STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SUNSHINE RANCHES HOMEOWNER'S ) ASSOCIATION, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 89-2645GM
) BROWARD COUNTY and DEPARTMENT ) OF COMMUNITY AFFAIRS, )
)
Respondents, )
)
and ORIOLE HOMES CORP., )
)
Intervenor. )
)
) ENVIRONMENTAL COALITION OF ) FLORIDA, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 89-2646GM
) BROWARD COUNTY and DEPARTMENT ) OF COMMUNITY AFFAIRS, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in these consolidated cases on February 5-9 and 21-22, 1990, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Sunshine Ranches Homeowner's Association, Inc.: Nancy E. Stroud, Esquire
Lisa N. Mulhall, Esquire
Burke, Bosselman & Weaver One Lincoln Place
1900 Glades Road, Suite 350 Boca Raton, Florida 33431
For Environmental Coalition of Florida, Inc.:
Brion L. Blackwelder, Esquire Jacobson and Associates
3363 Sheridan Street, Suite 204
Hollywood, Florida 33021 and
Jorie Rose, Esquire
Environmental Coalition of Florida, Inc. 1001 N.W. 62nd Street, Suite 203
Fort Lauderdale, Florida 33309 For Broward County:
Barbara A. Hall, Esquire
Tracy H. Lautenschlager, Esquire County Attorney's Office
Broward County Governmental Center Suite 423
115 South Andrews Avenue
Fort Lauderdale, Florida 33301 For Department of Community Affairs:
Richard J. Grosso, Esquire Karen Brodeen, Esquire Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100 For Oriole Homes Corporation:
Robert E. Ferris, Jr., Esquire Gerald L. Knight, Esquire
Gustafson, Stephens, Ferris, Forman & Hall, P.A.
540 Northeast 4th Street
Fort Lauderdale, Florida 33301 and
Robert M. Rhodes, Esquire Steel, Hector & Davis
215 South Monroe Street, Suite 601 Tallahassee, Florida 32301
STATEMENT OF THE ISSUES
Whether the Sunshine Ranches Homeowner's Association, Inc. (Association) and the Environmental Coalition of Florida, Inc. (Coalition) are "affected persons," entitled to challenge Broward County's 1989 comprehensive plan pursuant to Section 163.3184(9), Florida Statutes?
Whether Oriole Homes Corporation is an "affected person" entitled to be granted intervenor status in Case No. 89-2645GM?
Whether Broward County's 1989 comprehensive plan is not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes, as alleged by the Association and the Coalition?
PRELIMINARY STATEMENT
On May 5, 1989, after the Department of Community of Affairs had issued a notice of its intent to find Broward County's 1989 comprehensive plan "in compliance," the Sunshine Ranches Homeowner's Association, Inc. and the Environmental Coalition of Florida, Inc. filed with the Department separate petitions alleging that the plan was not "in compliance." On May 16, 1989, the petitions were referred by the Department to the Division of Administrative Hearings for the assignment of a Hearing Officer. The Association's petition was docketed as DOAH Case No. 89-2645GM. The Coalition's petition was docketed as DOAH Case No. 89-2646GM. Case No. 89-2645GM was initially scheduled to be heard commencing on October 17, 1989. The hearing in Case No. 89-2646GM was originally scheduled to commence on October 25, 1990.
On June 2, 1989, Oriole Homes Corporation (Oriole) filed a petition to intervene in Case No. 89-2645GM. It amended its petition on June 8, 1989. By order issued July 3, 1989, the Hearing Officer granted Oriole the intervenor status it had requested.
On September 25, 1989, the Association filed a motion to consolidate Case No. 89-2645GM with Case No. 89-2646GM. On September 26, 1989, Broward County (County) filed motions for continuance in Case Nos. 89-2645GM and 89-2646GM. By order issued October 2, 1989, the motion to consolidate and motions for continuance were granted and the hearing in these consolidated cases was set to commence on February 5, 1990.
At hearing, the testimony of 26 witnesses was presented. In addition, the Association, Coalition, County and Oriole offered into evidence 26, 8, 45, and
39 exhibits, respectively, all of which were admitted. The Department did not offer any exhibits into evidence.
Following the conclusion of the evidentiary portion of the hearing, the Hearing Officer advised the parties on the record that their post-hearing submittals had to filed no later than 30 days after the Hearing Officer's receipt of the complete transcript of the hearing. The Hearing Officer received the complete hearing transcript on March 15, 1990. On April 6, 1990, the County filed a motion requesting that the deadline for the filing of post-hearing submittals be extended until April 20, 1990. The motion was granted. On April 20, 1990, the parties each filed a proposed recommended order. The proposed findings of fact set forth in these proposed recommended orders have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.
FINDINGS OF FACT
Based upon the record evidence, the following Findings of Fact are made: Broward County: A General Overview
Broward County is one of Florida's coastal counties. It is located in the southeastern part of the state and is bordered on the north by Palm Beach County, on the south by Dade County, on the west by Collier County and on the east by the Atlantic Ocean.
Within the boundaries of Broward County are approximately 1,200 square miles of land and water. The western two thirds of the County are in the Everglades and are designated conservation areas. They are separated from the eastern third of the County by a series of dikes and levees. Development of the eastern third of the County began in the coastal area and has moved westward. The movement has not always been orderly. Some areas to the west have been developed despite the absence of infrastructure to service the development.
Broward County is the second most populous county in the State of Florida. The average population density in the eastern third of the County is approximately 3,000 residents per square mile, which is comparable to the population density of Detroit, Michigan and Brooklyn, New York.
There are 28 incorporated municipalities located in Broward County. Cooper City is one of these incorporated municipalities.
Broward County has a Home Rule Charter. Under the Charter, a seven- member County Commission (Commission) governs the County.
Article VI of the Charter addresses the issue of land use planning. It directs the Broward County Planning Council (Council) to "prepare and propose," and the County Commission to adopt, a countywide land use plan. This article of the Charter further provides:
Within six (6) months after adoption of the County Land Use Plan each governmental unit [incorporated municipality] may submit its own land use plan. . .
If the governmental unit plan is in substantial conformity with the County Land Use Plan
of the Council, it shall be deemed certified. Until such time as the governmental unit plan is in substantial conformity with the County Land Use Plan, as interpreted by the Council, the County Land Use Plan will be the effective plan for the governmental unit involved. If a governmental unit fails to submit a plan in due course, then the County Land Use Plan will be effective.
With respect to the subject of platting, Article VI of the Charter states as follows:
The legislative body of each municipality within Broward County and the County Commission for the unincorporated area shall, within six (6) months after the effective date of this Charter, create a mandatory plat ordinance.
No plat of lands lying within Broward County, either in the incorporated or unincorporated areas, may be recorded in the Official Records prior to approval by the County Commission.
The County Commission shall enact an ordinance establishing standards, procedures and minimum requirements to regulate and
control the platting of lands within the incorporated and unincorporated areas of Broward County. The governing body of each municipality may enact an ordinance establishing additional standards, procedures, and requirements as may be necessary to regulate and control the platting of lands within its boundaries.
Article VIII of Broward County's Home Rule Charter establishes a nine- member Environmental Quality Control Board (EQCB) vested with regulatory authority in matters relating to air and water quality, including the authority to regulate dredge and fill activity in the County.
The construction industry plays a very significant role in Broward County's economy. It is directly responsible for 10 to 12% of the jobs in the County. Agriculture, on the other hand, contributes very little to the County's economy. Since 1955, there has been a steady decline in the amount of land devoted to agricultural uses.
Sunshine Ranches Homeowner's Association, Inc.
The Sunshine Ranches Homeowner's Association, Inc. is now, and has been since December 11, 1968, a nonprofit Florida corporation. It currently has approximately 290 members who own homes or property in an area of Broward County known as Sunshine Ranches. The Association was formed to promote the common interests of its members. In furtherance of this objective, the Association appears on behalf of its members before the County Commission and represents them in administrative and legal proceedings.
Oriole Homes Corp.
Oriole Homes Corp. is a Florida corporation. It is the fee title owner of Imagination Farms, a 235 acre parcel of land located in Sunshine Ranches.
Environmental Coalition of Florida, Inc.
The Environmental Coalition of Florida is a nonprofit Florida corporation that was formed in 1978. It conducts its business from its headquarters in Broward County.
As its name suggests, the Coalition is comprised of citizens concerned about Florida's environment. Many of its members own property in Broward County. Some own and operate businesses in the County.
In representing the collective views of its members on environmental issues, the Coalition frequently clashes with developers.
Sunshine Ranches: The Community
Sunshine Ranches is a horse-oriented community of estate homes and working ranches located in the southwest quadrant of the eastern third of Broward County (S.W. Broward), a rapidly developing area of the county which is also the site of four Developments of Regional Impact. The community is within the area designated as "urban" on the Florida Department of Transportation's Federal System Map for Broward County. It is bounded on the north by Griffin
Road, on the south by Old Sheridan Street, on the west by Volunteer Road (also known as S.W. 148th Avenue), and on the east by Flamingo Road. These perimeter roadways are all major thoroughfares and, consequently, not only do they provide access to and from the Sunshine Ranches community, they also effectively buffer the community from the residential and commercial development that surrounds it. Interstate 75, while not adjacent to the community, is only a short distance to the west.
Sunshine Ranches has an area of approximately four square miles (2,700 acres) which is divided into 664 parcels. Parcels of five acres or more constitute approximately 49% of the total acreage of Sunshine Ranches and 13% of the total number of parcels in the community. Parcels of two to five acres represent approximately 41% of the total acreage and 54% of total number of parcels. Parcels of under two acres make up 10% of the total acreage and 33% of the total number of parcels. Some of these parcels are under an acre in size. The average parcel in Sunshine Ranches is four acres.
Approximately 500 families live in Sunshine Ranches. They reside in single-family homes situated on relatively large lots in a rustic setting. These residential properties sell for in excess of $100,000.00.
Infrastructure in Sunshine Ranches is limited. Most homes have septic tanks and wells rather than central sewer and water service, a situation that is undesirable particularly in light of the groundwater contamination problem the area has experienced. All but the major roadways in the community are unpaved. Street lights are scarce. There is no unified or central drainage system in the community. Drainage is accomplished in this flood prone area on a site-by-site basis by the individual landowner. 1/
There are no retail establishments located in Sunshine Ranches. Residents, however, do not have to travel far outside the community to meet their consumer needs inasmuch as there is nearby shopping.
Although Sunshine Ranches is predominately a residential community, there is commercial activity which takes place within its boundaries, principally on the 68 working ranches in the area.
Because of its soil and climatic conditions, drainage problems and parcel sizes, the Sunshine Ranches area is not ideally suited for commercial crop cultivation. Furthermore, as a general rule, parcels in Sunshine Ranches are not large enough to sustain a profitable beef or dairy cattle operation. Consequently, those who own or lease the ranches in the area do not engage in these commercial agricultural pursuits to any significant degree.
Rather, the primary commercial activity on these ranches involves horses used for racing, showing and recreational riding. There are ranches where horses are bred and raised, where they are boarded and otherwise cared for, and where they are trained. 2/ The services these horse ranches provide help to support the state's horse racing and equestrian industries.
A study conducted after the adoption of Broward County's 1989 comprehensive plan by Dr. James Nicholas, an expert in land development economics, found that the horse-related commercial activity in Sunshine Ranches adds 6.4 million dollars in personal income to the Broward County economy. In addition to the horse ranch operators and their employees, among the recipients of the personal income attributable to operations on these farms are veterinarians, farriers, and feed and supply store owners and workers.
In 1988, of the 2,600 net acres of land in Sunshine Acres that were subject to ad valorem taxation, 470 acres on 55 separate parcels were granted an agricultural exemption by the Broward County Property Appraiser pursuant to Section 193.461, Florida Statutes. Many of these exempted parcels qualified for such an exemption, not because the Property Appraiser believed that they met the current statutory requirements, but because of the Property Appraiser's policy of "grandfathering" parcels that had received agricultural exemptions under the law prior to its revision. In the absence of such a policy, very few parcels in Sunshine Ranches would have been granted an agricultural exemption. The Property Appraiser does not consider the horse-related activities that take place on the working ranches in Sunshine Ranches to be agricultural in nature inasmuch as they do not involve the production of food or fiber. 3/
Over the past four to five years, the Property Appraiser has received applications from Sunshine Ranches property owners seeking agricultural exemptions for parcels not previously exempted. The only such applications that have been granted have been those seeking exemptions for bona fide commercial nurseries.
The continuing commercial viability of the working ranches in Sunshine Ranches is threatened by the increasing land values in the area which provide an inducement to those who own the land upon which these ranches are situated to convert the land to more profitable uses. When the community was in its infancy, land in Sunshine Ranches was relatively inexpensive because it was plentiful and far to the west of the existing urban development in the County. During these early stages of the community's existence, an acre of land in Sunshine Ranches could be purchased from $1,000.00 to $2,000.00. As development activity in S.W. Broward has accelerated, 4/ there has been a corresponding increase in the value of property in Sunshine Ranches. Currently, land in Sunshine Acres is selling at a minimum of $50,000.00 for a single acre. Large tracts of land carry a purchase price of at least $20,000.00 per acre. As one might expect in view of the soaring land values in the area, the recent trend in Sunshine Ranches has been toward the construction of homes, not ranches.
Horses are found in Sunshine Ranches not only on the working farms, but on land used exclusively for residential purposes as well. There is approximately one horse for every two acres of land in Sunshine Ranches. All feed and supplies for these horses must be purchased from outlets outside the community because there are no such stores in Sunshine Ranches.
Imagination Farms
Imagination Farms is situated in the northeastern section of Sunshine Ranches within the municipal boundaries of Cooper City. It is the only property in Sunshine Ranches that is not in the unincorporated area of Broward County.
For at least the past 20 years, Imagination Farms has been used for pastureland for dairy cattle. Oriole, however, has plans to develop it into a residential community of single-family homes.
Existing water and sewer lines are located directly across the street from the western edge of the property on the other side of Flamingo Road.
Until 1989, the Imagination Farms parcel was classified as agricultural by the Broward County Property Appraiser for ad valorem tax purposes. In 1989, Oriole, which had recently purchased the property, sought an
agricultural exemption for the property, but its application was denied because the Property Appraiser was of the view that the primary use of the land was for development, not agriculture.
According to the jurisdictional determinations made by the Broward County EQCB, the Florida Department of Environmental Regulation (DER) and the United States Army Corps of Engineers, there are approximately 13 to 14 acres of wetlands in Imagination Farms. Although based in part upon a visit to the property that was made in February, 1989, these jurisdictional determinations did not become final until after the adoption of Broward County's 1989 comprehensive plan.
The wetlands in Imagination Farms are marginally productive. Because of their relatively small size, they are not particularly effective in removing from storm water nutrients that lower water quality.
Pre-1989 Land Use Designations of Property in Sunshine Ranches
Under Broward County's 1977 comprehensive plan, all land in Sunshine Ranches, including Imagination Farms, was originally designated for residential use at a maximum density of one unit per acre. Zoning classifications applicable to Sunshine Ranches were E-1 and E-2. The E-1 classification permitted a residential density of no more than one single-family dwelling unit per acre. The E-2 classification, which applied to the major portion of land in Sunshine Ranches, created an "agricultural estate district . . . intended to apply to areas to be used for single family dwelling plots of 1.8 acres or more with vocational agricultural use of land allowed." The purpose of the E-2 classification was to allow certain agricultural activities on the land and to prohibit others that may be considered objectionable by the residents of the area.
