STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARING
DEPARTMENT OF COMMUNITY )
AFFAIRS, )
Petitioner, )
and )
)
CITY OF CAPE CORAL and )
LEE COUNTY, ) CASE NO. 89-2159GM
)
Intervenors, )
vs. )
)
CITY OF FORT MYERS, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, final hearing in the above-styled case was held in Ft. Myers, Florida, on March 25-29 and May 15, 1991, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
The parties were represented at the hearing as follows: For Petitioner Kenneth D. Goldberg
Department of Assistant General Counsel Community Affairs: 2740 Centerview Drive
Tallahassee, Florida 32399-2100
For Intervenor Bruce R. Conroy City of Cape Coral: City Attorney
City of Cape Coral
P.O. Box 15002
Cape Coral, FL 33915-0027
For Intervenor Kenneth G. Oertel Lee County: Scott Shirley
Oertel, Hoffman, Fernandez & Cole, P.A.
2700 Blair Stone Road, Suite C Tallahassee, FL 32314-6507
Gregory S. Hagen Assistant County Attorney
P.O. Box 398
Ft. Myers, FL 33902-0398
For Respondent Charles L. Siemon City of Ft. Myers: Andrew C. Stansell
Siemon, Larsen & Purdy
433 Plaza Real, Suite 341 Boca Raton, FL 33432
Jacqueline Williams Hubbard City Attorney
City of Ft. Myers 2200 Second Street Ft. Myers, FL 33901
STATEMENT OF THE ISSUE
The issue in this case is whether Ft. Myers' comprehensive plan, as amended, is not in compliance for the reasons set forth in the prehearing stipulation, as amended during the final hearing.
PRELIMINARY STATEMENT
On April 25, 1989, the Department of Community Affairs
filed a petition alleging that the comprehensive plan of the City of Ft. Myers was not in compliance for the reasons set forth in the Statement of Intent.
Among the alleged deficiencies were the omission of the Mid-Point Bridge from the plan and inadequate intergovernmental coordination with regard to the bridge. The Department filed an amended petition the next day.
The City of Ft. Myers filed an answer on May 18, 1989. A Notice of Hearing was issued on June 8, 1989, setting the case for final hearing starting October 30, 1989.
By Petition for Leave to Intervene filed September 25, 1989, the City of Cape Coral sought to challenge the Ft. Myers plan . By Petition to Intervene filed October 13, 1989, Lee County also sought to challenge the Ft. Myers plan.
In addition to other responsive pleadings, Ft. Myers filed on October 24, 1989, a motion to continue the final hearing if the issues raised by Lee County and Cape Coral were not fully stricken. On October 25, 1989, the Department of Community Affairs and the City of Ft. Myers filed a joint motion for continuance or abatement on the grounds that they had entered into a settlement agreement.
By order entered October 26, 1989, the petitions to intervene and the request for an abatement were granted. The case was abated for a total of 11 months, which the parties had requested as necessary in order to complete the remedial amendment process.
On September 25, 1990, Lee County filed a motion to set aside the abatement and argued that dismissal of the case would be inappropriate even if the Department of Community Affairs determined that the remedial amendments of Ft.
Myers were in compliance. On October 13, 1990, the Department published its Notice of Intent to find the plan amendments in compliance. On November 14, 1990, the Department and Ft. Myers filed a joint motion to relinquish jurisdiction to the Administration Commission to issue a final order finding that the Ft. Myers plan was in compliance. By order entered the next day, the undersigned denied the request and set the final hearing on the claims of the intervenors for March 25, 1991.
By motion for summary final order filed March 6, 1991,Ft. Myers requested the dismissal of intervenors' claims. Ft. Myers argued that, among other things, Lee County and Cape Coral were attempting to obtain the benefit of a standard of proof less deferential to Ft. Myers by prosecuting their claims as part of the proceeding that the Department of Community Affairs initiated under Section 163.3184(10). Ft. Myers argued that Lee County and Cape Coral could challenge the plan amendments in a Section 163.3184(9) proceeding. Ft. Myers also objected that the intervenors had been allowed to raise issues outside the scope of those contained in the petition of the Department.
Lee County filed a response to the motion for summary final order. By motion in limine filed March 12, 1991, Lee County also requested an order limiting Ft. Myers and the Department from offering evidence in the form of data and analysis that were not in existence on February 13, 1989, when Ft. Myers adopted its plan.
By order entered March 18, 1991, the motion for summary final order was denied and ruling was reserved as to the motion in limine. However, as to the latter motion, the order states that Ft. Myers and the Department would be allowed to offer
evidence in the form of supporting data and analysis for any plan amendments as long as such data and analysis were in existence at the time of the adoption of the plan amendment.
By stipulation filed March 22, 1991, and modified at the final hearing with leave of the undersigned, the issues are:
Whether Traffic Circulation Policies 5.1, 5.2, and 5.3, as well as the implementing actions thereunder, as to the treatment of
the proposed Mid-Point Bridge, are supported by the best available existing data, as such criterion is stated by Rule 9J-5.005(2)(c), Florida Administrative Code, and whether such data were collected and applied in a professionally acceptable manner, as such criterion is stated by Rule J-5.0015(2)(a), Florida Administrative Code.
Whether the analysis pertaining to the Traffic Circulation Element is consistent with the criterion of the second sentence of Rule 9J-5.007(2)(b), Florida Administrative Code.
Whether Traffic Circulation Element Policies 5.1, 5.2, and 5. 3, =together with their implementing actions, as to the treatment of the proposed Mid-Point Bridge and expressway, are consistent with Section 163.3177(6)(b), Florida Statutes, and Rule 9J-5.007(3)(b)3. and (4)(a)2. and 3., Florida Administrative Code.
Whether the Future Land Use Element is consistent with the criterion of Rule
9J-5.006(3)(b)7., Florida Administrative Code, to discourage the proliferation of urban sprawl.
Whether Traffic Circulation Element Action 5.2.1 is consistent with the criterion of Rule 9J5.006(3)(b)7. Florida Administrative Code, to discourage the proliferation of urban sprawl.
Whether the Intergovernmental Coordination Element is consistent with the criteria of Section 163.3177(6)(h), Florida Statutes, and Rule 9J-5.015(3), Florida Administrative Code.
Whether Traffic Circulation Element Objective 5, Policy 5.1, Actions 5.1.1 and 5.1.2, Policy 5.2, Action 5.2.1, Intergovernmental Coordination Element Goal 2, Objective 1, and Policy 1.1, on the one hand, are consistent with Traffic Circulation Objective 6, Policy 6.1, Action 6.1.1, Policy 6.2, and Action 6.2.1, on the other hand.
Whether Traffic Circulation Objective 1, is consistent with Traffic Circulation
Element Objective 5, Policy 5.1, Actions
5.1.1 and 5.1.2, Policy 5.2, Action 5.2.1, Intergovernmental Coordination Element Goal 2, Objective 1, and Policy 1.1.
Whether Traffic Circulation Objective 2, Policies 2.4 and 2.6, and Standard 2.6.3, on the one hand, are consistent with Traffic Circulation Element Objective 5, Policy 5.1, Actions 5.1.1 and 5.1.2, ; Policy 5.2, Action 5.2.1, Intergovernmental Coordination Element Goal 2, Objective 1, and Policy 1.1, on
other hand.
Whether Traffic Circulation Element Action 5.2.1 is consistent with Future Land Use Element Objective 1.
Whether the Traffic Circulation Element, as to the treatment of the proposed Mid-Point Bridge and expressway is consistent with the Regional Plan of the Southwest Florida Regional Planning Council.
At the hearing, Lee County called six witnesses and
offered into evidence 11 exhibits. The City of Cape Coral called
no witnesses and offered into evidence five exhibits. The City of Ft. Myers called six witnesses and offered into evidence 28 exhibits. The Department of Community Affairs called no witnesses and offered into evidence no exhibits.
The parties
jointly sponsored three exhibits. All exhibits were admitted except Cape Coral Exhibit 3, which was proffered.
Lee County and the City of Cape Coral filed a single proposed recommended order. The City of Ft. Myers filed a proposed recommended order, which the Department of Community Affairs adopted. Treatment of the proposed findings is detailed in the appendix.
FINDINGS OF FACT
Background
The City of Ft. Myers, (Ft. Myers) adopted its comprehensive plan on February 13, 1989. The Department of Community Affairs (DCA) issued a Notice of Intent to find the plan not in compliance. Among other things, DCA alleged that the plan improperly omitted the Mid-Point Bridge and was inadequate in terms of intergovernmental coordination, at least with regard to the bridge.
The City of Cape Coral (Cape Coral) and Lee County filed petitions to intervene. The petitions challenged the Ft. Myers plan based on its omission of the Mid-Point Bridge. DCA and Ft. Myers subsequently reached a settlement. On August 20, 1990, Ft. Myers adopted plan amendments pursuant to the
settlement agreement. The plan, as amended, will be referred to as the Plan.
DCA issued a Notice of Intent to find the plan
amendments in compliance, but Lee County and Cape Coral, finding the plan amendments unsatisfactory, continued to prosecute their challenge to the Plan.
Ft. Myers and Cape Coral are two of the three municipalities located in Lee County. /2 The two cities are divided by the Caloosahatchee River, which forms the western end of the Okeechobee Waterway. This waterway links the Gulf of Mexico to Lake Okeechobee, via the Caloosahatchee River, and Lake
Okeechobee to the Atlantic Ocean.
In the eastern part of Lee County, the Caloosahatchee River runs from east to west. In this area, the river is spanned by the State Road 31 Bridge and, further downstream, the Interstate 75 bridge. In the vicinity of Interstate 75, about two miles northeast of the city limits of Ft. Myers, the river widens, makes a slow turn, and takes a northeast-to-southwest course.
Except for a railroad bridge about one mile downstream from the Interstate 75 bridge, the next bridge is the Edison Bridge, which is about 5 1/2 miles downstream from the Interstate 75 bridge. The Edison Bridge serves old
U.S. 41. The southern landfall of this bridge runs into the northern end of the central business district of Ft. Myers. The Edison Bridge, which is presently two lanes, is planned to be widened to six lanes in the near future.
About 1/2 mile downstream of the Edison Bridge is the Caloosahatchee Bridge, which serves new U.S. 41. The southern landfall of the Caloosahatchee Bridge, which is sometimes called the 41 Bridge, also runs into the central business district of Ft. Myers. The Caloosahatchee Bridge is four lanes.
About seven miles downstream from the Caloosahatchee Bridge is the Cape Coral Bridge, which is the last bridge before the mouth of the river. The Cape Coral Bridge was recently expanded to four lanes.
The proposed Mid-Point Bridge would be located 3.4 miles upstream from the Cape Coral Bridge and 3.8 miles
downstream from the Caloosahatchee Bridge. At this point, the river runs more in a north-to-south direction. The bridge would connect central Cape Coral with south Ft. Myers.
The Mid-Point Bridge project would include an east-west road corridor on both sides of the river. The corridor would connect Everest Parkway on the Cape Coral or west side of the river with Colonial Boulevard on the Ft. Myers or east side of the river.
Everest Parkway is presently only about 12,000
feet long. The corridor would connect Everest Parkway with Miracle Parkway to the west, turn north at Malatcha Pass (the western boundary of Cape Coral), and extend to New Burnt Store Road. Everest Parkway and most of Miracle Parkway are four-lane divided collectors for which Cape Coral has jurisdiction.
Colonial Boulevard is an arterial consisting of six lanes from McGregor Boulevard east to U.S. 41 and four lanes from U.S. 41 east to Interstate 75. The State had jurisdiction over all of Colonial Boulevard, but the County now has jurisdiction over the segment between McGregor Boulevard and
U.S. 41.
The west terminus of Colonial at McGregor Boulevard is about one- quarter mile east of the river. About 2000 feet east of McGregor is Summerlin Road. The next major intersection is U.S. 41, which is about 4000 feet east of Summerlin and less than 1.2 miles east of McGregor Boulevard. The Edison Mall, which is a major regional shopping mall, is less than one-half mile north of this intersection on the east side of U.S. 41. The next major intersection on Colonial is Metro Parkway, which is 1.3 miles east of U.S. 41. A little over
3.1 miles east of Metro Parkway is Interstate 75 where an interchange exists.
From west to east, the major north-south roads are McGregor Boulevard, for which capacity improvements are constrained by historic and scenic factors; U.S. 41, which crosses the Caloosahatchee Bridge; Fowler Street and Evans Avenue, which are a one-way pair between the Edison Bridge and Colonial; Metro Parkway, which is proposed to be extended north to cross the proposed Metro Bridge; and Interstate 75, which is considerably east of the downtown area.
Cape Coral is a relatively new community whose predominant land uses are residential. The relevant road network in Cape Coral consists of two major east-west roads: Pine Island Road, which is about four miles north of Everest, and Cape Coral Parkway, which is about three miles south of Everest. The major north-south roads are, from east to west, Del Prado Boulevard (at which point Everest presently ends), Country Club Boulevard, and Santa Barbara Boulevard.
In contrast to Cape Coral, Ft. Myers has been more or less continuously occupied since the construction of a fort by the same name in 1850 between the Second and Third Seminole Wars. In 1887, Thomas A. Edison built his home alongside the Caloosahatchee River between the central business district and what is now Colonial Boulevard. Edison's home is located on McGregor Boulevard, which is attractively lined by Royal Palm trees.
Aided by the arrival of Henry Plant's Coast Railroad in 1904 (and presumably a bridge to go with it), Ft. Myers began to grow rapidly in the early 1900's. The Colonial Boulevard area was not developed until the Florida land boom in the 1920's. Although the structures of historical interest are north of Colonial Boulevard, seven sextant structures on Rio Vista Way were constructed
during the 1920's and 1930's and exemplify the prevailing Mediterranean revival architectural style. Running toward the river, Rio Vista Way intersects McGregor Boulevard about 250-500 feet of north of the western end of Colonial Boulevard.
Data and Analysis
February, 1989, Data and Analysis
At the time of the adoption of the plan, Ft. Myers prepared a 45-page volume entitled "Traffic Circulation Data and Analysis." The document was dated August, 1988, and revised February, 1989. This document will be referred to as the 1989 Data and Analysis.
The 1989 Data and Analysis reviews the city's current situation with respect to transportation facilities, especially roads. Table 1 of the document is a chart of daily traffic volumes based on Florida Department of Transportation traffic estimates issued April 10, 1987 Table 1 projects the peak hour level of services for various road segments for 2010.
According to Table 1, by 2010, all of U.S. 41 is projected to be at level of service F, except for a segment south of downtown that is projected to deteriorate only to level of service D. All of Colonial Boulevard is projected to be at level of service F, except for the short segment between McGregor Boulevard and Summerlin Road, which is projected to deteriorate only to level of service C. McGregor Boulevard and Fowler Street are projected to be level of service F, except for the segment of Fowler Street beginning at the river, which is projected to be level of service E. Among the road segments already exceeding level of service standards are Colonial Boulevard west of U.S. 41 (level of service E) and McGregor Boulevard (level of service F).
The 1989 Data and Analysis notes that the "intensified urbanization of Fort Myers will continue, and congestion problems will worsen." 1989 Data and Analysis, page 7. The 1989 Data and Analysis summarizes the "three major areas of major capacity deficiencies" as follows:
Firstly, Fort Myers' downtown is the economic hub of Lee County and development attracts approximately 38,800 daily trip ends. [Fort Myers Downtown Plan, July 1986.] Second,
the Edison Mall area which due to the major regional shopping mall is a main attractor of traffic congestions. Finally, McGregor Boulevard, the renowned historic and scenic highway, has capacity constraints.
Id. at page 9.
Map B in the 1989 Data and Analysis depicts future roadways and classifications. In addition to the existing Interstate 75, railroad, Edison, and Caloosahatchee bridges, the map shows the Metro Bridge. This bridge, which will be located just over one mile upstream from the Edison Bridge, will allow Metro Parkway to cross the river and intersect with Interstate 75 in north Lee County.
According to the Future Land Use Map (FLUM), Metro Parkway presently extends from south of Colonial Boulevard to
about two miles north of Colonial. Map B depicts Metro Parkway as continuing north until it meets the proposed landfall of the southern end of the proposed Metro Bridge. The proposed alignment of Metro Parkway between its present northern terminus and the proposed bridge takes it through economically distressed areas east of the railroad tracks and central, downtown area.
Map F in the 1989 Data and Analysis depicts graphically travel desires lines for 1980 and 2010. The travel
desires map shows the general direction and approximate volume of trips between 13 centroids for 1980 and 2010. The centroids aggregate up to 396 travel analysis zones. The 1989 Data and Analysis explains that the travel desires map "was produced as part of the MPO 2010 Needs plan update . . .." 1989 Data and Analysis, page 19.
The 1980 travel desires line signifying the
greatest number of trips runs in at northeast-southwest direction between south Ft. Myers near the river to north Ft. Myers a couple of miles inland. Other major 1980 travel desire lines cross the river in the vicinity of the Caloosahatchee, Edison, and proposed Metro Bridges cross the river between the center
of Cape Coral and north Ft. Myers and connect north Ft. Myers to a point well east of Interstate 75 in the area of Lehigh Acres.
The projected travel desires lines signifying the
most travel in 2010 are the above-described line between south and north Ft.
Myers and a line between south Ft. Myers and a
point about six miles due south. The latter travel line depicts considerably less traffic in 1980. Compared to the two most significant 2010 travel lines, the travel lines crossing the river are projected to increase at a lesser rate.
Table 3 in the 1989 Data and Analysis contains
1987 Traffic Counts. The table, which is derived from Lee County data, projects when various road segments will deteriorate to seasonal level of service E.
Table 3 projects that Colonial Boulevard between Summerlin Road and U.S. 41 and Colonial east of Metro Parkway will deteriorate to peak season level of service E by 1988 and 1992, respectively. McGregor was already at an average level of service of E by 1987. Segments of Metro Parkway south and north of Colonial are projected to reach level of service E by 1991 and 1989, respectively. Also, U.S. 41 at the river is projected to
deteriorate to level of service E by 1992. Other relevant segments are projected to be at seasonal level of service D or
better.
Map G in the 1989 Data and Analysis graphically depicts 1980 and 2010 levels of population and employment by
area. In general, Map G shows that, in 1980 and 2010, Cape Coral experienced and is projected to continue to experience considerably greater population than employment opportunities.
North and south Ft. Myers' figures show a much better balance between population and jobs.
Addressing Map B in, the 1989 data and Analysis,
which depicts future roadways, the 1989 Data and Analysis states:
The City's Major Thoroughfare Plan (Map H[)] /4 has been developed to coordinate with the Metropolitan Planning Organization, State and County plans to the greatest extent possible.
The most significant deviations from these plans are the terminus of the Evans/Fowler one-way pair and the exclusion of a "mid- point bridge." The proposal by other agency plans of a "mid-point bridge," at its current proposed location, conflicts overwhelmingly with other goals, objectives, and policies of the Comprehensive Plan. Conflicts with Land Use, Historic, and Community Appearance elements and internal conflicts with the Traffic Circulation element precludes the City from supporting the proposed bridge alignment.
