Venice, approximately 14.5 miles; and to the nearest hospital, in Venice, approximately 16.5 miles. Sarasota is about 30 miles north and Ft. Myers is some 40 miles distant in the other direction. It is to Sarasota and Ft. Myers that new inhabitants of Myakka Estates would be obliged to travel for concerts, plays, art galleries, and the like. Thee are commercial airports in Ft. Myers and Sarasota.
GDC's expert assumed most of the traffic leaving Myakka Estates would travel south to points in Charlotte County because of anticipated development there. Sarasota County's expert assumed most of the traffic leaving Myakka Estates would travel to points in Sarasota County based on ratios of already developed commercial acreage and on an apparently inadvertent chronological mismatching of projected retail and total employment figures: for Venice in Sarasota County year 2000 projections were used while 1990 projections were used for competing areas to the east of Myakka Estates.
Development of Phase I would have a substantial and costly impact on public roads in the vicinity. Both new construction and improvement of existing roads would be required, although mainly in rural areas. At least by the time Myakka Estates is fully populated, South River Road, State Road 776, and State Road 771, including the bridge across the Myakka River would have to be four- laned. While the direction of future traffic is disputed, the prospect of thousands of automobiles operating in the area as a result of a fully populated
Phase I is very clear. It is impossible to say with certainty which road would have to be widened in which year or what share of the cost should be attributed to Phase I as distinguished from the rest of Myakka Estates and other development in the area, but the eventual impact of Phase I would require expenditures of millions of dollars for public roads.
Sarasota County has identified road improvements it needs to make before the year 2000, without taking Myakka Estates into account, and puts their cost at $387,000,000, which is $110,000,000 more than is projected to be available.
EMPLOYMENT ACCESSIBILITY
Most of the people expected to live in the Phase I development are retired persons who would not be regularly travelling to and from a place of employment. Very few employment opportunities in retail sales and professional offices are forecast for Phase I. The vested portion of Myakka Estates is projected to have significantly more opportunities of this kind. In the beginning, most persons seeking employment would have to travel at least as far as Englewood. At build-out, a later phase of Myakka Estates may afford industrial employment opportunities.
SWFRPC REPORT
The Master ADA was filed with the Tampa Bay Regional Planning Council, rather than with SWFRPC, because Sarasota County was part of the Tampa Bay Region at the time. The Tampa Bay Regional Planning Council recommended granting the Master ADA on conditions which were subsequently incorporated into the Master Development Order.
The Phase I ADA was filed with the SWFRPC. In May of 1975, the SWFRPC issued its report recommending against approval of the Phase I ADA on various grounds, including the physical separation of the proposed development from presently developed areas and necessary services; the existing abundance of vacant platted lots and miles of deserved paved streets in the Charlotte Harbor area; creation of a need for an urban water supply, schools, police, and emergency medical facilities and services far from the areas where the affected local governments have planned to provide such facilities and services; and the adverse fiscal impact of the proposed development on local governments. The report was received in evidence to show what North Port reviewed before entering its development order but it was not offered as proof of the SWFRPC assertions in it.
CONCLUSIONS OF LAW
Pursuant to Section 380.07, Florida Statutes (1979), the Florida Land and Water Adjudicatory Commission is charged with issuing decisions in proceedings like the present one "granting or denying permission to develop pursuant to the standards of [Chapter 380]," Section 380.07(4), Florida Statutes (1979), on appropriate conditions and with appropriate restrictions. Although Chapter 380, Florida Statutes (1979), does not enunciate criteria for determination of the merits of the ADA by the Commission, as such, the criteria set forth in Subsections 380.06(8) and (11), Florida Statutes (1979), now Sections 380.06(11) and (13), Florida Statutes (Supp. 1980), have been looked to. See Estuaries Properties, Inc. v. Askew, et al., 381 So.2d 1126 (Fla. 1st DCA 1979); Estech General Chemicals Corp., etc. v. Manatee County, et al., No. 79-1994 (Recommended Order, July 31, 1980).
Section 380.06(11)(a), Florida Statutes (Supp. 1980), requires a regional planning agency to consider whether, and the extent to which:
The development will have a favorable or unfavorable impact on the environment and natural resources of the region.
The development will have a favorable
or unfavorable impact on the economy of the region.
The development will efficiently use of unduly burden water, sewer, solid waste disposal, or other necessary public facilities.
The development will efficiently or unduly burden public transportation facilities.
The development will favorably or adversely affect the ability of people to find adequate housing reasonably accessible to their places of employment
The development complies with such other criteria for determining regional impact as the regional planning agency shall deem appropriate, including, but not limited to, the extent to which the development would create an
additional demand for, or additional use of, energy, provided such criteria and related policies have been adopted by the regional planning agency pursuant to Section 120.54 . . . .
Facts pertinent to the first five criteria stated above have been recited in the foregoing findings of fact.
The law creating Englewood Water District, Chapter 59-931, Laws of Florida (1959), even though it antedates the Master ADA, was apparently inadvertently overlooked until more recent times. The evidence showed that development proposed within the EWD's jurisdiction would unduly burden EWD's existing water facilities. See Section 380.06(8)(c), Florida Statutes (1979), now Section 380.06(11)(a)(3), Florida Statutes (Supp. 1980). There was no showing that any other omission of this kind occurred during formulation of the Master Development Order or that any of the negative effects to be anticipated from Phase I went unnoticed at the time the Master Development Order was entered. All of the many negative effects inhere in the concept approved in the Master Development Order.
Section 380.06(13), Florida Statutes (Supp. 1980), provides that where, as here, the development is not located in an area of critical state concern, the local government, in considering whether the development shall be approved is required to consider whether, and the extent to which:
The development unreasonably interferes with the achievement of the objectives of an adopted state land development plan applicable to the area;
The development is consistent with the local land development regulations; and
The development is consistent with the report and recommendations of the regional planning agency submitted pursuant to subsection
(11) of this section.
The government of the City of North Port is the "local government entity with jurisdiction" for purposes of Chapter 380, Florida Statutes (1979).
The uncontroverted evidence was that Phase I would be in conformity with North Port's subdivision ordinance. The current zoning of the property is agricultural but the Development Order was entered after the zoning ordinance was adopted, so North Port's position is clear. As amended last session, the law provides that "issues which affect only the local governmental entity with jurisdiction [here North Port] . . . shall not be issues in a regional planning agency appeal of a Development Order under Section 380.07." Section 380.06(11)(a)(6), Florida Statutes (Supp. 1980).
In these proceedings, the petitioners and intervenors argued that the Master Development Order should be set aside collaterally because of circumstances surrounding the notice given of the meeting at which it was adopted by North Port. This contention was rejected, on an interlocutory basis, but that ruling on a legal question is clearly with the Commission's province to reverse. In the absence of the Master Development Order's being set aside for that or some other reason, however, the petitioners' and intervenors' arguments against granting the present ADA must address the effect of the Master Development Order. Except for variances likely to attenuate the negative impacts of the proposed development, the Phase I ADA is in conformity with the Master Development Order.
GDC contends that no statute or rule enacted or adopted after the date it filed its ADA should apply in the present proceeding, particularly if adoption or enactment was subsequent to North Port's entry of the development order under consideration. This contention should be rejected as a general proposition. Smith v. City of Clearwater, 383 So.2d 681 (Fla. 2d DCA 1980); Florida Department of Environmental Regulation v. Oyster Bay Estates, Inc., 384 So.2d 891 (Fla. 1st DCA 1980), distinguishing Sexton Cove Estates, Inc. v. State of Florida Department of Pollution Control, 325 So.2d 468 (Fla. 1st DCA 1976). If, for example, administrative rules had been promulgated in accordance with Section 380.06(8)(f), Florida Statutes (1979), now Section 380.06(11)(a)(6), Florida Statutes (Supp. 1980), before the hearing took place, they would have been applied. No such rules were adopted, however, at any time.
The North Port Comprehensive Development and Growth Management Plan is not inapplicable in the present case simply because it was adopted after the Phase I ADA was filed and after the Development Order had been entered.
Pursuant to provisions of Section 163.3194, Florida Statutes (1979), also enacted after the Phase I ADA was filed, all development in North Port is required to be "consistent with such plan . . . as adopted." Section 163.3194(1), Florida Statutes (1979). But see Section 380.06(11)(a)(6), Florida Statutes (Supp. 1980). The evidence showed, however, that the North Port Comprehensive Development and Growth Management Plan was deliberately drawn so as not to apply to Phase I (among other parts of the proposed Myakka Estates development), at the specific behest of petitioners. By its own terms, the North Port Comprehensive Development and Growth Management Plan does not apply to Phase I. For this reason, references in the North Port Comprehensive Development and Growth Management Plan to Sarasota County's Land Use Plan and The Florida State Comprehensive Plan, also adopted after the ADA was filed, do not render the latter two documents applicable to Phase I.
Independent of its incorporation by reference into the North Port Comprehensive Development and Growth Management Plan, The Florida State Comprehensive Plan does not have the force of law. "Nothing contained in the plan or parts or revisions thereof shall have the force or effect of law . . .
." Section 23.013(2), Florida Statutes (1979). Section 380.06(13)(a), Florida Statutes (Supp. 1980), refers to "an adopted state land development plan applicable to the area," and forbids unreasonable interference with its objectives, but The Florida State Comprehensive Plan is advisory only and its general strictures are not entitled to greater weight than the specific provisions of a Master Development Order entered and become final before its adoption. Section 380.06(13)(a), Florida Statutes (Supp. 1980), contemplates fashioning a development order on a blank state, not within the narrow confines of a detailed Master Development Order like the one in the present case.