In 1988, after Oriole's purchase of Imagination Farms, the County Commission considered a request that it amend the 1977 comprehensive plan by changing the land use designation of Imagination Farms to L-3, a residential land use designation permitting a maximum density of three units per acre. Broward County Planning Council staff recommended that the County Commission deny the request for the following reason:
This amendment is . . . also located in the Sunshine Ranches area. The Ranches are a viable low density area. Staff believes Estate is the proper land use designation for the area. This amendment would extend into the heart of Sunshine Ranches and would significantly change the character of the area.
The Planning Council also recommended against approval of the requested amendment. Furthermore, the Department of Community Affairs, in a letter dated July 15, 1988, expressed its view that the proposed amendment was "not consistent with the stated goals and objectives of the [1977] Comprehensive Plan." Nonetheless, on August 31, 1988, the County Commission voted to approve the amendment with the following conditions:
[T]he restrictive covenant[s] [relating to the property] be amended to limit a maximum density of 2.0 units to the acre; that the developer
provide sewer and water to all lots including Estate within the development; that the developer agrees to oversized water lines sufficient to serve the entire Sunshine Ranches area; that there be two tiers of Estate one acre lots on
the north, south, southeastern and the western boundaries of the property; the entire property be limited to single family development only; street lighting be prohibited from the perimeter Estate zoned areas and only low intensity
street lighting be permitted on the internal portions of the property; there be no access to Southwest 136th Avenue, access to be limited to Flamingo Road. The buffer zones on the northern and southern portion of the
property, the lake in the northeastern portion of the property and the 5 acre park on the southeastern boundary of the property as represented at the meeting be included in the restrictive covenant requirement. The total density be limited to no more than 2 units to the acre, and there be single family detached homes with no zero lot line properties permitted. This all to become a note on the face of the plat as a part of the public records and be part of a recorded instrument subject
to an agreement approved by General Counsel.
On or around November 10, 1988, restrictive covenants pertaining to the Imagination Farms property were filed as a matter of public record and they thereafter were approved by the Board of County Commissioners. The restrictive covenants provided as follows:
The Property shall be developed at an average density not to exceed 2.0 dwelling units per acre.
The residential development of the Property shall be limited to single-family, detached dwelling units. No Zero Lot Line dwelling units shall be permitted.
Two (2) rows of residential lots, each lot being at least 35,000 square feet in size (i.e., "builders acre"), shall be located along the following described boundaries of the Property: (1) The Western Boundary of Tracts 25 through 32, excepting therefrom the North 100 feet of Tract 32; (2) the Southern boundary of Tracts 24 and 25; and (3) the Eastern boundary of Tracts 21 through 24; Section
35, Township 50 South, Range 40 East, Florida Fruit Lands Co. Subdivision No. 1, according to the Plat thereof as recorded in Plat Book 2, Page 17, of the Public Records of Dade County, Florida.
Central potable water and sanitary sewer service shall be provided to each
residential unit constructed on the Property prior to the issuance of a certificate of occupancy for that dwelling unit.
Platting of the Property shall be subject to the additional condition that the potable water main to be installed on the Property shall have sufficient capacity to provide potable water service to the residential dwelling units to be constructed on the Property and the real property which is located [in the remaining portions of Sunshine Ranches], based on land use designations in effect at that time.
Such capacity shall be determined in accordance with standards applied by the Broward County Office of Environmental Services.
No street lights shall be located within the two (2) rows of residential lots described [in (c) above]. Street lights located within the remainder of the Property shall be designed so as to preclude the illumination thereby of any land area located adjacent to the Property with a residential land use designation.
The only vehicular access to the Property shall be from Flamingo Road.
An open space buffer area having a minimum width of one hundred feet (100') and consisting of natural vegetation, landscaping and/or water bodies shall be located along the Northern boundary of Tracts 1, 16, 17 and 32, excepting therefrom the east 660 feet of Tract 1, Township 50 South, Range 40 East, Florida Fruit Lands Co. Subdivision No. 1, according to the Plat thereof as recorded in Plat Book 2, Page 17, of the Public Records of Dade County, Florida.
An open space buffer area having a minimum width of (50') and consisting of natural vegetation, landscaping and/or water bodies, shall be located along the
Southern boundary of Tracts 3 and 13 and the Eastern Boundary of Tract 13, Township 50 South, Range 40 East, Florida Fruit Lands Co. Subdivision No. 1, according to the
plat thereof as recorded in Plat Book 2, Page 17, of the Public records of Dade County, Florida.
A local park, being at least five (5) acres in size, shall be located on the Property. The exact location and configuration of such park shall be determined by the City of Cooper City, Florida.
Preparation and Adoption of the 1989 Comprehensive Plan
The countywide future land use element of Broward County's 1989 comprehensive plan was drafted by the Broward County Planning Council. The remaining elements of the plan were prepared by the Broward County Office of Planning. In preparing these other elements of the plan, the Office of Planning utilized a service area planning approach. Service area planning is "planning for county owned and/or operated systems some of which cross municipal boundaries and planning for the natural resources of the County."
The Office of Planning opted to use the service area method of planning for the following reason:
The unincorporated area of Broward County is distinct from most other local political jurisdictions by virtue of its geographically fragmented nature which has resulted from unmanaged and prolific annexation activities over the past several years. The existence of multi-jurisdictional contracts for service between the County and adjacent municipalities
also diminishes the practicality of comprehensive planning for a politically defined planning
area. Therefore, comprehensive planning for the legal boundaries of the unincorporated area, which does not have the geographic characteristics of a typical local government and does not function as an integrated whole, has been modified in favor of a service area planning approach.
On October 1, 1988, the County Commission transmitted all elements of its proposed comprehensive plan to the Department of Community Affairs (DCA, Department). Upon its receipt of the proposed comprehensive plan, DCA distributed copies of it to other governmental agencies, including the Florida Department of Environmental Regulation, and solicited their comments. After obtaining these agencies' input and conducting its own review of the proposed plan, DCA, on January 10, 1989, sent to the County Commission its written objections, recommendations and comments concerning the plan. DCA objected to, among other things, the analysis of the suitability of the vacant land in S.W. Broward for the uses designated in the proposed plan. It believed that the analysis was inadequate and did not support the land uses designated.
On March 1, 1989, the County Commission adopted the final version of the County's 1989 comprehensive plan. It did so over the objections of the Association and the Coalition. Oriole also participated in the proceedings that culminated in the plan's adoption. During these proceedings, it expressed its disagreement with the position taken by the Association regarding the appropriate land use designation of the Imagination Farms parcel.
The adopted version of the County's comprehensive plan was sent to DCA. Following its review of the adopted plan, DCA issued a notice announcing its intention to find the plan "in compliance."
Contents of Broward County's 1989 Comprehensive Plan: Volume I Future land Use Designations
Volume I of Broward County's 1989 comprehensive plan contains the countywide future land use element. An integral part of this element of the plan is the future land use map (FLUM). It shows the proposed distribution, extent and location of land uses for the entire land area of Broward County.
There are 21 land use categories represented on the FLUM, nine of which are residential in nature.
"Residential uses" are defined in Volume I, Chapter IV(A) of the plan as "activities within land areas used predominantly for housing." Volume I, Chapter IV(B) of the plan indicates that the "areas designated for residential use on the [FLUM] are intended primarily for dwellings, but that other land uses related to a residential environment . . . may also be appropriate therein." "Agriculture" is specifically identified as being among those related uses that are permissible in areas with residential designations.
The nine residential land use categories shown on the FLUM are as follows: E (up to one dwelling unit per gross acre permitted); L-2 (up to two dwelling units per gross acre permitted); L-3 (up to three dwelling units per gross acre permitted); L-5 (up to five dwelling units per gross acre permitted); LM (up to ten dwelling units per gross acre permitted); M (up to sixteen dwelling units per gross acre permitted); MH (up to 25 dwelling units per gross acre permitted); H (up to 50 dwelling units per gross acre permitted); and Irregular.
The higher the residential density of an area, the more efficiently the potable water, sanitary sewer, solid waste and drainage needs of the residents can be met. Accordingly, E is the least efficient residential land use category in terms of meeting these basic needs. L-2 is the next least efficient residential land use category.
L-2 is a new residential land use category. Under the prior comprehensive plan, there was no intermediate category between E and L-3. The L-2 category was created to fill this void. It was designed to result in residential communities with lot sizes that were larger than those found in areas designated L-3, but not so large that it would be too costly to provide central water and sewer service to the residents. The prevailing view at the
time of the preparation and adoption of the 1989 comprehensive plan was that two dwelling units per acre was the lowest residential density at which it would be economically feasible to provide such service. No formal studies, however, were conducted to confirm this view.
The following nonresidential land use categories are also found on the FLUM: Agricultural; Commercial; Commercial Recreation; Community Facilities; Conservation; Employment Center; Industrial; Office Park; Recreation and Open Space; Regional Activity Center; Transportation; and Utilities.
"Agricultural uses" are defined in Volume I, Chapter IV(A) of the plan as "activities within land areas which are predominantly used for the cultivation of crops and livestock including: cropland; pastureland; orchards; vineyards; nurseries; ornamental horticulture areas; confined feeding operations; specialty farms; and silviculture areas." Volume I, Chapter IV(B) of the plan provides, in pertinent part, as follows with respect to areas designated for "agricultural use:"
Agricultural areas are designated on [FLUM]
to promote agriculture and agricultural related uses. Residential development may occur within specific limits.
Uses permitted in areas designated agricultural are as follows:
Agricultural and related uses may be broadly defined by the local government entity to include the following: cultivation of crops, groves, thoroughbred and pleasure horse ranches, private game preserves, fish breeding areas, tree and plant nurseries, cattle ranches and other similar activities.
Residential uses at a maximum of one (1) dwelling unit per two (2) net acres or greater or one (1) dwelling unit per two
and one-half (2 1/2) gross acres or greater. . . .
Neighborhood support business and retail facilities up to one (1) acre per 250 acres. No one contiguous site may exceed ten (10) acres. . . .
"Commercial uses" are defined in Volume I, Chapter IV(A) of the plan as "activities within land areas that are predominantly connected with the sale, rental and distribution of products, or performance of services."
"Conservation uses" are defined in Volume I, Chapter IV(A) of the plan as "activities within land areas designated for the purpose of conserving or protecting natural resources or environmental quality and includes [sic] areas designated for such purposes as flood control, protection of quality or quantity of groundwater or surface water, floodplain management, fisheries management, or protection of vegetative communities or wildlife habitats." Volume I, Chapter IV(B) of the plan states that "[c]onservation areas are designated on the [FLUM] to protect major reserve water supply areas and natural reservations." Accordingly, lands so designated are permitted to be used for only very limited purposes under the plan.
The entire western two-thirds of the County is designated on the FLUM for "conservation uses." In contrast, only certain public lands in the eastern third of the County are so designated. The vast majority of the land has a non- conservation land use designation which allows development.
The entire Sunshine Ranches area, including Oriole's Imagination Farms parcel, is designated on the FLUM for "residential uses." By designating the area for "residential uses" rather than for "agricultural uses," as the County Commission has designated certain other lands in the County, including lands to the west of Sunshine Ranches, the Commission has made it less likely that the working ranches in Sunshine Ranches will survive. Such action, however, will tend to have a positive impact on the County's construction industry.
The Imagination Farms parcel has an L-2 designation. 5/ The balance of Sunshine Ranches has an E designation. While these designations are not identical, neither are they inherently incompatible. Of the 21 land use categories on the FLUM, L-2 is the most akin to E.
While the maximum allowable residential density under the plan for Imagination Farms (two dwelling units per acre) is higher than that for the rest
of Sunshine Ranches (one dwelling unit per acre), it is lower than the average maximum allowable residential density under the plan for S.W. Broward as a whole, which is 3.39 dwelling units per acre.
Immediately adjacent to the Sunshine Ranches area, in all directions, are lands that, like the Imagination Farms parcel, have a designation other than
E. Immediately to the north are lands designated Commercial. Immediately to the south are lands designated Irregular Residential (4.5 dwelling units per acre). Immediately to the west are lands designated L-3, L-5, Commercial and Transportation. Immediately to the east are lands designated L-5, LM, Commercial, Industrial and Irregular Residential (3.8 dwelling units per acre). The only lands immediately adjacent to Sunshine Ranches that have an E designation are to the north on the other side of Griffin Road.
S.W. Broward is the site of land designated on the FLUM for use as a Regional Activity Center. This land is located in close proximity to the Sunshine Ranches area. Volume I, Chapter IV(B) of the plan states the following with respect to Regional Activity Centers:
The Regional Activity Center land use designation . . . is intended to encourage development or redevelopment of areas that are of regional significance. The major
purposes of this designation are to facilitate mixed-use development, encourage mass transit, reduce the need for automobile travel, provide incentives for quality development and give definition to the urban form. This designation will only be applied to areas that are of regional significance. . . .
In addition to the examples cited above in and around the Sunshine Ranches area, there are many other instances on the FLUM where adjacent lands have been assigned different residential land use categories. This provides the County's current and prospective residents with a variety of housing options. Furthermore, to the extent that it results in a higher residential density than would otherwise be the case, it promotes the efficient use of land.
It is a well accepted planning technique to make changes in residential densities along rear lot lines. The County has used this technique extensively in developing its FLUM. The change in density made in the Sunshine Ranches area is but one example of the use of this technique.
Roadways and other man-made courses also serve as boundary lines between adjacent lands that have different land use designations on the FLUM. Wide roadways, particularly when combined with a waterway or canal, provide buffering that is generally superior to that provided by landscaping or walls. They are commonly used to separate residential properties from lands used for other purposes. Rear lot line separation, however, is traditionally employed where the lands in question are designated for residential uses, but at different allowable maximum densities.
Local Government Flexibility
Although the FLUM prescribes land use designations on a countywide basis, there are "flexibility" provisions in Volume I of the plan designed to afford incorporated municipalities in the County a limited amount of discretion
in fashioning a land use plan which meets the particular needs of their community. These provisions provide for the creation of "flexibility zones," which are defined in Volume I, Chapter IV(A) as "geographic area[s], as delineated on the flexibility zone boundary maps in the Administrative Rules Document of the Broward County Planning Council, within which residential densities and land uses may be redistributed through the plan certification process." 6/ Under these provisions "5% of the area designated for residential use on the Future Broward County Land Use Plan Map (Series) within a flexibility zone may be used for offices and/or retail sales of merchandise or services[, provided that n]o added contiguous area used for offices and/or retail sales of merchandise or services may exceed ten (10) acres." These provisions further permit local land use plans to assign "20 percent of the industrial land designated on the Future Broward County Land Use Plan Map (Series) within a flexibility zone" for "[c]ommercial and retail business uses" and for "[h]otel, motel and similar lodging" if "certified by the Broward County Planning Council." Because of these "flexibility" provisions, it is necessary to look beyond the FLUM to determine whether particular parcels of property that are designated on the FLUM for residential uses or for industrial uses and, in addition, are within a "flexibility zone," may be used instead for offices or retail sales, in the case of parcels designated residential, or for commercial purposes or lodging, in the case of parcels designated industrial.
Volume I of the plan also provides for the redistribution of residential densities shown on the FLUM through the use of "flexibility units" and "reserve units," which are described as follows in Volume I, Chapter IV(B) of the plan:
Flexibility Units. "Flexibility units" mean the difference
between the number of dwelling units permitted within a flexibility zone by
the Future Broward County Land Use Plan Map (Series) and the number of dwelling units permitted within the flexibility zone by a local government entity's certified future land use plan map.
Since the certified local land use plan map may be more restrictive than the Future Broward County Land Use Plan Map (Series), available flexibility units may be utilized by a local government entity to rearrange residential densities. . . .