The present and future land use pat1terns have been coordinated to the greatest extent feasible with the Major Thoroughfare Plan.
1989 Data and Analysis, page 36.
The 1989 Data and Analysis does not explain how the Major Thoroughfare Plan ``coordinates'' with the plans of the Metropolitan Planning Organizations' State, and County plans. Maps A and B of the 1989 Data and Analysis depict, respectively, present and future roads. Tables in the 1989 Data and Analysis following the Major Thoroughfare Plan--2010 list transportation projects included in the list of one organization or entity but excluded from that of another. Mentioning the Mid-Point Bridge and approaches, Table 12 states "The City of Fort Myers is adamantly opposed to this project on the basis of it being inconsistent with the City's Comprehensive Plan."
The 1989 Data and Analysis concludes with a discussion of "issues and opportunities." This discussion mentions the maintenance or provision of "adequate road capacity for future traffic needs" and the preservation and protection of the "quality of residential areas, major activity centers, and recreation and environmental resources."
Nothing in the 1989 Data and Analysis expressly incorporates by reference other sources of data or analysis in support of the plan's treatment of the Mid-Point Bridge or any approach.
Setember, 1990, Data and Analysis
An updated version of the 1989 Data and Analysis
was issued. The new version bears the date, "August 1988," but also states that it was "updated September 1990." This document will be referred to as the 1990 Data and Analysis.
Table I in the 1990 Data and Analysis is based on the same Florida Department of Transportation estimates issued April 10, 1987, on which Table 1 in the 1989 data and Analysis
was based. The above-noted segments are all projected to reach the same level of service, except that all segments of U.S. 41
are projected to reach level of service F by 2010.
Other differences between the 1989 Data and Analysis and 1990 Data and Analysis appear fairly minor. /6 Table IV updates the 1987 Traffic Counts in the 1989 Data and Analysis with 1988 Traffic Counts, which are, also from Lee County. The differences as to when relevant road segments are projected to deteriorate to peak season level oil service E are as follows: Colonial Boulevard east of Metro Parkway, which is now projected to reach level of service E in 1993 instead of 1992; Metro Parkway north and south of Colonial, which are no longer "projected" to deteriorate to level of service E in 1988; and Colonial Boulevard just west of U.S. 41, which is now projected not to reach level of service E within the applicable timeframe instead of reaching it in 1988.
There is no difference in the discussions in the
1989 Data and Analysis and 1990 Data and Analysis concerning the differences between the road network portrayed by the Major Thoroughfare Plan--2010 and the road networks portrayed by the plans of the Metropolitan Planning Organization, State, /7 and County. The conflict concerning the Mid-Point Bridge and corridor remains unresolved.
Nothing in the 1990 Data and Analysis expressly incorporates by reference other sources of data or analysis in support of the plan's treatment of the Mid-Point Bridge or any approach.
The MPO Plans and Environmental Fact Statement
Other sources of data and analysis existing in February, 1989, pertain to the Mid-Point Bridge and
transportation planning issues. Much of these data nd analysis are associated with the work of the Lee County Metropolitan
Planning Organization (MPO) and of Lee County and its consultants in the preparation of an environmental impact statement for the Mid-Point Bridge and corridor. When adopting the Plan, Ft. Myers representatives were aware of the data and analysis used or prepared by the MPO and the data and analysis used to prepared by Lee County and its consultants in connection with the environmental impact statement.
Required by federal law, a metropolitan planning organization coordinates transportation planning in areas governed by more than one local jurisdiction to ensure that federal and state transportation funds are spent effectively.
The MPO consists of 12 voting members: five Lee County Commissioners, the Mayor and two City Council members of Ft. Myers, the Mayor and two City Council members of Cape Coral, and the Mayor or a City Council member of Sanibel.
The MPO is also served by a Technical Advisory Committee (TAC), which consists largely of planning and
engineering employees of each of the member jurisdictions. The TAC analyzes data and presents to the MPO for consideration.
The MPO prepared its initial transportation plan
in 1974. The MPO first included the Mid-Point Bridge in its 1978 transportation plan. The MPO later dropped the Mid-Point Bridge project, but reinstated it in 1983. The Mid-Point Bridge remained in the MPO's transportation plans until March, 1991.
At an early stage, Lee County was opposed to the bridge, but later reversed its position. The positions of Cape Coral and Ft. Myers appear to have remained constant.
In 1987, the MPO began to run computer simulations
of various transportation improvements. These modeling runs, or assignments, were integral to the preparation of the MPO 2010 Needs Plan (Needs Plan) and MPO 2010 Financially Feasible Plan (Financially Feasible Plan). Although some text is associated with these plans, they generally consist of two maps of road networks with indications as to the number of lanes and type of facility (e.g., freeway or collector).
The Needs Plan depicts the system needed "to accommodate projected travel demand efficiently and conveniently at acceptable levels of service, but unconstrained by cost considerations." Financially Feasible Plan. Based upon cost-benefit analyses, the Financially Feasible Plan prioritizes the
facilities shown in the Needs Plan.
It is arguable whether the Financially Feasible Plan depicts road improvements that are, in fact, financially feasible. The plan concedes that the MPO has proposed improvements whose cost nearly doubles projected available revenues:
The estimated $993 million cost of the Financially Feasible Plan, while $442 million less than that of the 2010 Needs Plan, still exceeds projected financial resources from traditional or existing Sources by -some $313 million. In order to pay for the implementation of the Financially Feasible Plan, a number of options for raising additional revenue available under current Florida law have been identified.
Financially Feasible Plan.
Although a number of the revenue options involve
Ft. Myers, such as through the use of impact fees or local option gas taxes and infrastructure sales taxes, the proposed Mid-Point
Bridge and corridor would not Ft. Myers to contribute
directly to its cost. The record does not address whether the commitment of Lee County to the project prevents the County from sharing in other transportation expenses otherwise borne to a greater extent by Ft. Myers.
Lee County intends to pay for the Mid-Point Bridge and the corridor between Del Prado-Boulevard and Interstate 75. The Lee County schedule of capital improvements, which are contained in the Lee County plan, includes the $168.4 million cost of the Mid-Point Bridge and corridor from Del Prado to
Interstate 75. The capital improvement schedule identifies the revenue source as toll revenue bond proceeds.
Cape Coral intends to pay for the corridor west of Del Prado Boulevard. The Cape Coral schedule of capital improvements includes $17.8 million for the design and
construction of the east-west expressway from Del Prado to Santa Barbara and includes another $6.9 million for related right-of- way acquisition. The Cape Coral plan, as amended August 27, 1990, identifies impact fees and gas taxes as sources for the needed revenue, although later amendments identify other sources as well.
In running computer simulations, the MPO used the Florida Standard Model to process socioeconomic data inputs and project levels of service for various network alternatives. The TAC validated the modeling by comparing projections to current travel conditions. The MPO or TAC approved the model after reviewing the validation results.
After approving the model, the MPO and TAC unanimously approved the socioeconomic data in December, 1986.
In addition to the specified transportation network, the data inputs include such socioeconomic data as projected populations, numbers of housing units by type, pp categories by type,
and school enrollments. Generally, each TAC member supplied the socioeconomic data for the jurisdiction represented by that member.
Decisions concerning the evaluation of data were
by majority vote. The TAC and its outside consultant, Wilbur Smith and Associates, selected alternatives to test, although it
appears that the TAC had considerable discretion in `the choice of alternatives.
The socioeconomic data were correlated to applicable land uses, which were derived from land use plans then in effect for the various jurisdictions. None of these land use plans contained the comprehensive revisions required by the 1985 Local Government Comprehensive Planning and Land Development Regulation Act (the Act).
By running traffic simulation models, Wilbur Smith and Associates determined the relationship of population to
employment for 1980 and projected the relationship to 2010. This work was reflected in Map G of the 1989 Data and Analysis and 1990 Data and Analysis.
Wilbur Smith and Associates then simulated the travel projected to occur in the area and the routes to
accommodate such travel. This work eventually was incorporated
into the travel desires map, which, is Map F of the 1989 Data and Analysis and 1990 Data and Analysis.
The modeling process is iterative. The first
network model led was the existing and committed road network, as of February, 1987. This system, as expected, was grossly inadequate to handle projected growth through 2010. The existing and committed network consisted of, the following committed
projects: the Edison Bridge six-laning, the cape Coral Bridge four-laning, an extension of Colonial Avenue, and multi-laning of State Road 80.
The next network modelled was the MPO 2000 Long Range Transportation Plan. The predecessor to the 2010 Needs
Plan, the 2000 Long Range Transportation Plan, which included the Mid-Point Bridge, provided an ample road network.
A total of 15 assignments were run prior to the preparation and adoption of the Needs Plan. The computer modelling represents the first time that the MPO undertook such work on its own or with an outside consultant.
By the latter half of 1987, the TAC and Wilbur
Smith and Associates had prepared Assignment D, which included
much of what was eventually included in the Needs Plan. Assignment D became a base against which other alternatives were tested.
At the request of Ft. Myers, the TAC and Wilbur Smith and Associates ran an assignment without the Mid-Point Bridge. This assignment included the Iona Cove Bridge expanded to four lanes and served by a freeway. /8
As ultimately adopted in the Needs Plan, the Iona Cove Bridge and Southern Corridor would consist of a two-lane bridge downstream from the Cape Coral Bridge and about 2 1/2 miles upstream from the mouth of the Caloosahatchee River. On the Cape Coral side, the Southern Corridor would connect
indirectly to the Cape Coral Parkway well west of the Cape Coral Bridge. On the Ft. Myers side, the Southern Corridor would be a new four-lane expressway in south Lee County that, from west to east, would intersect Metro Parkway and then Interstate 75. As a two-lane expressway, the Southern Corridor would turn north, passing south of the regional airport, and teirminate at Lehigh Acres in east Lee County.
The simulation without the Mid-Point Bridge was Assignment G. Due to faulty data inputs, 9 possibly concerning
one or more developments of regional impact in south Lee County, the MPO reran the requested alternative as Assignment J.
Assignment J is the only valid assignment excluding the Mid-Point Bridge except for the initial run of the base network.
Table A-I of Technical Report 3, which was prepared by Wilbur Smith and Associates, compares projected
traffic volumes on various road segments based on Assignment D and Assignment J. In Assignment D, the Iona Cove Bridge would be a two-lane facility with expressway approaches, rather than freeway approaches.
Treating the Edison, Caloosahatchee, and Metro
Bridges as a single corridor with a capacity of 138,000 trips per day, Table A-I projects that these bridges would handle, under Assignment D, 142,864 trips per bay and, under Assignment J, 153,605 trips per day. The respective volume to capacity ratios are 1.04 and 1.11.
The Mid-Point Bridge in Assignment D would have a capacity of 76,000 trips per day and would carry 36,542 for a volume to capacity ratio of 0.48.
The Cape Coral Bridge, with a capacity of 33,600,
is projected to serve 34,565 trips per day under Assignment D and 43,778 trips per day under Assignment J. The respective volume to capacity ratios are 1.03 and 1.30.
Table A-I considers a group of three north-south
roads in Ft. Myers, including U.S. 41, in three segments as they travel south from the river. The range of volume to capacity ratios, under Assignment D, from 0.76 to 1.00 and, under Assignment J, from 0.84 to 1.06.
Table A-I reports the results for 18 other segments in Cape Coral or Ft. Myers. All but four of these segments are below a volume to capacity ratio of 0.95 under
Assignment D. With Assignment J, eight segments exceed 1.0 and two more exceed 0.95.
The MPO adopted the Needs Plan on January 21,
1988. After running 14 more assignments, the MPO adopted the Financially Feasible Plan on November 17, 1988.
The more elaborate Needs Plan contains a four-lane Metro Bridge with Metro Parkway as, a divided six-lane arterial south of the bridge and a four-lane expressway to U.S. 41 north of the bridge. The Caloosahatchee Bridge remains four lanes, as would be the proposed Mid-Point Bridge. To the west, Everest Parkway is a four-lane freeway to Del Prado Boulevard, then Everest turns into a four-lane expressway as it is extended west to join the existing Miracle Parkway. As the new expressway turns north toward New Burnt Store Road, it is reduced from four to two lanes. To the east of the Mid-Point Bridge, the Needs Plan converts Colonial Boulevard to a four-lane freeway with a pair of one-way service roads and elevated interchanges at Summerlin Road, U.S. 41, and Metro Parkway. The one-way service roads continue east to the vicinity of Interstate 75, but Colonial becomes a four-lane expressway east of Metro.
The Financially Feasible Plan retains the four- lane Metro Bridge, but reduces the capacity of the adjoining
corridor to the north. Mid-Point Bridge remains four lanes, but,
on the Cape Coral side, the expressway is reduced from four lanes to two lanes at Santa Barbara Boulevard rather than at New Burnt Store Road. To the east of the Mid-Point Bridge, Colonial remains unchanged from the Needs Plan. The Financially Feasible Plan eliminates the Iona Cove Bridge and the eastern half of the Southern Corridor. The southern half of the expressway is shown, but is reduced to two lanes and ends west of Interstate 75.
Another important source of data and analysis relating to the Mid- Point Bridge and approaches is a draft environmental impact statement prepared by Lee County for the Mid-Point Bridge and corridor. The Draft EIS considers the proposed Mid-Point Bridge in the context of two alternatives: "no action" and the construction of the Iona Cove Bridge and Southern Corridor.
Exhibit 7 of the Draft EIS /10 portrays the Colonial corridor east of the Mid-Point Bridge. Consistent with the MPO Needs Plan's depiction of elevated interchanges at Summerlin, U.S. 41, and Metro Parkway, Exhibit 7 also shows overpasses at McGregor, Fowler, Evans, and the railroad track.
By the summer of 1987, Lee County had retained
Greiner, Inc. as a consultant to assist in the preparation of the Draft EIS. Cape Coral, which joined Lee County in proposing the project, hired Kimley-Horn & Associates, Inc. to assist in projecting transportation planning impacts west of Del Prado Boulevard. The Coast Guard, which served as the lease agency, approved the final environmental impact statement in September, 1990 (EIS).
Greiner retained Wilbur Smith and Associates as a subconsultant to perform traffic modeling for roads east of Del
Prado, and Kimley Horn performed modeling for Cape Coral for roads west of Del Prado. Either Griner or Wilbur Smith and
Associates prepared Exhibit 5 /11 in the Draft EIS.
Exhibit 5 identifies various existing and proposed river crossings, supplies actual 1986 traffic volumes, and projects traffic volumes for 2010 if no action were taken, if the Mid-Point Bridge were constructed, and if the Iona Cove Bridge and Southern Corridor were built. For 2010 projections, Exhibit
5 presumed that the Edison Bridge would be six lanes, Caloosahatchee Bridge would be four lanes, Cape Coral Bridge would be four lanes, and Metro Bridge would be added.
For 1986, Exhibit 5 shows the Edison Bridge as handling 19,700 trips daily for a level of service of E, the Caloosahatchee Bridge as handling 45,800 trips daily for a level of service of D, and the Cape Coral Bridge as handling 45,400 trips daily for a level of service F.
If no action were taken, Exhibit 5 projects that, by 2010, average daily trips and levels of service will be:
Edison Bridge 59,400 and C; Caloosahatchee Bridge 59,500 and E; and Cape Coral Bridge (which was widened after 1986) 65,950 and
If the Mid-Point Bridge were built and the Iona
Cove Bridge were not, Exhibit 5 projects that, by 2010, average daily trips and levels of service will be: Edison Bridge 53,140 and B; Caloosahatchee Bridge 52,400 and D; Mid-Point Bridge 47,400 and C; and Cape Coral Bridge 41,870 and C.
If the Iona Cove Bridge were built and the
Mid-Point Bridge were not, Exhibit 5 projects that, by 2010, average daily trips and levels of service will be: Edison Bridge 56,427 and C; Caloosahatchee Bridge 56,250 and D; Cape Coral Bridge 45,740 and D; and Iona Cove Bridge 34,600 and B.
Composite Exhibit 4 of the Draft EIS /12 projects
average annual daily traffic for over 100 road links /13 mostly on the Ft. Myers side of the river and bounded on the east by
Interstate 75 and the south by the Southern Corridor. The projections address alternatives of no-action, the Mid-Point Bridge, and the Iona Cove Bridge.
Twenty of the Ft. Myers links most directly
affected the addition or deletion of the Mid-Point Bridge yield 537,398 trips under the no-action alternative, 614,280 trips under the Mid-Point Bridge alternative, and 522,425 trips under the Iona Cove Bridge alternative. /14
With the Mid-Point Bridge, the new elevated freeway is projected to receive about one-third and two-thirds more traffic than Colonial presently experiences just west of Metro Parkway and just west of U.S. 41, respectively. With the Mid-Point Bridge, the projected number of trips on these two links are, respectively, 40,900 and 52,700. Just west of Summerlin, the traffic volume on Colonial increases from 6400 to 43,300 trips.
Even if the three Colonial links are excluded from the 20 links, the total volume remains greatest under the Mid-
Point Bridge and corridor alternative, which is projected to have 477,380 trips. For the remaining 17 links, the no-action alternative generates 469,038 trips and the Iona Cove Bridge and Southern Corridor alternative generates 455,345 trips.
Analyzing the same data, Transportation Planner
and Engineer Marty Wells, who is an employee of Gorove-Slade, testified on behalf of Ft. Myers that he examined the links identified by the Draft EIS that are in the City limits. These links yield the following volumes under the three alternatives: no action--1.84 million trips; Mid-Point Bridge and corridor--
2.1 million trips; and Iona Cove Bridge and Southen Corridor--
1.8 million trips. May 15 Transcript, pages 29 et seq.
Using existing data, Mr. Wells also calculated the capacities for these links. Based on the volumes in the preceding paragraph, the overall volume-to-capacity ratios for Ft. Myers' links are as follows for the three alternatives: no
action--0.60; Mid-Point Bridge and corridor--0.68; and Iona Cove Bridge and Southern Corridor--0.59. In other words, the
Mid-Point Bridge and corridor, if built, would mean that overall
traffic would absorb 68% of the capacity of Ft. Myers links most affected by the proposed project. The no-action alternative, on the other hand, would mean that overall traffic would absorb only 60% of the capacity of the same links.
Table 415 of the Draft EIS reports other variables among the three alternatives. The first is that total daily river crossings in 2010 are greatest if the Mid-Point Bridge is built. The Mid-Point Bridge alternative generates 196,110 river crossings daily. The Iona Cove Bridge alternative generates 193,020 daily river crossings, and the no-action alternative generates only 186,090 daily river crossings.
Under total vehicle hours of operation, Table 4 projects for 2010 the following figures: no-action alternative-- 656,902 hours; Mid-Point Bridge alternative--638,433 hours; and Iona Cove Bridge alternative--660,483 hours. Total vehicle miles are projected as follows: no-action alternative--14,466,600;
Mid-Point Bridge alternative--14,437,100; and Iona Cove Bridge alternative--15,013,456.