By its own terms, Sarasota County's Land Use Plan applies only to incorporated areas of Sarasota County and not, therefore, to Myakka Estates which is wholly contained within the city limits of North Port.
Pursuant to Section 380.08(3), Florida Statutes (1979), it is incumbent upon the Florida Land and Water Adjudicatory Commission, in the event it denies an ADA, to "specify its reasons in writing and indicate any changes in the development proposal that would make it" acceptable. In the present case, the only suggestion along these lines advanced by the petitioners and intervenors is that GDC lower the Phase I density to or below one unit per three acres. But in considering the ADA in the present case, the existence of the Master Development Order cannot be overlooked. As now proposed, the density of Phase I is less than the density approved for Myakka Estates as a whole in the Master Development Order.
Upon consideration of the foregoing, it is RECOMMENDED:
That the Florida Land and Water Adjudicatory Commission enter a development order granting GDC's Phase I ADA on such conditions as the Commission shall deem appropriate, including all the conditions contained in the Development Order entered by North Port and the following additional conditions:
That GDC sell no lots in the special flood hazard zones as indicated on HUD's preliminary flood insurance rate maps, GDC Exhibit Nos. 69, 70, 71 and 72.
That GDC sell no lots within EWD's jurisdiction until and unless EWD shall agree to such a sale in writing.
That GDC unconditionally deed to the Sarasota County School District the elementary school site planned for Phase I together with the 50 lots nearest to the site.
DONE AND ENTERED this 6th day of January, 1981, in Tallahassee, Florida.
ROBERT T. BENTON II
Hearing Officer
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 1981.
COPIES FURNISHED:
Parker D. Thomson, Esquire Kenneth W. Lipman, Esquire
and
Douglas M. Halsey, Esquire 1300 Southeast First
National Bank Building Miami, Florida 33131
C. Laurence Keesey
Department of Community Affairs Room 204, Carlton Building Tallahassee, Florida 32301
David E. Bruner, Esquire
581 Springline Drive Naples, Florida 33940
Richard E. Nelson, Esquire and
Richard L. Smith, Esquire 2070 Ringling Boulevard
Sarasota, Florida 33577
Robert A. Dickinson, Esquire
70 South Indiana Avenue Englewood, Florida 33533
John W. Field
Englewood Community Organizations
227 Bahia Vista Drive Englewood, Florida 33533
Wayne Allen, Esquire
General Development Corporation 1111 South Bayshore Drive Miami, Florida 33131
Mayor Margaret Gentle City of North Port
North Port, Florida 33595
Allen J. Levin
209 Conway Boulevard Northeast Port Charlotte, Florida 33952
Office of Planning and Budget Executive Office of the Governor
311 Carlton Building Tallahassee, Florida 32301
The Honorable Robert Graham Governor, State of Florida The Capitol
Tallahassee, Florida 32301
The Honorable Jim Smith Attorney General
The Capitol
Tallahassee, Florida 32301
The Honorable Ralph Turlington Commissioner of Education
The Capitol
Tallahassee, Florida 32301
The Honorable Doyle Conner Commissioner of Agriculture The Capitol
Tallahassee, Florida 32301
The Honorable William Gunter State Treasurer and
Insurance Commissioner The Capitol
Tallahassee, Florida 32301
The Honorable Gerald Lewis State of Florida Comptroller The Capitol
Tallahassee, Florida 32301
Gerald Chambers
6970 Manasota Key Road Englewood, Florida 33533
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF VETERAN AND ) COMMUNITY AFFAIRS and SOUTHWEST ) FLORIDA REGIONAL PLANNING )
COUNCIL, )
)
Petitioners, )
and )
) SARASOTA COUNTY, ENGLEWOOD WATER ) DISTRICT and ENGLEWOOD COMMUNITY ) ORGANIZATIONS, )
)
Intervenors, )
v. ) CASE NO. 75-1237
) GENERAL DEVELOPMENT CORPORATION, )
)
Respondent. )
)
RECOMMENDED ORDER
On March 17, 1981, the Florida Land and Water Adjudicatory Commission remanded this case "for necessary rulings on proposed findings and conclusions as requested by the parties . . . [particularly] conclusions with regard to the criteria of Section 380.06 (11) and (13), F.S. (Supp. 1980), and the legal effect and weight given to the Master Development Order." Mr. Herndon's letter of March 20, 1981.
Except for proposed findings which counsel stipulated should be considered without oral argument, principally those relating explicitly to the Florida State Comprehensive Plan, these supplemental findings and conclusions have been made after hearing argument on each of them.
Counsel for all parties who had submitted proposed findings and conclusions were heard on March 26, 1981, and again on March 30, 1981. Englewood Community Organizations (ECO) did not submit proposed findings or conclusions and has had no notice of proceedings on remand.
EFFECT OF MASTER DEVELOPMENT ORDER
On remand, the parties stipulated that the incremental development order under appeal is in conformity with the master development order it is intended to implement.
Incremental development in conformity with a master development order should be permitted unless (a) the master development order is predicated on a mistake of fact, (b) there are substantial changes in the facts underlying the master development order, or (c) there is a change of law precluding incremental development. There has been no showing of substantial change in the facts underlying the master development order, and the only change of applicable law--
adoption of the Florida State Comprehensive Plan--does not preclude incremental development as proposed in the incremental ADA. Since the master development order was formulated in ignorance of the fact that Englewood Water District's jurisdiction extended to a portion of Phase I, the master development order should have no effect with respect to that portion of Phase I. Except for that portion of Phase I, however, the Myakka Estates master development order should be viewed as authorized incremental development in conformity with the master order.
VALIDITY OF MASTER DEVELOPMENT ORDER ASSUMED
Petitioners and intervenors contend that whatever the effect of master development orders generally, the Myakka Estates master order is defective because notice of its proposed adoption was untimely. Notice was published 50- some days before the adoption instead of the 60 days required by a statute that took effect after notice was published but before the master development order was adopted. Sarasota County has already tried unsuccessfully to make this argument to the Florida Land and Water Adjudicatory Commission and to the courts. Without reaching the merits of this contention, the hearing officer has ruled that the question is no longer open in these proceedings, on appeal of the incremental development order.
The Division of State Planning also argues that this particular master development order has no legal force because the Division of State Planning only refrained from an appeal in consideration of General Development corporation's contractual affirmation of certain requirements imposed by the master development order, including DRI review of incremental ADAs. But the effect of any development order entered by an entity of local government should be the same whether it is affirmed on appeal or whether it is never appealed.
Otherwise, appeals will be necessary in every case, with attendant expense for the parties, to say nothing of the drain on limited administrative and judicial resources.
MASTER-INCREMENTAL
Even though no effort has been made to show any factual misapprehension underlying the master development order (except regarding the jurisdiction of the Englewood Water District), petitioners and intervenors argue that incremental development with a density of 1.9 dwelling units per acre should not be allowed even though the master development order authorizes residential development with a density of 2.3 dwelling units per acre. The objectors argue that the Myakka Estates master development order and master development orders generally set outside limits for proposed development but do not in any way authorize development within those limits. A master development order binds the developer but not the government, they argue. The master development order in the present case does not even fix the location of the development, the objectors maintain. These arguments must be rejected if the concept of master and incremental development, now embodied in subsequently enacted Section 380.06(20), Florida Statutes (Supp. 1980), is to have any practical significance.
SUPPLEMENTAL FINDINGS
Every party who had submitted proposed findings of fact was permitted to specify any of them for consideration on remand. Each proposed finding so specified has either been rejected as inconsistent with or not established by the evidence; or adopted, occasionally with minor revision, as supported by the
record, sometimes over objection on grounds of redundancy or irrelevance or protest that the phrasing might mislead. In no instance was ruling on a proposed finding withheld on grounds that it was redundant or irrelevant, even where such objections were well taken, in the hearing officer's view of the case. Where a proposed finding in the form of "The witness testified . . ." has been adopted, no judgment on the witness' credibility is implied. The supplemental findings and conclusions should be read in conjunction with the recommended order, to which the hearing officer adheres in every respect.
Sarasota County argues that "other necessary public facilities" in Section 380.06(11)(a)3., Florida Statutes (Supp. 1980), includes schools, a contention the hearing officer rejects applying the maxim ejusdem generis. The supplemental findings have been grouped, to the extent practicable, under applicable statutory headings but overlapping findings have not always been identified. At least one of the parties took the position that everything relevant under Section 380.06(11)(a)12., Florida Statutes (Supp. 1980), was also relevant under Section 380.06(13)(a), (b), and (c), Florida Statutes (Supp.
1980).
SECTION 380.06(11)(a)1., FLORIDA STATUTES (SUPP. 1980)
The development will have an unfavorable impact on the environment and natural resources of the region (principally on site) but there was no showing that this many people could be housed with less adverse effect on the environment.
GDC estimates that the lots which it proposes to subdivide and market under these installment sales contracts will not be occupied, on the average, for 23 years. General Development Corporation was formed in 1956.
Within the City of North Port, alone, an area platted by GDC, there are between 77,000 and 100,000 vacant, platted lots. Given the projection in the North Port Comprehensive Plan of a city population of 38,940 in the year 2000 and assuming a household of 2.5 persons per dwelling unit, there would still be at least 60,000 vacant, platted lots in the city in the year 2000, even if no further lots were platted between now and the end of the century.