Rearrangement of residential densities utilizing flexibility units will be administered within "flexibility zones." The boundaries of and rules governing "flexibility zones" and rearrangement of residential densities therein . . . will be established within the Broward County Planning Council's "Administrative Rules Document."
The maximum number of dwelling units permitted in a flexibility zone by a local land use plan map shall not exceed the number of dwelling units permitted in the flexibility zone by the
Future Broward County Land Use Plan Map (Series).
Reserve Units.
"Reserve units" mean additional permitted dwelling units equal up to two percent (2%) of the total number of dwelling units permitted within a flexibility zone by the Future Broward County Land Use Map (Series).
Local government entities may establish provisions within their land use plans . . . to allocate residential densities, utilizing reserve units, which exceed those shown on the local land use plan map.
Allocation of reserve units will be administered within "flexibility zones" and not require amendment of the certified local land use plan. The boundaries of and rules governing "flexibility zones" and allocation of reserve units therein . .. will be established within the Broward County Planning Council's "Administrative Rules Document."
The number of reserve units in a flexibility zone will be fixed at the adoption of the Future Broward County Land Use Map Plan (Series). The number of reserve units assigned to a parcel designated for residential use on the local land use plan map may not exceed 100% of the maximum number of dwelling units indicated for the parcel
by the local land use plan map. However, the local land use plan, the zoning, and the applicable land development regulations shall not permit any density higher than fifty (50) dwelling units per gross acre.
Goals, Objectives and Policies
Volume I of the plan also sets forth various goals, objectives and policies relating to future land use in the County. They are found in Chapter II of Volume I.
A "goal" is defined in Volume I, Chapter IV(A) of the plan as "the long-term end toward which programs and activities are ultimately directed."
An "objective" is defined in Volume I, Chapter IV(A) of the plan as a "specific, measurable, intermediate end that is achievable and marks progress toward a goal."
A "policy" is defined in Volume I, Chapter IV(A) as the "way in which programs and activities are conducted to achieve an identified goal."
The following are among the goals, objectives and policies set forth in Volume I of the plan that relate to residential uses:
Goal 01.00.00- Provide residential areas with a variety of housing types and densities offering convenient and affordable housing opportunities to all segments of Broward County's population while maintaining a
desired quality of life and adequate public services and facilities.
Objective 01.01.00- Accommodate the projected population of Broward County by providing adequate areas on the Future Broward County Land Use Plan Map (Series) intended primarily for residential development, but which also permit those non-residential uses that are compatible with and necessary to support residential neighborhoods.
* * * Policy 01.01.03- Local certified land use
plans may establish provisions which allow residential densities to exceed those shown on the local future land use plan map in accordance with the "reserve unit" provisions and restrictions contained in [Volume I, Chapter IV(B) of the plan].
Policy 01.01.04- Local certified land use plans may permit offices and neighborhood retail sales of services and merchandise within areas designated for residential use subject to the provisions and restrictions identified within [Volume I, Chapter IV(B) of the plan].
Objective 01.02.00- Establish flexibility within the Broward County Land Use Plan in order to facilitate the rearrangement of residential densities, and allow local government entities and the private sector to respond to changing conditions.
Policy 01.02.01- Local certified land use plans may rearrange the residential densities shown on the Future Broward County Land Use Plan Map (Series) utilizing "flexibility units" and/or "reserve units" as identified in [Volume I, Chapter IV(B) of the plan]
and in accordance with the rules established within the Broward County Planning Council's "Administrative Rules Document" and the Chapter 163, Florida Statutes plan adoption and amendment process.
Policy 01.02.02- Rules for the creation of "Flexibility Zones" and rearrangement of residential densities within their boundaries, utilizing "flexibility units" and/or "reserve units," shall be established within the Broward County Planning Council's "Administrative Rules Document."
Objective 01.03.00- Correlate the impacts of residential development with the regional roadway network of Broward County and all existing and planned transit facilities to ensure the adequacy and safety of all transportation facilities.
Policy 01.03.01- Residential densities in the Low to Medium ranges should be located
with access to existing minor arterials and collector streets.
Policy 01.03.02- Residential densities in the Medium High and High ranges should be located with adequate access to major and minor arterials, expressways and mass transit routes.
Objective 01.04.00- Local government shall adopt subdivision and other development regulations promoting well-planned, orderly, and attractive development which is consistent with locally adopted capital improvements elements and the goals, objectives and policies of the Broward County Land Use Plan.
Policy 01.04.01- Subdivision regulations shall incorporate a review process for assessing the adequacy of public services and facilities. New residential development shall be established only within those areas where adequate public services exist, or
are scheduled to be available in accordance with a local government entity's adopted Capital Improvements Element.
Policy 01.04.02- Subdivision regulations shall provide for both the timely completion and regular maintenance of all required capital improvements and amenities.
* * * Policy 01.04.04- The land development codes
and regulations of local government entities shall protect whenever possible existing
and planned residential areas, including single family neighborhoods, from disruptive land uses and nuisances.
* * * Objective 01.06.00- Develop and implement
land use controls which promote residential neighborhoods that are attractive, well- maintained and contribute to the health, safety and welfare of their residents.
* * * Objective 01.07.00- Develop programs to
provide a complete range of affordable housing opportunities necessary to accommodate all segments of Broward County's present and future population.
The following are among the goals, objectives and policies set forth in Volume I of the plan that relate to commercial uses:
Goal 02.00.00- Provide a complete range of convenient and accessible commercial facilities sufficient to serve Broward County's resident and tourist population.
* * * Objective 02.04.00- Provide a sufficient
level of commercial development to accommodate
the population and economy of Broward County while ensuring that the planned level of service on the regional road network is achieved and maintained.
* * * Policy 02.04.02- The land use plans of local
government entities shall contain commercial land use policies which form the basis for those land development codes and regulations that are necessary to protect adjacent residential areas.
Policy 02.04.03- Local government entities shall employ their local land use plans and zoning ordinances to establish differing intensities of commercial development compatible with adjacent and surrounding land uses.
Policy 02.04.04- To allow both the public and private sectors to respond to changing conditions and permit the appropriate location of neighborhood commercial uses
within or adjacent to established residential neighborhoods, the Broward County Land Use Plan shall permit up to 5% of the area designated residential within a flexibility zone to be used for neighborhood commercial uses, subject to restrictions identified within [Volume I, Chapter IV(B) of the plan].
Policy 02.04.05- Local certified land use plans may decrease by 20 percent the lands designated Commercial on the Future Broward County Land Use Plan Map (Series) within a flexibility zone in accordance with the rules established within the Broward County Planning Council's "Administrative Rules Document" and the Chapter 163, Florida
Statutes plan adoption and amendment process.
The following are among the goals, objectives and policies set forth in Volume I of the plan that relate to industrial uses:
Goal 03.00.00- Achieve a more diversified local economy by promoting tourism and industrial growth and providing optimum protection of the County's environment and maintaining a desired quality of life.
Objective 03.01.00- Provide additional opportunities for expanding Broward County's economic base by designating the amount of industrial acreage on the Future Broward County Land Use Map (Series) which will accommodate Broward County's projected year 2010 population and/or labor force.
* * * Policy 03.01.06- Local certified land use
plans may permit twenty (20) percent of designated industrial areas to be used for
certain retail, service and tourist-related land uses, subject to the restrictions identified in [Volume I, Chapter IV(B) of the plan].
The following are among the goals, objectives and policies set forth in Volume I of the plan that relate to agricultural uses:
Goal 04.00.00- Conserve and protect agricultural lands and uses.
Objective 04.01.00- Encourage the retention of agricultural lands and uses through the utilization of financial incentives and creative land development regulations.
Policy 04.01.01- Innovative public measures, including tax relief techniques, purchase or transfer of development rights and other measures, should 7/ be instituted to encourage the retention of existing agricultural lands and uses.
Policy 04.01.02- Local land use plans, consistent with the requirements of the Regional Plan for South Florida, should inventory and identify locally important agricultural lands and encourage agricultural activities as the primary uses on such lands.
Policy 04.01.03- Encourage the retention and expansion of agricultural and related activities which are compatible with the environmental sensitivity of identified agricultural lands, consistent with the provisions of the "Florida Right to Farm Act," Section 823.14, Florida Statutes.
* * * Policy 04.02.02- The Broward County Planning
Council shall review all permitted uses of the Agricultural land use category and make revisions by 1990, to address the issue of preserving and protecting agricultural lands.
Policy 04.02.03- Agricultural areas designated on the Future Broward County Land Use Map (Series) shall permit residential development and local government entities may permit
the clustering of dwelling units consistent with those standards contained within [Volume I, Chapter IV(B) of the plan].
Although there is no land use category in the plan denominated as "rural," the subject of "rural areas" is addressed in the following goal, objective and policies set forth in Volume I, Chapter II of the plan:
Goal 07.00.00- Ensure the preservation of rural areas.
Objective 07.01.00- Define, inventory and protect those existing "rural areas" within Broward County.
Policy 07.01.01- Define and inventory all
"rural areas" within Broward County during 1989, and study and make recommendations regarding the relationships between the Conservation, Agricultural and Estate [E]
land use categories 8/ and the appropriateness of those uses and densities within the "rural areas" of Broward County. 9/
Policy 07.01.02- During 1989, the Broward County Planning Council shall develop any necessary policies and/or land use regulations for the protection of "rural areas" to be incorporated within the Broward County Land Use Plan.
Policy 07.01.03- During 1989, the Broward County Planning Council shall analyze the relationship between identified rural areas and potable water and wastewater treatment facilities and develop any necessary policies and/or land use regulations, which will assure that such areas are adequately served in an environmentally sound manner, to be incorporated into the Broward County Land
Use Plan.
The following are among the goals, objectives and policies in Volume I of the plan that relate to the matter of public facilities and phased growth:
Goal 08.00.00- Phase growth consistent with the provision of adequate regional and community services and facilities.
Objective 08.01.00- Coordinate future land uses with the availability of regional and community facilities and services sufficient to meet the current and future needs of Broward County's population and economy without endangering its environmental resources.
Policy 08.01.01- Local government entities shall implement development review procedures to assure that facilities and services meet established county-wide and municipal level of service standards concurrent with the impacts of development pursuant to Objective 08.06.00.
* * * Policy 08.01.03- Local government entities
which authorize development permits shall implement procedures which identify the cumulative impacts of proposed development on public service and facilities.
Policy 08.01.04- In order to protect the health, safety, and welfare of Broward County's residents, development should not be permitted in those portions of Broward County with inadequate potable water and wastewater treatment facilities.
Policy 08.01.05- Packaged wastewater treatment
facilities should be connected to centralized facilities which have been approved by the appropriate governmental agencies.
Policy 08.01.06- Broward County shall continue to monitor and study the impacts of septic tanks on Broward County's water supply.
Policy 08.01.07- Broward County shall, by 1991, develop regulations requiring new development to be serviced by centralized
water and wastewater systems, where necessary, to protect the health, safety, and welfare
of Broward County's residents.
Policy 08.01.08- Local government entities shall require all new commercial and industrial development to be serviced by centralized wastewater systems where financially feasible.
Policy 08.01.09- Private septic tanks and wells in Broward County should be phased out and replaced with centralized water and wastewater systems, where necessary, to protect the health, safety, and welfare of Broward County's residents.
* * * Objective 08.02.00- Continue to enforce the
countywide platting requirements of the Broward County Charter and ensure that land development within Broward County meets the minimum standards of the Broward County Land Development Code.
* * * Objective 08.03.00- Discourage urban sprawl
10/ and encourage a separation of urban
11/ and rural land uses 12/ by directing new development into areas where necessary regional and community facilities and services exist.
Policy 08.03.01- By 1990, Broward County shall review and revise, where necessary, its land development code to ensure that new development is directed to areas which have the land use, water resources, fiscal abilities, and service capacity to accommodate growth in an environmentally acceptable manner.
Policy 08.03.02- Promote infill development through the provision of potable water and sanitary sewer service to those developed portions of Broward County which are currently inadequately served.
Policy 08.03.03- When extending new services to undeveloped portions of Broward County, priority shall be given to those areas where other facilities and services are available or are anticipated to be provided concurrent with the extension of such new services.
Policy 08.03.04- Regional or community libraries, clinics, civic centers, cultural facilities and other public facilities should be located in areas of concentrated activity, such as downtown areas and community or regional shopping centers in order to allow multi-purpose trips, provide easy access by mass transit and economize on parking areas.
Policy 08.03.05- Except for schools, regional and community facilities shall be located close to major traffic corridors and mass transit routes adequate to carry the volume of traffic generated by such facilities.
* * * Objective 08.06.00- Concurrence management
systems shall be established to effectively monitor and manage new growth, in conformance with Florida's Local Government Comprehensive Planning and Land Development Regulation Act.
Policy 08.06.01- Local government entities shall establish concurrence management systems to effectively manage new growth
and to ascertain whether necessary facilities identified within their local Capital Improvements Elements are being constructed in accordance with the schedules in their local plans and to measure the development capacity of such facilities in a given area at a given time.
Policy 08.06.02- Those facilities which are subject to the local concurrence requirements include: traffic circulation, recreational, drainage and flood protection, potable water, solid waste and sanitary sewer facilities.
* * * Policy 08.06.04- The Broward County Land
Development Code plat approval process will require that necessary regional facilities and services be available concurrent with the impacts of development through any of the following situations:
The necessary facilities are in place at the time a Broward County plat approval is issued, or a Broward County plat
approval is issued subject to the condition that the necessary facilities will be in place when the impacts of development occur.
The necessary facilities are under construction at the time a Broward County plat approval is issued.
The necessary facilities are the subject of a binding contract executed for the construction of those necessary facilities at the time a Broward County plat approval is issued.
The necessary facilities have been
included in the Broward County or municipal annual budget at the time a Broward County plat approval is issued although the facilities are not yet the subject of a binding contract for their construction, the unit of local government shall make a determination that it will not remove the budgetary provision for the necessary facilities from their budget.
Policy 08.06.05- Within one year from the submission of the updated Broward County Land Use Plan, Broward County shall adopt and implement a concurrence monitoring system to ascertain whether necessary facilities identified within the Capital Improvements Element of the Broward County Comprehensive Plan are being constructed in accordance with the schedules in the Plan and to measure the development capacity of such facilities in a given area at a given time.
Goal 09.00.00 is to "[p]rotect Broward County's natural and historic resources through well-planned patterns of growth and development." Objectives
09.01.00 through 09.07.00 and Objectives 09.09.00 and 09.10.00 deal with the protection of natural resources in general and waterwells, cones of influence, beaches, shores, marine resources, floodplains, surface water, groundwater, wetlands, soils and minerals in particular. Objectives 09.01.00, 09.05.00 and 09.09.00, along with their accompanying policies, are especially significant in the context of the instant case.
Objective 09.01.00 and its accompanying policies provide as follows:
Objective 09.01.00- Broward County shall monitor and protect those Natural Resource Areas (which are considered to be environmentally sensitive lands) designated as Local Areas of Particular Concern on the Future Broward County Land Use Plan Map (Series).
Policy 09.01.01- Natural Resource Areas that have been found to comply with the definition of Local Areas of Particular Concern have been identified on a Map of Local Areas of Particular Concern within the Future Broward County Land Use Map Series.
Policy 09.01.02- Local Areas of Particular Concern are declared to be environmentally sensitive lands and upon adoption of this plan shall be subject to the provisions of the Broward County Land Development Code regarding environmentally sensitive lands.
Policy 09.01.03- Broward County shall implement strategies for the protection of Local Areas of Particular Concern and other environmentally sensitive lands such as: acquisition by public or private
organizations; establishment of a County trust fund for acquisition; adoption of innovative land development regulations; conservation easements; transfer of development rights; deed restrictions; and restrictive covenants.