Table 5 of the EIS compares the Mid-Point and Iona Cove alternatives. These data were available by February, 1989. The Mid-Point Bridge and corridor would require 8.8 miles of corridor and 1.5 miles of bridge over the river, reduce vehicle miles traveled from the no-action alternative, by 30,000 daily, bypass wetlands, cost about $170 million, and require the relocation of 100-350 residences, 2' 6-56 businesses, and 1-4 nonprofit operations.
The Iona Cove Bridge' and Southern Corridor would require 19.3 miles of corridor and 2.4 miles of bridge over the river, increase vehicle miles traveled from the no-action alternative by 550,000 daily, require the removal of 10-30 acres of wetlands, cost about $266 million, and require the relocation of 317-361 residences and 10 businesses.
Table 5 of the EIS concludes that the Mid-Point Bridge would result in "more efficient distribution of traffic across combined bridges," and the Iona Cove Bridge would result in "[s]omewhat less efficient distribution of traffic across combined bridges." Table 5 reports that the "Mid-Point Bridge alternative "[c]omplies with existing land use plan; supports existing business communities," and the Iona Cove Bridge alternative would be "[non-compliant with land use plan; bypasses existing business communities."
The Draft EIS concludes that the Iona Cove Bridge alternative is not a "reasonable or feasible" alternative to the Mid-Point Bridge alternative. The, EIS later cautions, however, that the Iona Cove Bridge alternative may have a role in the "very long term" transportation network. After rejecting the Iona Cove Bridge alternative, the Draft EIS reports that the "`No
Action' Alternative is the base caste against which the [Mid Point Bridge project) is compared in order to determine the benefits and impacts of the project."
The EIS reveals more of the analysis undertaken by the Coast Guard in reaching its latter conclusion that the no-
action alternative "is not a reasonable alternative." EIS, page
171. To the extent that any data are implicit in such analysis, the data were available in February 1989.
Offering a somewhat `expanded version of a discussion of community impact contained in the Draft EIS, the EIS notes that the State of Florida has designated as an "historic highway" McGregor Boulevard from U.S. 41 to College Parkway, which leads to the Cape Coral Bridge. The EIS acknowledges that Lee County and Ft. Myers have ordinances similar to state law with one key difference. The County
ordinance specifically allows construction of an overpass for the Mid-Point Bridge corridor, and the City ordinance specifically prohibits such crossings. The EIS observes that litigation is pending over the controversy concerning the McGregor overpass, which would require the removal of about seven Royal Palms along McGregor according to the EIS. EIS, page 2-41.
In a similar vein, the EIS reports that the
Colonial corridor would mean, due in large part to the existing Colonial arterial, little community- disruption from "proximity" effects, such as "air and noise pollution, visual impacts, access changes, and other considerations." EIS, page 2-37. The EIS anticipates that 75 acres would be required for additional
right-of-way along Colonial Boulevard. Id. at page; 2-38.
The EIS considers in some detail the impact of
noise pollution. The corridor would result in noise levels in excess of those set for residential use and would affect 26 dwelling units along the Colonial corridor. EIS, page 4-56 and Tables 35 and 36. Sound barriers are not technically feasible for the road surface between the river and McGregor and Summerlin and U.S. 41. EIS, page 4-57. For the remainder, cost barriers are implicitly deemed cost ineffective.
The EIS envisions a 288'-330' right-of-way along Colonial Boulevard. The right-of-way would be within about 150' of Rio Vista Way. The corridor would be elevated 22'-24'.
Turning to the Cape Coral side of the project, the EIS states:
It is envisioned that a direct east-west roadway corridor [on the Cape Coral side of the river would enhance future residential development in the area.
EIS, page 4-2. The EIS generally fails to address any need for the development in Cape Coral of commercial, industrial, recreational, or institutional uses.
The EIS contains detailed comments from Ft. Myers'
counsel with an appendix containing, among other things, comments from Ft. Myers' transportation consultant, Gorove-Slade
Associates, Inc. Ft. Myers' counsel submitted these comments to the Coast Guard on September 22, 1989, and the EIS also contains the Coast Guard's undated responses.
One suggestion of the Gorove-Slade representative is that reversible lanes on the existing bridges could accommodate the present and future demand. The Gorove-Slade
letter suggests that reversible lanes are feasible as long as the directional imbalance on a bridge is "normally 2:1 to 3:1." The Gorove-Slade letter asserts that the imbalance is 67/33, which is of course within the above-stated range.
Rejecting the suggestion of reversible lanes, the Coast Guard first erroneously concludes that the 67/33 split is not greater than 2:1. Then the Coast Guard states that the more recent directional imbalance is 58/42. The source of the Coast Guard's data is undisclosed. However, the evidence is abundant that the cross-river traffic is at least 2:1 toward Ft. Myers on weekday mornings and 2:1 toward Cape Coral on weekday afternoons. Even Lee County's witness, Ronald Talone, who was formerly employed in the Lee County Planning Department, testified to a 67/33 split based on data that Lee County had collected./ 16
The Coast Guard response also relies upon "potential shifts in land use patterns [in connection with) land
use plans, which were the basis for [the Draft EIS] analysis. The results show an overwhelming need for the Midpoint Bridge Corridor." EIS, page 151.
The basis for this statement apparently is the
work of Lee County's consultant, who replicated future land uses under the settlement agreement between DCA and Lee County.
However, this work was "unofficial" and offered only "initial results." EIS, page 159. The EIS notes that the settlement between Lee County and DCA required the county to reduce densities in outlying areas, such as those served by the Southern Corridor proposed by Ft. Myers. The reductions reportedly were as much as 10,000 percent, "further reducing the travel production/attraction base in those areas." EIS, page 160.
The consultant also considered the plans of "cities in the region." EIS, page 146. However, it is unlikely that the consultant considered the plans adopted pursuant to the Act.
It is difficult to determine the extent to which any traffic modeling in this case was informed by the future land use designations contained in the plans of Lee County, Cape Coral, and Ft. Myers under the Act. If not done, it is impossible to determine the impact of changed future land uses, which could result in large changes in the distributions of new residents. /17 However, later modeling--presumably incorporating changed future land uses--reportedly did not generate significantly different traffic volumes, at least for the various river crossings. Such later modeling includes that performed by Gorove- Slade for Ft. Myers.
Focusing directly on land use planning concerns,
the Coast Guard explains one of the reasons why it did not oppose the Mid-Point Bridge proposed by Lee County and Cape Coral:
The concept of intentionally prohibiting construction of a bridge to force development on one side of a river is inappropriate and contrary to urban development concepts. In this instance, the no-bridge alternative would not stimulate development, given the interdependent nature of the Lee County economy.
EIS, page 151.
Lee County did not attempt to tell the
city governments to change their Future Land Use elements, as the Fort Myers comments suggest that Cape Coral be instructed to do.
* * * Alternative land use planning is not the purview of the transportation planner and is outside the scope of the project to plan this single bridge crossing. Instead, a project such as this is required to accept the adopted land use plans and the projected travel demand based on them.
EIS, pages 169 and 171.
Alluding to the land-use planning
responsibilities placed upon local governments by the Act, the Coast Guard notes:
Since the publication of the [Draft EIS], an important event has taken place in regard to this specific issue, rendering [a fatteners'] comment obsolete. The top state land planning agency, the Department of Community Affairs, found the Fort Myers' Comprehensive Plan to be non-compliant with state land planning guidelines because it prohibited the Midpoint Bridge, which is include in the plans of the county, the region, /18 and the City of Cape Coral. Administrative hearing procedures were scheduled to settle the issue but, instead of defending its opposition to the bridge, the city elected to remove the wording obstructing the project from
the Comprehensive Plan. Instead, the city agreed to enter binding arbitration on the issue.
Id. at page 153.
Specifically addressing urban sprawl, the Coast Guard response states:
Lee County Future Land Use plans since 1984 have aimed at containing urban sprawl through encouraging compact development
patterns. The 1984 Lee Plan was based upon an urban service area concept, which focused future growth on the existing urbanized areas and their environs through a combination of land use categories, density allocations, infrastructure policies, and environmental protection standards. The 1989 Lee Plan continued to stress the importance of existing and permitted urban areas as the focal points for more intensive future growth.
The major existing and permitted urban areas in Lee County, in terms of size, are clearly Cape Coral, Fort Myers (including its Urban Reserve area for future growth), and Lehigh Acres. . . . Both the 1984 and 1989 Lee Plans recognized these three major urban areas as givens, where preexisting investments and governmental approvals dictated the need for public services and infrastructure. Together, they constitute a tier of urban areas extending across the northern central part of the county, which is served by the east-west alignment of the Midpoint Bridge Corridor as extended to connect with Lee Boulevard in Lehigh Acres, as shown on the [Financially Feasible Plan]. The logic of connecting the population concentrations of Fort Myers and Cape Coral, the two largest urban areas in the County, with a primary east-west route is clear;
with the extension to Lee Boulevard in Lehigh Acres, the logic of the Midpoint Bridge is even stronger.
EIS, page 168.
Summarizing its findings as to the planning decisions made by Lee County, the EIS concludes:
The 1989 Lee Plan builds upon the 1984 Lee Plan. It was adopted as a result of the mandatory process of participation and review. It contains a responsible strategy for managing the large and rapid growth of the county. It sets forth numerous policies for providing the infrastructure necessary to support future populations, for projecting the sensitive natural environment, for paying for future public facilities, for maintaining a reasonable and compact, future land use pattern, and for buildings the necessary transportation network to allow its citizens to move efficiently between their homes, work, recreation, and shopping destinations. It is not a utopian document based upon unsubstantiated opinions, but a practical
guide to development based upon the best available data and information. Following the amendments from the Stipulated Agreement, [the 1989 Lee Plan) will be fully consistent with Florida law and an even more effective guide for future development, in terms of reducing sprawl, protecting the environment, maintaining desirable land use patterns, and providing orderly expansion of roads and infrastructure.
EIS, pages 169-70.
Other Sources of Data and Analysis
The Regional Comprehensive Policy Plan of the Southwest Florida Regional Planning Council (Regional Plan) contains land use analysis. Prepared no later than May 21, 1987, when the current version of the Regional Plan was adopted, the land use analysis was in existence at the time of the adoption of the Plan.
In its analysis of the regional issue of Balanced
and Planned Development under Land Use, the Regional Plan notes:
The growth that has occurred [during the recent period of rapid growth that the region has experienced] can also", be considered "imbalanced." This imbalance is of two natures: inadequate development of certain common aspects of urban areas and inadequate distribution of certain types of urban areas. A lack of manufacturing is sometimes considered an indication of the
urban inadequacies. More commonly, the problem is described as a lack of suitable jobs within industrial, office, education, and research facilities. The uneven distribution of urban uses is best (but not solely) depicted by an aerial view of the Region's major subdivisions, entire townships devoted to residential uses. Such areas have only limited commercial uses, few of the necessary public use site's, and high demand for transportation improvements for access to other areas. This lack of diversity is the result of private sector planning, namely large development projects, and traditional zoning techniques which discourage the use of planned unit developments by making them special exceptions and by segregating uses into separate zoning categories instead of using a performance zoning approach.
Regional Plan, page 16-2.
Another source of data and analysis is the Cape
Coral comprehensive plan. Both the operative provisions and data and analysis provide a potential source of data and analysis in
support of the Ft. Myers Plan. Adopted on February 13, 1989, the Cape Coral plan was in existence when the Ft. Myers plan was adopted. Amended August 27, 1990, the Cape Coral plan amendments were likely available, given noticed and public participation requirements, when Ft. Myers amended, its plan one week earlier.
Cape Coral's Transportation Data and Analysis discloses that the city's strategy through 2000 is to direct future growth into the Infill and Transition areas. The Infill Area is located in Cape Coral's southeast quadrant, which has historically served as the growth center from which new growth emanated. The eastern two miles off Everest Parkway run through the Infill Area, dividing its northern third from its southern two-thirds.
The Transition Areas is a band of land north and
west of the Infill Area. Although Everest Parkway presently ends
at the west limit of the Infill Area, the southern end of the Transition Area encompasses about 1 1/3 miles of the proposed
Everest Parkway extension.
Cape Coral's Transportation Data and Analysis rejects the MPO data concerning population projections for Cape Coral. The differences are significant. Rejecting the MPO projection as "lack[ing] any credibility, and . . . of no value as a planning tool," Cape Coral projects that its population
would reach 100,000 persons by 2000, not 2010. Transportation Data and Analysis, pages 6-7.
Cape Coral also contests other important socioeconomic data on which the MPO models rely, such as where Cape Coral residents actually reside or will reside. The MPO study "projected" that about 70% of-the population "lives" in the Infill and Transition Areas. The Cape Coral existing land use map provides that at least 90% of the population lives in these two areas.
Cape Coral's Transportation Data and Analysis
notes that the present location of commercial/office and other employment activities in Cape Coral is generally along the most heavily traveled roads, especially the Del Prado Boulevard, Cape Coral Parkway, and the Downtown Business District. This "strip commercial development" has engendered traffic congestion along these critical arterials.
Without its own data or analysis as to employment trends, Cape Coral adopts the MPO data and analysis concerning, employment trends. This includes a projection that total employment within Cape Coral will increase from an estimated 8000 persons in 1980 to over 27,000 persons, presumably by 2000.
Also, the ratio of Cape Coral residents to jobs in Cape Coral is expected to decrease from 4.2:1 in 1980 to 3.7:1 in 2000. The data and analysis add: "If the City commercial acreage estimates are realized, however, an even more favorable ratio would
result." Transportation Data and Analysis, page 9. In any event, "Employment growth is expected to increase twice as fast as residential growth." Id. at page 8.
Cape Coral's Transportation Data and Analysis acknowledges a clear directional flow or modal split of cross- river traffic:
Until [the Cape Coral Bridge) is widened to four lanes (scheduled by the County for 1989), mile long traffic queues will continue to exist on the Cape Coral side of the bridge during the morning peak period and on the Fort Myers side during the afternoon peak.
Transportation Data and Analysis, page 20.
Through 2000, the destination of tries will
remain largely outside the City of Cape Coral. Lacking "high intensity employment centers, airports or other facilities that attract County residents [to Cape Coral], the prime reason for travel into Cape Coral by nonresidents is to provide services, such as construction. Transportation Data and Analysis, page
B-2. But this factor is relatively insignificant, as the data and analysis predict that, by 2000, there will be twice the number of trips to points outside the city than to points within the city. Transportation Data and Analysis, page 44. In the meantime, however, intensive growth will outstrip the capacity of Cape Coral's internal parkway system, id. at page 49, and Cape Coral's strategy in "road programming has been to the major roads into the two new proposed County Bridges". Id. at page 60.
The Cape Coral plan contains operative provisions that, to some extent, address the historic absence of employment and regional shopping opportunities in the city. These
provisions generally involve the attempt to deal with vacant, platted land and promote a mixture of uses in the city. /19
The Lee County plan was most recently amended on September 17, 1990. Based on the above mentioned notice and participation requirements, it is likely that all provisions were in existence when Ft. Myers adopted its amendments on August 20, 1990. The Lee County plan contains a number of provisions encouraging the development and redevelopment of mixed uses. /20
Lee County's traffic circulation element policy
21.1.1 adopts the Financially Feasible Plan with five minor changes. /21 Policy 21.1.3 is for the county's current Thoroughfare Alignment Project to reexamine the transportation model used to generate the MPO plans.
Concerning the Mid-Point Bridge and associated corridor, the Lee County traffic circulation element states in relevant part:
GOAL 24: MAJOR INTRA-COUNTY TRANSPORTATION
CORRIDORS. To provide for efficient intra-
county vehicular traffic by planning an integrated system of transportation corridors, possibly of limited access design, that connect urban centers within the county.
OBJECTIVE 24.1 MID-POINT CORRIDOR.
Create a new east-west transportation corridor, possibly of limited access design, across central Lee Counts in order to alleviate existing congestion of traffic crossing the Caloosahatchee River.
POLICY 24.1.1: The county will continue the planning, feasibility determination, and environmental impact assessment for the Mid-Point Bridge.
POLICY 24.1.2: The construction of this east-west transportation corridor will be coordinated through the Metropolitan Planning Organization to ensure system-wide continuity.
POLICY 24.1.3: Due to the
public need to provide this critically important corridor so as to solve
roadway deficiencies affecting most of Lee County, and due to the admitted impossibility of devising any alignment, which would not generate at least some negative impacts, it is declared as the policy of Lee County that once the best alignment is selected this policy shall preempt any other perceived conflicting portion of the Lee Plan and such conflicts, real or perceived, shall not be construed so as to require or justify blocking the construction of this facility.
POLICY 24.1.4: Because of the high priority Lee County placed on the planning and construction of this transportation corridor, permitting efforts shall be initiated by the year 1989, if feasible, and construction shall begin, if possible, by the year 1993.
* * *
The Lee County intergovernmental coordination element provides, in relevant part:
GOAL 28: INTERGOVERNMENTAL COORDINATION.
Lee County shall participate in and share the leadership of all necessary and desirable programs in coordinating the transportation planning and improvements of routes within or affecting Lee County.
OBJECTIVE 28.1: PLANNING. Lee County
will continue to plan cooperatively with its municipalities, surrounding counties, and FDOT.
POLICY 28.1.1: The county will participate in the MPO and Regional Planning
Council planning processes for system-wide facility needs.
POLICY 28.1.2: The County will use informal mediation whenever possible to resolve disputes before other formalized processes are pursued.
* * *
Various other sources of data and analysis were
in existence when the Plan was adopted. As Colonial proceeds east of McGregor, the prevailing and planned land uses are predominantly commercial, and the existing commercial uses are dependent upon direct access to Colonial Boulevard. The addition of an elevated freeway or expressway would tend to reduce
business for some of these roadsides commercial uses due to, among other factors, the presence of one-way service roads in place of two-way traffic, less on-site parking, and less visibility from the road.
However, the record establishes no more than a temporary reduction in commercial property values. It is unclear whether, in the longer term, commercial uses, especially the older ones along the western part of Colonial, would be impaired by a freeway. The record does not preclude the possibility that the corridor could lead to commercial revitalization, especially at the Summerlin, U.S. 41, and Metro Parkway interchanges.
The existing and planned land uses on both sides of McGregor north and south of Colonial are low density
residential. The record establishes that the elevated freeway would, through noise and visual impact, have a negative impact
upon these and possibly other residential areas. However, the record does not establish the extent of such an impact.
The record does not establish that the freeway would impair access between points within the affected area. Presently, motorists, pedestrians, and bicyclists must cross
Colonial, which is an at-grade six-lane arterial west of U.S. 41. Accessibility with the Mid-Point Bridge corridor would depend upon a variety of factors, such as the design of the service roads and three interchanges, the sign of the other overpasses, the traffic on the service roads, and the traffic on the north- south roads in the vicinity of the corridor.
Provisions of Ft. Myers Plan
Traffic Circulation Element (TCE) Objective 1 is "To meet the transportation needs of the incorporated area
through a balanced system of roadway, rail, air, boating, public transportation, and bicycle and pedestrian facilities."