The subdividing and marketing of lots on an installment land basis nationally and internationally, where lots are not expected to be occupied for
23 years, on the average, can create serious problems for local government in planning and regulating land use. The pattern of development in an installment land sales development, its layout and design, is "locked-in" decades before the land is actually occupied; if such factors as energy costs and urban design techniques change, the multiplicity of owners or contract purchasers of the thousands of existing vacant lots prevent the application of modern land use planning and land use regulatory methods. The North Port Comprehensive Plan recognizes the planning problems caused by installment land sales development in the 1950s.
Urban design and planning techniques have advanced and changed significantly over the last 10 to 15 years.
The North Post Comprehensive Plan notes that it may be necessary to examine the use of eminent domain to remedy the effects of past installment land sales development and proposes "Other Key Future Land Use Policies", one of which may involve the expenditure of public funds to deal with the existing installment land sales areas outside the area described in 31(B), infra:
OTHER KEY FUTURE LAND USE POLICIES:
Establishment of a "Transfer of Development Rights Program" to carry out specific changes that may be required in the present zoning of use of land.
Establishment of a revolving fund by the City of North Port to acquire residential lots within the growth areas for trading with or selling to those with lots outside the growth areas who wish to build within the growth areas.
To provide for required changes in present
land use that is zoned or vested by establishing a council or forum for a system of continuous negotiations with land owners for possible trading of land uses of changes in land uses.
To discourage growth outside of those growth areas designated in the Framework Plan by imposing a service charge over the cost of the same service within the growth boundaries (i.e., garbage collection). The increased cost would be directly proportional to the distance the service must be delivered.
The North Port Plan also recognizes the planning advantages where land has not been committed to installment land sales development.
Opportunities:
While the 68 square miles of the City of North Port is 100% zoned and regulated in terms of the use of land, large tracts of land are under the sole ownership of the General Development Corporation. This concentration of land
uncommitted to development provides opportunities to consider methods other than litigation to change existing designated land uses.
The cash flow requirements of installment land sales developments have historically led such projects to be located on less expensive lands. Installment sales permit the developer to reverse its initial negative cash flow more rapidly than by selling land with houses on it. Accordingly, installment land sales projects on the scale of Myakka Estates tend to occur on relatively inexpensive land to begin with.
The State Comprehensive Plan emphasizes the importance of retaining flexibility in land use development, relating land use to actual needs, and preserving agricultural land, e.g.:
Energy Policy 26, p. 57, and Growth Management Policy 28, p. 67:
Encourage land use patterns that by design, size, and location minimize long-term energy commitments to construction, operation, maintenance, and replacement.
Housing and Community Development Objective B, p. 90:
Housing should be produced in a mix of types, sizes, and prices that is based on local and regional need and that is consistent with the state's growth policy.
Housing and Community Development Objectives N, p. 96:
Land use and development should proceed in
an orderly manner that produces an economically efficient and personally satisfying residential environment with minimal waste of our land resources.
Land Development Objective B, p. 104:
Land development should be managed in a manner consistent with the values and needs of the citizens of the state and with the concept of private property rights.
Land Development Policy 4, p. 105:
Influence the timing, distribution, type, density, scale, and design of development by coordinating land development proposals with state and local comprehensive plans and public investment programs in order to ensure the availability of adequate public facilities, services, and other resources.
Land Development Objective N, p. 119:
Agricultural lands, especially those most seriously threatened, should be maintained and preserved for the production of food and fiber products.
The North Port Comprehensive Plan, having recognized the planning constraints imposed by land sales development, seeks to discourage development outside the areas described in 31(B), infra, on the east side of the Myakka River.
The ground water sources under the site of the proposed development and under land immediately adjacent are very limited.
The withdrawal of large amounts of water from the Peace River as proposed by the applicant may cause reduction in the circulation and flushing of the Charlotte Harbor.
Development at or below the currently permitted agricultural density of one dwelling unit per three acres would avoid the creation of an urban density in this area, as well as reduce some of the other adverse impacts and demands upon resources identified in the SWFRPC report and recommendation. Such a density would be consistent with the immediately adjacent Sarasota County "QUE-1" zoning, which permits one dwelling unit per five acres, and the "OUR" zoning, permitting one dwelling unit per ten acres, which lies beyond. This surrounding land in the unincorporated area is currently being developed at the one dwelling unit per five acres permitted density.
Areas in Myakka Estates have been reserved for six elementary schools, two junior high schools, one senior high school, and eight churches. There are 864 acres of recreational space, 452 acres of park lands, 292 acres for two golf courses, 12 acres for a marina, and 108 acres for recreational lakes. 177 acres have been set aside for commercial centers of 3-4 acres and a community commercial center containing 23 acres. The development plan provides for a total of 19,031 dwelling units which will at full development accommodate an estimated total population of 47,577. The gross density of Myakka Estates will be 2.3 dwelling units per acre.
The Master ADA addresses in detail numerous considerations applicable to the entire development: Environmental Impact, Impact on Natural Resources, Fiscal Characteristics, Employment Characteristics, User Characteristics, Subsidiary Development Sanitary Sewers, Stormwater Disposal, Water Supply, Solid Waste, Power Supply, Public Facilities, Public Transportation Considerations, Housing Considerations, and General Considerations. Each of these areas is examined at great length in the Master ADA and in the reports of consultants who were retained by GDC to respond to the questions in the ADA questionnaire: "Question 32 - Public Transportation Considerations", prepared by Campbell, Foxworth & Pugh, Inc., dated April, 1974; "Solid Waste Quantities and Disposal", prepared by Greenleaf/Telesca Planners, Engineers, Architects, Inc., dated April, 1974; "Air and Noise Pollution Data: Questions 19A and 19C DRI-ADA for Myakka Estates", prepared by Environmental Science and Engineering, Inc., dated May, 1974; "Fiscal Impact Analysis", prepared by Clough Associates, dated May, 1974; "Soil Classification and Percolation Rates", dated May, 1974; and "Mammal Survey of Myakka Estates", prepared by Daniel M. Cary.
The TBRPC reviewed the Master ADA and in July, 1974, issued its report recommending the City of North Port approve the proposed development subject to ten conditions. These ten conditions, plus eight conditions recommended by the Planning and Zoning Board of the City of North Port, were incorporated into the Master Development Order issued by the city after a public hearing held on September 9, 1974. One of the 18 conditions required Respondent to:
submit incremental Applications [for] Development Approval on all subsequent Myakka Estates plats; which increments shall be in conformance with the Myakka Estates Master Plan Application for
Development Approval approved this date and in compliance with Chapter 380, Florida Statutes.
The staff of the TBRPC (while Sarasota County was a member of that Council) had previously insisted on use of the master-incremental format for Myakka Estates. After issuance of the Master Development Order, TBRPC expressed its satisfaction therewith in a letter addressed to the Mayor of North Port.
The DSP was concerned that the Master Development Order might be read as approving nonresidential areas, specifically the marina-motel complex and the regional center which under the DSP's guidelines would be separate DRIs. The DSP was also concerned that Respondent contractually affirm its acceptance of the obligation imposed by the Master Development Order requiring it to file and obtain approval of incremental ADAs for the residential areas of Myakka Estates. On October 15, 1974, the DSP secured a written agreement addressing these two concerns. The DSP agreed not to appeal. The Master Development Order thereby became final. As noted above, the Master ADA and Master Development Order covered Phase I of Myakka Estates and the vested areas, as well as the rest of Myakka Estates.
Dr. Early Starnes, Professor of Urban and Regional Planning at the University of Florida and former director of the DSP, testified the purpose of the "master-incremental" approach is to preserve sound local, regional, and state planning, which is the fundamental purpose of Section 380.06. He testified that Phase I can only be understood in the context of the entire Myakka Estates development. What is projected for Phase I must be considered, together with what is projected for the remainder of Myakka Estates. The "master-incremental" approach does exactly this.
Prior to planning the design for Myakka Estates, a comprehensive site analysis was performed. Noise level measurements were conducted; water quality on the property was tested; contour maps delineating ground elevations were prepared; aerial photographs were taken; marsh ponds and existing drainage patterns were identified; and vegetation and animal life were studied. Detailed maps were prepared identifying and describing environmentally sensitive areas, the direction of water flow on the property, the various types of vegetative cover, boundaries of watershed areas and the topography of the property. The Master Plan shows how the residential areas on Phase I have been designed to minimize the impact upon the natural features of the property. Land uses have been planned in harmony with the topography so that development will require as little earth moving as possible. Most of the pine/palmetto woods are scheduled for development; however, the site plans have been designed with consideration for the existing trees, and all trees will be saved where possible, given this level of development. The greenbelts throughout the development have been designed to incorporate wet areas and to preserve particularly dense or attractive tree stands. Where the ground must be lowered to form shallow swales as part of the drainage system, given this level of development, care will be taken to preserve the trees.
Portions of the Phase I property were cleared of their natural vegetation by a previous owner to create pasture. Areas were drained to create room for grazing, disturbing some natural slough systems. Drainage ditches were dug by the previous owner, accelerating water flow and adding to the environmental disturbance of the property. These pasture lands, which constitute only 7 percent of the Phase I property, have been maintained and
continue to be used for cattle grazing. This is the only agricultural use of the property.
The Phase I ADA contains a comprehensive soil survey. It describes in detail the various types of soils and sands found in the property. Sands are the primary constituent of the Myakka Estates property, as seen on the soil series map, and the most predominant sand groups are Leon, Pompano, and Adamsville fine sands.