Policy 09.01.04- Land development codes and regulations should address the mitigation of Local Areas of Particular Concern when other strategies such as those within Policy
09.01.03 have been exhausted.
Policy 09.01.05- Discourage activities in the vicinity of Local Areas of Particular Concern which would have a detrimental impact upon such areas.
Policy 09.01.06- Encourage local government entities to protect natural resources through the implementation of land development regulations and procedures that promote the acquisition, retention and management of such areas.
Policy 09.01.07- During 1989, Broward County shall conduct a review of areas containing natural resources as depicted in the Natural Resource Map Series and shall determine whether the designation and regulation of additional Environmentally Sensitive Lands is appropriate.
Policy 09.01.08- During 1989, Broward County shall adopt lot clearing regulations aimed at preserving native vegetation within areas identified pursuant to Broward County's land clearing ordinance.
Policy 09.01.09- Broward County should develop and adopt regulations to eliminate invasive exotic vegetation. 13/
Policy 09.01.10- Local landscaping ordinances should encourage the use of native vegetation and include lists of plant species which require minimal watering and fertilization.
Policy 09.01.11- Broward County shall endeavor to develop a system of positive incentives for the purpose of encouraging private landowners to protect Local Areas of Particular Concern.
Policy 09.01.12- During 1989, Broward County shall develop and implement a program to purchase selected Local Areas of Particular Concern and to purchase and enhance other areas found to be environmentally sensitive lands.
Policy 09.01.13- At the time of development review or public acquisition within a Local Area of Particular Concern, Broward County shall develop a management strategy which identifies the entity responsible for the maintenance and protection of the natural area.
Objective 09.01.00 and its accompanying policies must be read in conjunction with Natural Resources Map III. B. of the Future Broward County Land Use Plan Map (Series), which will be discussed later in these Findings of Fact, and with the provisions of Volume I, Chapter IV(A) and (D) of the plan dealing with Local Areas of Particular Concern.
A "Local Area of Particular Concern" is defined in Volume I, Chapter IV(A) of the plan as follows:
[A]n area designated on the Natural Resource Map Series of the Broward County Land Use Plan which has been declared to be environmentally sensitive. Those areas are subject to environmental impact report provisions of the Broward County Land Development Code 14/ and policies under Objective 09.01.00. The criteria for Local Areas of Particular Concern are contained in [Volume I, Chapter IV(D) of the plan].
Volume I, Chapter IV(D) of the plan states that "Local Areas of Particular Concern may be designated in six categories according to the types of resources present:" marine resource category; natural landforms and features category; native vegetative communities category; wildlife category; economic resource category; and cultural resource category. It describes a Local Area of Particular Concern in the native vegetative communities category as an "area which shows a predominance of native vegetation associated with one or more of the following ecological communities: beach and dune community; coastal strand forest community; mangrove community (saltwater swamp); scrub community; pine flatwoods community; high hammock community; low hammock community; cypress wetland community (freshwater swamp); and Everglades community (freshwater marsh). It further provides that, in order to be designated a Local Area of Particular Concern in the native vegetative communities category, an area must meet at least three of the following five criteria:
Uniqueness- The site contains a significant sample of rare or endangered species, or, the site is among a small number of sites in Broward County representing a particular ecological community.
Diversity- A significant sample of two or more ecological communities are contained within the site.
Low level of Exotic Invasion- The degree and nature of exotic invasion on the site is such that it can be easily managed or mitigated.
Potential for Protection- Ownership patterns, development status and the other factors
make the resources of a site likely to be successfully protected.
Geography- The site has proximity to other resources which would heighten its value as a [Local Area of Particular Concern].
Objective 09.05.00 and its accompanying policies deal with the protection of wetlands. They provide as follows:
Objective 09.05.00- Protect the wetlands, hydric soils and the vegetative communities historic to the areas within Broward County for their natural functions, such as storing freshwater, filtering stormwater runoff and preventing erosion.
Policy 09.05.01- The Code of Regulations of the Broward County Environmental Quality Control Board shall protect those wetland
areas which are within their jurisdiction. 15/ Policy 09.05.02- The jurisdictional boundaries
of the landward extent of regulated waters in Broward County are determined by wetland plant indicator species adopted by the Florida Department of Environmental Regulation, pursuant to Section 403.817 Florida Statutes as utilized by the Environmental Quality Control Board.
Policy 09.05.03- To provide increased protection for isolated small wetlands, Broward County shall request the Environmental Quality Control Board to establish a local isolated small wetlands protection program. 16/
Policy 09.05.04- Wetlands should be protected through techniques such as utilizing them
as water retention/detention areas and regulating them through development codes.
Policy 09.05.05- Land development codes and regulations shall address mitigation of wetlands when alternative strategies such as those within Policy 09.01.03 have been unsuccessful.
Policy 09.05.06- Broward County shall complete an inventory of all wetlands areas in southwestern Broward by 1990 and identify those areas on the Wetlands Map of the Natural Resource Map Series of the Future Broward County Land Use Plan Map (Series).
Objective 09.09.00 and its accompanying policies address drainage and stormwater management. They provide as follows:
Objective 09.09.00- Eliminate flooding problems while preserving groundwater quality through planned growth, the provision of drainage and stormwater
management systems and the adoption of appropriate development codes and regulations.
Policy 09.09.01- New development shall provide water storage capacity equal to that which existed under predevelopment conditions consistent with the water management regulations and plans of the South Florida Water Management District,
Broward County Environmental Quality Control Board, Broward County and independent drainage districts.
Policy 09.09.02- New non-residential development shall provide pre-treatment for stormwater runoff through grassy swales, wetlands filtration, ex-filtration trenches or other means consistent with the Best Management Practices of the South Florida Management District.
Policy 09.09.03- Broward County shall, in cooperation with the appropriate agencies, prepare studies to determine if additional regulations or programs are needed to ensure a comprehensive approach to identified stormwater management problems and the protection of groundwater quality.
Policy 09.09.04- Broward County shall, prior to approving land use plan amendments in the flood prone portions of the County, determine that the subsequent development will be served by adequate stormwater management and drainage facilities, not adversely affect groundwater quality or environmentally sensitive lands and not increase saltwater intrusion or areawide flooding. 17/
The subject of mixed land uses is treated in Goal 10.00.00 and its accompanying objectives and policies. 18/ They provide, in pertinent part, as follows:
Goal 10.00.00- Promote the efficient use of public facilities and services through planned communities with mixed land uses.
Objective 10.01.00- Encourage the use of innovative land development regulations and techniques, for both residential and non- residential development in order to promote planned communities and activity centers designed for efficient use of public services and facilities.
Policy 10.01.01- Encourage the use of mixed land use development regulations in those areas where compatible mixed land use patterns currently exist or are planned.
Policy 10.01.02- Local government entities should apply the Employment Center land use designation of the Broward County Land Use
Plan to lands utilized or planned for mixed non-residential development.
* * * Objective 10.02.00- Encourage attractive and
functional mixed living, working, shopping and recreational activities by establishing within the Broward County Land Use Plan a Regional Activity Center land use category.
Policy 10.02.01- Local government entities may propose land areas for designation as Regional Activity Centers within the Broward County Land Use Plan, consistent with the rules and procedures contained within the Regional Activity Center Permitted Uses subsection of [Volume I, Chapter IV(B) of the plan].
Policy 10.02.02- Modes of mass transit should be encouraged to serve Regional Activity Centers to reduce reliance upon automobile travel.
Policy 10.02.03- To facilitate public transit access, integrated transportation systems should be encouraged to serve Regional Activity Centers.
* * *
Policy 10.02.06- Local land use plans should provide for adequate housing opportunities within Regional Activity Centers to allow people to both live and work within such areas.
Other noteworthy goals, objectives and policies set forth in Volume I of the plan are the following:
Goal 11.00.00- Provide levels of service for public facilities and services sufficient to meet the existing and future needs of Broward County's population.
Objective 11.01.01- Ensure that public facilities and services meet those level of services standards established within the Broward County Comprehensive Plan and local comprehensive plans.
* * * Policy 11.01.03- To maintain those level of
service standards identified within the Broward County Comprehensive Plan and local comprehensive plans, Broward County shall, prior to final action on amendments to the Broward County Land Use Plan, determine whether adequate public facilities and services will be available when needed to serve the proposed development.
Policy 11.01.04- Prior to plat approval, Broward County and/or the appropriate local governmental entity shall ensure that the public facilities and services necessary to
meet the level of service standards established within the Broward County Comprehensive Plan and affected municipal comprehensive plan will be available concurrent with the impacts of development, consistent with Chapter 163.3202(g) Florida Statutes and the concurrence management policies included within Goal 8.00.00 of the Broward County Land Use Plan.
* * *
Goal 12.00.00- Coordinate transportation and land use planning activities to ensure adequate facilities and services are available to meet the existing and future needs of Broward County's population and economy.
* * *
Policy 12.01.04- Broward County and its local government entities shall consider the individual and cumulative impacts of land use plan amendments on the existing and planned transportation facilities within the County.
Policy 12.01.05- Transportation facilities and services should be developed in a manner which encourages infill development and promotes the efficient use of urban services.
* * * Objective 13.02.00- Establish procedures to
ensure consistency and coordination among the Broward County Land Use Plan, the State of Florida Comprehensive Plan, the Regional Plan for South Florida, plans of municipalities and the Broward County School Board, plans of other units of local government which provide services but do not have land use regulatory authority and the comprehensive plans of adjacent counties.
* * * Objective 13.04.00- Provide and utilize
coordination mechanisms to ensure that the impacts of development proposed in the 1989 Broward County Land Use upon development in the municipalities, county, adjacent counties, the region and state are addressed.
* * *
Goal 14.00.00- Eliminate areas of blight and incompatible land uses.
* * * Objective 14.02.00- Develop and implement
land use programs to encourage the elimination or reduction of existing incompatible land uses and prevent future incompatible land uses.
Policy 14.02.01- The compatibility of existing and future land uses shall be a primary consideration in the review and
approval of amendments to the Broward County and local land use plans.
Policy 14.02.02- Local land use plans shall ensure that commercial, industrial and other non-residential land use plan designations are located in a manner which facilitates their serving, but does not adversely impact existing and designated residential areas.
Policy 14.02.03- In order to prevent future incompatible land uses, the established character of predominantly developed areas shall be a primary consideration when amendments to the Broward County Land Use Plan are proposed.
Policy 14.02.04- Broward County's local government entities shall minimize the impacts of existing incompatible land uses through requirements within their land development codes and regulations, such as buffering and setbacks.
Contents of Broward County's 1989 Comprehensive Plan: Volume III
Volume III of Broward County's 1989 comprehensive plan references, discusses and analyzes the surveys, studies, and data supporting the countywide future land use element set forth in Volume I of the plan. The aforementioned surveys, studies and data are based upon professionally accepted methodologies. In those instances where the County Commission did not perform its own special studies and surveys or collect original data, the surveys, studies and data upon which it relied in adopting the countywide future land use element represented the best reliable information it was able to obtain from other sources in the time it had available to it. 19/
Volume III, Chapter I of the plan contains an inventory of existing land uses in the County. The inventory reflects that "[v]acant land occupies about 36% of the [eastern third] of Broward County totalling approximately 92,000 acres or 144 square miles" and that "the vast majority of these vacant acres are situated in southwest and northwest Broward County, [although] there are still many areas [to the east] which are available for future growth and development."
Volume III, Chapter I of the plan also discusses and analyzes the various maps that were developed to identify the natural resources in the County. One of the maps referenced in Volume III, Chapter I is Map III.C. of the Natural Resource Map Series-Eastern Broward County. It was adopted by the County Commission on March 1, 1989, as the map depicting wetlands in the eastern third of Broward County (wetlands map). 20/
The wetlands map that the County Commission submitted with its proposed comprehensive plan to the Department of Community Affairs identified only wetlands east of Flamingo Road. It was based upon a South Florida Water Management District Land Use and Land Cover Classification Survey and a 1987 survey conducted under the auspices of the Coalition of natural areas in the County east of Flamingo Road.
In its written comments regarding the proposed plan, the Florida Department of Environmental Regulation (DER) objected to the wetlands map submitted with the proposed plan because "a review of the U.S. Fish and Wildlife Service Wetland Inventory Map for parts of Region 5 of Broward County [S.W. Broward] indicate[d] more forested and non-forested wetlands than [were] shown on the [map]." The County was made aware of this objection and the matter was referred to the staff of the Broward County Planning Council.
Planning Council staff began the task of revising the wetlands map to reflect the wetlands in S.W. Broward. The task was a difficult one given the limited amount of time available to complete the project and the lack of accurate, complete and up-to-date information concerning the location of wetlands in the area.
The U.S. Fish and Wildlife Service Wetland Inventory Map referenced in DER's written comments to the proposed plan was not current. It reflected conditions as they existed in 1979. Because S.W. Broward had experienced substantial development activity since that time, the U.S. Fish and Wildlife Service's map was of only historic value. Furthermore, the wetlands determinations reflected on the map were based only upon one factor: vegetation.
As mentioned above, the Broward County EQCB has regulatory authority over wetlands in the County. DER and the U.S. Army Corps of Engineers (Corps) also have such authority. Before these three agencies exercise their regulatory authority, they first must determine whether there are wetlands involved and, if so, to what extent they exist. In making these jurisdictional determinations, they examine, not one, but three factors: dominant vegetation; 21/ hydrology; and soils. 22/
Neither the Broward EQCB, DER nor the Corps had a map depicting those lands that had been determined to be jurisdictional wetlands in S.W. Broward.
Planning Council staff asked the EQCB to produce such a map. The EQCB responded that there was not sufficient time to do so.
Although it did not have a map, the Corps did have information in its files concerning previous jurisdictional determinations it had made. This information was contained on several hundred quad sheets. Because the Corps makes jurisdictional determinations in a piecemeal fashion, the information concerned only a limited number of properties in the S.W. Broward area. Furthermore, some of these determinations were no longer valid because they had been made more than two years previous. 23/
Planning Council staff, confronted with the foregoing, sought to enlist the assistance of Ann Buckley. Buckley is a botanist. Her undergraduate degree is in zoology, but she has taken numerous graduate level courses in botany and has had extensive experience in compiling plant lists.
At the time she was contacted regarding the matter, Buckley had had little or no experience in determining the existence and extent of wetlands based upon all three indicators relied upon by the EQCB, DER and the Corps in making jurisdictional determinations. Nonetheless, she was approached by Planning Council staff, none of whom had any expertise in the identification of wetlands, 24/ because she was in the process of conducting a vegetative cover study of parts of the County, including S.W. Broward. The study was the subject of a contract between the County and the Coalition. Buckley was working on the project as a subcontractor.
Buckley told the Planning Council staff member who contacted her that she believed that the findings of her study could be used to prepare a wetlands map of S.W. Broward. Notwithstanding that neither the Coalition's contract with the County, nor her contract with the Coalition, required that wetlands be identified, Buckley agreed to provide Planning Council staff with information concerning the location of wetlands in S.W. Broward.
As she had promised, Buckley furnished Planning Council Staff with such information. The information was provided in the form of a map that Buckley had prepared.
According to the map, all but the developed areas of S.W. Broward were wetlands. There were areas shown on the map, however, as developed that were actually undeveloped.
The wetlands on Buckley's map were shown as being either intact (in blue), managed (in blue and white stripes) or populated by malaleuca (in green). Developed areas were also depicted on the map (in red).
Rock pits were not specifically identified on the map.
The entire 235 acre Imagination Farms parcel was depicted on the map as managed wetlands.
There were other areas shown on the map as wetlands that were subsequently determined not to be jurisdictional wetlands.