TCE Objective 2 is, "To maintain or provide adequate road capacity to meet present and anticipated future
traffic needs." TCE Policy 2.4 is: "New roadway corridors will be provided when justified by needs where feasible, and when exiting corridors cannot meet the need.
TCE Policy 2.6 is: "The City will obtain traffic counts and intersection studies to determine current service
levels." Standard 2.6.3 mentions capacity constraints on McGregor Boulevard and all roads in the downtown area; for those, the peak hour, peak season acceptable level of service is
"Maintain and improve." The downtown area is limited to the immediate vicinity of the Caloosahatchee and Edison Bridges.
TCE Objective 5 is: "To preserve the integrity and quality of residential areas, major activity centers, and recreational and environmental resources."
TCE Policy 5.1 is: "Proposed transportation improvements will be coordinated with existing land uses and the Future Land Use Map." TCE Action 5.1.1 is: "Changes to the Future Functional Classification Map (Map F) that would change proposed rights-of-way requirements, will be developed in accord with adjacent land uses as well as bin accord with the City's overall needs." TCE Action 5.1.2, which was amended at least to add the language concerning the Mid-Point Bridge, states:
No new transportation corridors or improvements will be permitted which could preclude those indicated on the Major Thoroughfare Map (Map G)--unless, with respect to the Mid-Point Bridge and elevated limited access expressway system proposed by Lee County and Cape Coral, the result of the binding conflict resolution process described in the Goals, Policies and Objectives of the Intergovernmental Coordination Element is that the Bridge should be constructed. Any proposed amendment to the Thoroughfare Plan must be consistent with all Traffic Circulation policies as well as other Comprehensive Plan Elements.
TCE Policy 5.2 is: "Any transportation
improvements proposed for McGregor Boulevard shall consider its qualities as a special historic and scenic corridor." Action
5.2.1 provides that, except under certain conditions,
there shall be no new street connections, road connections, road intersection, or the widening of any existing, intersections and no overpasses or underpasses, made either with, under, or over McGregor Boulevard or any alteration of the physical dimensions, appearance, or location of this corridor
. . . However, new street connections, road connections, road intersections, or widening of any existing intersections and overpasses or underpasses may be made either with, under, or over McGregor Boulevard or alteration of the physical dimensions, appearance, or location of this corridor with respect to the Mid-Point Bridge and elevated limited access expressway system proposed by Lee County and Cape Coral, if the result of
the binding conflict resolution process described in the Goals, Policies and Objectives of the Intergovernmental Coordination Element is that the Bridge should be constructed.
At least the language following the ellipses is the result of a plan amendment.
TCE Policy 5.3 is: "Transportation improvements proposed in or near residential arenas will contain appropriate mitigation measures."
TCE Objective 6 is: "To obtain the cooperation
and active participation of all responsible governments in the coordinated implementation of the metropolitan transportation plan."
TCE Policy 6.1 is: "All proposed major transportation improvements, including all improvements which extend beyond the limits of the City, will be coordinated with the other affected jurisdictions prior to City approval of the improvement." TCE Action 6.1.1 is: "The City will participate in the committees of the Metropolitan Planning Organization to ensure that this policy is met."
TCE Policy 6.2 is: "The City will actively participate in the development and review of transportation improvements proposed by other jurisdictions." TCE Action 6.2.1 is: "The City will participate in the County's Planning Technical Advisory Committee to ensure that this policy is met."
Intergovernmental Coordination Element (ICE) Goal
2, which, together with its objectives and policy, was added by amendment, states in its entirety:
It is the goal of the City of Fort Myers to resolve the conflict with Lee County. and the City of Cape Coral concerning the
Mid-point Bridge through ban independent, objective, equitable, efficient and binding process as an alternative to the litigation in Lee County vs. City of Fort Myer, Circuit Court Case No. 88-5598 CA-RWP pending in the 20th Judicial Circuit for Lee County, that will ensure that all relevant factors and concerns are fairly and objectively evaluated.
Objective 1. In order to achieve the City's goal of resolving the conflict over the proposed Mid-Point Bridge, it is the objective of the City of Fort Myers to abate the pending litigation between the County and the City in regard to the Mid-Point Bridge and to enter into a binding conflict resolution process that will provide a balanced determination of the need for and
appropriateness of the proposed Mid-Point Bridge in terms of the following factors:
county-wide transportation needs; the comparative effectiveness and cost benefit of reasonable alternative transportation solutions; social, cultural economic and environmental impacts on the City of Fort Myers and Lee County; and long-term financial feasibility and cost-effectiveness.
Policy 1.1 It is the policy of the City of Fort Myers in regard to the conflict over the proposed Mid-Point Bridge to submit the conflict to a conflict resolution
process that contains the, following elements:
An objective, independent decision maker who has substantive, and/or technical familiarity with land use and transportation issues;
A fair and reasonable opportunity for all affected persons including the City of Fort Myers to submit substantive information in regard to the merits of the proposed Mid- Point Bridge;
A resolution of the conflict and the merits of the proposed Mid-Point Bridge based on the following principles:
the proposed Mid-Point Bridge should not be constructed if it can be
reasonably demonstrated that implementation of the comprehensive plans of Lee County, the City of Fort Myers and the City of Cape Coral will result in a shift in land use patterns, transportation management systems, or increased modal splits that will reduce the projected number of rivers crossings so that there is no need for the proposed Mid-Point Bridge;
the proposed Mid-Point Bridge
should not be constructed if peak hour levels of service on existing and committee river crossings, with or without operational improvements such as reversible lanes, will provide an acceptable level of service;
the proposed Mid-Point Bridge should not be constructed if there are reasonable alternatives that have the following characteristics:
reduced or equal costs;
equal or superior
transportation capacity too serve county wide transportation needs; arid
reduced social, cultural,
economic or environmental impacts on the residents of the City of Fort Myers.
For the purposes of this paragraph, reasonable alternatives Shall include, but not be limited to, river crossings at other locations, a county-wide beltway or circumferential road system and non-geometric improvements such as
transportation management systems, reversible lanes and the like. 4) Any determination-of fact shall be based on a standard of preponderance of the evidence.
The Future Land Use Element (FLUE) Objective 1 is: "Coordinate land development with the public and private
provision of community services and facilities, soil suitability, and topography." FLUE Objective 2 is: "Protect distinct functional areas from intrusion and encroachment of incompatible uses." FLUE Objective 3 is: "Protect significant natural and historic resources from intrusion and encroachment of incompatible uses."
FLUE Objective 4 is: "Ensure a balanced distribution and allocation of the various land uses in newly developing areas." FLUE Objective 5 is: "Revitalize declining areas through rehabilitation, redevelopment, and infill strategies as appropriate." Map C, which accompanies the FLUE, designates the following corridors as part of the "corridor improvement strategy": U.S. 41 on both sides of Colonial, Evans Avenue north of Colonial to the river, Fowler south from the river but only about halfway to Colonial, and three east-west routes including Palm Beach Boulevard, which runs along the river, from Interstate 75 to the proposed landfall of the Metro Bridge.
Map C designates the following corridors as part
of the "corridor conscious" development strategy. Less in need of redevelopment than those named in the preceding paragraph, the corridor conscious corridors include Colonial Boulevard, Winkler
Avenue, Summerlin Road south of Colonial Boulevard, Metro Parkway north and south of Colonial and in the vicinity of the Metro
Bridge, and Palmetto, Marsh and Ortiz Avenues on both sides of Colonial.
FLUE Policy 5.2 is for the central business
district to be "redeveloped as the pre-eminent regional center."
Provisions of Regional Plan
Goal 19, Regional Issue B, of the Regional Plan concerns transportation and growth management. Policy 1 is:
All regional transportation systems should be designed, upgraded or maintained to enable roadways to operate at, or above, a service level acceptable to the agency with land use authority, with operational maintenance responsibility, and with the affected surrounding local government, when such standards incorporate the minimum standards set by the agency having operational, and maintenance responsibility for that public facility, unless designated a special transportation area by those agencies and governments.
Policy 3.d. is that transportation improvements are to be "related to seasonal and area needs in order to
minimize disruption of the existing road network during periods of highest use."
Policy 6 is: "Transportation plans should preserve, to the greatest extent possible, the integrity of residential areas." Policy 9 is: `"Transportation investments should be directed in such a way so that they contribute to efficient urban development."
Goal 20, Regional Issue A, of the Regional Plan
addresses intergovernmental coordination. The policies suggest the improvement of intergovernmental coordination through the use
of interlocal agreements, technical assistance, and solicitation of review and comments.
Regional Issue D speaks in stronger terms, but
only requires, by 1996, that "each jurisdiction will have enacted the appropriate administrative arrangement to ensure coordination
occurs." Pursuant to this Issue, Policy D states: "Mediation of jurisdictional disputes should be pursued by local governments as a first alternative to judicial action."
Goal 16 of the Regional Plan concerns land uses. Regional Issue A relates to balanced and planned development. The first policy is: "The plans of all jurisdictions should promote balanced and planned development." Policy 3.e. suggests that comprehensive plans "ensure existing urban areas are protected from the adverse impacts of future growth." Policy
3.i. suggests that plans "provide for effective intergovernmental coordination methods for siting public and private locally unpopular land uses." Policy 3.1. suggests that plans "provide for new central business districts, as needed by urban growth." Policy 9 states:
Comprehensive plans and land development regulations should provide incentives to develop and redevelop land downtown including allowing mixed uses, higher densities, shared parking, and improved vehicular access.
Regional Issue C, which concerns the problem of
already-platted, vacant lands in the region, contains Policy 3, which states: "Additional urban uses and protection of
threatened resources within existing platted areas should be pursed through reassembly or other techniques." Policy 8 adds: "Each local government should provide alternatives to traditional development of platted lands."
The Regional Plan does not recommend the construction of the Mid- Point Bridge. Map IV-10 of the volume entitled, "Description of the Region," identifies the bridge and corridor as a regional roadway "not yet constructed." Neither the map nor the surrounding text suggests that the Regional Planning Council has determined that the bridge and corridor should be built. /22
Ultimate Findings of Fact
Sorting Data and Analysis
TCE Policies 5.1, 5.2, and 5.3, and the implementing actions thereunder, prohibit the construction of the Mid-Point Bridge and corridor unless this alternative is selected pursuant to the binding arbitration described in ICE Goal 2. Lee County is unwilling to agree to the conditions set forth in ICE
Goal 2. The refusal is justified because, for reasons set forth below, the offer to arbitrate contains an unreasonable condition. The Plan's treatment of the Mid-Point Bridge and corridor can be characterized as an intentional omission of these improvements from any road network for the city, and the Plan's offer to arbitrate, in effect, leaves the resolution of the Mid-Point Bridge dispute to the courts or voters.
However, Lee County and Cape Coral have failed to prove by a preponderance of the evidence that the omission of the Mid-Point Bridge and corridor from the Plan is not supported by data and analysis.
The data and analysis contained in the 1989 Data and Analysis and 1990 Data and Analysis are sparse in terms of
support for the omission or inclusion of the bridge and corridor. Ft. Myers failed to incorporate into its data and analysis,
verbatim or by reference, the best "available existing data, which were those generated by Lee County bin preparing the EIS, especially Composite Exhibit 4 of the EIS.
However, the 1989 Data and Analysis and 1990 Data and Analysis contain analysis in support of the omission of the Mid-Point Bridge and corridor. The analysis consists mostly of consideration of the effect of the proposed project on various
provisions of the Plan and the conclusion that the project would be inconsistent with these provisions.
The Ft. Myers' planning strategy emphasizes more than the preservation of the historic and aesthetic values of McGregor Boulevard and nearby Rio Vista Way. The analysis justifies the omission of the ride and corridor by at least implicitly construing the Plan as part of an urban containment strategy that, if successful, benefits the region by promoting
existing, close-in commercial uses and promoting the attractiveness of Ft. Myers as a place to live.
This analysis finds some support in the data concerning the noise and visual impact of the corridor upon
nearby residential areas. The most important sources of data and analysis in support of the omission of the Mid-Point Bridge and corridor are the Draft EIS and EIS, especially Composite Exhibit 4.
Although Ft. Myers was aware of these data, it
failed to include and analyze them, in the 1989 Data and Analysis or 1990 Data and Analysis. The most likely explanation for this omission is that the exclusion of the bridge and corridor was a foregone conclusion at the beginning of the planning process,
and, until plan litigation became imminent Ft. Myers felt no need to explicate its opposition to the project. However, for reasons set forth in the Conclusions of Law, the sources of data and analysis available to support the plan are not limited to
those identified or even actually relied upon by Ft. Myers in the plan-adoption process.
The data and analysis contained in the Draft EIS and EIS support the exclusion of the Mid-Point Bridge and
corridor because this project would tap, to some degree, latent
travel demand and would result, to , a significant extent, in more traffic on Ft. Myers' roads. The corridor would also displace, at least in the short term, viable commercial uses whose proximity to downtown Ft. Myers and nearby residential areas is useful in maintaining a mixture of uses in Ft. Myers. The data and analysis do not, however, address the possibility of renewed commercial development along the corridor. It is therefore impossible to determine if the data and analysis suggesting the possible displacement of existing commercial uses are offset by data and analysis indicative of a possible revitalization of aging commercial uses.
In short, data and analysis exist to support a decision by Ft. Myers to omit the bridge and corridor, and data and analysis also exist to support a decision by Ft. Myers to include the bridge and corridor, had it wished to do so. Little, if any, data and analysis exist that comprehensively net the benefits of the Mid-Point Bridge alternative against the benefits of the no-action or Iona Cove Bridge alternative. In large part, the conflict is between transportation and land use strategies whose competing sets of underlying data and analysis have not been evaluated in a process designed to identify the superior data and analysis from an appropriately broad perspective.
In such a proceeding, no deference could be given to the planning preference of any individual local government.
This is the first shortcoming of the EIS process in which due deference to the prerogative of local governments in local land use planning provided a procedural advantage to the proponents of the project, Lee County and Cape Coral.
In any event, the conclusions of the EIS are supported by its data and analysis to the extent that the Coast
Guard concludes that the decision of Lee County and Cape Coral to build the bridge is reasonable. The conclusions of the EIS that
the other alternatives, especially the no-action, are unreasonable from a regional perspective, if even relevant to the
present case involving only Ft. Myers' Plan, are based predominantly upon transportation considerations. These conclusions clearly are not based upon a comprehensive, objective, and informed review of comprehensive land use strategies, of which transportation strategies are a part. To the extent that the EIS concludes that the no-action alternative is an unreasonable land use strategy, such a conclusion is unsupported even by the data and analysis contained in the EIS.
To some extent, Lee County and especially Cape Coral, although responsible for preparing nearly all of the relevant data in this case, have not sufficiently focused their
data and analysis so as to justify a finding that the Plan's omission of the bridge and corridor is not supported by the data and analysis. The Lee County and Cape Coral data and analysis supporting the Mid-Point Bridge and corridor justify a transportation strategy linking more efficiently the bedroom communities to the east and west with each other and to shopping and jobs.
By contrast, the omission of the bridge and corridor is based on more comprehensive land use planning considerations. Data and analysis supporting the exclusion of the Mid-Point Bridge and corridor address an overall land use
strategy, to which transportation planning is properly subordinated. To some extent, the differing emphases reflect
that Ft. Myers is a more established community than the fast- growing Cape Coral and Lee County. To some extent, the increased emphasis upon overall land use planning by Ft. Myers, as opposed to the focus upon transportation planning by Cape Coral in particular, may reflect varying planning philosophies.
Cape Coral has suffered from the lack of an effective land use strategy to overcome the burdens of urban sprawl, which has engendered a monolithic land use dominated by low-density residential. The Cape Coral plan and data and analysis point to some improvement dealing with this problem. But to meet the burden of showing that the Ft. Myers strategy, which excludes the bridge and corridor, is supported by data and analysis, Cape Coral must offer data and analysis more effectively addressing land use planning issues, rather than merely transportation planning issues.
Cape Coral cannot meet its burden in this case by presenting data and analysis supporting a transportation strategy of linking its internal parkways to bridges and building more bridges. Although such data and analysis may support Cape Coral's planning solutions, they are not so compelling as to displace the data and analysis presently supporting Ft. Myers' land use strategy of preserving a viable mixture of uses.
The support for Ft. Myers' land use strategy excluding the Mid-Point Bridge and corridor is not overwhelming
in terms of data and analysis. The increased traffic on city roads, noise pollution, and the visual impact support the
decision. Other factors, such as impaired physical accessibility, commercial decline, and the extent of the negative impact upon residential integrity, do not so clearly support the decision.
Even if present conditions clearly were to support the decision to exclude the bridge and corridor, changing conditions could later deprive Ft. Myers' decision of support from the data and analysis. New developments, such as Omni Park, could leave Colonial and nearby collectors, as well as McGregor, choked in traffic during nonpeak season, nonpeak hours. The decline of commercial uses along the western part of Colonial may in time require revitalization through redevelopment If so, imaginative planning solutions may
:,"identify corridor-connected uses whose scale and type promote, rather than threaten, Ft. Myers' status as a viable mixed-use center. If sufficiently
compelling under then-existing conditions, such solutions may even compel a bridge and corridor. But the data and analysis do not portray these conditions presently.
Internal Consistency
Lee County and Cape Coral have failed to prove to the exclusion of fair debate that TCE Action 5.2.1 is inconsistent with FLUE Objective 1.
TCE Action 5.2.1 prohibits the construction of the Mid-Point Bridge and corridor unless this alternative is
selected pursuant to the binding arbitration described in ICE Goal 2.
FLUE Objective 1 is, to coordinate land development with the adequate provision of facilities, which
include roads. FLUE Objective 1 and its policy cluster require adequate levels of service for facilities (presumably for which concurrency is required), the availability of land for public facilities, development patterns that maximize, the use of existing public facilities, and coordination with Lee County and the Florida Department of Transportation regarding tide intensity of land uses and their location relative to collectors and arterials.
There is nothing inherently contradictory between
TCE Action 5.2.1 and FLUE objective 1. FLUE Objective 1 does not require the construction of the Mid-Point Bridge and corridor, just as it does not require that downtown segments of U.S. 41 or Fowler be widened to 12 lanes if there is sufficient traffic demand. FLUE Objective 1 does not requiring reducing the planning exercise to promising invariably to widening existing
roads or building new roads in urban areas upon the identification of traffic congestion. Taking a wider view, FLUE
Goal 1 is to ensure the achievement of acceptable "general patterns and relationships (distribution, allocation, and intensity) of all land uses" in the city. The record does not
establish that the omission of the Mid-Point Bridge and corridor is inconsistent with FLUE Objective 1.
Lee County and Cape Coral have failed to prove to the exclusion of fair debate that TCE Objective 5, Policy 5.1,
Actions 5.1.1 and 5.1.2, Policy 5.2, Action 5.2.1, ICE Goal 2, Objective 2, and Policy 1.1, on the one hand, are inconsistent with TCE Objective 6, Policy 6.1, Auction 6.1.1, Policy 6.2, and Action 6.2.1, on the other hand. TCE Objective 5, Policy 5.1, Actions 5.1.1 and 5.1.2, Policy 5.2, Action 5.2.1, ICE Goal 2, Objective 2, and Policy 1.1 will bet referred to as Modified TCE Objective 5.