Thus, Dr. Fernald, a witness called by the Department of Community Affairs (which superseded the Division of State Planning), testified "the land use [sic] can be much more productively used in terms of open space and agriculture, particularly planting pine trees, of utilizing this very sandy infertile land in hydroponic gardening techniques." This same witness, however, testified he had never examined a soil survey for the property and admitted that the property consists of infertile sands which would require intensive fertilization, liming, and irrigation. He conceded the property was not prime agricultural land, knew of no tree farms growing in the type of soil found on the property, and agreed the alternate form of agriculture he suggested, hydroponic farming, was an energy intensive form of agriculture.
The goal of the stormwater management plan was to construct a drainage system that would convey the runoff so the outflow rate would simulate that which existed before the property was developed. The principle governing the design of the stormwater management system is that as much runoff as possible will be retained on the property while the excess will run off at a reduced rate to minimize the impact upon the receiving waters. The system has been designed to retain one inch of runoff before discharging water downstream and to prevent flooding of any developed portion of the project for storms up to 25 years return frequency. The design consists of an interconnected system of swales, greenways, and ponding areas. The operation of the stormwater management system is explained graphically in Exhibit 19-B-2 of the Phase I ADA.
Runoff will flow from the lawns and roads to roadside and sideyard swales. These roadway swales act as collecting arteries directing the water to water courses within the greenbelts. The water courses are broad, shallow swales which slow down the rate of the runoff over naturally vegetated areas and permit percolation of water into the substrate. Ponds finally receive the remaining runoff water after it has benefited from the filtering and nutrient absorption effects of the vegetated swales. The ponds are constructed with shallow sloping sides to increase the area for establishment of aquatic flora. The ponds will be dug no more than six feet deep so sunlight can penetrate to the bottom. Outlet control structures are placed at the connections of the ponds and the swales to control the rate of the runoff. The majority of the runoff which is not retained on the property will flow in the direction of Ainger Creek, the remainder flowing in the direction of the Myakka River.
The stormwater management plan for Myakka Estates has been approved by the Department of Pollution Control, the predecessor of the present Department of Environmental Regulations. The Department of Environmental Regulation issued a permit for the weir on Ainger Creek, which has since been constructed. The Army Corps of Engineers has issued letters stating it required no permit for the construction of the weir.
The purpose of the stormwater disposal system is threefold: (1) percolation of runoff; (2) precipitation of particulate matter; and (3) biological assimilation of nutrients and other chemicals.
Most of the particulate suspended matter not amenable to settling will be extracted from the water through biological processes. Natural limnetic marsh vegetation at the ponds forms a final filter of the runoff water. Around the bases of plant stalks growing in the drainage system are various types of periphyton and algae communities which extract from the water some soluble nutrients, trace metals, and some pesticides. As an algae cell grows, it absorbs nutrients from the surrounding water into its cellular system. Dense growths of Eleocharis, Typhaceae, and other algae groups help reduce BOD, phosphates, ammonia, phosphorus, nitrogen, and other components of urban runoff. Aquatic life in the pond will further reduce waterborne nutrients. Other soluble pollutants will be incorporated in plankton biomass and the remaining particulate matter will ultimately settle at the bottom of the ponds. A water sample taken from Lemon Bay showed a high count of fecal coliform bacteria.
Respondent caused a study to be made to determine whether the proposed stormwater management system would have a adverse impact on the water resources of the immediate vicinity of Myakka Estates, in particular Englewood Water District Wellfield No. 2, which is located approximately 7,000 feet west of Ainger Creek. Some concern had been expressed that Ainger Creek weir would have an adverse impact on Wellfield No. 2 because water trapped behind the weir might have a contaminating effect on the wellfield. To determine whether there was any basis for this concern, monitoring wells were installed to establish the water level relationships in the area between Ainger Creek and Wellfield No. 2. It was found the land surface and the water table both slope in an easterly direction away from Wellfield No. 2 and toward Ainger Creek. Groundwater flows in the direction of the prevailing hydraulic gradient and thus away from Wellfield No. 2 (in February of 1980).
An expert hydrologist called by Respondent testified it would be impossible for water behind the weir to go up the hydraulic gradient for 7,000 feet to contaminate Wellfield No. 2. Furthermore, in the event saltwater should go over the top of the weir in a hurricane, a flap gate installed in the weir can be opened to flush out the saltwater. Intervenor EWD offered no evidence to show the stormwater management plan for Myakka Estates would have an adverse impact on Wellfield No. 2. Indeed, a letter from EWD's own consultant confirms the weir will not adversely affect Wellfield No. 2.
It is a recurring objective in the State comprehensive Plan to encourage land use patterns that minimize energy commitments.
In both the Master Plan and Phase I application for development approval, GDC stated that a major factor in selecting the location for the proposed development was that, "Myakka Estates is located geographically in an area which has not experienced excessive population growth" and characterized Fort Myers and Sarasota, which are 40 and 30 miles, respectively, from the proposed development as "the nearby existing communities."
The North Port Comprehensive Plan contains a framework for development of the city over a 25-year period through the year 2002. Among the basic objectives of the Plan's Future Land Use and Growth Management Element are:
To encourage development and growth of residential land uses to accommodate 8,200 persons in the year 1983 and 38,940 persons in the year 2002 and to determine the other uses
of land necessary to support the projected population and characteristics.
To encourage growth that is relatively contiguous to the existing developed area and encompasses within the 25-year period the area bounded on the north by McCarthy Boulevard
and Snover Waterway, on the east by Blue Ridge Waterway, and on the south and west by the city limits.
To encourage consistency with and between the State of Florida's growth management and land development elements.
To encourage consistency with and between Sarasota County's land use plan.
To encourage the protection of potential agricultural lands.
To regulate the use of flood-prone areas for purposes compatible with the hydrological characteristics of the area.
To analyze and determine accuracy of the HUD-FIA Flood Hazard Boundary Map of the City of North Port.
To require that new residential development and redevelopment is the confirmed 100-year flood plain to be designed and constructed so that the ground flood elevation is at or above 100-year flood plains.
To encourage the density and character of land development consistent with the desires of the City of North Port and its residents.
To encourage low density residential development.
To establish criteria and locations for medium or high-density residential developments such as cluster housing, apartments, town houses, and condominiums.
To encourage the development of land for medical, commercial, educational, office, and light industrial facilities, in accordance with population demands, economic feasibility, and sound land use planning.
To provide for a timeframe of development consistent with population demands and economic feasibility.
The North Port Comprehensive Plan also contains the following goal statement:
To determine and encourage the development of land uses to meet present identified needs future growth that will ensure the physical, economic, social and environmental wellbeing
of present and future residents of the City Port. To develop and implement a growth management plan that encourages orderly development through cooperative efforts of local government, its citizens, and major
developers rather than resorting to drastic or arbitrarily limited growth approaches.
The North Port Comprehensive Plan indicates that the area described in 31(B), supra, will accommodate the planned-for-population of approximately 39,000 when fully developed. The Plan contemplates within the area described in 31(B), supra, the development of community facilities including a town center, educational facilities, neighborhood shopping facilities, and a medical center. Within the area referred to in 31(B), supra, the Plan calls for a system of bike ways as an energy-saving transportation system and bus transportation to provide access to community facilities by the elderly and handicapped.
The Myakka Estates units 5, 6, and 7 is approximately 10-1/2 miles from the area designated in 31(B) traveling over existing roads. The natural resources inventory map in the North Port Comprehensive Plan identifies a major portion of the Phase I area as having soils which are susceptible of potential agricultural use with intensive preparation and management. Similar soils occur in a smaller portion of the area described in 31(B). GDC's application for development approval states that 7 percent of the property has been "substantially altered by man for pasturage activity." The rezoning and subdividing of this agriculturally zoned property for the proposed development will not facilitate growth contiguous to the developed area of the City of North Port or the area designated in 31(B), nor will it preserve agricultural land.
The future land use map depicts Myakka Estates units 5, 6, and 7 but does not specify land uses for the remainder of Myakka Estates, including units
1 through 4. None of the elements of the North Port Comprehensive Plan including the housing element, the circulation and transportation element, potable water, sanitary sewer, solid waste, and drainage element, population element, or the open-space and recreation element make any provision for services or facilities to serve the Myakka Estates units 5, 6, and 7 area. The only mention of the proposed development is on Page 28 of the Plan which provides a one sentence rationale for depicting it on the Future Land Use map:
Land use in Myakka Estates (ME4, ME5, ME6)[sic] are shown because planning in these areas was conducted in conformance with present standards and was recently approved by the Planning Commission and the City Commission.
Pursuant to the provisions of Section 163.3084, Florida Statutes, the state land planning agency and the SWFRPC objected to depicting the proposed development on the Future Land Use map and recommended removing it from the map. The Division of State Planning stated:
An appeal under Section 380.07, Florida Statutes, stays the effectiveness of the local approval.
Because the litigation over ME5, ME6, and ME7
is still under way, the City is not yet committed to this land use. The Division objects to the North Port Comprehensive Plan's providing for development of Myakka Estates in conflict
with State and regional interests identified in the appeal.
The city did not amend the draft comprehensive plan to omit these isolated references to the proposed development prior to adopting the plan.
The following findings of fact have been rejected as not established by or inconsistent with the evidence:
The lots which it markets on installment sales contracts during its first year of existence are now just starting to be build upon.
The platting of lots has far out-paced the growth of the city's population which in 20 years has grown to slightly over 5,000 people housed in approximately 2,500 dwelling units.
Despite testimony by a GDC witness to the contrary, it is likely that they [urban design and planning techniques] will continue to change over the next 20 to 30 years.