Furthermore, there were areas, like the Imagination Farms parcel, that were being used as pastureland and had depressions where smartweed grew, but were not shown on the map as wetlands.
Buckley's map reflected the preliminary findings of her study, which she had not yet completed. She so advised Planning Council staff and cautioned that her information needed to be supplemented.
Buckley had based her map upon information she had obtained from a review of the U.S. Fish and Wildlife Service's 1979 wetlands map and a 1984 soil survey published by the U.S. Soil and Conservation Service, from an examination of aerial photographs taken in 1987 of the S.W. Broward area, 25/ and from recorded observations she had made while flying over the area in a helicopter at low altitudes and ground-truthing 50% of the sites in the area. 26/ Buckley had also contacted the Corps and the U.S. Environmental Protection Agency in attempt to acquire information that she could use to prepare the map, but these agencies had little, if any, information to share with her.
Planning Council staff had not told Buckley what criteria she was to use in determining what areas in S.W. Broward were wetlands. She therefore developed her own criteria. If an area, according to the 1984 U.S. Soil and Conservation Service soil survey, had hydric soil and if it, in addition, had plants that were listed as wetlands species on plant lists set forth in the manuals she consulted, Buckley classified the area as a wetland. She did not take into account hydrology, nor did she consider the relative dominance of the wetlands vegetation in the area under examination, in making her wetlands determinations.
After receiving Buckley's wetlands map, Planning Council staff did not conduct any study of their own to verify the accuracy of the map. They did show the map, however, to EQCB representatives, who expressed concerns that the map was not consistent with jurisdictional determinations that had been made by the EQCB.
Notwithstanding these concerns, Planning Council staff used Buckley's map to prepare a wetlands map of S.W. Broward and submitted the map it had prepared to the Planning Council.
The Planning Council considered the map at a public hearing held in late February, 1989, a matter of days before the County Commission's March 1, 1989, adoption hearing. Considerable testimony was taken at the Planning Council hearing. Many of the people who spoke at the hearing were critical of the map. They voiced their opinion that the study conducted by Buckley, upon which the map was based, was not objective.
The Planning Council rejected the map with which it had been presented by its staff. It recommended that the County Commission adopt a wetlands map which showed the Everglades buffer strip as the only wetlands area in S.W. Broward. It further suggested that the County Commission insert language in the comprehensive plan requiring further study of the matter so that a more accurate wetlands map could be prepared.
When the wetlands map recommended by the Planning Council came before the County Commission for consideration at the Commission's March 1, 1989, adoption hearing, a representative of the Coalition urged the Commission to instead adopt the map Planning Council staff had prepared based upon Buckley's map. Buckley's map thereupon became the subject of heated public debate and criticism. Members of the public came forward and attacked Buckley's map as being imprecise and inaccurate. Among the matters brought to the attention of the County Commission was that, although Buckley had determined that the entire Imagination Farms parcel constituted wetlands, representatives of the EQCB, DER and the Corps had recently concluded otherwise.
Buckley was given an opportunity by the County Commission to speak and to defend her map. During her presentation she was interrupted by her critics in the audience. She became unnerved and was unable to coherently explain to the Commission how she arrived at her findings. Given Buckley's failure to effectively rebut the persuasive arguments of her detractors, the County Commission reasonably determined that Buckley's map, as well as the map that Planning Council staff had prepared based upon her map, were unreliable and therefore should not be adopted. 27/
The County Commission recognized that there were wetlands in S.W. Broward that were not depicted on the map 28/ transmitted by the Planning Council, although it was unsure as to exactly where they were located. The map therefore, in the view of the County Commission, needed to be supplemented.
The County Commission decided that the map should show, in addition to what the Planning Council had suggested, "[e]xisting wetland vegetation as identified on vegetation association maps of approved Developments of Regional Impact (DRI's)" and "[m]itigation areas, natural preserves, littoral zones and other wetland areas to be created and/or protected per the Master Plans of approved DRI's." The information upon which these additions to the map were to be based was readily available.
There was no other readily available information upon which the County Commission felt it could rely to supplement the Planning Council's map. 29/ Accordingly, it adopted a wetlands map which did not depict any wetlands in
S.W. Broward outside the Everglades buffer strip and approved Developments of Regional Impact. In addition, it committed Broward County to conducting a complete study of wetlands in S.W. Broward. 30/ The study is referenced in the following note that appears on the wetlands map adopted by the County Commission:
Policy 09.05.06 provides that Broward County shall complete an inventory of all wetland areas in southwestern Broward by 1990 and identify those areas on the Wetlands Map (Map III.C.) of the Future Broward County Land Use Plan Map (Series).
Immediately above this note on the map is the statement that "Objective 09.05.00 and its policies ensure the protection of wetlands."
The adopted wetlands map also contains the following disclaimer: The Wetlands Map of the Future Broward County
Land Use Plan Map Series is incorporated
pursuant to the requirements of Section 163.3177(6) Florida Statutes, and does not represent the wetland jurisdictional boundaries of the landward extent of regulated waters as provided for in the Code of Regulations of the Broward County Environmental Quality Control Board.
Another map discussed in Volume III, Chapter I of the plan is Map
III.B. of the Natural Resource Map Series-Eastern Broward County. This map was adopted by the County Commission on March 1, 1989, as the map depicting Local Areas of Particular Concern and regional parks, as well as Natural Resource Areas in the unincorporated area.
Volume III, Chapter I gives the following description of the process which resulted in the selection of the sites that are designated on the map as Local Areas of Particular Concern:
The inventory of Environmentally Sensitive Lands 31/ was developed from the comprehensive study prepared by the Environmental Coalition of Broward County in 1987. This study identified approximately 200 sites that were deemed as significant natural areas within Broward County east of Flamingo Road.
Of the original list of sites, 137 were transmitted to the Department of Community Affairs by the County Commission during September of 1988 with a commitment to further study and revise the map. During the interim, 13 sites were deleted because they have been destroyed. The remaining
124 sites were reviewed by County staff
utilizing the criteria found in Section 8.[g].3 of [Volume I, Chapter IV(D) of the plan]. A total of 63 sites were sent forward for consideration as Local Areas of Particular (LAPC's). Following several public hearings, 39 sites were designated by the County Commission as LAPC's and will receive an additional level of protection under the Broward County Land Development Code. The LAPC sites are depicted on map
III.B. Each site is summarized in Table I-3.
The foregoing narrative accurately describes how these Local Areas of Particular Concern were selected. Those sites identified as natural areas in the Coalition's 1987 study 32/ that were not selected were eliminated as candidates for selection based upon the recommendations of staff who had visited the sites and upon testimony given at public hearings. Sites were eliminated for a variety of reasons, including their small size, their lack of uniqueness, the inferior quality of their vegetation, the development they had already experienced, the absence of potential and/or need for their protection, and the failure to give proper notice to their owners of their possible selection as Local Areas of Particular Concern. One site, known as the Harris scrub site, was eliminated because it was believed that its designation as a Local Area of Particular Concern would have an adverse impact on the County, notwithstanding that the botanical information presented to the County Commission reflected that the site was of "good quality."
The sites selected by the County Commission as Local Areas of Particular Concern were, from a botanical perspective, among the best in the County.
Some sites that were not selected as Local Areas of Particular Concern, including the Harris scrub site, were designated by the County Commission as Natural Resource Areas. As such, these sites were subject to the protection offered by Broward County Ordinance 89-6, which prohibits, with limited exceptions, the clearing of Natural Resource Areas before a site plan has been approved.
To qualify as a Natural Resource Area a site must have a predominance of one of the native vegetative communities referenced in Volume I, Chapter IV(D) of the plan.
Before a site may be designated a Local Area of Particular Concern or a Natural Resource Area notice of the public hearing at which the matter will be considered must be given to the site's owner.
The other maps adopted by the County Commission as part of the Natural Resource Map Series show: existing and planned waterwells and cones of influence (Map III.A.); floodplains (Map III.D.); mineral resources (Maps
III.E. and IV.B.); beaches, shores, rivers, harbors, drainage canals, major lakes and estuarine systems (Map III.F.); soils (Maps III.G. and IV.C.); and wetlands in the western two thirds of the County (Map IV.A.) These maps are also discussed and analyzed in Volume III, Chapter I of the plan.
Volume III, Chapter II of the plan examines the location, 33/ character and magnitude of the existing vacant and undeveloped in Broward County to determine its suitability for use. Included is an examination of soils,
topography, flood prone areas, wetlands, historic resources, environmentally sensitive lands, and water wellfields.
The following observations are made in this portion of the plan with respect to flood prone areas:
The 1982 Southwest Broward Study by SFWMD, notes that large portions of the area north of Hollywood Boulevard are prone to flooding with the potential for long periods. While existing floor elevations are above the flood stage, lawn, driveways and unimproved roads will be under water frequently. The SFWMD study also indicates that the area south of Hollywood Boulevard is also prone to being inundated to flooding due to low elevations, lack of slope and poor percolation characteristics. The natural drainage in southwest Broward due to topography is towards the southeast.
* * * Development and redevelopment in areas that
are flood prone require special development considerations. First, the raising of building pad elevations to meet the FEMA requirements. Secondly, the development of on-site drainage systems that provide sufficient site drainage and retain/detain stormwater runoff quantity and quality that meets the requirements of the SFWMD,
Broward County Environmental Quality Control Board and, if applicable, the requirements of the local drainage district.
The 1982 Southwest Broward Study by SFWMD provides information on the subsurface and ground water quality impacts based on anticipated future land uses in southwest Broward.
* * * The 1982 Study is the best available data
which provides information on the water quality impacts of southwest Broward.
The
study indicated future development in
southwest Broward that is consistent with the 1982 land use plan, utilizes best management practices and is in compliance with the retention/detention criteria of the SFWMD [and] should have minimal impact on the aquifer and natural systems.
The examination of wetlands includes the following analysis of wetlands in S.W. Broward:
Within S.W. Broward the significant wetland communities occurring are non-forested fresh water wetlands (see NR Map No. III.C).
These wetlands consist of three subcategories: wet prairies, managed wetlands and wetlands that have been impacted by invasive exotic species. The wet prairies have good representation of wetland plants. The soil
is generally moist, and in many instances, with standing water. The managed wetlands have wetland flora intact although the flora is suppressed by management techniques such as mowing. The impacted wetlands have over fifty (50) percent cover of invasive exotic
species as Malaleuca quinquenervia (Malaleuca) and Schinus terebinthifolious (Brazilian pepper). The native flora is suppressed but would return if the exotic species were removed.
Environmentally sensitive lands are analyzed as follows:
During 1989, Broward County has committed itself to a comprehensive program to identify and protect environmentally sensitive lands. This program is discussed in detail under the heading "Environmentally Sensitive Lands" in [Chapter I] of this Volume. In addition, Policy 09.01.07 calls for a review of areas containing natural resources during 1989 as depicted in the Natural Resource Map Series and the determination as to whether the designation and regulation of additional Environmentally Sensitive Lands is appropriate.
The Broward County Commission shall conduct a review of the following maps and, utilizing the criteria enumerated herein or utilizing additional or alternative criteria reviewed and approved by the County Commission, make a determination whether the designation and regulation of additional Environmentally Sensitive Lands is [appropriate]:
Existing and Planned Potable Water Wells and Zones of Influence
Wetlands
Flood Plains and Flood Prone Areas
Mineral Resources
Beaches, Rivers, Harbors, Canals, Major Lakes and Estuarine System
Soils
Local Areas of Particular Concern
NR Map No. III.B. identifies several sites throughout the county that in addition to being designated natural areas . . . have also been afforded some level of protection through the local area of particular concern designation. However, there are many sites
that are contained in the natural areas study within the County which should be offered a degree of protection through the land use planning process. Inasmuch as many of these areas will require platting through Broward County prior to the issuance of development permits it would be appropriate to offer the same level of protection to these areas as are afforded LAPC and urban wilderness
areas. 34/ The most expeditious manner to approach protection for these areas is to amend the Broward County Land Development Code (Ordinance No. 86-91) to require environmental impact assessments for plats including these sites prior to plat approval.
Volume III, Chapter II of the plan contains the following conclusion regarding the suitability of land in the eastern third of Broward County for development:
This portion of the document has assessed the suitability to develop Broward's vacant land relative to soils, topography and development in flood prone areas, wetlands, historic resources and environmentally sensitive lands. The analysis reveals that, for the most part, these factors do not play
a significant role in developing vacant land. The major reasons for this is that current development economics allow site work to be accomplished within acceptable budget constraints such as soil modifications, the addition of fill to elevate sites and development of on-site stormwater retention/ detention facilities can be provided.
In southwest Broward however, the development of vacant land should be required to meet criteria that minimizes impacts to water quality, drainage and natural systems. With this criteria in place, the land is suitable for development, although additional site development costs will be necessary to account for poor soil conditions and lower ground surface elevations. With the continuance of the Everglades buffer areas, along the west side of U.S. 27, the development of southwest Broward is not anticipated to impact the quality of the natural areas associated with the Everglades Conservation Area.
Volume III, Chapter III of the plan analyzes the availability of facilities and services to meet the needs of existing land uses and land for which development orders have been issued. The facilities and services examined include those relating to sanitary sewage, solid waste, drainage, and potable water.
Volume III, Chapter IV of the plan discusses roadways in the County and their existing levels of service.
Volume III, Chapter V of the plan examines the redevelopment needs of the County.
Volume III, Chapter VI of the plan projects, on both a countywide and subregional basis, the County's future population and the amount of land needed to accommodate the projected population. Among the projections regarding the County's future land needs are those which forecast the amount of land that will be needed for residential use. It is projected that in the year 2010, a total 121,148 acres of land will be needed on a countywide basis for residential use, as compared to the 99,510 acres of land that are currently used for residential purposes countywide. This additional land will be needed because, as Volume III, Chapter VI of the plan reflects, the County's resident population is expected to increase by 411,360 (based upon 1987 population figures) 35/ to 1,592,358 in the year 2010. 36/
Table VI-11, which is found in Volume III, Chapter VI of the plan, reflects that the FLUM designates a total of 152,000 acres of land in the County for various residential uses, which is 30,852 acres of land more than is projected to be needed in the year 2010. 37/
According to the projections set forth in Volume III, Chapter VI of the plan, 44% of the "new residential acreage" in the year 2010 will have single family housing, and multifamily housing will occupy the remaining acreage. No projection is made, however, as to the amount of land that will be needed in the L-2 land use category or in any of the other individual residential land use categories.
Contents of Broward County's Comprehensive Plan: Volumes II & IV
Volume II of Broward County's 1989 comprehensive plan sets forth the plan's remaining elements. These elements are as follows: future unincorporated land use element; traffic circulation element; bikeways element; mass transit element; Port Everglades element; Fort Lauderdale/Hollywood International Airport Element; general aviation element; housing element; redevelopment element; sanitary sewer element; solid waste element; potable water element; drainage and natural groundwater aquifer recharge element; coastal management element; conservation element; recreation and open space element; intergovernmental coordination element; and capital improvements element.
These elements each contain goals, objectives and policies, as well as a description and analysis of pertinent existing conditions.
The appendices to these elements are found in Volume IV of the plan.
The plan's conservation element states as follows with respect to the geographic scope of its applicability:
Section 8.04 of the Broward County Charter gives the County authority to protect the environment by prohibiting or regulating air or water pollution, or the destruction
of the resources of the County. The service area for this Element is, therefore,
considered to be the entire County to the extent that it addresses air and water quality and the protection of natural resources.
The element includes a discussion and analysis of the natural resources found within the County's jurisdictional boundaries and their potential for conservation and protection. Floodplains, wetlands, and vegetative communities are among the natural resources discussed and analyzed.