Modified TCE Objective 5 prohibits the construction of the Mid-Point Bridge and corridor unless this alternative is selected pursuant tot the binding arbitration described in ICE Goal 2. ICE Goal 2, Objective 2, arc Policy 1.1 set the conditions of such arbitration.
With one exception, these conditions are reasonable. The goal to obtain a fair, objective, and binding resolution of the bridge dispute outside
of court is salutary. The objective is also reasonable, assuming that the reference to the socioeconomic and environmental, impacts on Ft. Myers and Lee County includes Cape Coral.
Policy 1.1 establishes specific conditions. The first calls for an objective, disinterested decision-maker with expertise in land use and transportation planning. The second condition ensures that all parties have a chance to be heard. The fourth condition provides that the standard of proof is the preponderance of the evidence. These conditions are obviously reasonable.
The substantive guidelines for the decision-maker are set forth in ICE Policy 1.1(3). The first guideline prohibits the bridge if the land use plans of Cape Coral, Ft. Myers, and Lee County can be implemented so as to reduce the number of river crossings by shifting land use patterns, introducing or expanding transportation management systems, or increasing modal splits. The second guideline prohibits the
bridge if existing and committed river crossings will provide an acceptable level of service regardless of operational improvements such as reversible lanes.
In general, these conditions are reasonable. The effectiveness of transportation management systems and operational improvements, especially reversible lanes, should be considered as relatively inexpensive alternatives to the construction of a new bridge and corridor. Changing land use patterns presumably requires each local government to address through comprehensive planning any deficiencies that it may suffer in terms of a lack of mixed land uses. The guideline does not specify the extent to which a local government must remediate a lack of mixed uses. For example, it might be effective but prohibitively costly for Cape Coral to solve its mixed land use problems by purchasing and reassembling vacant and developed platted land suitable for commercial or industrial development. The reasonableness of the guideline of changing land use patterns depends upon its interpretation.
The third guideline, prohibits the construction of the Mid-Point Bridge if "reasonable" alternatives exist at reduced or equal costs, with equal or superior transportation capacity to serve County-wide transportation needs, and with reduced socioeconomic and environmental impacts on Ft. Myers residents. The factors of reduced or equal costs and equal or
superior transportation capacity are reasonable and address regional concerns.
The guideline focusing on the socioeconomic and environmental impacts of Ft. Myers' residents exclusively undermines the viability of ICE goal 2 and Ft. Myers' putative "offer" to submit to binding arbitration. Just as it is reasonable for Ft. Myers to concern itself exclusively with the socioeconomic and environmental welfare of itself and its residents, so it is reasonable for Lee County and Cape Coral to concern themselves with the socioeconomic and environmental welfare of themselves and their residents. This guideline is unreasonable and effectively relegates the parties to whatever judicial or political solutions that may be available.
Notwithstanding the failure of the offer to arbitrate, Modified Objective 5 is not inconsistent with TCE
Objective 6 and its policies and actions. The latter provisions do not preclude the judicial option for this longstanding dispute.
TCE Objective 6 is to obtain the cooperation of all governmental entities in the implementation of MPO plan.
Except for TCE Policy 6.1, the policy and actions under this objective require merely participation in transportation planning
processes. The arbitration process described in Modified TCE Objective 5 does not preclude participation in transportation planning processes; Modified TCE objective 5 merely identifies one approach to resolving disputes not resolved by normal transportation planning processes.
Policy 6.1 requires the "coordination" of "major transportation improvements" with other affected governmental entities. The simple resolution of this issue is that the policy requires coordination only of projects that Ft. Myers proposes to undertake, not of projects sponsored by other entities that Ft. Myers proposes to ignore or resist.
Even if the omission of a project sponsored by others triggers the coordination requirement of Policy 6.1, Modified TCE Objective 5 is not inconsistent with such a requirement. Coordination does not require the successful achievement of a consensus for each transportation project that each local government or regional entity may propose.
"Coordinate" means:
To place in the same order, class, or rank.
To arrange in the proper relative position.
To harmonize in an action or effort. American Heritage Dictionary.
In this case, Ft. Myers participated in the normal transportation planning processes. Consensus was reached as to a considerable number of road projects, although the Mid-Point Bridge and corridor are extremely large projects in the
County. "Coordinate" does not mean "approve," and Ft. Myers is not required by TCE Policy 6.1 to obtain the approval of all other governmental entities for projects proposed by Ft. Myers or to give its approval for projects proposed by any or even all of the others.
The facts of this case do not reveal a series of disputes involving numerous proposed road projects. The three local governments have not had systemwide impasse that
defeats their ability to design and implement a coordinated transportation network. Although the Mid-Point project is of considerable magnitude, the Major Thoroughfare Plan--2010 does
not prevent the transportation plans of Lee County and Cape Coral from working. The size of a project proposed by a majority of area local governments does not alone compel a lone opponent to capitulate to attain intergovernmental coordination.
Neither does the inclusion of the Mid-Point Bridge and corridor in the financially Feasible Plan compel Ft. Myers to accede to the project or risk inconsistency with the intergovernmental coordination provisions of its Plan.
The MPO's data and analysis support its adoption
of the Mid-Point Bridge and corridor. But the purpose of the MPO is not to restate the positions of its constituent members and, even if they are supported by data and analysis, thereby compel dissenters to conform their plans to the plans of the majority. The MPO has served a valuable purpose in this case by collecting and disseminating important data and providing the parties with a forum in which to exchange their data and analysis; inform and, if necessary, revise their positions; and, if possible, form a consensus. Like Lee County and Cape Coral, Ft. Myers participated in this process in good faith and thereby engaged in intergovernmental coordination.
The unreasonableness of requiring local governments invariably to conform their plans to those of the MPO is illustrated by another factor in this case. The Financially Feasible Plan describes a road network that is financially feasible only if existing available revenues are nearly doubled. The present facts do not support a construction of intergovernmental coordination that mandates strict compliance with a Financially Feasible Plan that requires local governments to raise additional revenues.
Lee County and Cape Coral have failed to prove to the exclusion of fair debate that Modified TCE Objective 5 is inconsistent with TCE Objective 1. TCE Objective 1 is to meet the city's transportation needs through a "balanced system" of road, rail, air, boat, bicycle, pedestrian, and public
transportation. For the reasons set forth above, the preclusion of the Mid-Point Bridge and corridor does not preclude the attainment of such a balanced system.
Lee County and Cape Coral have failed to prove to the exclusion of fair debate that Modified TCE Objective 5 is
inconsistent with TCE Objective 2, Policies 2.4 and 2.6, and Standard 2.6.3.
TCE Objective 2 is to "maintain or provide adequate road capacity to meet present and anticipated future needs." Policy 2.4 is to construct new roadway corridors when existing corridors cannot meet the need. Policy 2.6 is for the
city to "pursue acceptable level of service standards for its roadways, and coordinate the standards with Lee County and the Florida Department of Transportation." Standard 2.6.3 acknowledges constraints on capacity improvements for McGregor and the central business district and adopts a peak season, peak hour level of service for these roads of "maintain and improve."
The record fails to establish that the omission
of the Mid-Point Bridge and corridor is inconsistent with these provisions. The evidence shows that traffic would actually increase on city roads with the Mid-Point Bridge.
Consistency with Regional Plan
Lee County and Cape Coral have failed to prove by a preponderance of the evidence that the TCE, in omitting the Mid-Point Bridge and corridor, is not consistent with the Regional Plan.
The record fails to establish that the omission
of the Mid-Point Bridge and corridor is inconsistent with the Regional Plan considered as a whole. The Plan's treatment of the bridge and corridor is consistent with provisions in the Regional Plan regarding balanced land uses and intergovernmental coordination.
Consistency with Other Minimum Criteria
For the reasons set forth above, Lee County and Cape Coral have failed to prove by, a preponderance of the evidence that the Plan is not consistent with the criterion of, "to the maximum extent feasible as determined by the local government," analysis compatible with the plans of the Florida Department of Transportation and MPO, as well as the criteria of analysis of projecting levels of service for roads based on the FLUM, the need for new roads, and the adopted level of service standards and plans of the Florida Department of Transportation and MPO.
Lee County and Cape Coral have failed to prove by
a preponderance of the evidence that TCE Policies 5.1, 5.2, and 5.3, with their implementing actions, in omitting the Mid-Point Bridge and corridor, are not consistent with the criteria of an
objective coordinating transportation planning with the metropolitan planning organization and a future traffic circulation map showing the location of arterial and limited
access facilities. The issue of coordination has already been addressed. The Major Thoroughfare Plan--2010 is consistent with the latter criterion.
Lee County and Cape Coral have failed to prove by
a preponderance of the evidence that the FLUE or TCE Action 5.2.1 is not consistent with the criterion of discouraging the proliferation of urban sprawl. The strategy of urban containment
is not limited to planning for undeveloped or underdeveloped areas. The maintenance of existing mixed-use centers also
assists in deterring urban sprawl. By preserving and enhancing close-in residential areas, some of the pressure toward urban sprawl may be alleviated. The omission of the Mid-Point Bridge and corridor may be viewed as part of a reasonable planning strategy designed to promote the mixture of uses presently characterizing the city.
For the reasons set forth above, Lee County and Cape Coral have failed to prove by a preponderance of the evidence that the ICE is not consistent with the criteria of establishing principles and guidelines to be used in attaining coordination with the plans of adjacent municipalities and the county, ensuring coordination in setting level of service
standards for public facilities with any governmental entity with operational or maintenance responsibility for such facility, and
resolving conflicts with other local governments through the Regional Planning Council's informal mediation process.
CONCLUSIONS OF LAW
Jurisdiction and Standing
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Sections 120.57(1) and 163.3184(10), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)
Participation as a party in a Section 163.3184(9)
or (10) proceeding is limited to "affected persons" and DCA. In relevant part, Section 163.3184(1)(a) provides:
"Affected person" includes the affected local government; persons owning property, residing, or owning or operating a business within the boundaries of the local government whose plan is the subject of the review; and adjoining local governments that can demonstrate that adoption of the plan as proposed would produce substantial impacts on the increased need for publicly funded infrastructure or substantial impacts on areas designated for protection or special treatment within their jurisdiction.
By stipulation, Lee County and Cape Coral are affected persons pursuant to Section 163.3184(1)(a). This conclusion of law does not imply any findings of fact that the
omission of the Mid-Point Bridge and corridor from the Plan would produce substantial impacts on any increased need of Lee County or Cape Coral for publicly funded infrastructure or substantial impacts on areas designated for protection or special treatment with Lee County or Cape Coral.
Rights of Intervenors and Standard of Proof
There are two types of proceedings to determine if a plan or plan amendment is in compliance with the Act and Chapter 9J-5. If DCA "issues a notice of intent to find .
the plan . . . in compliance . . . ," Section 163.3184(9) gives affected persons 21 days within which to file. petitions challenging the determination of compliance and seeking an
administrative hearing under Section 120.57(1). If DCA "issues a notice of intent to find the . . . plan or plan amendment /23 not in compliance . . .,"
Section 163.3184(10) requires DCA to
transmit the notice of intent to the Division of Administrative Hearings to initiate an administrative hearing under Section 120.57(1).
Several important procedural differences exist between Section 163.3184(9) and (10). The standard of proof in the Section 163.3184(9) case is more favorable to the local
government. Because DCA has tentatively determined that the plan or plan amendment is in compliance, the affected person in the Section 163.3184(9) proceeding must prove to the exclusion of fair debate that the plan or plan amendment is not consistent with the Act or Chapter 9J-5. The standard of proof in the Section 163.3184(10) proceeding is a mere preponderance of the evidence, except that proof of internal inconsistency must be to the exclusion of fair debate.
The agency issuing title final order may be different in the two proceedings. The Administration Commission issues all
final orders in Section 163.3184(10) proceedings. In the Section 163.3184(9) proceeding, the hearing officer's recommended order.
is sent to DCA. Regardless of the recommendation, if DCA determines that the plan or plan amendment is in compliance, DCA issues the final order. If DCA determines that the plan or plan amendment is not in compliance, DCA forwards the recommended order to the Administration Commission, which then issues the final order determining whether the plan or plan amendment is in compliance.
Another difference between the two proceedings is
that Section 163.3184(10) expressly mentions intervenors. In the case commenced by DCA, the parties include "any affected person who intervenes." Section 163.3184(9) does not expressly provide for affected persons to intervene in proceedings commenced by other affected persons.
This case presents the recurring situation in which DCA finds a plan not in compliance and commences a Section 163.3184(10) proceeding. Affected persons intervene. DCA and the local government enter into a settlement agreement, but at least one intervenor declines to enter into the agreement.
The Act imposes various requirements, such as advertising and meaningful public participation, upon local
governments seeking to amend their plans. These requirements are applicable to remedial plan amendments. Thus, the amendment process typically takes 7-12 months, or more to complete. The intervenor's claims are normally abated with the remainder of the case if the nonsettling intervenor challenges portions of the plan likely to undergo amendment or the challenge cannot be resolved without consideration of plan provisions likely to
undergo amendment./24 If the entire case were abated in such a situation, the hearing might result in a determination concerning or dependent upon plan provisions that are modified or eliminated by the time the final order is issued.
If the local government fails to adopt the agreed- upon plan amendments or the remedial amendments do not satisfy DCA, then the case is reactivated and the intervenors participate as they would have if the tentative settlement had never taken place. If, as here, the remedial amendments satisfy DCA, it issues a notice of intent. As in this case, the notice of intent is typically directed toward the remedial plan amendments, not the plan as amended.
Following the issuance of the notice of intent,
DCA and Ft. Myers requested that jurisdiction be relinquished to
the Administration Commission for entry of a final order dismissing the petition. This request was denied based upon the status conferred by the Act upon intervenors in Section 163.3184(10) proceedings.
In the absence of statutory authority to the contrary, an intervenor normally takes a case as he finds it and is unable to raise new issues or survive a settlement between the original parties. /25 However, a party with an interest that, by
statute, entitles him to a hearing may, upon timely intervention, be denied his right to a hearing even though the original parties settle. /26
A balanced reading of the Act requires that affected persons who have intervened timely in a Section 163.3184(10) proceeding must be allowed to raise issues not
raised by DCA and survive the settlement of the original dispute
between DCA and the local government. /27 In other words, the Act demands that the timely filing intervenor in a Section
163.3184(10) proceeding be allowed to participate with all the rights of the original parties.
To deny such intervenors full party status would
defeat substantive rights given affected persons by the Act. /28 Several common procedural scenarios illustrate the point.
Except for areas of critical state concern, a plan or plan amendment is effective from the date of its adoption,
regardless whether DCA or an affected person makes the challenge. Sections 163.3184(14) and 163.3194(1). This means that a local government may issue development orders based on a plan, notwithstanding pending challenges.
Affected persons in a Section 163.3184(9) proceeding may of course raise any issue under the Act or Chapter 9J-5. And they may raise these issues immediately upon the publication of a notice of intent as to the plan or plan amendment.
It is unreasonable to deny affected persons the same timely opportunity to challenge a plan or plan amendment when DCA initiates the challenge under Section 163.3184(10), especially because DCA may not have raised the issues that the affected persons may wish to raise. If conventional principles of intervention were to deny affected persons a chance to intervene and raise new issues, the challenged plan or plan amendment is spared the scope of review that is accorded those plans or plan amendments that DCA has tentatively determined to be in compliance. Affected person challenges to plans or plan amendments that have failed their initial DCA review should not be postponed while the main DCA case is litigated, especially while the plan or plan amendment that the affected person seeks to challenge typically remains in effect.
Moreover, the affected person's challenge, once
postponed, may eventually be eliminated if he is not permitted to participate as a full party in the Section 163.3184(10) proceeding. If the settlement process is successfully concluded, DCA issues a notice of intent as to the remedial plan amendments,
not the plan as amended. The remedial plan amendments will not address issues that DCA ignored. The affected person thus cannot commence a Section 163.3184(9) proceeding because the notice of intent is directed only toward the
plan amendments that DCA sought. If the affected person is denied the opportunity to raise his issues in the Section 163.3184(10) proceeding and survive the settlement between DCA and the local government, he will have been denied a point of entry.
The Act discloses the legislative intent to provide affected persons with a meaningful opportunity to challenge plan provisions. This opportunity is the final phase of public participation in the planning process, which includes plan litigation.
In this case, the full-party status of Lee County
and Cape Coral entitles them to litigate the subject issues even
if different from those raised by DCA and even after remedial plan amendments satisfied DCA as to the matters that it raised. The next question is whether Lee County and Cape Coral are
entitled to the preponderance standard of proof as to all issues except internal consistency.
Section 163.3184(10) refers to a single "proceeding" involving DCA and affected-person intervenors. The statute does not differentiate among the parties with respect to the standard of proof. The standard of proof is preponderance of the evidence for all issues except internal consistency. This standard governs the entire proceeding. Nothing in the Act justifies the replacement of the clear provision of Section 163.3184(10) as to the preponderance standard with the fairly debatable standard of Section 163.3184(9). /29
If the proper approach is to allow intervening affected persons in a Section 163.3184(10) proceeding to use the preponderance standard, then it should not matter that DCA and the local government settle the original dispute, as took place here. For reasons set forth above,, the intervenor's claims cannot be dismissed. Nothing in the Act justifies transferring the fairly debatable standard of Section 163.3184(9) proceedings to the remaining Section 163.3184(10) proceeding simply because the original dispute has ended. If the intervenor has full part status, then the settlement of the original dispute is irrelevant.
Lee County and Cape, Coral are thus entitled to litigate the issues that they have raised under the preponderance standard of proof. As noted above, the only exception is the issue of internal inconsistency, which Lee County and Cape Coral must prove to the exclusion of fair debate.
The Act does not define what is meant by "fairly debatable." In zoning cases, "`[t]he fairly debatable test asks whether reasonable minds could differ as to the outcome of a hearing" (citations omitted). Norwood-Norland Homeowners' Association, Inc. v. Dade County, 511 So.2d 1009, 1012 (Fla. 3d DCA 1987). The element of reasonableness imposes certain requirements upon the persons differing as to the outcome. The fairly debatable test requires that the persons reaching different conclusions are informed by relevant facts and law and are capable of analyzing this information in a reasonable manner in order to reach a logical conclusion based exclusively on the applicable facts and law.
Meaning of "In Compliance"
Petitioners are required to prove that the Plan is not "in compliance." Section 163.3184(10). "In compliance" is
"consistent with the requirements of ss. 163.3177, 163.3178, and 163.3191, the state comprehensive plan, the appropriate regional policy plan, and rule 9J-5 .
. ., where such rule is not
inconsistent with chapter 163, part II."
The Act defines what is meant by consistency with the state and regional plans. However, the Act does not define what is meant by internal consistency or consistency with the other criteria of the Act and Chapter 9J-5.