Installment land sales development, in addition to prematurely committing large tracts to a particular urban design, has the effect of prematurely removing land from agricultural usage. The front-end costs are greater.
The primary need identified by GDC for more installment land sales lots in the City of North Port, to be located in Myakka Estates, is that GDC requires the revenue or cash flow which such lots generate in order to provide the improvements which will be required as a result of previous platting in the Port Charlotte area.
The proposed development plan provides no assurance that an adequate future potable water supply from the Peace River will be available to serve Myakka Estates, units 5, 6, and 7 and other developments in the greater Port Charlotte area considering the needs for water within the areas upstream and adjacent to the Peace River within the same water basin.
The withdrawal of large amounts of water from the Peace River as proposed by the applicant could significantly impact the environmental quality and accelerate the eutrophication process. The potable water plan upon which the proposed development is based does not provide quantitative knowledge of the short and long-term capabilities of the hydrologic units in the region to provide adequate supplies of water. The proposed development is not consistent with the attainment of the goals of the State Comprehensive Plan, e.g.:
Land Development Policy 43, p. 12:
Base land development decisions on quantitative knowledge of the short and long-term capabilities of the hydrologic units to provide adequate supplies of water.
Land Development Policy 44, p. 112:
Coordinate land use planning and water management to ensure the long-range maintenance enhancement of water qua[n][t]ity and quality.
By maintaining a rural density, i.e., less than one dwelling unit per acre, the development could also be consistent with the county's Land Use Plan urban containment policy.
As noted above, the sandy and infertile nature of the soil permits only 7 percent of the Phase I property to be used for the limited agricultural use of cattle grazing.
Because the water is detained in the ponds, there is sufficient time for biological uptake of the nutrients in the water.
The ratio of fecal coliform to fecal streptococcus bacteria indicates the source of the bacterial contaminants is nonhuman, probably the cattle on the Myakka Estates property. Development of Myakka Estates will decrease the fecal coliform count. The opinion of respondent's expert that the stormwater drainage system for Myakka Estates will preserve and protect the water quality of the downstream aquatic ecosystems was uncontradicted.
In addition, the rezoning and subdividing of the area of the proposed development will not facilitate the development of an energy-saving bike way or bus transportation system.
GDC selected the location and then instructed its planners to design a project on that location.
SECTION 380.06(11)(a)2., FLORIDA STATUTES (SUPP. 1980)
The development will have an unfavorable fiscal impact on Sarasota and Charlotte County governments that will not by wholly offset by its favorable impact on the private sector of the region's economy and the city government of North Port. The fiscal impact on the Sarasota County School District will be positive for several years but the ultimate net effect is unclear. There will be no effect on the Charlotte County School District for several years but the ultimate net effect depends on the terms of future interdistrict agreements, among other things.
The schools throughout Sarasota County are at or over capacity. The Sarasota County school system has planned to use the funds available to it through 1984 to build schools in the growth areas designated in the County Land Use Plan to the east and south of the City of Sarasota.
The approval of rezoning and subdividing of the proposed urban development in a rural area where the schools are already at capacity and which is remote from the area of the county where the School Board has planned to construct new schools would overburden the school system even if GDC donated land for school sites.
The proposed development is not compatible with the presently proposed location and timing of county road improvements.
Infrastructures in existing urban areas are used more efficiently, if development occurs adjacent to existing urban areas. The proposed development will not in any way facilitate contiguous growth to the developed area of the City of North Port.
The development and construction industry is one of the larger sectors of Florida's economy. There will be 3,915 dwelling units in Phase I at full development and Myakka Estates as a whole will have 19,031 dwelling units at full development. The present average sales price of a home in Myakka Estates would be about $55,000. Myakka Estates and Phase I thereof will have a positive effect on the building supply industry, the construction industry, and on
construction employment. The money spent on installing the infrastructure (roads, utilities, etc.) for Phase I and Myakka Estates as a whole will further stimulate the construction and development sectors of the economy. The construction and development industries will not be the only industries to benefit from the proposed development. At full development, employment opportunities created by Myakka Estates will be approximately 12,975. Of that total, approximately 9,372 people (72.3 percent) will be employed within the development while 3,603 people (27.7 percent) will work outside the development. Jobs are expected to be secured in the following areas: manufacturing, wholesale/retail outlets, services, education, and government.
The fiscal experts agreed that North Port, the County, and the Sarasota County School District will provide services to the residents of Phase I (of which there will be 9,788 when fully occupied) and that these residents will generate revenues to each of these governments in the form of taxes. They also agreed the issue of a development's impact on the region's economy depends on whether the costs to affected governments of providing services to the residents of the development exceed the revenues generated to those governments by the residents. The experts agreed a fiscal impact analysis consists of a detailed examination of the costs to affected governments of providing services to a development and the revenues generated to those governments by the development.
Indeed, the per capita expenditure figure for the county was obtained by simple division of the county's operating expenses and per capita reduction for certain services provided by the respondent or North Port (water and solid waste). The county's expert used the per capita method to calculate the cost to North Port of providing services to the residents of Phase I and to determine all other costs and revenues which, according to him, did not vary by location.
Testimony at the final hearing showed the development schedule to be a realistic projection, and if anything, on the conservative side. Respondent's director of planning and budgeting control in the home site development division prepared the development schedule for Myakka Estates. The schedule was developed for all respondent's communities in the ordinary course of respondent's business and the schedule for Myakka Estates followed the same methodology. The schedule is based on a business plan, projected population figures for the area, and the ability of the sales and marketing division to capture a percentage of the market. The business plan and the ability of the sales and marketing division are based on historical data. The projections are based on past performance of respondent and its estimation of the ability of its division of sales and marketing to sell in northern Florida and out-of-state markets. Respondent is the largest land developer in Florida and has almost 30 years of experience of major land development sales to these markets; over the years it has developed a profile of its customers, which may well not be the same as the "normal" purchaser of real estate in Sarasota County. Slightly more than 88 percent of respondent's Florida house sales and 90-93 percent of respondent's homesite sales are made to out-of-state residents. The average age of the buyer of a GDC home is 50 years. Approximately 84 percent of GDC homebuyers are prior homeowners and in excess of 70 percent of them are two- income families. In 1979, the gross monthly income of the average purchasing unit was $3,065.
Respondent's vice president of marketing, after review of the development schedule or Myakka Estates, testified the schedule was extremely reasonable and probably slightly conservative.
The hearing officer finds respondent's development schedule was prepared in the ordinary course of business.
A governmental unit may earn a return on funds invested at a rate in excess of the rate the government unit must pay if it had to borrow funds. Because local governments are not taxed on the income earned from invested surplus revenues (not borrowed funds), and because interest on local government debt obligations is not taxable, yields on surplus balances have historically exceeded the cost of financing deficits, the historical difference being approximately 3 percentage points. If the yields were identical (that is, the rate of return on invested surpluses equals the rate of interest on borrowed funds) then simple discounting without accounting for investment income would be appropriate. But since the yields are not identical, investment income on surpluses, at a rate approximately 3 percentage points higher than the rate at which a local government would borrow, should be indicated in the analysis, if surplus revenues are projected. The county's expert did not use investment income in his analysis.
There are numerous services included within Sarasota County's gross per capita expenditure figure which must be prorated in order to arrive at a figure which accurately reflects the cost the residents of Phase I will impose on the county. The mayor of North Port testified there are several county services which are not utilized or available to the residents of the City of North Port.
Certainly one must conclude the residents of Phase I will not benefit from county services to the same extent as residents in the unincorporated areas of the county. Most of the county's facilities are in the more populated areas of the county, not in the extreme south end abutting Charlotte County. Furthermore, Phase I is planned as a "new community", with some facilities and service centers to be located within the development. It is also located within a municipality which provides services to its residents.
To reflect the foregoing considerations, among others, and the fixed nature of certain county costs, Van Buskirk reduced by differing amounts the per capita cost for services provided by the county for which the residents of Phase I will not be receiving a 100 percent benefit. The basis for Van Buskirk's reduction was outlined. Thus:
Water and Solid Waste
No water and solid waste services are to be provided by the county. Therefore, the full amount was deducted from the county's per capita expenditure figure.
Recreation
The county's per capita cost for recreational services is $18.79. The City of North Port provides recreation services to its residents.
Myakka Estates will contain recreation tracts
and facilities for its residents. Some residents will want to use county recreation facilities available outside of the development. Therefore, respondent's expert reduced by 50 percent the county's per capita cost for recreation to reflect the decreased use of county recreation facilities by the residents of Myakka Estates.
Law Enforcement
There are numerous law enforcement services which are provided by the county which will be utilized by the residents of Phase I. Nevertheless, it is equally clear that the city's own police department will provide law enforcement, traffic control, and basic police services.
Building Inspection
The city provides full building inspection services. Accordingly, the full amount of the county's per capita cost figure for building inspection services was deducted from the county's present per capita expenditure figure.
School age children will constitute only 10 percent of the population of Phase I during the early stages of development and will increase to 16.2 percent of the population at build-out. When Phase I is fully occupied, it is expected to have a total student population of 1,958 of which 979 will be elementary students, 490 junior high students, and 489 senior high students. Phase I will generate the need for an elementary school ten years after development begins, when the elementary student population reaches 417 pupils. Phase I will not generate a threshold population for either a junior or senior high school.