The following comments are made concerning the County's wetlands:
The Conservation Areas, which consist of 710 square miles, west of the developable area of the County are a major wetland of great importance; one of their primary functions is water storage. (See Drainage/Natural Groundwater Aquifer Recharge Element). In 1981, there were approximately 5,300 acres of wetland existing in the unincorporated
area of Broward County east of the Conservation Areas. The majority of those wetlands are dominated by Malaleuca, an exotic species
which forces out native vegetation. Most of the other wetlands are categorized as sawgrass. An inventory of existing wetlands in the unincorporated area in 1981, including acreage, generalized locations, and type of wetland is provided in Appendix 19-4.
* * *
No current inventory of freshwater wetlands in Broward County exists, although it is known that many acres have been lost due to fill, drainage, saltwater intrusion, and drawdown of the water table.
Appendix 19-4 reflects information gleaned from the South Florida Water Management District Land Use and Land Cover Maps that were published in 1981.
The County's vegetative communities are addressed in the following narrative found in the plan's conservation element:
Broward County consists of a variety of diverse ecological [vegetative] communities. Nine ecological communities have been identified and described by the Interpretive
Section of the Parks and Recreation Division. Numerous species of plants and wildlife inhabit those communities including twenty species of endangered, threatened, or rare plants, mammals, birds, and reptiles.
Listings of dominant plants and wildlife can be found according to ecological community in Appendix 19-1. Endangered, threatened, rare and species of special concern are noted. An inventory of birds sighted in Broward County regional parks is also included in Appendix
19-3. The inventory consists of over 200 species and is considered representative of the birds which can be found throughout the County.
The nine vegetative communities identified in Appendix 19-1 are as follows: beach and dune community; coastal strand forest community; mangrove community; scrub community; pine flatwoods community; high hammock community; low hammock community; cypress wetland community; and Everglades community.
Appendix 19-1 gives a general description of these communities and provides information regarding their geology and soils, dominant plant and animal species, current status and the impact that development has had on them.
The plan's conservation element also contains a discussion of the existing County programs that serve to protect its natural resources. Among the programs described and explained are those dealing with Local Areas of Particular Concern, Natural Resource Areas, Urban Wilderness Areas and tree removal. Information concerning sites that have been designated as Local Areas of Particular Concern, Natural Resource Areas and Urban Wilderness Areas, including their location, is set forth in Appendices 19-7 and 19-8.
Objectives 1 through 4 and Policies 1 through 10 of the plan's conservation element provide as follows:
Objective 1- Update Broward County's existing data base of native vegetative communities by 1990.
Policy 1- To update the native vegetative communities data base the County shall include those areas designated as Environmentally Sensitive Lands on the Natural Resource Map Series as well as lands currently listed as LAPC's, Urban Wilderness Areas and those lands currently on the Urban Wilderness Inventory.
The Native Vegetative Communities Data Base should be submitted to the Broward County Board of Commissioners for acceptance, upon completion along with the criteria utilized in the selection of lands for inclusion in the Data Base.
Objective 2- Develop a system to monitor development activities occurring on lands listed on the Native Vegetative Communities Data Base.
Policy 2- The County should develop a computerized inventory of the Native Vegetative Communities Data Base for access during the development review process. If a site is in the Data Base, the proposed site plan should include the incorporation of the natural vegetative community to the greatest extent possible.
Objective 3- Revise the lists of natural resources protected through both the LAPC and the UWA Programs.
Policy 3- The Native Vegetative Communities Data Base should be the source of new areas suitable for designation as Local Areas of Particular Concern (LAPC), (Map 19-1 and Appendix 19-8).
Land should be selected for designation if the characteristics of one of the six LAPC categories has been satisfied. If any of the existing designated LAPC's no longer possess the characteristics of an LAPC, they should be eliminated from the list.
Policy 4- The Native Vegetative Communities Data Base should be used for selecting resources for preservation as Urban Wilderness Areas (UWA).
The Urban Wilderness Advisory Board should work with the Office of Planning in selecting areas to be recommended for acquisition as Urban Wilderness Areas (UWA). The UWAs recommended for acquisition should include cost estimates and be financially feasible.
Policy 5- Urban Wilderness Areas (UWA) and other appropriate publicly owned lands should be designated as natural reserves on the Broward County Land Use Plan Map under the conservation land use category.
Upon completion of the update of the native vegetative communities data base the Broward County Planning Council and the Broward County Office of Planning should study the native vegetative areas to determine which merit designation as LAPC's or purchase and preservation as UWAs.
Policy 6- By 1990 the County shall develop a wide range of programs for the conservation of native vegetative communities, such as: acquisition, easements, innovative land development regulations, and incentive programs.
Policy 7- Information from the Native Vegetative Communities Data Base shall be made available to local municipalities in order to coordinate resource management activities.
Data Base information, provided to the local municipalities, would become the basis for resource "networking." This would establish intra-county vegetative corridors linking LAPC's and UWA's with other green-space areas.
Objective 4- Amend the Broward County Tree Preservation Ordinance to promote the maintenance of native vegetative communities by 1990.
Policy 8- By 1990 landscaping regulations should be created [which] address the
preservation of existing native vegetative communities and the use of native vegetative materials.
Policy 9- By 1990 lot clearing regulations should be created which will be effective in preserving native communities, conserving wildlife habitat and eliminating exotics from the local landscap[e].
The SFWMD Model Landscape Code includes land clearing and vegetation preservation procedures which could be used as a basis for revising the County's Ordinance.
Policy 10- The lot clearing permitting process should concern those properties listed on the native vegetative cover data base.
Coastal management issues are treated in the plan's coastal management element, which includes a natural disaster component and a deepwater port component, as well as other provisions.
The natural disaster component applies to those areas in the County delineated in the Broward County Coastal Hurricane Evacuation Plan as being vulnerable to the effects of a hurricane and requiring evacuation, whether they are located in an incorporated municipality or in the unincorporated area of the County.
The Port Everglades Authority (Authority) is an independent governmental entity responsible for the management of Port Everglades, a port located in Broward County. The Authority has adopted a Master Plan for the Port. The Master Plan was adopted by the County Commission as the deepwater component of the coastal management element of the County's comprehensive plan.
The remaining portions of the plan's coastal management element apply primarily to the unincorporated coastal areas in the County. To the extent, however, that these remaining portions of the plan address programs administered on a countywide basis, such as beach preservation and renourishment programs, they are applicable to those areas served by these programs regardless of whether the areas in question are in the unincorporated part of the County.
The coastal management element refers to the two coastal areas in the unincorporated portion of the County as the North Unincorporated Coastal Area (NUCA) and the South Unincorporated Coastal Area (SUCA).
The NUCA is comprised of approximately 211 acres. It is almost fully developed. There are only three vacant lots in the area. The development in the area is predominately residential, although there is some commercial development.
The SUCA, at approximately 198 acres, is slightly smaller than the NUCA. It falls within the area that is subject to the jurisdiction of the Port Everglades Authority.
The view is expressed in the analysis section of the coastal management element that, because "the unincorporated coastal areas are almost fully developed, there is little that can be done to minimize conflicts between land uses and the natural resources of the area." It is further stated that
"inasmuch as the unincorporated coastal areas are built out, development activities are expected to be very limited and to have no measurable impact on infrastructure."
The plan's coastal management element includes the following goal, objectives and policies:
Goal- Manage development activities in Broward County's coastal area to maximize aesthetic, environmental, recreational, and economic values.
Objective 1- Renourish the Hollywood/Hallandale beach in 1990 in accordance with the EPD's [Broward County Erosion Prevention District's] Beach Management Plan.
Policy 1- Maintain Broward County's beaches to a width of approximately 150 feet.
Policy 2- Continue to support the EPD Beach Management Plan as a means of conserving the barrier islands resources.
Objective 2- Improve the value of beaches and dunes as a protective device for upland development.
Policy 3- Enforce and monitor compliance with the Coastal Construction Control Line Regulations.
Policy 4- Permit and monitor development in the unincorporated coastal areas to ensure proper compliance with state and local regulations.
Objective 3- Encourage local governments and property owners to protect existing beach vegetation and to revegetate the beach, where appropriate.
Policy 5- The Broward Soil and Water Conservation District, with assistance from the USDA Soil Conservation Service, shall continue to provide technical assistance to coastal communities interested in implementing conservation plans.
Objective 4- Provide for and maintain public access to the beach including parking facilities at a minimum of one-half mile intervals in the Coastal Area.
Policy 6- The County should work with the coastal local governments to develop a plan for maximizing public access to the beach.
* * * Policy 7- The County should develop proposals
for public parking provision which could be implemented by all local governments interest[ed] in increasing the recreational value of Broward County's beaches.
* * * Objective 6- Protect, conserve, and enhance
remaining coastal wetlands, living marine resources, coastal barriers, and wildlife
habitat, as applicable in the North and South Unincorporated Coastal Area.
Policy 9- The County shall limit the specific and cumulative impacts of development or redevelopment upon wetlands, water quality, water quantity, wildlife habitat, living marine resources and beach dune system through the review of developments by the Development Review Committee (DRC), the Broward County Environmental Quality Control Board (EQCB), and the Broward County Building and Zoning Enforcement Division (BZED).
Objective 7- Maintain or improve estuarine environmental quality in the Unincorporated Areas.
Policy 10- The County shall provide for restoration or enhancement of disturbed or degraded natural resources and programs to mitigate future disruptions or degradations through the Broward County Land Development Code.
Objective 8- Provide criteria or standards for prioritizing shoreline uses, giving priority to water-dependent uses.
Policy 11- The County shall maintain the existing zoning of the NUCA which gives priority to residential uses having water dependent accessory uses such as dockage and facilities for mooring pleasure boats, yachts, and non-commercial watercraft.
Objective 9- Coordinate efforts and existing resource protection plans where possible to protect estuaries within the jurisdiction of more than one local government.
Policy 12- The County shall monitor for potential development impacts on estuaries through participation on the Development Review Committee (DRC), the Technical Advisory Committee (TAC), and the Environmental Quality Control Board (EQCB).
Policy 13- The County shall coordinate its plans with existing resources protection plans of other agencies through participation on the DRC, TAC, and EQCB.
The following are among the objectives and policies found in the plan's drainage and natural groundwater aquifer recharge element:
Objective 8- Complete a comprehensive assessment of water management in Broward County by 1991.
Policy 14- The comprehensive assessment should be phased to address critical areas in order of priority beginning with Southwest Broward County in accordance with an agreement between Broward County and the
South Florida Regional Planning Council.
Policy 15A- A study involving municipalities, local water control/drainage districts, the SFRPC, SFWMD, DER, and Broward County shall be conducted to integrate master plans of local districts, EQCB/WRMD water management plans, and other pertinent information for analysis and assessment to perform a determination of any deficiencies and present proposals for their rectification.
Policy 15B- The study will involve an assessment of intergovernmental relationships among local and regional water managers.
Policy 16- Until the water management assessment is complete, Broward County shall, prior to approving land use plan amendments in the flood prone portions of the County, require an applicant for a land use plan amendment to provide sufficient data and analysis for the County to make a
determination that the subsequent development will be served by adequate stormwater management and drainage facilities and shall not adversely affect groundwater quality or environmentally sensitive lands, and not increase saltwater intrusion or area wide flooding. 38/
Policy 17- In order to prevent a degradation of the drainage level of service within Southwest Broward County, prior to the completion of the assessment, future development shall be designed to remove stormwater from non-water management areas, including but not limited to yards, within
72 hours of the end of the ten year design rainfall.
The Regional Plan for South Florida
The South Florida Regional Planning Council has adopted a Comprehensive Regional Policy Plan (Regional Plan) to guide future development in Broward, Dade and Monroe Counties.
The following are among the goals and policies found in the Regional Plan:
Policy 37.1.4- Individual drainage systems should not adversely impact the water quantity or quality of the surrounding area.
Policy 37.1.5- If an off-site water supply is proposed for a new development, confirmation, in writing and prior to construction, from the agency providing the water supply that it will have the capacity to serve the increased demand will be provided to the agencies reviewing the project.
Goal 38.1- Beginning in 1987, reduce ground and surface water contamination.
Policy 38.1.3- New septic tank systems will be permitted only in low density residential (no more than 2.9 DU per acre) areas and commercial developments not producing more than 1,500 gallons of waste per day,
provided the area is serviced by public water supplies. These areas will be connected to regional facilities when they are available, subject to State and local regulations.
Policy 39.1.3- Whenever a functional wetland or deep water habitat is degraded or destroyed, mitigation shall be provided either through the creation of new wetland and deep water habitat, through the restoration of degraded habitat or through the enhancement of functions and values provided by existing habitats.
Policy 39.1.14- The cumulative impacts of small developments and projects should be addressed in all planning programs.
Policy 46.1.4- Developments shall pay their fair share of the cost of providing for the recreational needs of the residents of the State.
Goal 57.1- New development will not be permitted in areas where public facilities do not already exist, are not programmed, or cannot be economically provided.
Policy 57.1.1- Decisions regarding the location, rate, and intensity of development should be based on the available capacity of the systems required or will be programmed to serve that development.
Policy 57.1.3- Permit new development only when and where excess capacity exists, is programmed, or where funding is otherwise made available.
Policy 58.1.7- Encourage the compatibility of adjacent land uses.
The State Comprehensive Plan
The State of Florida also has a comprehensive plan. The State Comprehensive Plan confronts issues of statewide importance.
The following are among the policies of the State Comprehensive Plan: "[e]nsure that new development is compatible with existing and local and regional water supplies;" "[p]rotect aquifers from depletion and contamination through appropriate regulatory programs and incentives;" "[p]rotect surface and groundwater quality and quantity in the state;" "[e]liminate the discharge of inadequately treated wastewater and stormwater runoff into the waters of the state;" "[d]evelop a system of incentives and disincentives which encourages a separation of urban and rural land uses, 39/ while protecting water supplies, resource development, and fish and wildlife habitats;" "[p]rovide incentives for developing land in a way that maximizes the uses of existing public
facilities;" "[a]llocate the costs of new public facilities on the basis of the benefits received by existing and future residents;" and "[e]ncourage the development of a business climate that provides opportunities for the growth and expansion of existing state industries, particularly those industries which are compatible with Florida's environment."
CONCLUSIONS OF LAW
General Legal Principles
Counties and incorporated municipalities in the State of Florida are required, pursuant to Chapter 163, Part II, Florida Statutes, (otherwise known as the Local Government Comprehensive Planning and Land Development Regulation Act and referred to herein as the Act) to prepare and adopt comprehensive plans of the type and in the manner prescribed by the Act.
A local government's adopted comprehensive plan is subject to review by the Department of Community Affairs under the Act. The purpose of such review is to determine whether the plan is "in compliance." Section 163.3184(8), Fla. Stat.
"In compliance," as used in Section 163.3184, Florida Statutes, "means 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, F.A.C., where such rule is not inconsistent with chapter 163, part II." Section 163.3184(1)(b), Fla. Stat.
Section 163.3177, Florida Statutes, describes the "[r]equired and optional elements of comprehensive plan[s]" and the "studies and surveys" upon which they must be based.
Section 163.3178, Florida Statutes, prescribes the contents of the coastal management element, which is a required element for all counties and municipalities that, like Broward County, abut "the Gulf of Mexico or the Atlantic Ocean, or which include or are contiguous to waters of the state where marine species of vegetation listed by rule pursuant to s. 403.817 constitute the dominant plant community." Section 380.24, Florida Statutes.
Section 163.3191, Florida Statutes, imposes requirements relating to a local government's evaluation and appraisal of its comprehensive plan following the plan's adoption.