Section 163.3177(10) (a) defines "consistency" solely for the purpose of determining whether the plan is consistent with the state and regional plans. For these
consistency determinations, the plan is consistent if it is "not in conflict with" the relevant plan and "take[s] action in the direction of realizing goals or policies" of the relevant plan. In making these determinations, the state or regional plan "shall be construed as a whole and no specific goal and policy shall be construed or applied in isolation from the other goals and policies in the plan . . .." Id.
The Act describes internal consistency as "coordination" among the several elements. Section 163.3177(2).
Internal consistency also means that the elements are "related" to each other. Section 163.3177(9)(b).
The statutory definition of consistency with state and regional plans must be modified when applied to questions of internal consistency. The "not in conflict with" portion of the definition is suitable. A future land use policy that conflicts with a conservation policy typically results in internal inconsistency.
However, the remainder of the statutory definition
is not applicable to internal consistency determinations. There is no reason to insist that all objectives and policies of a plan
"take action in the direction of realizing" the other objectives and policies of the same plan. Unlike the situation in which provisions of different plans are compared, an objective in the conservation element of a plan should not be required to take action in the direction of realizing an objective in the public facilities element of the same plan. Without furthering each other, the conservation objective or public facility objective may each pursue its respective goal. The meaningful question is whether the two objectives are in conflict with each other; if not, they are coordinated, related and consistent.
One approach to determining consistency with the
other criteria of Sections 163.3177 and 163.3178 and Chapter 9J-5 is to emphasize the "minimum criteria" /30 language. Under this approach, the failure to satisfy any single requirement of Sections 163.3177 and 163.3178 or criterion of Chapter 9J-5 results in a finding of inconsistency.
Another approach to determining consistency with the criteria of Sections 163.3177 4nd 163.3178 and Chapter 9J-5 is to emphasize the "consistency" language. Under this approach, the plan is first examined under the "minimum criteria" approach. If no criterion is left unsatisfied, then the plan is consistent with Sections 163.3177 and 163.3178 and Chapter 9J-5. If, as is often if not invariably the case, the plan fails to satisfy one or more of these criteria, further analysis must be undertaken before determining that the plan is "not consistent with applicable statutory and regulatory criteria."
Borrowing the statutory definition of consistency as applied to comparisons with state and regional plans, the
"consistency" approach would permit a finding of consistency if
the plan as a whole were not in conflict with, and took action in the direction of realizing the criteria unsatisfied by the plan. This approach would require, among other things, consideration of the purposes of the unsatisfied criteria in light of the entire plan, the Act, and Chapter 9J-5.
The "minimum criteria" approach is supported by several references in the Act and Chapter 9J-5 to these criteria as "minimum requirements" or "minimum criteria." See Sections 163.3161(7) and 163.3177(9) and Rule 9J-5.001, although Section 163.3177(9) also refers to "criteria" without the modifier, "minimum." Rule 9J-5.001 adds: "[a]s minimum criteria, these criteria are not intended to prohibit a local government from
adopting . . . a . . . plan which is more . . strict." The rule says nothing about adopting a plan less strict than the minimum criteria.
The "consistency" approach is supported by the language in the Act and Chapter 9J-5 that a plan must be
"consistent with the requirements"; of Section is 163.3177 and 163.3178 and Chapter 9J-5. Section 163.3184(1)(b). Similarly, Rule 9J-5.002(1) requires consistency merely with Sections 163.3177 and 163.3178 and Chapter 9J-5 and not with any "minimum criteria." If truly "minimum criteria," they should be "satisfied" or "met," but these terms are not used in the Act or Chapter 9J-5 with reference to the criteria of Sections 163.3177 and 163.3178 and Chapter 9J-5 with one exception inapplicable to the present case. /31
In one instance, the Act expressly endorses more flexibility than exists in the "minimum criteria" approach. The determination whether the plan is consistent with the criteria requiring certain detailed data must be based on such factors as the government's "complexity, size, [and] growth rate." Rule
9J-5.002(1). Expressly approving this rule, Section 163.3177(10(i) provides:
[DCA] shall take into account the factors delineated in rule 9J-5.002(2) . . . as it applies the rule in specific situations with regard to the detail of the data and analysis required.
The language of the Act favors the "consistency" approach over the "minimum criteria," approach. The "consistency" approach derives its support from the critical provision of the Act defining "in compliance." By
contrast, the "minimum criteria" approach derives its support from less operative sources within the Act--a legislative declaration /32 and a legislative directive to DCA regarding rulemaking. /33
Adopting the "consistency" approach may emphasize flexibility over predictability, at least until guidelines are established for the application of the consistency test with regard to the criteria of Sections 163.3177 and 163.3178 and Chapter 9J-5. However, the Act tacitly endorses similar flexibility in the determinations of consistency with the state and regional plans.
Under the "consistency" approach to Sections 163.3177 and 163.3178 and Chapter 9J-5, each unsatisfied
criterion must be carefully considered to determine its function in light of the Act and Chapter 9J-5 as a whole. Then the relationship between the plan as a whole and the unsatisfied criterion, in light of its role within the Act and Chapter 9J-5, must be examined to determine whether, among other things, the plan conflicts with the unsatisfied criterion, the plan takes action in the direction of realizing the unsatisfied criterion, and the plan is related to, coordinated with, and, ultimately, consistent with the unsatisfied criterion.
Data and Analysis Against Which Plan May Be Evaluated
Ft. Myers and DCA, through its adoption of the Ft. Myers proposed recommended order, argue that as a matter of law, Lee County and Cape Coral are precluded from challenging the Plan's omission of the Mid-Point Bridge and corridor as unsupported by the data and analysis. The argument states:
First, nothing in [the Act] or [Chapter] 9J-5 requires that a local government point to data and analysis to support something that it does not include in its plan. Data and analysis as a matter of law
are not properly the subject of a compliance proceeding, and only [DCA] may consider whether a comprehensive plan was based upon "data appropriate to the element" (see Fla. Stat. 163.3177(8) & (10)(e)) or "the best available existing data." (See Rule 9J- 5.005(2) (a) & (c), F.A.C.).
Ft. Myers' Proposed Recommended Order, page 39.
This argument misapprehends fundamentally the general criterion of supporting data and analysis, the relationship of this criterion to consistency determinations, and the de novo nature of a Section 120.57(1) hearing. These arguments effectively invite the elimination of plan litigation
as to the threshold question whether a plan or plan amendment is supported by data and analysis. This is one of the most important consistency determinations in the entire Act. If a plan is not supported by data and analysis it misses the opportunity to address planning challenges confronting the community and defeats the purpose of comprehensive planning.
As noted above, the question in a Section 163.3184 proceeding is whether a plan is consistent with the Act, Chapter
9J-5, the regional plan, and the state plan. The Act and Chapter 9J-5 identify numerous criteria against which the consistency determination is to be made.
These criteria may be specific, such as the inclusion on a future land use map of existing and planned waterwells, cones of influence, beaches and shores, estuarine systems, rivers, bays, lakes, flood, plains, harbors, wetlands, minerals and soils. Section 163.3177(6)(d).
These criteria may be general, such as internal consistency (Section 163.3177(2) arid (9)(b)), economic feasibility (id.), consistency with the state and regional plans (Section 163.3177(4) (a) and (9)(c)), and concurrency (Section 163.3177(10) (h)).
Among the general criteria of the Act and Chapter
9J-5 is that the plan be supported by data and analysis. The Act states this general criterion at Section 163.3177(8) and (1).
The Act also states:
It is the Legislature's intent that support data or summaries thereof shall not be subject to the compliance review process, but the Legislature intends that goals and policies be clearly based, on appropriate data. [DCA] may utilize support data or summaries thereof to aid in its determination of compliance and consistency. The Legislature intends that [DCA] may evaluate the application of a methodology utilized in data collection or whether a particular methodology is professionally accented.
However, [DCA] shall not evaluate whether one accepted methodology is better than another. Chapter 9J-5, F.A.C., shall not be construed to require original data collection by local governments; however, local governments are not to be discouraged from utilizing original
data so long as methodologies are professionally. accepted.
As cited above, Section 163.3177(10)(i), which addresses "the detail of the data and analysis required," refers to Rule 9J-5.002(2), which states in part: "All goals, objectives, policies, standards, findings and conclusions within the comprehensive plan and its support documents shall be based upon relevant and appropriate data.]" Rule 9J-5.002(2)(a).
Corresponding to provisions of the Act, Rule 9J- 5.002(b) and (c) addresses the quality of data and the transmission of the data to DCA:
Data are to be taken from professionally accepted existing sources, such as the United States Census, State Data Center, University System of Florida, regional planning councils, water management districts, or existing technical studies. The data used, shall be the best available existing data, unless the local government desires original data or special studies. Where data augmentation, updates, or special studies or surveys are deemed necessary by local government, appropriate methodologies shall be clearly described or referenced and shall meet professionally accepted standards for such methodologies.
Primary data sources such as United States Census reports, other government data documents, local computerized data, and original map sheets used to compile required maps need not be printed in their entirety within either the support documents or the comprehensive plan. Summaries of
documents shall be submitted to [DCA] along with the comprehensive plan at the time of compliance review to aid in [DCA's] determination of compliance and consistency. As a local alternative to providing data and analysis summaries, complete data and analyses sufficient to support the, comprehensive plan may be submitted to [DCA] at the time of compliance review. [DCA] may require submission of the complete or more detailed data or analyses during it's compliance review if, in the opinion of [DCA], the summaries are insufficient to determine compliance or consistency of the plan.
Any interpretation of the preceding provisions
must take into account specific criteria of the Act and Chapter 9J-5 that require individual items of data or analysis. For instance, Section 163.3177(6)(a) requires that the future land use element be:
based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth; the projected population of the area; the character of developed land;
the availability of public service; and the need for redevelopment, including the renewal
of blighted areas and elimination of nonconforming uses which are inconsistent with the character of the community.
Section 163.3177(6)(c) requires the public facilities element to:
describe the problems and needs and the general facilities that will be required for solution of the problems and needs. The element shall also include a topographic map depicting any areas adopted by a regional water management district as prime groundwater recharge areas for the Floridan or Biscayne aquifers .
Section 163.3177(6)(d) requires local governments, in connection with the conservation element, to "assess their
current, as well as projected, water needs and sources for a 10- year period."
Section 163.3178(2) requires that coastal management elements be "based on studies, surveys, and data. . ." The element must contain a "land use and inventory map of existing coastal uses," "analysis of the environmental, socioeconomic, and fiscal impact of development and redevelopment proposed in the future land use plan . . . on the natural and historic resources of the coast . . .," and "analysis of the effects of existing drainage systems and the impact of point source and nonpoint source pollution on estuarine water . . . Section 163.3178(2) (a), (b), and (c).
Rule 9J-5.006(1) requires that a future land use
element be based upon various data, and Rule 9J-5.006(2) requires that a future land use element be based upon various analyses. Rule 9J-5.007(1) and (2) contain the criteria for data and analysis, respectively, for the traffic circulation element. Similar subsections of other rules identify criteria of data and analysis with respect to other plan elements.
The meaning of the first clause of Section 163.3177(10)(e) does not render the above-described provisions unenforceable in plan litigation, or limit to DCA the enforcement of such provisions. The Act and Chapter 9J-5 clearly require specific data and analysis. The Act and Chapter 9J-5 clearly require that the plan generally be supported by data and analysis. The second clause of Section 163.3177(10)(e), which restates the latter requirement that the plan must be "clearly based" on "appropriate data," precludes the expansive interpretation of the first clause offered by Ft. Myers and DCA.
The first argument of Ft. Myers and DCA is that
data and analysis are not required to support "something that [a local government] does not include in its comprehensive plan." There is no authority for distinguishing between inclusions and
omissions within a plan. Obviously, a local government cannot address the entire universe of planning provisions and strategies that it did not adopt. However, if a local government were to omit from its plan the entire road network, regional wastewater treatment facilities, or entire coastal area, such omissions, even though only omissions, would not be immune from review as to whether they were supported by data and analysis. There is simply no categoric rule exempting omitted items from the criterion of supporting data and analysis.
The third argument is similarly unavailing. Here,
Ft. Myers and DCA assert that only DCA may determine if a plan is based on appropriate or best available data. Although Section 163.3184(9) and (10) describe the compliance hearings as Section 120.57(1) hearings, there are unusual features of Section 163.3184 proceedings as compared to other Section 120.57(1) hearings. The status of intervenors at least in the Section 163.3184(10) proceeding, may be different. Also, to some extent, a party's reliance upon the provisions of Chapter 9J-5 may be subjected to a determination, within the Section 120.57(1) proceeding, whether a specific rule is consistent with the Act.
Sections 163.3184(1)(b) (last clause) and 163.3177(10)(c).
However, one feature of Section 120.57(1) that is
unmodified by the Act is the de novo nature of the administrative hearing. The hearing is not intended as quasi-appellate review of DCA's tentative determination. The full extent of the deference paid DCA in compliance litigation is in its ability to dictate whether a proceeding that will be governed by the preponderance standard, except for internal consistency determinations. The Act evidences no intent on the part of the
Legislature to accord the tentative decision of DCA any more deference that the intended action of any other agency involved in a Section 120.57(1) hearing. Somewhat to the contrary, the Act does not authorize DCA under any circumstances to render a final order that imposes sanctions.
To allow DCA to assert grounds for noncompliance
that are unavailable to affected persons is not only unauthorized by the Act, but is also repugnant to the Act's emphasis upon public participation, which sometimes must be enforced by affected persons. The Act clearly allows affected persons to
commence proceedings on any basis of noncompliance that DCA could commence such proceedings.
The second argument, which is that the data and analysis are not subject to the compliance review process, tracks the first clause of Section 163.3177(10)(e). The argument ignores or renders unenforceable the second clause, as well as other provisions in the Act quoting supporting data and analysis and specific items of data or analysis.
The proper interpretation of the first and second clauses of Section 1634.3177(10)(e) is that, with one exception, the sole consistency determination involving data and analysis is whether plan provisions are supported by data and analysis. The exception is that other consistency determinations may also involve data and analysis if the Act or Chapter 9J-5 establishes criteria of specific data or analysis. Examples of the exception are noted above, such as the land use and inventory map required by Section 163.3178(2)(b). Otherwise, data and analysis are not like operative provisions, which are subject to a wide range of specific and general consistency criteria, such as internal consistency, consistency with the state and regional plans, and economic feasibility.
The first clause of Section 163.3177(10) (e) reinforces the principle that, except for criteria of specific
items of data or analysis, the focus of plan litigation involving data and analysis is on the operative provisions of the plan, not the data and analysis. If the operative provisions, such as the goals, objectives, policies, and future land use map, are supported by appropriate data and analysis, tie general criterion is satisfied.
Chapter 9J-5 states that the plan must be
supported by the "best available" data. The effect of the first clause of Section 163.3177(10)(e) is to acknowledge that any
litigation concerning whether the data are the best available data must be tempered by the general principle that the data are
not properly the subject of the compliance review process.
As in this case, the analysis and even the data
are sometimes in conflict. Differences may exist in data sets, yet all the data may qualify as the "best available" data. Here, Cape Coral quarrelled with some of the MPO data, which were not always consistent with the data contained in the Draft EIS, especially Composite Exhibit 4. Lee County even intends to
revisit the model that generates the traffic data. These traffic data are the result of complicated formulas analyzing complex and voluminous inputs.
The first clause of Section 163.3177(10)(e) takes into account the inevitable disorderliness that attends the recurring process by which data are collected, then analyzed, and the results of that analysis become, data, which are then reanalyzed. The first clause of Section 163.1377(10)(e) discourages attempts to impose upon the dynamic process of data collection and analysis an unreasonable degree of precision. However, the effect of the first clause of Section 163.3177(10) (e) is not to exempt from plan litigation, even if prosecuted only by affected persons, a local government's decision to delete from its data and analysis its road network, regional wastewater plants, or entire coastal area.
Even after determining the role of data and
analysis in Section 163.3184(9) and (10) litigation, two issues
remain concerning what data and analysis a local government may use to show that operative provisions are supported by data and
analysis or that the local government has addressed specific criteria, such as a land use and inventory map. First, must the data and analysis be in existence at the time of the adoption of the plan or plan amendment? If so, must the local government be aware of, use, identify, or even submit such data and analysis (or summaries thereof) to DCA when transmitting the plan or plan amendment for review?
The importance of reliable data and competent analysis to effective planning does not answer the question of when the data and analysis should be available. In this case, Ft. Myers has relied upon data and analysis not specifically identified in the plan and, in one instance, data not in existence at the time of the adoption of the plan or plan amendment. In other cases, affected persons challenging a plan or plan amendment may seek the same latitude to introduce data and analysis not in existence when the plan or plan amendment was adopted.
Emphasis upon the final product--the plan-- militates in favor of allowing a plan to be defended or challenged on the basis of data and analysis
not in existence until after the plan was adopted. Emphasis upon the process by which the public participates in the planning effort and the local government attempts to discharge its planning obligations militates in favor of limiting the data or analysis upon which a plan may be challenged or defended to data and analysis in existence during the adoption process.
In determining whether operative plan provisions
are supported by data and analysis or whether data and analysis are consistent with specific criteria, it is necessary to refer
to "appropriate" data, as provided, by Section 163.3177(10)(e), or the "best available existing data," as provided by Rule 9J-5.005(2)(c).
Rule 9J-5.005(2)(c) answers part of the question. The universe of data available to a local government to show supporting data and analysis or consistency with a specific criterion, as well as the universe of data available to an affected person or DCA to show the converse, is limited to the data in existence at a time no later than the adoption of the plan or plan amendment. The requirement of "available" may, under appropriate circumstances, establish an earlier cut-off for data that, although in existence, Were not reasonable available to the local government at the time of adoption. No evidence suggests that this is the case with any data in the present case except for some ad valorem tax evidence that was excluded and proffered at the final hearing.
Consistent with the the evidentiary rulings at the
hearing, there is no corollary to the "existing" requirement with respect to analysis. The line between data add analysis is often obscured, as the product of earlier analysis is transformed to data upon which more analysis may be performed. However, it is sufficient for present purposes to note that analysis is an ongoing process that in large part characterizes what takes place during the Section 163.3184(9) or (10) hearing and in the orders that follow. It is not possible to freeze analysis at an arbitrary point. It is enough to ensure that no analysis is predicated upon data not in existence and available when the plan or plan amendment was adopted.
The extent to which a local government must identify in its plan, use or even be aware of data or analysis at the time of the adoption of the plan or plan amendment is not as easily resolved. Again, this is a two-way street. If the local government is free to transmit to DCA a plan without any data and analysis and then defend the Section 163.3184(10) proceeding based on analysis and existing data, then the same principle should apply to affected persons challenging the plan for lack of support by data and analysis or specific inconsistencies in terms of data and analysis criteria. After all, the same provisions of the Act and Chapter 9J-5 govern both challenges.
On the one hand, allowing a local government or affected person to refer to analysis or existing data not in fact used while adopting the plan could tend to undermine the planning process. As noted above, Section 163.3177(8) requires the local government to make available to the public copies of "surveys and studies" used in the preparation of the plan. A local government that waits until the Section 163.3184(9) or (10) proceeding to identify the data and analysis upon which the plan is based
hardly serves the principles of public participation. Likewise, allowing an affected person to wait until the Section 163.3184(9)
or (10) proceeding to identify the data and analysis upon which the challenge is based serves the principles of public participation no better.