In designing the Master Plan for Myakka Estates, respondent consulted the director of facilities planning for the Sarasota County School Board. After discussions with the School Board, respondent set aside six sites for elementary schools, two sites for junior high schools, and one site for a senior high within Myakka Estates. The School Board expressed its approval of these sites and of respondent's projections of student population in a letter from the director of facilities of the Sarasota County School Board. One of these nine school sites is located in Phase I and respondent has agreed to donate this site to the Sarasota County School District. Respondent has also agreed to donate the school sites within the vested portion of Myakka Estates, units 1 through 4.
In prior years the county has had difficulties in passing referenda to finance school construction. In 1980, the Florida Legislature passed a law which permits school districts to levy up to two mills for new school construction, remodeling projects, and other capital expenditures without a referendum. Section 236.25(2), Fla. Stat., as amended, Ch. 80-381, Laws of Florida 1980. The assessed taxable value of real estate for the 1979-1980 school year was approximately $3.8 billion. If the two mills were levied annually by the school district, an annual fund of approximately $7,700,000 could be raised. This amount could more than cover the debt service on a 20- year bond issue and be substantially in excess of the projected capital construction needs of the School District over the next five years.
Myakka Estates is contiguous to GDC's Port Charlotte community. It forms a part of the overall North Port-Port Charlotte urbanizing area which presently has three cores. The oldest core is located in downtown Port Charlotte and has a population between forty and fifty thousand. The second core is located in downtown North Port which has a population between five and ten thousand. The third and newest core is located in the Gulf Cove area and has a population of approximately two thousand. Myakka Estates borders Gulf
Cove on the Cove's southern and eastern borders, and, as a new community, is part of the Port Charlotte Area.
The issue of location is made meaningful only when properly phrased: "Location in reference to what, is the question."
The planning design of Myakka Estates is based on the concept of multiple neighborhoods. Each neighborhood is designed around centralized neighborhood facilities, typically consisting of an elementary school, a neighborhood commercial center, a neighborhood recreation center, a public park, and a church. The neighborhood facilities are designed to meet the daily needs of the residents.
The partial site plan shows in greater detail the layout of the neighborhood facilities within the Phase I of Myakka Estates. The center of the neighborhood contains an elementary school site and park tract, a public park, a recreation tract, and a neighborhood shopping center. GDC's recreation centers typically have a recreation building, swimming pool, tennis courts, and shuffleboard facilities. The four-acre neighborhood shopping center would have up to 45,000 square feet of gross leasable space, which will include retail stores for the daily needs of the residents. Within unit 5 of Phase I, a separate four-acre neighborhood shopping center and ten-acre recreation tract exist for residents of that area.
In addition to the neighborhood facilities within Phase I, other facilities within the "vested" portion of Myakka Estates will be accessible to Phase I residents when built. The "vested" portion of Myakka Estates, consisting of units 1 through 4, is directly adjacent to Phase I. A community shopping center on 23 acres located in unit 2 will serve the residents of Myakka Estates, when built. There are sites for two churches, an elementary school, and a junior high school in unit 3. An elementary school site is located in unit 1. An emergency facilities building which will provide ambulance, fire, and police protection to the residents of Myakka Estates will also be located on a one-acre site adjacent to Phase I. The emergency facilities building will be built by respondent and will be completed prior to the construction of any homes within Myakka Estates.
In addition to single-family and multi-family homesites, subsequent phases of the proposed development, will include three elementary schools, one junior and one senior high school, three churches, three public parks, one neighborhood recreation area, a number of greenbelt park areas, two golf courses, two lakes, two neighborhood commercial centers, a regional center, a utility site, and a marina, subject to approval of incremental ADAs.
Other facilities offered within the City of North Port include: a new strip shopping center based around a Winn-Dixie food store, a major furniture store, dry cleaners, and other shopping and convenience facilities.
Some of the principal major shopping facilities accessible to the residents of Phase I either are in existence or are currently planned for Charlotte County. Promenades, the largest shopping center between the Burdines complex south of Sarasota and the Maas Brothers complex in Fort Myers, has over 240,000 square feet of space and houses between 50-52 stores. This shopping center was built by respondent and is located in Charlotte County approximately
12 miles from Phase I. There are numerous shopping facilities in Charlotte County along Route 41 from Midway Boulevard to the bridge to Punta Gorda. A
regional shopping center (larger than the Promenades) at the intersection of SR 771 and Route 41 in Charlotte County is proposed.
Respondent's vice president of marketing testified that from the point of view of the individual who wants to live in the North Port-Port Charlotte area, there is certainly a need for additional homesites, "because there are very few available." Furthermore, Mr. Paul Van Buskirk testified the population of Florida will increase by over 7,000,000 in the next 40 years. If so, there will be a need for 2.8 million additional housing units, not including replacement housing.
A financial analyst for respondent compared the cash flows of a mixed lot-housing development program such as Phase I against an all-housing or "no lots" development program. Under the first option, 50 percent of the lots would be developed as homesites and the remaining lots would be sold as part of a housing package, as in Phase I. Under the second option, all sales would be housing package sales. Under the first option, cumulative cash flow are negative for five years, i.e., the developer must absorb five years of cash losses. Under the second option, cash flows remain negative for 15 years.
The significance of the difference between the cash flows for the two development options is that sales of homesites provide the developer with working capital during the early years to meet the high cost of installing the infrastructure.
With the exception of deducting the total cost of water and solid waste, Fishkind insisted no proration should be made for the cost of county services which the residents of Phase I will be receiving in part from sources other than the county, e.g., respondent and the city. He made no deduction reflecting the diminished use of certain county facilities by virtue of Phase I's location. Instead, Fishkind contended an additional amount should be included in the fiscal impact analysis to reflect Phase I's location, specifically with respect to road and law enforcement services. For this purpose he accepted without question costs which his report stated came from the Sheriff of Sarasota County and the expert called by the county on the subject of traffic and transportation. In any case, Fishkind made no independent analysis of what additional transportation facilities and law enforcement services costs could be attributed to the development of Phase I. The hearing officer finds both figures used by Fishkind are high. The hearing officer concludes that more accurate road construction cost figures were given by the traffic and transportation expert called by respondent. Van Buskirk testified the gasoline taxes paid by the residents of Phase I will offset anticipated road costs, and, in addition to these gasoline taxes paid to the State, the residents of Phase I will pay ad valorem taxes to the county road and bridge fund.
The issue is whether Phase I will unduly burden Sarasota County schools. The acting assistant director of operations for the School Board of Sarasota County testified that under the school system's present condition a major development anywhere in Sarasota County would be a burden on the school system. Thus, 50 additional students anywhere would be a burden to the school system.
As soon as lots are sold on the installment basis (which is long before house construction commences and residents move in), the classification of the property changes and its assessed valuation increases; accordingly, tax revenues generated by Phase I will begin to increase as soon as subdivision plats are recorded and sales commence.
The following findings of fact have been rejected as not established by or inconsistent with the evidence:
Accordingly, there are not plans and no funds to build the schools which would be needed to serve the proposed development if it were approved in the proposed location.
The location of the proposed development accounts for the variation in certain public costs including roads, schools, police, and utilities. The subdividing of this particular agricultural area creates the need for urban services which, because of the remote location, engenders greater costs than if the development were closer to the more urbanized areas.
Only one aspect of Phase I's impact on the economy of the region was vigorously debated, that of "fiscal impact" on three units of government (city, county, and Sarasota County School District). Phase I's "fiscal impact" on other governmental units (including the State and counties other than Sarasota) was not discussed. The broader topic of the impact of the development on the economy of the region was not the subject of intense debate.
There was no factual testimony offered by opponents that the development schedule for Phase I is an inaccurate projection.
There is no responsible evidence that the development schedule for Phase I is unreliable.
Because the residents of Phase I will not be living next to county facilities, they will not be using them as much as those residents of the county who live closer to them.
Accordingly, the recreation needs of the residents of Phase I will be primarily satisfied within the confines of Myakka Estates and the city.
Fishkind's report did not appear to consider gasoline taxes or county road and bridge fund increases generated by the residents of Phase I.
Phase I will, therefore, burden the school district no more than a new development located elsewhere in the county.
Indeed, by focusing on the distance between Phase I and existing facilities opponents overlooked the most important feature of this development. Myakka Estates was designed so residents would not have to travel great distances to obtain necessary services. This is "state of the art" planning.
SECTION 380.06(11)(a)3., FLORIDA STATUTES (SUPP. 1980)
The development will efficiently use water, sewer, and solid waste disposal facilities.
Water will be supplied to the residents of Myakka Estates by General Development Utilities, Inc. ("GDU"), a subsidiary of respondent. The initial water supply for the residents of Myakka Estates will come from GDU's existing water plant in North Port which has an 8 million gallons per day (MGD) capacity. GDU has a consumptive use permit for this facility authorizing an average daily withdrawal of 4.45 MGD with a maximum of 9.75 MGD from surface and groundwater sources identified in the permit. The North Port plant and GDU's recently
constructed Peace River plant at Fort Ogden, DeSoto County, will be the principal GDU plants for the region. Residents of Myakka Estates will be served by the Peace River plant. The Peace River plant is located on the Peace River approximately 1/4 mile southwest of State Road 761, contiguous to the Port Charlotte community. The plant has a design capacity of 30 MGD. It is presently operating at a 6 MGD capacity, although certain components have been constructed at design capacity. The Plant can be expanded to a 12-15 MGD capacity with relative ease; when the demand for water increases, the plant will be enlarged to its design capacity.