Chapter 9J-5 of the Florida Administrative Code contains the rule provisions adopted by the Department of Community Affairs pursuant to Section 163.3177(9), Florida Statutes, which set forth the "minimum criteria for review of comprehensive plans and determination of compliance."
The state comprehensive plan was adopted by the Legislature in accordance with the provisions of Section 186.008, Florida Statutes. It is found in Chapter 187, Florida Statutes. The plan is "a direction-setting document" that provides "long-range policy guidance for the orderly social, economic, and physical growth of the state." Section 187.101, Fla. Stat.
The appropriate regional policy plan in the instant case is the plan adopted by the South Florida Regional Planning Council pursuant to Section
186.508, Florida Statutes. The Council is responsible for regional planning activities in the South Florida region, which includes Broward, Dade and Monroe Counties.
The Legislature has mandated that the following guidelines be followed in determining whether a local government's comprehensive plan is consistent with the requirements of the state comprehensive plan and the applicable regional policy plan:
[A] local plan shall be consistent with such plans if the local plan is "compatible with" and "furthers" such plans. The term "compatible with" means that the local plan is not in conflict with the state comprehensive plan or appropriate regional policy plan. The term "furthers" means to take action in the direction of realizing goals and policies of the state or regional plan. For the purposes of determining consistency with the state comprehensive plan or the appropriate regional policy plan, the state or regional plan shall be construed as a whole and no specific goal and policy shall be construed or applied in isolation from the other goals and policies in the plan.
Section 163.3177(10)(a), Fla. Stat.
If the Department of Community Affairs determines following its review of a local government's adopted comprehensive plan that the plan is consistent with the requirements of Sections 163.3177, 163.3178 and 163.3191, Florida Statutes, Chapter 9J-5, Florida Administrative Code, the state comprehensive plan and the appropriate regional policy plan, it is required to issue and publish a notice of its intent to make such a finding. "[A]ny affected person, within 21 days after the publication of the notice, may file a petition with the [Department] pursuant to s. 120.57" challenging the proposed finding. Section 163.3184(9)(a), Fla. Stat. To ascertain whether a petitioner is an "affected person" entitled to participate as a party in the proceeding, the following definition set out in Section 163.3184(1)(a), Florida Statutes, must be applied:
"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. Each person, other than an adjoining local government, in order to qualify under this definition, shall also have submitted oral
or written objections during the local government review and adoption proceedings.
The burden is on the petitioner to establish that he qualifies as an "affected person" under this statutory definition. See Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412,
414 (Fla. 4th DCA 1974)("burden of proof is 'on the party asserting the affirmative of an issue before an administrative tribunal'").
If a petition is filed with the Department by an "affected person," it must be transmitted to the Division of Administrative Hearings. Upon receipt of the petition, the Division of Administrative Hearings is responsible for assigning a hearing officer, who "shall hold [a] hearing in the affected local jurisdiction and submit a recommended order to the [Department]." The Department must issue "a final order within 30 days after receipt of the recommended order if [it] determines that the plan is in compliance. If [it] determines that the plan . . . is not in compliance, [it must] submit, within 30 days after receipt, the recommended order to the Administration Commission." Section 163.3184(9)(b), Fla. Stat.
In making its determination on the matter, the Department must take into account that the petitioner bears the burden of establishing that it is not even "fairly debatable" that the plan is "in compliance." Section 163.3184(9)(a), Fla. Stat.("the local plan . . . shall be determined to be in compliance if the local government's determination of compliance is fairly debatable"). 40/ The burden is a "heavy" one. See Allapattah Community Association, Inc. of Florida v. City of Miami, 379 So.2d 387, 392 (Fla. 3d DCA 1980). To meet this burden, the petitioner must show that its position regarding the plan's noncompliance is not subject to reasonable debate or legitimate controversy. See City of Miami Beach v. Lachman, 71 So.2d 148, 152 (Fla. 1953); Norwood-Norland Homeowner Association, Inc. v. Dade County, 511 So.2d 1009, 1012 (Fla. 3d DCA 1987); Sarasota County v. Purser, 476 So.2d 1359, 1362 (Fla. 2d DCA 1985); Marrell v. Hardy, 450 So.2d 1207, 1209 (Fla. 4th DCA 1984). If an examination of the record developed at hearing reveals that the petitioner has not made such a showing, the Department must issue a final order sustaining "the local government's determination of compliance."
Case No. 89-2645GM
The Association's Standing
The Association has established by a preponderance of the evidence that: its members all own property in Broward County; the subject matter of its petition in this case is within the general scope of its interest and activity; the relief requested in its petition is of a type appropriate for it to receive on behalf of its members; and it submitted objections to the County Commission during the proceedings that culminated in the adoption of Broward County's 1989 comprehensive plan. Accordingly, it has demonstrated that it has standing, as a representative of its members, all of whom are "affected persons," within the meaning of Section 163.3184(1)(a), Florida Statutes, to challenge the plan pursuant to Section 163.3184(9), Florida Statutes. See Florida Home Builders Association v. Department of Labor and Employment Security, 412 So.2d 351 (Fla. 1982)(associational standing allowed in rule challenge cases under appropriate circumstances); Southwest Ranches Homeowners Association, Inc. v. Broward County, 502 So.2d 931, 934-35 (Fla. 4th DCA 1987)(association of owners of property adjoining challenged development had standing to challenge development order under Section 163.3215, Florida Statutes); Farmworker Rights
Organization, Inc. v. Department of Health and Rehabilitative Services, 417 So.2d 753, 754-55 (Fla. 1st DCA 1982)("standing requirements for associations as set forth in Florida Home Builders should be extended to section 120.57(1) proceedings").
Oriole's Standing
Because Oriole is a Broward County property owner which participated in the County Commission's review and adoption proceedings by voicing its opposition to the suggestions made by the Association regarding the County's 1989 comprehensive plan, it is an "affected person," within the meaning of Section 163.3184(1)(a), Florida Statutes, entitled to intervene in this case.
Compliance Issues
The compliance issues in Case No. 89-2645GM are framed by the allegations set forth in paragraphs 7 through 13 of the Association's petition.
Paragraph 7 of the petition alleges that the designation of "the Imagination Farms parcel for suburban residential development under the land use designation of low (2) residential land use in the Broward County Land Use Plan
. . . is not consistent with Florida Statutes, the Regional Policy Plan, and Chapter 9J-5, Florida Administrative Code." Paragraphs 8 through 13 of the petition specify the alleged inconsistencies referred to in general terms in paragraph 7.
In paragraph 8 of its petition, the Association contends that the "designation of suburban residential densities on the Imagination Farms parcel is not based on surveys, studies and data regarding the area, including the amount of land required to accommodate anticipated growth, the projected population of the area, or the character of undeveloped land as required in Section 163.3177(6)(a), Florida Statutes." According to the Association, "[n]o surveys, studies or data reasonably supports the need for the designation in order to accommodate anticipated growth or projected population of the southwest county or Sunshine Ranches, and the designation is incompatible with the character of the undeveloped land in the area."
In paragraph 9 of its petition, the Association further contends that the L-2 designation of the Imagination Farms parcel is inconsistent with the requirements of Section 163.3177(6)(a), Florida Statutes, for the additional reason that it "is inappropriate in terms of the future general distribution, location and extent of uses of land for residential uses, agriculture or conservation in the Sunshine Ranches or southwest county area."
Section 163.3177(6)(a), Florida Statutes, provides in pertinent part as follows:
In addition to the requirements of subsections (1)-(5), the comprehensive plan shall include the following elements:
A future land use plan element designating proposed future general distribution, location, and extent of land for residential uses, commercial uses, industry, agriculture, recreation, conservation, education, public buildings and grounds, other public facilities and other categories of the public
and private uses of land. . . . The future land use plan shall 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 undeveloped land; the availability of public services; and the
need for redevelopment, including the renewal of blighted areas and the elimination of nonconforming uses which are inconsistent with the character of the community.
The foregoing provisions of Section 163.3177(6)(a), Florida Statutes, must be read in pari materia with the provisions of Sections 163.3164(2) and 163.3171(2), Florida Statutes, as well as those of Section 163.3177(8) and (10)(e), Florida Statutes.
Section 163.3164(2), Florida Statutes, defines the term "area," as used in Chapter 163, Part II, Florida Statutes, as "the total area qualifying under the provisions of this act, whether this be all of the lands lying within the limits of an incorporated municipality, lands in and adjacent to incorporated municipalities, all unincorporated lands within a county, or areas comprising combinations of the lands in incorporated municipalities and unincorporated areas of counties."
The "total area" over which a county is authorized to exercise authority pursuant to Chapter 163, Part II, Florida Statutes, is described in Section 163.3171(2), Florida Statutes, as follows:
A county shall exercise authority under this act for the total unincorporated area under its jurisdiction or in such unincorporated areas as are not included in any joint agreement . . . In the case of chartered counties, the county may exercise such authority over municipalities or districts within its boundaries as is provided for in its charter.
Accordingly, in the case of a chartered county, such as Broward County, which is given by its charter land use planning authority over all of the land in the county, the "area" which must be addressed in the "surveys, studies and data" required by Section 163.3177(6)(a), Florida Statutes, is the entire county. Therefore, if the "surveys, studies and data" upon which such a county's future land use plan is based relate to the county as a whole, the "surveys, studies and data" requirement of Section 163.3177(6)(a), Florida Statutes, is met.
Section 163.3177(6)(a), Florida Statutes, does not require that a local government, before making land use designations, examine "surveys, studies and data" regarding particular parcels of land, neighborhoods or regions within its jurisdictional boundaries. The information upon which the local government relies need not be that specific. To satisfy the "survey, studies and data" requirement of Section 163.3177(6)(a), Florida Statutes, the local government, in designating the "proposed future general distribution, location, and extent
of the uses of land," need only rely upon general information regarding the total land area within its jurisdictional boundaries.
In accordance with Section 163.3177(8), Florida Statutes, the general information upon which these land use designations are based must be "appropriate."
Section 163.3177(10)(e), Florida Statutes, also mandates that the information relied upon be "appropriate."
In addition, it requires the local government to use only information that was gathered through the utilization of "professionally accepted" data collection methodologies. The methodologies employed need only be "professionally accepted." To comply with Section 163.3177, Florida Statutes, they need not be the best methodologies available.
Subsection (10)(e) of Section 163.3177, Florida Statutes, further provides that a local government need not engage in "original data collection" to meet the requirements of Section 163.3177, Florida Statutes. "Original data," however, may be relied upon by the local government, provided that it was the product of a "professionally accepted" methodology.
As required by Section 163.3177(6)(a), Florida Statutes, Broward County's 1989 comprehensive plan contains a countywide future land use element that designates the "proposed future general distribution, location, and extent of the uses" of all land in the County, including the Imagination Farms parcel. An insufficient showing has been made to establish that these designations were not based upon the "surveys, studies and data" mandated by Section 163.3177(6)(a), Florida Statutes, or that these designations otherwise were made in derogation of the requirements of Section 163.3177(6)(a), Florida Statutes, as alleged by the Association. That the County Commission may not have had information dealing specifically with the Imagination Farms parcel and the surrounding area at the time it made these designations does not compel a contrary conclusion.
Accordingly, the allegations of noncompliance made by the Association in paragraphs 8 and 9 of its petition should be rejected as being without merit.
In paragraph 10 of its petition, the Association advances the following allegations concerning the consistency of the L-2 designation of the Imagination Farms parcel with the state comprehensive plan:
The land use designation is inconsistent with the following state comprehensive goals and policies:
The designation does not encourage a separation of rural and urban land uses, which is the state policy in Section 187.201(16)(b)2, Florida Statutes.
The land use designation does not develop land in a way that maximizes the use of existing public facilities, which is the state policy in Section 187.201[18](b)1, Florida Statutes, but instead promotes urban sprawl and the future extension of urban facilities to support the urban sprawl.
The land use designation does not encourage
the development of a business climate that provides opportunities for growth and expansion of existing state industries, which is the state policy in Section 187.201[22](b)12, Florida Statutes. Instead the designation encourages the future decay
of an existing rural economy and lifestyle in the Sunshine Ranches area and its replacement by urban sprawl.
Section 187.201(16)(b)2, Florida Statutes, provides that it is a policy of the state to "[d]evelop a system of incentives and disincentives which encourages a separation of urban and rural land uses, while protecting water supplies, resource development, and fish and wildlife habitats."
The County Commission's L-2 designation of the Imagination Farms parcel is not in any way incompatible with this policy of the state comprehensive plan. It is true, as the Association suggests, that the L-2 designation is an urban rather than a rural land use designation. So too, however, is the Estate (E) designation which the remaining parcels in Sunshine Ranches have been assigned. The County Commission therefore is not guilty of having commingled urban and rural land use designations in the Sunshine Ranches area. 41/
Moreover, the County's 1989 comprehensive plan contains various provisions that further the state policy set forth in Section 187.201(16)(b)2, Florida Statutes. Among these provisions is Objective 08.03.00 of the countywide future land use element, which states that it is an objective of the County to "[d]iscourage urban sprawl and encourage a separation of urban and rural land uses by directing new development into areas where necessary regional and community facilities and services exist."
Inasmuch as the L-2 designation of the Imagination Farms parcel is not incompatible with the state policy set forth in Section 187.201(16)(b)2, Florida Statutes, and the County's 1989 comprehensive plan, as a whole, furthers this state policy, the allegation of noncompliance made in paragraph 10a. of the Association's petition should be rejected as being without merit.
Section 187.201(18)(b)1, Florida Statutes, provides that it is a policy of the state to "[p]rovide incentives for developing land in a way that maximizes the uses of existing public facilities."
The County Commission's L-2 designation of the Imagination Farms parcel is not in any way incompatible with this state policy. Contrary to the argument made by the Association, it does not threaten to promote "urban sprawl," as that condition has been described by the Department of Community Affairs in Technical Memorandum IV, Number 4. If the 235 acre Imagination Farms parcel is developed at two dwelling units per acre, such development would not result in any of the growth patterns that typify an "urban sprawl" situation.
To the contrary, given the existing development that now surrounds the Imagination Farms parcel, its development would constitute desirable infill development resulting in the more efficient use of existing public facilities in the area.
Moreover, the County's 1989 comprehensive plan contains various other provisions that further the state policy set forth in Section 187.201(18)(b)1,
Florida Statues. Among these provisions are those found in Objective 08.03.00 and its accompanying policies dealing with the "efficient use of urban services."
Inasmuch as the L-2 designation of the Imagination Farms parcel is not incompatible with the state policy set forth in Section 187.201(18)(b)1, Florida Statutes, and the County's 1989 comprehensive plan, as a whole, furthers this state policy, the allegation of noncompliance made in paragraph 10b. of the Association's petition should be rejected as being without merit.
Section 187.201(22)(b)12, Florida Statutes, provides that it is a policy of the state to "[e]ncourage the development of a business climate that provides opportunities for the growth and expansion of existing state industries, particularly those industries which are compatible with Florida's environment."
The County Commission's L-2 designation of the Imagination Farms parcel is not in any way incompatible with this state policy. By assigning residential land use designations to the Imagination Farms parcel and the remainder of Sunshine Ranches, the County Commission has taken action that, on the one hand, likely will result in a decrease in the horse-related commercial activities in the Sunshine Ranches area, but, at the same time, will likely result in an increase in residential construction activity in the area. A local government's comprehensive plan does not conflict with Section 187.201(22)(b)12, Florida Statutes, where, as in the instant case, through land use designations, it promotes one existing state industry at the expense of another.