On the other hand, no real purpose is served by sustaining a challenge to a plan or plan amendment, on the grounds that the local government did not identify supporting data and analysis when submitting the plan for review to DCA, when analysis or existing data in fact are available to support the plan or achieve consistency with a specific data or analysis criterion.
Rule 9J-5.005(a) describes the process under which DCA reviews each plan to determine the consistency with the criteria involving data. By negative implication, Rule 9J-5.005(d) suggests that data should be submitted with the plan or plan amendment. Rule 9J-5.005(d) requires the local government to submit summaries of support documents with the plan at the time of compliance review "to aid in [DCA's) determination of compliance and consistency." As an alternative, "complete data and analyses sufficient to support the comprehensive plan may be submitted to [DCA] at the time of compliance review." However, DCA "may require submission of the complete or more detailed data or analyses during its compliance review if, in the opinion of [DCA), the summaries are insufficient to determine compliance or consistency of the plan." Rule 9J- 5.005(d).
However, even if local governments are allowed to produce supporting data and analysis for the first time during
plan litigation, two practical reasons will discourage such a practice. First, DCA reviews each plan or plan amendment to determine whether operative provisions are supported by data and analysis and the data and analysis are consistent with specific criteria. The absence of such data and analysis increases the likelihood of plan litigation.
Second, effective public participation may be denied by the failure of local government officials, at public hearings, to identify and discuss relevant data and analysis prior to the adoption of the plan or plan amendment. Thus, the tardy identification of data and analysis may establish consistency with the general criterion of supporting data and analysis or specific criteria of individual items of data or analysis. But such a practice may leave the plan vulnerable to a determination of noncompliance due, to inconsistency with the public participation criterion, as the public was denied the chance to consider the omitted data and analysis during the planning process. /38
However, there is insufficient authority in the Act or Chapter 9J-5 to render a plan inconsistent with the general criterion of supporting data and analysis or criteria concerning specific items of data and analysis if appropriate analysis and existing data are introduced into the record at the hearing. In this case, the concededly meager analysis identified in the 1989 Data and Analysis and 1990 Data and Analysis may be supplemented by other qualifying data and analysis.
Supporting Data and Analysis
Rule 9J5.005(2)(a)and (c), which are cited
above, set forth the general criteria that a plan shall be based upon "relevant and appropriate data," "the data [shall be] collected and applied in a professionally acceptable manner," and the "data shall be the best available existing data."
The question is not whether the Plan has adopted
the best possible transportation strategy based on the data and analysis. Because the data and analysis are not subject to the general criterion of internal consistency, the question is not whether any inconsistencies exist among the data and analysis. The question is whether the Plan's omission of the Mid-Point Bridge and corridor is supported by the best available existing data. As the latter term is interpreted, based on the discussion in the preceding section, Lee County and Cape Coral have failed to prove by a preponderance of the evidence that the omission of the Mid-Point Bridge and corridor is not supported by the best available existing data.
The most significant data, especially Composite Exhibit 4 of the Draft EIS, were professionally applied by Lee County and its consultants in the EIS process. Lee County and Cape Coral argue persuasively in their proposed recommended order that the portion of the rule requiring that the application of the data in a professionally acceptable manner" requires that the plan also be supported by analysis. Other provisions of the Act and Chapter 9J-5 discussed in the preceding section support this argument. However, Lee County and Cape Coral likewise failed to prove by a preponderance of the evidence that the omission of the Mid-Point Bridge and corridor is not supported by analysis.
Internal Consistency
Section 163.3177(2) and (9)(b) and Rule 9J- 5.005(5) set forth the general criterion that a plan be internally consistent.
For the reasons discussed above, Lee County and
Cape Coral have failed to prove to the exclusion of fair debate that any of the cited provisions are internally inconsistent.
Consistency with Regional Plan
282. Sections 163.3177(4)(a), (9)(c), and (10) (a) and 163.3184(1)(b) set forth the general criterion that a plan be consistent with the Regional Plan construed as a whole.
Lee County and Cape Coral have failed to prove by
a preponderance of the evidence that the Plan's omission of the Mid-Point Bridge and corridor and the TCE in general are inconsistent with the Regional Plan, construed as a whole.
Consistency with Other Minimum Criteria
Rule 9J-5.007(2)(b), sets forth the following specific criteria:
An analysis of the projected traffic circulation levels of service and system needs based upon future land uses shown the future land use map or map series, addressing the need for new facilities or expansions to provide safe and efficient
operating conditions on the roadway network. In addition, this analysis shall consider the
adopted level of service standards improvements, expansions, and new facilities planned for in the Florida Department of Transportation Five Year Transportation Plan and the plans of the appropriate metropolitan planning organization and should, to the maximum extent feasible as determiitied by the local government adopting the . . plan, be compatible with the policies and guidelines
of such plans.
The focus of this analysis is upon the operative provisions of the Florida Department of Transportation and MPO work, which are the Five-Year Road, Plan for the Florida Department of Transportation and the MPO Needs and Financially Feasible Plans. Unless the metropolitan planning organization lacks specific road network maps, there is typically no need to address the organization's general policies, except to interpret properly the features of the road network maps.
For the reasons set forth above, Lee County and Cape Coral have failed to prove by a preponderance of the
evidence that the analysis is not consistent with these criteria concerning specific analysis.
Rule 9J-5.007(3)(b)3. sets forth the specific criterion of an objective to:
Coordinate with the plans and programs of any appropriate metropolitan planning organization, any public transportation authority, . . . and the Florida Department of Transportation's Five-Year Transportation Plan[.]
Rule 9J-5.007(4)(a)2. and 3. sets forth the
specific criteria that the future traffic circulation map depict arterials and limited access facilities.
For the reasons set forth above, Lee County and Cape Coral have failed to prove by a preponderance of the
evidence that the omission of the Mid-Point Bridge and corridor is inconsistent with these specific criteria
Rule 9J-5.006(3)(b)7. is the criterion to discourage the proliferation of urban sprawl.
To the extent relevant to this case, urban sprawl may be defined as:
The extension of urban-type development into rural, agricultural, or other undeveloped or sparsely developed lands in a haphazard development pattern in which land uses are not functionally related to each other.
Home Builders and Contractors Association of Brevard, Inc. Department of Community Affairs, 585 So.2d 965, 968 (Fla. 1st DCA 1991) (per curiam).
For the reasons discussed above, Lee County and Cape Coral have failed to prove by a preponderance of the
evidence that the omission of the Mid-Point Bridge and corridor and the FLUE are not consistent with the criterion of
discouraging the proliferation of urban sprawl.
Rule 9J-5.015(3) sets forth specific criteria of analysis in support of the plan with respect to:
The effectiveness of existing coordination mechanisms . . ., such as intergovernmental agreements joint planning and service agreements, special legislation and joint meetings or work groups which used to further intergovernmental coordination;
Specific problems and needs within each of the . . . plan elements which would benefit from improved or additional intergovernmental coordination and means for resolving those problems and needs; and Growth and development proposed in
plans in the area of concern and a comparison with the appropriate . . regional . . plan in order to evaluate the needs for additional planning coordination[.]
For the reasons set forth above, Lee County and Cape Coral have failed to prove by a preponderance of the evidence that the ICE is not consistent with these specific criteria.
Based on the foregoing, it is hereby
RECOMMENDED that the Administration Commission enter a final order determining that the Ft. Myers plan, as amended, is
in compliance with Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code.
ENTERED this 7 day of January, 1992, in Tallahassee, Florida.
ROBERT E. MEALE
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 7 of January, 1992.
ENDNOTES
1/ A related issue is the relevance, pursuant to Rule 9J- 5.005(2), Florida Administrative Code, of data or analysis generated, collected, or performed to the dates on
which the plan was adopted and amended. This issue is discussed in the Paragraphs 39 et sect. of the Conclusions of Law.
2/ The third municipality, Sanibel, is located on a barrier island and is not involved in this case.
3/ Traffic Circulation Element Standard 2.6.1 identifies capacity. Level of service A means the traffic volume is no greater than 60% of its capacity. Each higher letter
signifies an increase of 10 percentage points. Level of service E means that the road's volume is over 90% but not greater than 100% of its capacity and level of service F designates roads whose volume exceeds their capacity. Levels of service standards and measurements are often expressed in terms of average annual daily traffic, peak season traffic, peak hour traffic, or peak season/peak hour traffic.
4/ The Major Thoroughfare Plan-)2010 is Map H in the 1989 Data and Analysis and 1990 Data and Analysis. The1 Major Thoroughfare Plan--2010 is Map G in the Plan. The Major Thoroughfare Plan-- 2010 is the same in all three documents.
5/ The Major Thoroughfare Plan--2010, the Needs Plan, and the Financially Feasible Plan appear to contemplate the separation of traffic on the Edison Bridge when it is expanded to six lanes (in effect, extending the one-way pair north across the river). A difference in design at the northern landfall or possibly at the southern terminus may be imperceptible due to the scale of the maps.
6/ Map B from the 1989 Data and Analysis, which was carried forward to the 1990 Data and Analysis, was omitted from Lee County Exhibit 2, which is the 1990 Data and analysis. It was therefore impossible to compare the later Map B with the earlier Map B.
7/ However, the Florida Department of Transportation Five-Year Plan does not include the Mid-Point Bridge and corridor.
8/ A "freeway" requires "direct access to abutting property and [prohibits] at-grade intersections . . .." Less efficient than a freeway, an "expressway" requires:
No direct access to express lanes . . . from adjoining development. Access to express lanes shall be permitted "only at cross streets designated in the, . . . Needs Plan
* * *
Where the plan calls for existing roads to be upgraded to expressways, local service road systems should be developed to replace direct access.
9/ The same faulty data also invalidated three other simulations: Assignments A, B, and H.
10/ Exhibit 17 in the EIS described below. 11/ Exhibit 6 in the EIS.
12/ | EIS Composite Exhibit | 4. |
13/ | Segments are composed | of links. |
14/ By name and number, the segments are Anderson east of
Metro (10), Anderson west of Fowler (12), Edison east of U.S. 41 (23), Edison east of Fowler (27), Hanson east of U.S. 41 (42), Hanson east of Fowler (44), Colonial west of Summerlin (61), Colonial west of U.S. 41 (64), Colonial west of Metro (71), McGregor just south of the central business district (22), McGregor south of Braman (37), McGregor south of Colonial (57),
U.S. 41 north of Hanson (40), U.S. 41 north of Colonial (63), Fowler south of Edison Bridge (8), Fowler south of Edison (25),
Fowler north of Hanson (28), Metro south of Anderson (17), Metro
south of Hanson (46), and Metro north of Colonial (7:2). The Mid-Point Bridge option used was "limited access approaches."
15/ Table 6 in the EIS
16/ Transcript, p. 293. See also Paragraph 117 of the Findings of Fact.
17/ One change involved the above-described reduction in densities in the outlying areas of Lee County. Other changes may involve developments of regional impact, which can have a substantial effect on traffic in an area the size of Ft. Myers.
For instance, the $231 million Omni Park project involves about 1000 acres with over 2 million square feet of commercial and over
2 million square feet of industrial. If the project were to go forward, it would probably have a measurable effect upon relevant projected traffic because of the project's location at Colonial and Interstate 75. The record suggests, but does not establish, that the MPO models did not include this project, perhaps due to its timing and tentative nature. It is unknown if subsequent modeling efforts included the project either.
18/ See Paragraphs 143 et seq. of the Findings of Fact for a discussion of the Regional Plan, which does not recommend the
construction of the Midpoint Bridge.
19/ For instance, Cape Coral's future land use element policy
1.1 prohibits the further subdivision of land within the city except in connection with developments of regional impact or planned development projects. Future land use element policy
1.11 requires Cape Coral to adopt regulations creating a Transfer of Development Rights mechanism to allow the city to acquire land for public use and to create commercial and industrial tracts for private use. Future land use element policy 1.13 requires Cape Coral to adopt regulations to encourage the reassembling of land for private uses by granting density bonuses and other incentives for the recombination of platted lands.
Cape Coral's future land use element policy 1.14 establishes floor-to-area ratios for commercial and industrial uses, as well as standards governing mixed-use development. The record does not permit an inferences as to the adequacy of ratios of 1:1 for all categories of commercial and industrial, nor does the record allow a determination of the adequacy of the amount of land that has been designated for commercial, industrial recreational, or institutional uses, especially in light of the amount of land designated for residential use and the densities allotted such land.
Cape Coral's traffic circulation element policy I.1.1 sets peak hour, peak season level of service standards foil various major roads. Del Prado Boulevard is level of service, Cape Coral Parkway is level of service E, and Pine Island Road is level of service E. With the exception of two other roads, the remaining roads in Cape Coral, including limited access facilities, are D.
20/ For example, Lee County's future land use element policy
1.8.3 sets forth a detailed array of performance standards for planned development proposals. Lee County's future land use element goal 4 addresses the mixing of residential and commercial uses. Goals 6 and 7 acknowledge that one of the effects of well- planned commercial and industrial land uses is to reduce dependence upon the automobile. Lee County's future land use
element policy 7.1.3 states that the County shall designate sufficient land as industrial so that, by 2010, up to 7.5% of the
County's residents may be employed by industry located in the county. Goals 13 and 14 add detailed standards for commercial and industrial land uses.
21/ Policy 22.1.1 provides level, of service standards for roads in the county. Arterials and collectors under county jurisdiction are set at level of service E, as are U.S. 41 and minor arterials under state jurisdiction. The remaining roads, including freeways, are level of service D.
22/ The Regional Planning Council determined that the Plan was consistent with the Regional Plan.
23/ The reference to "plan amendment" is not contained in
Section 163.3184(9). This appears to be an inadvertent omission rather than a statutory prohibition against affected persons challenging plan amendments that DCA has determined to be in compliance. There is no reason to treat plan amendments differently from plans in this regard. To the contrary, Section 163.3187(2) provides that the "procedure for amendment of an adopted . . plan or element shall be as for the original adoption of the plan or element set forth in 5.163.3184."
24/ In the Order of Remand entered June 27, 1990, by the Administration Commission in Department of Community Affairs Lee County, DOAH Case No. 89-I843GM, the Administration Commission ordered that the nonsettling intervenor's claims must be abated even though the plan provisions challenged by the intervenor are not under consideration for amendment and are
capable of sustaining a plan without regard to the plan provisions being amended. The subject partial recommended order addressed a challenge by Ft. Myers to the Lee County plan based on the latter's inclusion of the Mid-Point Bridge and corridor.
25/ See, e.g., National Wildlife Federation, Inc. v. J. T. Glisson, 531 So. 2d 996 (Fla. 1st DCA 1988).
26/ See, e.g. Florida Medical Center v. Dartment of Health
and Rehabilitative Services, 484 So.2d 1292, 1296 (Fla. 1st DCA 1986).
27/ The case could nevertheless be rendered moot by a settlement that theoretically could entail the repeal of the entire plan.
28/ There are some factual settings in which conventional intervention principles are appropriate. For instance,
Section 163.3184(9) gives affected persons 21 days within which to challenge a notice of intent to find a plan or plan amendment in compliance. An affected person who fails to avail himself of this opportunity may be allowed to intervene, after the
expiration of the 21-day period, in a Section 163.3184(9) proceeding timely commenced by another affected person. But if the timely filing affected person settles and no other timely filing affected persons remain as petitioners, the intervenors case should be dismissed as well. See Rudloe v. Department of Environmental Regulation, 517 So.2d 731 (Fla. 1st DCA 1987) and Humana of Florida, Inc. v. Department of Health and
Rehabilitative Services, 500 So.2d 186 (Fla. 1st DCA 1986).
29/ There is also a significant practical difficulty in attempting to employ such dual standards in a single proceeding. The differentiation of issues would be a daunting task that, after considerable effort, would produce imprecise, disturbingly arbitrary results.
For example, if DCA were to allege that the designation of a coastal high hazard area was inconsistent with a criterion of Chapter 9J-5, could an affected person allege, within the same issue, that a hurricane-evacuation provision is inconsistent with the regional and state plan?
30/ The Act refers to "requirements," and Chapter 9J-5 refers to "criteria." As used in the Act and Chapter 9J-5, the two words are synonymous. For simplicity, all reference; in this Recommended Order to "criteria" or "minimum criteria" include "requirements" or "minimum requirements," as used in the Act.
31/ Rule 9J-5.0055, which became effective November 22, 1989, uses the word "satisfy" four times and the word "met" three times. This rule deals with the critical issue of concurrency.
32/ Section 163.3161(7).
33/ Section 163.3171(9).
34/ 163.3177(8) reads in its entirety:
All elements of the comprehensive plan, whether mandatory or optional, shall be based upon data appropriate to "the element involved. Surveys and studies utilized in the preparation of the comprehensive plan shall not be deemed a part of the comprehensive plan unless, adopted in part of it. Copies of such studies, surveys, and supporting documents shall be made available to public inspection, and copies of such plans shall be made available to the public upon payment of reasonable charges for reproduction.
35/ 163.3177(1) states in its entirety. The comprehensive plan shall consist of materials in such descriptive form, written or graphic, as may be appropriate to the prescription of principles, guidelines, and standards for the orderly and balanced future economic, social, physical, environmental, and fiscal development of the area.
36/ Even in this, the Act casts the deference in terms of the determination of the local government, not DCA. Section 163.3184(9)(a) and (10)(a).
37/ This assumes that the affected person, if not a local government, has preserved his standing by making oral or written objections during the review and adoption proceedings.
163.3184(1)(a). Actually, any objection allows the
affected person to raise any issue, even if not mentioned in the objection. By contrast, DCA may raise only those issues identified in its objections, recommendations, and comments, unless the final adoption of the plan or plan amendment raises new issues. Section 163.3184(8)(a)
38/ Two similar reasons will discourage affected persons from waiting to produce data and analysis until plan litigation has begun. First, if DCA obtains the competing data and analysis prior to issuing the notice of intent, the chances may improve that DCA will challenge the plan and the issue of data and analysis may be resolved under the preponderance standard.
Second, an affected person who withholds data and analysis from the local government may find it more difficult to prove that the ensuing plan is inconsistent with the public participation criteria, at least with respect to the local government's consideration of data and analysis.
APPENDIX
Treatment Accorded Proposed Findings of `lee County and Cape Coral
Adopted or adopted in substance: 1-2, 3 (although the project also taps latent demand), 4-5, 6 (although financially feasible plan almost doubles projected revenues), 7-12, 13 (second sentence), 18, 20-22, 23 (except that the land use plans had not been revised under the Act), 24-26, 27 (except that Assignment J was run to correct incorrect data inputs in Assignment G), 28 (except first sentence), 29, 30 (as discussed in the recommended order), 31 (first sentence), 34-36, 39 (with respect to studies referenced in the data and analysis), 42 (although recitation of evidence), 44 (except first sentence, although these data cannot be construed in isolation from the data accompanying the Draft EIS),
46 (first sentence) (this failure on the part of Ft. Myers has been noted in the recommended order, where appropriate; however, the omission of the bridge and corridor found support by other means), 47-48 (first sentence) (the conclusions of the travel desires map have been included as appropriate in the recommended order, 50-54, 55 (as to bridge congestion only), 56 (although the bridge is shown as a better alternative to present bridge congestion without regard to the impact upon Ft. Myers; this is an incomplete analysis), 74 (except to the extent "umbrella term" implies vagueness), 75, 86, 69 (second sentence), 91 (first sentence), 93, 95, 96 (except first sentence), 103 (except that the judicial and political solutions in this case, have been found not to render the Plan inconsistent as alleged by Lee County and Cape Coral), and 104.