The Southwest Florida Water Management District has performed studies of planned water use through the year 2020 in a January, 1980, report entitled, "The Southern Region Public Water Supply Development Status Report." In this report, the Water Management District examined and evaluated new or expanded sources to meet projected demands in the areas serviced by the Manasota (i.e., Manatee and north Sarasota Counties) and Peace River Basins. A project within the status report entitled, "Preliminary Lower Peace Regional Water Supply Plan," was designed to determine the feasibility of developing a regional water supply source to meet the needs of southern Sarasota, Charlotte, and DeSoto Counties. The results of the study suggested the Peace River plant and the North Port facility could be the key water treatment facilities to meet the projected demands of the entire area. The study also indicated the cost of supplying water to northern Sarasota County would be cheaper if supplied through this regional system. In fact, the Englewood Water District and the City of Punta Gorda could also be supplied water by the Peace River facility once its current source of water is tapped to full capacity. Specific areas which would also utilize water channeled through the Peace River plant are the entire Port Charlotte area, and the Placida Peninsula in times of shortfalls in its existing water system. Another project within the Water Management District's status report is the Peace River interconnection, which could connect the Sarasota County supply system to the Peace River (through expansion of GDU's Peace River facility). This system envisions utilization of out-of-county sources to meet demands throughout the county once in-county sources are tapped to full capacity. These out-of-county water sources should become even more important since much of the existing water supply in Sarasota County is of poor quality and can only be made potable through energy-intensive and expensive desalinization methods. County representatives have acknowledged that the Peace River could be the cornerstone of a regional water supply system and that the GDU system is "a vision that is years ahead of its time".
As the population of North Port and Myakka Estates grows, other sources and methods may be utilized to meet the needs of this population, the Port Charlotte community, and the other areas mentioned in the regional water system described above.
Water from the Myakkahatchee Creek, which discharges 20 billion gallons of water a year, and Snove Waterway, a canal in North Port, can be pumped back through existing pipelines to the Peace River plant for treatment and storage. This type of water transfer system would be very energy-efficient. The Southwest Florida Water Management District has recognized that through this water transfer system approximately 13.5 million gallons of waste per day would become available. Raw water stored in the reservoir at the Peace River water plant can be pumped to the North Port treatment facility.
Groundwater located in DeSoto County adjacent to the Peace River water plant can also be made available. Geraghty & Miller, independent engineering consultants to respondent (an officer of which was called as an expert
hydrological witness by respondent) conducted a series of investigations in the Port Charlotte area which indicated large quantities of groundwater were available for development as a potable water supply source. These investigations revealed three significant waterbearing zones yielding large quantities of water on the north end of the property where the Peace River plant is located. It was also determined large quantities of water were available for a potable water supply in the Lettuce Lake area. The Geraghty & Miller studies show mineralized groundwater in these areas can be utilized by blending it with water from the Peace River. The Peace River water is low in sulfates, chlorides, and total dissolved solids, while the groundwater in these areas is high in total dissolved solids and sulfates (although also low in chlorides). A mixture of the surface water and the groundwater would result in water having total dissolved solids, chlorides, and sulfates below recommended limits. This blending process would be an efficient way to utilize the moderately mineralized groundwater found in the area of the Peace River plant and would have no adverse effect on the water table or the quantity or quality of water in the Peace River. The areas identified in the Geraghty & Miller reports are capable of producing 13 million gallons a day.
Opponents offered no evidence that Phase I of Myakka Estates would unduly burden public water facilities.
SWFWMD has permitted the first 5 MGD for the Peace River plant and has referred to the later increments in its report on the region. The Peace River plant is seen as a vital link in the water supply system, and it is included in SWFWMD projections through 2020. The hearing officer rejects the SWFRPC's suggestion that GDU has not planned for the future potable water demand of the region, and finds that the proposed water supply system will not unduly burden public water facilities.
Opponents offered no evidence that Phase I of Myakka Estates would unduly burden public sewer facilities.
Opponents offered no evidence Phase I of Myakka Estates would unduly burden public solid waste facilities.
The EWD has paramount jurisdiction over the City of North Port in furnishing and regulating water and sewer services within its jurisdiction.
The application for proposed development of Myakka Estates, units 5, 6, and 7, failed to consider the physical impacts upon the EWD in order for the EWD to provide improvements for rendering water service, including water production, treatment, storage, and distribution facilities, sewer service, fire protection facilities, and water service for fire protection.
The application for proposed development of the Myakka Estates units 5, 6, and 7 does not consider the long or short-term impacts upon the EWD for water demands for potable or fire protection uses.
SECTION 380.06(11)(a)4., FLORIDA STATUTES (SUPP. 1980)
There are no mass transportation facilities in the vicinity of the proposed development. Existing public roads would have to be improved and new ones would have to be built. A bridge would have to be widened.
The entire corporate boundaries of the City of North Port (including the present urbanized portion of the city, the vested area of Myakka Estates
(units 1 through 4), and the remainder of Myakka Estates) are treated similarly to Charlotte County for purposes of the SMATS study, that is, as an "external zone" to Sarasota County.
The transportation impact of Myakka Estates is, of course, related to its location.
Based on the location of assumedly primary off-site attractions for the residents of Phase I, respondent's expert determined which roads would require improvement and reconstruction and estimated the share of the total cost attributable to Phase I. The improvements recommended by respondent's expert are described in the expert's report. According to respondent's expert, Phase I's share of the cost of these improvements, based on its proportionate share of the traffic, is $1,445,100. Included in this figure is $835,000, the full cost of widening a bridge across the Myakka River. Since this is a State responsibility, respondent's expert opined this amount should be deducted from the cost attributed to Phase I. If this amount is deducted, the share of the cost of roadway improvements attributable to Phase I is $611,000. Respondent will, of course, construct all roads within Myakka Estates and has additionally agreed to construct a two-lane road from Phase I to SR 777. In fact, respondent has agreed with the city to construct this road before commencement of house construction in units 1 through 4. Thus, whether or not Phase I is ever constructed, there will be a traffic outlet to SR 777 from units 1 through 4.
No provisions for mass transportation are contained in the Myakka Estates Master Plan. Although Phase I would not be able to accommodate a right- of-way for a mass transit facility, subsequent phases of Myakka Estates could be designed to include a system linking mass transit to Myakka Estates. At the present time, there is no mass transit system in the North Port-Port Charlotte area, but bus service in the county could service this area.
The county's traffic and transportation expert's analysis ignored the existence of units 1 through 4, their vested nature, or the agreement required by the city to connect units 1 through 4 to SR 777.
The basis for the cost estimates of the county's expert was the cost of constructing a section of an urban street, having curbs and gutters. Respondent's expert testified if SR 777 must be made a four-lane road, a rural type road would not only be appropriate, but would be mandated by FDOT. Rural roads have no curbs, gutters, sidewalks, and underground drainage. The cost of constructing such a rural road is approximately 50 to 60 percent less than the normal urban section cost. Accordingly, the cost estimates of the county's expert are substantially overstated.
To determine whether there was any validity to the suggestion of the county's expert that Venice should be included within the traffic study area, respondent's expert expanded the study area of his report to the west and northwest to include Venice. For this purpose, he used the demographic data from the SMATS study for these additional traffic zones. Respondent's expert then ran this modification through the model. The results from this modification coincided with the original conclusion of respondent's expert that relatively few trips will be drawn to the Venice area from Phase I. The information processed in the computer produced an array of patterns for the different attraction area outside of Phase I. The computer pattern indicated about 3,400 trips would be drawn to the Murdock Center in Port Charlotte; 3,100 trips would be drawn to the Gulf Cove area adjacent to Phase I, downtown North Port would attract 1,800 trips; Venice would attract 1,100 trips from Phase I;
and Englewood would attract approximately 1,800 trips, which is predicated on respondent's expert's assumptions about commercial growth in area. Based on this information, SR 777 would actually be required to handle about 2,300 daily vehicle trips from Phase I. The original model prepared by respondent's expert showed there would be 2,000 daily vehicle trips on SR 777 from Phase I, or essentially the same number.
Neither the master nor Phase I application for development approval proposes a timetable for the development of commercial facilities. It is uncertain as to when, or if, any of these commercial facilities would be developed.
It is a major objective of sound land use planning to reduce travel by automobile with attendant high energy consumption.
The choice of location for land development is extremely important in terms of the impact of the development upon energy usage.
The following findings of fact have been rejected as not established by or inconsistent with the evidence:
There are, however, many buffer strips and greenbelt areas which could be modified to provide rights-of-way for bus streets, people movers, or rapid transit lines.
SECTION 380.06(11)(a)5., FLORIDA STATUTES (SUPP. 1980)
Opponents did not contest the adequacy of the housing for Phase I nor did they dispute that the residents would be primarily retired persons.
Although the issue of the location of development was discussed at great length at the hearing, opponents did not present any evidence on the specific issue of whether the proposed development would have an adverse impact on the ability of people to find adequate housing reasonably accessible to their places of employment.
SECTION 380.06(11)(a)6., FLORIDA STATUTES (SUPP. 1980)
here are no applicable criteria adopted pursuant to Section 120.54, Florida Statutes (1979).
SECTION 380.06(13)(a), FLORIDA STATUTES (SUPP. 1980)
The proposed development does not unreasonably interfere with achievement of most of the goals, objectives, and policies in the Florida State Comprehensive Plan.
The proposed development does not unreasonably interfere with the following goals, objectives, and policies:
Ensure that the expansion of public facilities for economic development is in accordance with local government comprehensive plans and the State Comprehensive Plan.
Consider the projected availability of energy when making economic development decisions.
Incorporate energy as a major consideration
into the planning and decision-making processes of state, regional, and local governments.
Encourage land use patterns that by design, size, and location minimize long-term energy commitments to construction, operation, maintenance, and replacement.
Encourage a careful, ongoing evaluation of governmental expenditures and revenues
in light of future uncertainties about energy supplies and related economic implications.
To ensure the orderly long-range social, economic, and physical growth of the state.
Housing should be produced in a mix of types, sizes, and prices that is based on local and regional need and that is consistent with the state's growth policy.
Land use and development should proceed
in an orderly manner that produces an economically efficient and personally satisfying residential environment with minimal waste of our land resources.
The provision of public facilities, utilities, open space, transportation, and other services that are required to support present and projected housing and community development needs should be ensured.
Develop environmentally responsive land planning methods that reduce the stress that new developments place on their communities' energy needs, water needs, sewage treatment facilities, transportation, flood control systems, and social, and educational services, and reduce the overall taxes and cost of the services needed to satisfy these demands.
Consider energy implications in the review of applications for developments having regional impact (DRI).
Land development should be managed in
a manner consistent with the values and needs of the citizens of the state and with the concept of private property rights.
Agricultural lands, especially those
most seriously threatened, should be maintained and preserved for the production of food and fiber products.
Influence the timing, distribution, type, density, scale, and design of development by coordinating land development proposals in state and local comprehensive plans and public investment programs in order to ensure the availability of adequate public facilities, services, and other resources.
Base land development decisions on quantitative knowledge of the short and long-term capabilities of the hydrologic
units to provide adequate supplies of water.
Protect groundwater supplies from saltwater intrusion by the regulation of withdrawals, maintenance of adequate recharge of groundwater, and prevention of saltwater movements inland through coastal canals.
Maintain groundwater levels to insure that water levels are not drawn to such a degree that sustained yield is adversely affected or that natural resource degradation takes place.
Protect groundwater supplies from saltwater intrusion by the maintenance of a sufficient amount of groundwater in coastal aquifers to
prevent intrusion through regulation of withdrawals, maintenance of adequate recharge, and sufficient controls on coastal canals.
Protect and maintain groundwater supplies and aquifer recharge areas through water and land-management practices and, where necessary, through regulation of development activities.
Allow alteration of groundwater movements within or between aquifers only where it can be shown that such alterations are not harmful to surface and groundwater resources.
Develop minimum service standards for utility systems.
Encourage the provision and maintenance of adequate utility systems in already developed areas. In areas where utility systems are overburdened, manage growth while remedial measures are expedited to restore utility systems to a condition of adequacy.
Encourage the effective use of utility ' systems, energy, land, and finite resources
by evaluating and revising, if necessary, laws and regulations that may bar innovative development patterns, designs, and materials.
The North Port Comprehensive Plan states that it is consistent with the following asserted objectives of the State Comprehensive Plan and the Sarasota County Land Use Plan among others, by providing for growth to occur in the area referred to in 31(B). The asserted objectives are:
Utilize the concentration of population to efficiently utilize the infra-structure and land use.
Provide a transportation system which encourages public facility use to facilitate greater land use efficiency and conserve energy.
Encourage retention of agricultural lands for agricultural use.
Support and encourage efforts to develop alternatives to the auto in order to conserve energy and other resources.
Prevent "leap-frogging" and uncontrollable urban sprawl without creating an undesirably high density urban environment.
Restrict expansion of utilities and thoroughfares beyond urban areas.
The proposed development would unreasonably interfere with the following goals, objectives, and policies:
Physical, natural, economic, and human resources should be managed and developed in ways that avoid unnecessary long-term energy- intensive investments.
Identify the costs and benefits of growth to local and state governments and explore methods for allocating these costs to the citizens equitably.
Allocate an equitable share of the cost of expanding public facilities to the newly served residents.
Coordinate land use planning and water management to ensure the long-range maintenance and enhancement of water quantity and quality.
Accommodate new development by using water from the local hydrologic basins rather than through surface water transfer between hydrologic basins.
SECTION 380.06(13)(b), FLORIDA STATUTES (SUPP. 1980)
The development is consistent with local land development regulations, except that North Port has zoned the area agricultural; but North Port adopted the development order under appeal.
Not only was the proposed development expressly considered by the city commission; it was deemed to be consistent with the standards of the North Port Plan, and scheduled to be included in an updated version of the plan pending this litigation.
A portion of Phase I lies within the Englewood Water District (EWD). EWD offered no testimony or evidence that Phase I was inconsistent with EWD rules or regulations which were in effect either at the time the ADA was considered by the city or at the time of the final hearing. Counsel for EWD offered into evidence regulations which were not even in effect at the time of the final hearing. The rules and regulations of EWD were mailed to counsel for respondent on June 30, 1980. The effective date of the rules is September 1, 1980.
Respondent is not required to have permits in hand from all regulating bodies in order to obtain approval of an ADA. EWD's complaint that its regulations (not even in effect at the time of the hearing) have not been complied with is premature. Respondent offered to stipulate it would comply with the rules and regulations of EWD in the area of Phase I which falls within EWD. This reasonable offer was rejected. Although the hearing officer asked counsel for EWD how his client would be harmed by requiring respondent to obtain permits from EWD before developing the property, counsel declined to respond to the question. In fact, counsel for EWD requested that the area of the jurisdiction overlap be eliminated from the ADA. Even the counsel for the DSP objected to this suggestion.
The following findings of fact have been rejected as not established by or inconsistent with the evidence:
It is clear EWD has no legitimate basis for concern about the provision of utilities to those residents of Phase I who will also reside in the EWD.
The location of the proposed location of the Myakka Estates units 5, 6, and 7, is not consistent with the stated objectives or the detailed elements of the adopted North Port Comprehensive Plan.
SECTION 380.06(13)(c), FLORIDA STATUTES (SUPP. 1980)
The development is consistent with the report and recommendations of the Tampa Bay Regional Planning Council anent the Master ADA but inconsistent with the report and recommendations of the Southwest Florida Regional Planning council anent the incremental ADA.
In May, 1975, the SWFRPC issued its report and recommendations on Phase I recommending the city not approve the Phase I ADA. The report and its recommendations were considered by the members of North Port Zoning and Planning Board and by the members of the city commission. The North Port Planning and Zoning Board issued a report to the city commission addressing the SWFRPC staff report on Phase I. In addition, respondent prepared a response to the SWFRPC staff report responding to numerous assertions made by the staff of the SWFRPC. The material in the response was verified at the hearing by each of the witnesses who prepared the responses. The 17-page Incremental Development Order issued by the city considers at length the report and recommendations of the SWFRPC. The city considered the SWFRPC report and recommendations as required by Section 380.06(11)(c). Nor did the SWFRPC (or any other opponent) address GDC Exhibit No. 25, as such.
No evidence that professional planners participated in selecting the location of the proposed development was adduced.
DONE and ORDERED this 7th day of April, 1981, in Tallahassee, Florida.
ROBERT T. BENTON, II
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
Telephone: (904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 1981.
COPIES FURNISHED:
Parker D. Thomson, Esquire and Douglas M. Halsey, Esquire 1300 Southeast First National
Bank Building Miami, Florida 33131
C. Laurence Keesey Department of Veteran and
Community Affairs
Room 204, Carlton Building Tallahassee, Florida 32301
David E. Bruner, Esquire
581 Springline Drive Naples, Florida 33940
Richard L. Smith, Esquire 2070 Ringling Boulevard
Sarasota, Florida 33577
Robert A. Dickinson, Esquire
70 South Indiana Avenue Englewood, Florida 33533
John W. Field
Englewood Community Organizations
227 Bahia Vista Drive Englewood, Florida 33533
Wayne Allen, Esquire
General Development Corporation 1111 South Bayshore Drive Miami, Florida 33131
Mayor Margaret Gentle City of North Port
North Port, Florida 33595
Allen J. Levin
209 Conway Boulevard Northeast Port Charlotte, Florida 33952
Office of Planning and Budget Executive Office of the Governor
311 Carlton Building Tallahassee, Florida 32301
Gerald Chambers
6970 Manasota Key Road Englewood, Florida 33533
The Honorable Robert Graham Governor, State of Florida The Capitol
Tallahassee, Florida 32301
The Honorable Jim Smith Attorney General
The Capitol
Tallahassee, Florida 32301
The Honorable Ralph Turlington Commissioner of Education
The Capitol
Tallahassee, Florida 32301
The Honorable Doyle Conner Commissioner of Agriculture The Capitol
Tallahassee, Florida 32301
The Honorable William Gunter State Treasurer and
Insurance Commissioner The Capitol
Tallahassee, Florida 32301
The Honorable Gerald Lewis State of Florida Comptroller The Capitol
Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Jun. 01, 1982 | Final Order filed. |
| Jan. 06, 1981 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 08, 1982 | Agency Final Order | |
| Jan. 06, 1981 | Recommended Order | Respondent's Phase I Apllication for Development Approval (ADA) should be granted subject to conditions of deeding out school area, not building on flood prone property, etc. |
IN RE: PETITION TO ESTABLISH THE MYAKKA RANCH COMMUNITY DEVELOPMENT DISTRICT vs *, 75-001237 (1975)
DEPARTMENT OF COMMUNITY AFFAIRS vs SUMTER COUNTY, 75-001237 (1975)
DEPARTMENT OF COMMUNITY AFFAIRS vs CITY OF POLK CITY, 75-001237 (1975)
KAWAMA HOMEOWNERS ASSOCIATION, INC. vs DEPARTMENT OF ECONOMIC AND MONROE COUNTY, 75-001237 (1975)