Rejected as unsupported by the appropriate weight of the evidence: 13 (first sentence), 18 (third sentence; the unreasonable condition attached to arbitration leaves the party to judicial or political solutions, but Lee County and Cape Coral have failed to prove that this approach is unsupported by the data and analysis), 37-38 (although the support in the 1989 Data and Analysis was sparse, the analysis concerning the preservation of a viable urban area with a mixture of uses could be characterized as based on data in the form of Plan provisions promoting mixed uses), 43 (last sentence), 4, 46 (except first sentence), 48 (second sentence, to the extent the proposed finding implies that the travel desires map supports the bridge and corridor to the exclusion of the omission of the project), 49, 57 (EIS Composite Exhibit 4 is, the best evidence of the impact of the three alternatives on various links, and its results are set forth in the recommended order) 58 and 60 (these proposed findings recite evidence of the Coast Guard's conclusions that, more importantly, were found not to be particularly appropriate or relevant to the present determinations due to procedural advantages accorded the project proponents, a disinclination on the part of the Coast Guard to subject local government's planning decisions to the degree of scrutiny that would afford the Coast Guard's land use conclusions greater credibility, an apparent inexpertise on the part of the Coast Guard with Florida land use planning matters, and a recurring adversarial nature that unlike the case with the MPO-- cast doubt upon the objectivity of the Coast Guard, at least when responding with the comments of Ft. Myers), (64-65, 68-70 (in view of what are concluded to be available as sources of analysis, Ft. Myers has offered sufficient analysis to achieve consistency with this criterion of specific analysis), 73, 77-79, 80-82 (to the extent that these proposed findings ignore another planning technique as to roads where the level of service is set lower to avoid road improvements that harm close-in residential areas and also avoid moratoria; these proposed findings are also irrelevant in view of the findings in the recommended order concerning the reduced impact on Ft. Myers' roads if the bridge and corridor are not built), 87 (the record does not support a finding that logical planning requires the connection of these areas, even without regard to the impact upon Ft. Myers as noted in the recommended order,
neither Lee County nor Cape Coral produced the kind of data and analysis that could facilitate findings on this highly complex issue), 88-89 (first sentence), 90, 91 (second sentence), 92, 94, 96 (first sentence), 98, 99-102 (neither Lee County nor Cape Coral produced the kind of data and analysis that would facilitate findings on this highly complex issue, although, as noted, some evidence suggests that the southern corridor would be conducive to sprawl), and 105.
Rejected as recitation of evidence: 14, 15 and 16 (third sentence) (although the offer to arbitrate contains an unreasonable condition), 19, and 61 (second sentence)-62.
Rejected as speculation: 16 (first sentence) and 97 (second sentence).
Rejected as irrelevant: 16 (second sentence), 28 (first sentence), 33 (the issue is not whether the bridge add corridor were appropriately included in the MPO Needs and Financially Feasible Plans; the issue is whether the Plan's omission of this project is supported by analysis and appropriate data, 40-41 and
43 (except for last sentence) (although largely true, the conclusions of law discuss why the local government sponsoring the plan should be able to justify its planning decisions on any analysis and existing data, even though they were not referenced in the data and analysis submitted to DCA), 59, and 51 (first sentence) and 63 (for reasons set forth in the conclusions of law).
Rejected as subordinate: 18 (first sentence), 44 (first sentence), and 72.
Rejected as repetitious: 18 second sentence), 31 (second sentence), 32 (the fairness of the MPO process is adopted to the extent that the technical work was performed professionally; the fairness of the MPO process is not adopted to the extent that the proposed finding implies that the MPO acted as a disinterested body rather than a collection of representatives of local governments with Lee County and Cape Coral in control), and 71 (second sentence).
Rejected as conclusion of law: 66-67, 71 (first sentence), and 76.
Rejected as unnecessary: 83-85 (although there is some evidence to corroborate these proposed findings) and 97 (first sentence; the offer to arbitrate has been found to contain an unreasonable conditions and, in effect, amount to an invitation to resolve the bridge and corridor dispute by judicial or political means).
Treatment Accorded Proposed Finding's of Ft. Myers
Adopted or adopted in substance: 1-10, 15-17 (though some question exists as to how financially feasible the Financially Feasible Plan is), 18-20, 22-26, 27 (the evidence reflects at least one such request; how many requests are irrelevant and subordinate to the findings set forth above as to the professionalism of the MPO and the impact of its constituent members), 31 (all but first and last sentences), 32-35, 37-49, 51-54, 56-60 (these factors would contribute at least to a
negative short-term impact on existing commercial uses and real estate values, but the record provides no basis for findings as to longer-term effects), 61 (given the burden upon Lee County and Cape Coral to prove that the omission of the project is not supported by data and analysis), 63, 65-69, 73, 75, 77, 81, 82-84 (to the extent of findings to this effect in the recommended order), 85, 95-99, 101, 106-08 (to the extent of consistency with
the operative MPO plans), 109-39, 142-45 (144 and 145 describe
general tendencies), 146-47, 150-56, and 158-60.
Rejected as subordinate: 11-14, 2&-29, 64, 73, 78-79, 87-94, and
100.
Rejected as unsupported by the appropriate weight of the evidence: 21 (although Ft. Myers may have been a member of the MPO since 1979, the preponderance of the evidence is that MPO was organized before that year), 30-31 (first and last sentences) (although the makeup of the MPO probably ensured at the outset that the bridge and corridor would be included, just as it was equally likely from the outset that, Ft. Myers would exclude the project from its Plan, the evidence suggests that professional procedures produced data and analysis upon which Lee County and Cape Coral could justify the inclusion of the project and Ft.
Myers could justify the exclusion of the project), 36 (although
the composition of the MPO and its effect upon likely conclusions has been discussed), 50 (as noted in the findings in the
recommended order, the EIS, although not either MPO plan, provides for an ample number of overpasses), 55 (although the evidence shows negative short-term effects on commercial uses along Colonial, for the reasons set forth in the recommended order, the record provides no basis, for findings as to the longer-term effect of the project; as to residential uses, as noted in the recommended order, the record offers a limited basis for finding that the project would have negative effects in terms of noise and visual impact, but the record provides no basis for findings as to the impact of the project on physical access), 80 (the support is not "more than adequate. . ."), and 140 (although there is evidence in support of this finding, the record does not contain a sufficient basis to determine that the bridge and corridor would actually promote sprawl; Ft. Myers has shown that the omission of the bridge and corridor are useful in its strategy of promoting viable mixed uses in the urban area, and Lee County and Cape Coral have failed to show even from a County perspective [if relevant to a city plan case] that the inclusion of the bridge and corridor are necessary to combat the sprawl that already exists in Cape Coral and Lehigh Acres).
Rejected as conclusion of law: 62.
Rejected as irrelevant: 70-71, 74, 76, 86, and 102-05.
Rejected as recitation of evidence: 141, 148-49, and 157.
COPIES FURNISHED:
Douglas M. Cook, Secretary
Florida Land and Water Adjudicatory Commission Executive Office of the Governor
The Capitol, PL-05 Tallahassee, FL 32399-0001
William E. Sadowski, Secretary Department of Community Affairs 2740 Centerview Drive
Tallahassee, FL 32399-2100
G. Steven Pfeiffer, General Counsel Department of Community Affairs 2740 Centerview Drive
Tallahassee, FL 32399-2100
Kenneth D. Goldberg Assistant General Counsel 2740 Centerview Drive
Tallahassee, FL 32399-2100
Kenneth G. Oertel Scott Shirley
Oertel, Hoffman, Fernandez & Cole, P.A.
P.O. Box 6507
Tallahassee, FL 32314-6507
Gregory S. Hagen Assistant County Attorney
P.O. Box 398
Ft. Myers, FL 33902-0398
Bruce R. Conroy City Attorney
City of Cape Coral
P.O. Box 150027
Cape Coral, FL 33915-0027
Charles L. Siemon Andrew C. Stansell Siemon, Larsen & Purdy
433 Plaza Real, Suite 341 Boca Raton, FL 33432
Jacqueline Williams Hubbard City Attorney
City of Ft. Myers 2200 Second Street Ft. Myers, FL 33901
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Jun. 09, 1992 | AGENCY APPEAL, ONCE THE RETENTION SCHEDULE of -KEEP ONE YEAR AFTER CLOSURE- IS MET, CASE FILE IS RETURNED TO AGENCY GENERAL COUNSEL. -ac |
| Apr. 10, 1992 | Final Order filed. |
| Apr. 08, 1992 | Draft Final Order filed. |
| Jan. 07, 1992 | Recommended Order sent out. CASE CLOSED. Hearing held 3/25-29/91 & 5/15/91. |
| Oct. 01, 1991 | Order Publishing Ex Parte Communication (+ att) sent out. |
| Jun. 21, 1991 | Proposed Recommended Order of Lee County and the City of Cape Coral filed. (from Kenneth G. Oertel) |
| Jun. 21, 1991 | 'Proposed Recommended Order filed. (From Kenneth D. Goldberg) |
| Jun. 21, 1991 | Notice of Filing & cover ltr; Memorandum in Support of Respondent Fort Myers` Proposed Recommended Order; Respondent Fort Myers` Proposed Recommended Order filed. (From Andrew Stansell) |
| Jun. 12, 1991 | Order Setting Time for Filing Proposed Recommended Orders sent out. |
| Jun. 12, 1991 | Motion for Clarification of Time for Filing Post-Hearing Submittals filed. (From Kenneth G. Oertel) |
| May 31, 1991 | (1) Floppy Disk w/cover ltr filed. (From Andrew C. Stansell) |
| May 30, 1991 | Transcript of Proceedings (May 15, 1991) filed. |
| May 15, 1991 | CASE STATUS: Hearing Held. |
| May 13, 1991 | Letter to REM from Andrew C. Stansell (re: Location of hearing) filed. |
| May 01, 1991 | Notice of Change of Address & attachment filed. (From Laura E. Peck) |
| May 01, 1991 | Transcript (Vols 1-5) filed. |
| Apr. 29, 1991 | Notice of Change of Address filed. (From Margaret D. Nattoli) |
| Apr. 24, 1991 | Exhibits filed. (From K. Nolen) |
| Mar. 22, 1991 | Fort Myers Response to Lee Countys Second Amended Unilateral Prehearing Stipulation filed. |
| Mar. 22, 1991 | Fax, Stipulation; Respondent Fort Myers Unilateral Proposed Pre-Hearing Stipulation filed. |
| Mar. 21, 1991 | (Respondent) Notice of Compliance with Order to Exchange Exhibits to be Offered at Final Hearing; Supplemental Notice of Compliance with Order to Exchange Exhibits to be Offered at Final Hearing filed. |
| Mar. 20, 1991 | cc: (Petitioner) Amended Notice of Exhibit Exchange filed. |
| Mar. 20, 1991 | (Petitioner) Amended Notice of Exhibit Exchange filed. |
| Mar. 18, 1991 | Order Denying Motion for Summary Final and on Motion in Limine sent out. |
| Mar. 18, 1991 | (Petitioner) Notice of Exhibit Exchange; Intervenor Lee Countys Second Amended Unilateral Prehearing Stipulation filed. |
| Mar. 18, 1991 | Notice of Service of Answers to Interrogs.; Witness & Exhibit List filed. |
| Mar. 15, 1991 | (Respondent) Amended Notice of Taking Deposition Duces Tecum (5) filed. |
| Mar. 13, 1991 | (Intervenor) Response in Opposition to Motion for Summary Final Order(Amended Page 5 Attached) filed. |
| Mar. 13, 1991 | (Intervenor) Response in Opposition to Motion for Summary Final Order filed. |
| Mar. 13, 1991 | Order Granting Motion for Alteration of Time Limits in Prehearing Order (Prehearing stipulation due no later 3/19/91 if unilateral stipulations are filed sent out. |
| Mar. 13, 1991 | (Intervenors) Notice of Telephonic Deposition (for March 19, 1991: 1:00 pm) filed. |
| Mar. 12, 1991 | (Intervenors) Notice of Hearing (March 18, 1991: 9:00 am: Tallahassee); Motion in Limine filed. |
| Mar. 11, 1991 | (Respondent) Notice of Taking Deposition Duces Tecum (7); and Cover letter from A. Stansell filed. |
| Mar. 11, 1991 | (Intervenor) Notice of Service of Responses to Interrogatories; and Cover letter from R. Gray filed. |
| Mar. 11, 1991 | (Respondent) Notice of Hearing (Telephone Hearing on March 18, 1991: 9:00 am) filed. |
| Mar. 08, 1991 | (Lee County) Notice of Taking Depositions Duces Tecum filed. |
| Mar. 07, 1991 | (Intervenor) Motion for Alteration of Time Limits in Prehearing Order filed. |
| Mar. 06, 1991 | Respondent Fort Myers Motion for Summary Final Order (Exhibits Attached); and Cover letter from A. Stansell filed. |
| Mar. 05, 1991 | (Intervenors) Notice of Cancellation and Resetting Deposition Duces Tecum filed. |
| Mar. 05, 1991 | cc: (Respondent) Notice of Taking Deposition Duces Tecum; and Cover letter from A. Stansell filed. |
| Mar. 01, 1991 | (Intervenor) Notice of Taking Deposition Duces Tecum filed. |
| Feb. 28, 1991 | (Intervenor) Notice of Taking Deposition Duces Tecum filed. |
| Feb. 27, 1991 | Amended Notice of Hearing sent out. (hearing set for 3/25-29/91; at 10:00am; in Ft Myers) |
| Feb. 25, 1991 | Respondent Ft. Myers Answer to Lee County`s Petition to Intervene filed. |
| Feb. 19, 1991 | (Intervenor) Notice of Taking Deposition; Notice of Cancellation filed. |
| Feb. 14, 1991 | (Lee County) Notice of Appearance filed. (from K. Oertel). |
| Feb. 14, 1991 | (Lee County) Notice of Appearance filed. (from K. Oertel & G. Hagen). |
| Feb. 14, 1991 | (Lee County) Notice of Taking Deposition filed. |
| Feb. 13, 1991 | Notice of Hearing sent out. (hearing set for March 25-29, 1991: 10:00 am: Fort Myers) |
| Feb. 11, 1991 | Respondent Fort Myers` First Set of Interrogatories to Intervenor Lee County; & cover letter to Clerk from A. Stansell filed. |
| Nov. 15, 1990 | Order Denying Joint Motion to Relinquish Jurisdiction sent out. |
| Nov. 14, 1990 | Joint Motion to Relinquish Jurisdiction filed. (from Kenneth D. Goldberg) |
| Oct. 24, 1990 | (Petitioner) Notice of Publication and Filing of Notice of Intent & attachments filed. (From Kenneth D. Goldberg) |
| Oct. 10, 1990 | Fort Myers Response to Motion to Set Aside Order of Abatement filed. (From Andrew C. Stansell) |
| Oct. 02, 1990 | (Petitioner) Response to Motion to Set Aside Order of Abatement filed. (From Kenneth D. Goldberg) |
| Sep. 25, 1990 | (Lee County) Motion to Set Aside Order of Abatement; & cover letter from G. Hagen filed. |
| Jun. 05, 1990 | Order of Abatement sent out. (case is abated until 9-26-90) |
| May 29, 1990 | Status Report filed. |
| Feb. 01, 1990 | Order Denying Motion for Abatement as Moot sent out. |
| Jan. 26, 1990 | (Petitioner) Motion for Abatement of Filing Stipulated Settlement Agreement w/Exhibit-A filed. |
| Dec. 14, 1989 | Supplemental Notice of Compliance With Order to Exchange Exhibits That Will be Offered at Hearing With All Parties to This Matter w/exhibit-A filed. |
| Oct. 26, 1989 | Order on Intervention and Abatement sent out. (Granting Cape Coral and Lee Co. petitions for intervention)(Case is abated for 7 mos. and parties shall file a status report prior to the expiration of the abated period) |
| Oct. 25, 1989 | Joint Motion for Continuance or Abatement of Proceedings filed. |
| Oct. 24, 1989 | Respondent`s Motion for Continuance filed. |
| Oct. 23, 1989 | Respondent Fort Myers` Motion to Strike or Dismiss Lee County`s Petition for Leave to Intervene and Respondent`s Supporting Memorandum filed. |
| Oct. 23, 1989 | Respondent Fort Myers` Motion to Strike or Dismiss Cape Coral`s Petition for Leave to Intervene and Respondent`s Supporting Memorandum filed. |
| Oct. 23, 1989 | Amended Unilateral Prehearing Stipulation filed. |
| Oct. 20, 1989 | Intervenor Lee County's Unilateral Prehearing Stipulation filed. |
| Oct. 17, 1989 | Notice of Compliance With Order to Exchange Exhibits That Will Be Offered at Hearing With All Parties to This Matter filed. |
| Oct. 17, 1989 | Fort Myers' Answer to Cape Coral's Petition for Leave to Intervene filed. |
| Oct. 16, 1989 | Notice of compliance With Order to Exchange Exhibits That Will Be Offered at Hearing With All Parties to This Matter filed. |
| Oct. 13, 1989 | Petition to Intervene & attachments filed. |
| Oct. 02, 1989 | Motion to Dismiss Cape Coral's Petition to Intervene filed. |
| Sep. 29, 1989 | Motion for Order for Consolidation of Issues filed. (89-1843GM; 89-2030GM & 89-2159GM) |
| Sep. 25, 1989 | Petition to Leave to Intervene filed. |
| Sep. 18, 1989 | (Attys` for 89-1843)Letter to DOAH from A. C. Stansell filed. |
| Sep. 18, 1989 | Notice of Service of Interrogatories filed. |
| Jun. 08, 1989 | Notice of Hearing sent out. (Document Generated Order, |
| May 19, 1989 | Joint Response to Case Management Order filed. |
| May 18, 1989 | Answer of City of Fort Myers & cover ltr filed. |
| May 15, 1989 | Letter to REM from A. C. Stansell (Confirmation of Telephone Conversation) filed. |
| May 04, 1989 | Order(Prehearing Stip.) sent out. |
| Apr. 26, 1989 | Amended Petition of the Department of Community Affairs filed. |
| Apr. 25, 1989 | Petition of the Department of Community Affairs w/exhibits A and B; |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 08, 1992 | Agency Final Order | |
| Jan. 07, 1992 | Recommended Order | Plan based on data and analysis and otherwise consistent even though it omits bridge sought by county and city across the river |