Moreover, there are other provisions in the County's 1989 comprehensive plan that serve to further the state policy set forth in Section 187.201(22)(b)12, Florida Statutes. They include Goal 03.00.00 of the countywide future land use element and its accompanying objectives and policies. Goal 03.00.00 provides that it is a goal of the County to "[a]chieve a more diversified economy by promoting tourism and industrial growth and providing optimum protection of the County's environment and maintaining a desired quality of life."
Inasmuch as the L-2 designation of the Imagination Farms parcel is not incompatible with the state policy set forth in Section 187.201(22)(b)12, Florida Statutes, and the County's 1989 comprehensive plan, as a whole, furthers this state policy, the allegation of noncompliance made in paragraph 10c. of the Association's petition should be rejected as being without merit.
In paragraph 11 of its petition, the Association alleges the following regarding the consistency of the L-2 designation of the Imagination Farms parcel with the South Florida Regional Plan:
The land use designation is inconsistent with the following South Florida Regional Planning Council Regional Plan for South Florida goals and policies:
The land use designation fails to address cumulative impacts of small developments and projects in the protection of natural systems, as provided in Policy 39.1.14, regional Plan for South Florida.
The land use designation is inconsistent with Policy 57.1.3, Regional Plan for South
Florida that provides: "Permit new development only when and where adequate excess capacity exists, is programmed, or where funding is otherwise made available."
The land use designation is inconsistent with Policy 58.1.7, Regional Plan for South Florida, which provides: "Encourage the compatibility of adjacent land uses."
Regional Policy 39.1.14 provides that it is a policy of the South Florida Regional Planning Council that "[t]he cumulative impacts of small developments and projects should be addressed in all planning programs."
The County Commission's L-2 designation of the Imagination Farms parcel is not in any way incompatible with this regional policy.
Moreover, the County's 1989 comprehensive plan contains various provisions that further Regional Policy 39.1.14. Among these provisions is Policy 9 of the coastal management element which provides as follows:
The County shall limit the specific and cumulative impacts of development or redevelopment upon wetlands, water quality, water quantity, wildlife habitat, living marine resources and beach dune system through the review of developments by the Development Review Committee (DRC), the Broward County Environmental Quality Control Board (EQCB), and the Broward County Building and Zoning Enforcement Division (BZED).
Another of these provisions is Objective 13.04.00 of the countywide future land use element which states that it is an objective of the County to "[p]rovide and utilize coordination mechanisms to ensure that the impacts of development proposed in the 1989 Broward County Land Use Plan upon development in the municipalities, county, adjacent counties, the region and the state are addressed."
Inasmuch as the L-2 designation of the Imagination Farms parcel is not incompatible with Regional Policy 39.1.14, and the County's 1989 comprehensive plan, as a whole, furthers this regional policy, the allegation of noncompliance made in paragraph 11a. of the Association's petition should be rejected as being without merit.
As the Association correctly states in its petition, Regional Policy
57.1.3 provides that it is a policy of the South Florida Regional Planning Council to "[p]ermit new development only when and where adequate excess capacity exists, is programmed, or where funding is otherwise made available."
The County Commission's L-2 designation of the Imagination Farms parcel is not in any way incompatible with this regional policy. While the designation serves to limit the type of development that may take place on the property, it does not address the matters which are the subject of Regional Policy 57.1.3: when, and under what circumstances, that development may take place.
These matters are addressed elsewhere in the County's 1989 comprehensive plan in a manner that furthers Regional Policy 57.1.3. Among the plan's provisions that further this regional policy are those found in Goal
08.00.00 of the countywide future land use element and its accompanying objectives and policies. Goal 08.00.00 provides that it is a goal of the County to "[p]hase growth consistent with the provision of adequate regional and community services and facilities."
Inasmuch as the L-2 designation of the Imagination Farms parcel is not incompatible with Regional Policy 57.1.3, and the County's 1989 comprehensive plan, as a whole, furthers this regional policy, the allegation of noncompliance made by the Association in paragraph 11b. of its petition should be rejected as being without merit.
As the Association correctly states in its petition, Regional Policy
58.1.7 provides that it is a policy of the South Florida Regional Planning Council to "[e]ncourage the compatibility of adjacent land uses."
The County Commission's L-2 designation of the Imagination Farms parcel is not in any way incompatible with this regional policy. While the L-2 designation is not identical to the E designation assigned to the remainder of Sunshine Ranches, neither is it inherently incompatible with that designation. Indeed, of the 21 land use categories utilized in the countywide future land use element, the L-2 land use category is the one that is the most similar to the E land use category.
Moreover, the County's 1989 comprehensive plan contains various provisions that further Regional Policy 58.1.7. Among these provisions are those found in Goal 14.00.00 and Objective 14.02.00 and its accompanying policies. Goal 14.00.00 provides that it is a goal of the County to "[e]liminate . . . incompatible land uses." Objective 14.02.00 provides that it is an objective of the County to "[d]evelop and implement land use programs to encourage the elimination or reduction of existing incompatible land uses and prevent future incompatible land uses."
Inasmuch as the L-2 designation of the Imagination Farms parcel is not incompatible with Regional Policy 58.1.7, and the County's 1989 comprehensive plan, as a whole, furthers that regional policy, the allegation of noncompliance made by the Association in paragraph 11c. of its petition should be rejected as being without merit.
In paragraph 12a. of its petition, the Association asserts that the County Commission's L-2 designation of the Imagination Farms parcel is inconsistent with Rule 9J-5.006(3)(b)7, Florida Administrative Code.
Rule 9J-5.006(3)(b)7 provides in pertinent part that "[t]he [future land use element of a local government's comprehensive plan] shall contain one or more specific objectives for each goal statement . . . which [d]iscourage the proliferation of urban sprawl."
Objective 08.03.00 of the countywide future land use element of the County's 1989 comprehensive plan is such a "specific objective." Accordingly, the plan is consistent with the requirement of Rule 9J-5.006(3)(b)7. Furthermore, as noted above, the development of the Imagination Farms parcel at two dwelling units per acre would not be the type of development characteristic of "urban sprawl."
Because the County's 1989 comprehensive plan is consistent with the requirement of Rule 9J-5.006(3)(b)7, the allegation of noncompliance made by the Association in paragraph 12a. of its petition should be rejected as being without merit.
In paragraph 12b. of its petition, the Association alleges that the County Commission's L-2 designation of the Imagination Farms parcel is inconsistent with Rule 9J-5.006(3)(c)2, Florida Administrative Code.
Rule 9J-5.006(3)(c)2 provides that "[t]he [future land use element of a local government's comprehensive plan] shall contain one or more policies for each objective which address implementation activities for the [p]rovision for compatibility of adjacent land uses."
Policies 14.02.01 through 14.02.04 of the countywide future land use element of the County's 1989 comprehensive plan are such policies. Accordingly, the plan is consistent with the requirement of Rule 9J-5.006(3)(c)2. Furthermore, as noted above, the L-2 land use designation, which the Imagination Farms parcel has been assigned, is not inherently incompatible with the E land use designation, which the balance of Sunshine Ranches has been assigned.
Because the County's 1989 comprehensive plan is consistent with the requirement of Rule 9J-5.006(3)(c)2, the allegation of noncompliance made by the Association in paragraph 12b. of its petition should be rejected as being without merit.
In paragraph 12c. of its petition, the Association contends that the County Commission's L-2 designation of the Imagination Farms parcel is inconsistent with the following provisions of the countywide future land use element of the County's 1989 comprehensive plan and that therefore such designation renders the plan inconsistent with Rule 9J-5.005(5), Florida Administrative Code, which mandates that comprehensive plans be internally consistent:
Policy 01.04.04 of the 1989 Land Use Plan, requiring protection of existing and planned residential areas from disruptive land uses.
Objective 04.01.00 of the 1989 Land Use Plan, encouraging the retention of agricultural lands and uses through the utilization of financial incentives and creative land development regulations.
Policy 04.01.02 of the 1989 Land Use Plan, requiring identification of locally important agricultural areas and encouraging agricultural activities as the primary uses on such lands.
Goal 07.00.00 of the 1989 Land Use Plan, ensuring the preservation of rural areas.
Objective 07.01.00 of the 1989 Land Use Plan, requiring the protection of existing rural areas within Broward County.
A careful examination of the plan reveals that there is no irreconcilable conflict between the L-2 designation of the Imagination Farms parcel and the foregoing provisions of the plan cited by the Association in paragraph 12c. of its petition. In no way does the L-2 designation of the
Imagination Farms parcel constitute an impediment to the successful completion of the activities referenced in Policies 01.04.04 and 04.01.02 or to the realization of the ends stated in Goal 07.00.00 and Objectives 04.01.00 and 07.01.00.
Inasmuch as the County's 1989 comprehensive plan has not been shown to be inconsistent with the internal consistency requirement of Rule 9J- 5.005(5), Florida Administrative Code, as alleged by the Association in paragraph 12c.1-5. of its petition, that allegation should be rejected as being without merit.
In paragraph 12c.6. of its petition, the Association asserts that, for the "reasons stated in paragraphs 10 and 11" of its petition, the County Commission's L-2 designation of the Imagination Farms parcel is also inconsistent with "Objective 13.02.00 of the 1989 Land Use Plan, which is to ensure consistency among the Broward County Land Use Plan, the State of Florida Comprehensive Plan and the Regional Plan for South Florida." On these additional bases, the Association alleges, the L-2 designation of the Imagination Farms parcel should be held to be inconsistent with the internal consistency requirement of Rule 9J-5.005(5), Florida Administrative Code.
Because this allegation is based upon the unsubstantiated allegations advanced in paragraphs 10 and 11 of the Association's petition, it too should be rejected as being without merit.
In paragraph 13 of its petition, the Association makes the following allegation regarding the consistency of the County Commission's L-2 designation of the Imagination Farms parcel with Rule 9J-5.006(2)(e), Florida Administrative Code:
Rule 9J-5.006(2)(e) has not been adequately addressed by the land use designation. The proposed suburban residential use is in a flood prone area, which area has been specifically designated for a water management assessment by Objective 8 in the Drainage and Natural Groundwater Aquifer Recharge Element of the Broward County Comprehensive Plan. The 1989 Land Use Plan prematurely designates the Imagination Farms parcel for suburban residential development in the face of the Plan's recognized need for further water management assessment and limitations on land use amendments required under Policy 16 of Objective 8.
Rule 9J-5.006(2)(e), Florida Administrative Code, provides that the future land use element of a local government's comprehensive plan shall be based upon "[a]n analysis of the proposed development and redevelopment of flood prone areas based upon a suitability determination from Flood Insurance Rate Maps, Flood Hazard Boundary Maps, or other most accurate information available."
Volume III, Chapter II of the plan contains such an analysis. While the study of the South Florida Water Management District upon which the analysis is based was conducted in 1982, there has been no showing that the County Commission had available to it at the time it adopted the County's 1989 comprehensive plan more current information regarding the matter. Accordingly,
the proof is insufficient to establish that the plan is "inconsistent" with Rule 9J-5.006(2)(e), Florida Administrative Code, as alleged by the Association.
Furthermore, contrary to the suggestion made by the Association, the L-2 designation of the Imagination Farms parcel is not inconsistent with Policy
16 of the drainage and natural groundwater aquifer recharge element of the County's 1989 comprehensive plan. Policy 16 imposes certain limitations upon the County Commission in "approving land use plan amendments in the flood prone portions of the County" subsequent to the adoption of the plan. The designation of the Imagination Farms parcel which is the subject of the instant challenge, however, was accomplished through the adoption of the plan itself, not an amendment to the plan. Therefore, in so designating the parcel, the County Commission was not bound by the provisions of Policy 16.
Accordingly, the allegation of noncompliance made by the Association in paragraph 13 of its petition should be rejected as being without merit.
For the foregoing reasons, the Association has failed to make a sufficient showing, in support of the allegations made in its petition, that Broward County's 1989 comprehensive plan is not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes.
Case No 89-2646GM
The Coalition's Standing
The Coalition has established by a preponderance of the evidence that: many of its members own property in Broward County; the subject matter of its petition in this case is within the general scope of its interest and activity; the relief requested in its petition is of a type appropriate for it to receive on behalf of its members; and it submitted objections to the County Commission during the proceedings that culminated in the adoption of Broward County's 1989 comprehensive plan. Accordingly, it has demonstrated that it has standing, as a representative of its members, many of whom are "affected persons," within the meaning of Section 163.3184(1)(a), Florida Statutes, to challenge the plan pursuant to Section 163.3184(9), Florida Statutes. See Florida Home Builders Association v. Department of Labor and Employment Security, 412 So.2d 351 (Fla. 1982); Southwest Ranches Homeowners Association, Inc. v. Broward County, 502 So.2d 931, 934-35 (Fla. 4th DCA 1987); Farmworker Rights Organization, Inc. v. Department of Health and Rehabilitative Services, 417 So.2d 753, 754-55 (Fla. 1st DCA 1982).
Compliance Issues
The compliance issues in Case No. 89-2646GM are framed by the allegations set forth in paragraph 6a. through d. of the Coalition's petition.
In paragraph 6a. of its petition, the Coalition alleges the following:
Volume 1, 1989 Broward County Land Use Plan is not in compliance with Chapter 9J-5.006 as it
Is not a designation of future land use patterns that reflects the goals, objectives and policies of the conservation element and coastal management element, and those
elements are themselves deficient as more fully described hereafter;
Does not show wetlands accurately on the existing land use map or map series, as required in 9J-5.006(1)(b)4;
Is not supported by Land Use Analysis as required by 9J-5.006(2)(b)4 and (2)(c);
Does not comply with the requirements of 9J-5.006(3) and in particular (b)4 and the requirements of 163.3177(6)(a) F.S. are not met and the provisions of 9J-5.006(3)(b)7 are inadequate.
Contains insufficient policies to comply with 9J-5.006(3)(c)6 as pertains to environmentally sensitive land;
Does not properly depict wetlands in the future land use map or map series as required by 9J-5.006(4)(b)4;
As a result of the above deficiencies, the future land use map does not correctly show the conservation use category of land uses as required by 9J-5.006(4)(a)6.
Rule 9J-5.005(5)(b), Florida Administrative Code, provides, in pertinent part, that "[e]ach map depicting future conditions must reflect goals, objectives and policies within all elements." The Coalition has failed to make a sufficient showing that the FLUM, which assigns land uses designations on a countywide basis, does not meet this requirement. Accordingly, the allegation of noncompliance made by the Coalition in subsection (1) of paragraph 6a. of its petition should be rejected as being without merit.
Rule 9J-5.006(1)(b)4 and (4)(b)4, Florida Administrative Code, require that a local government, in conjunction with the preparation of the future land use element of its comprehensive plan, prepare a map depicting wetlands in the area over which it has land use authority. The map must be based upon data that was collected pursuant a professionally accepted methodology. If there is a lack of such data available, there is no obligation on the part of the local government to engage in original data collection. If it does engage in original collection, however, it must utilize a professionally accepted methodology. Section 163.3177(10)(e), Fla. Stat.; Rule 9J-5.005(2), Fla. Admin. Code.
The wetlands map adopted by the County Commission in the instant case does not show any wetlands in S.W. Broward other than the Everglades buffer strip and those that, as of the date of the map's adoption, had been determined to lie within approved Developments of Regional Impact. The Coalition contends that the map should have incorporated the data collected by Ann Buckley and shown additional wetlands in S.W. Broward. The argument is not persuasive. A local government is not required to rely upon data that it is unable to ascertain was collected pursuant to a professionally accepted methodology. Because the County Commission had reason to doubt that Buckley's data was collected in accordance with a professionally accepted methodology, it did not run afoul of any statutory or rule requirement by declining to utilize her data and opting instead to adopt a wetlands map based upon other information 42/ and to obligate itself to conduct a post-adoption study of wetlands in S.W. Broward in order to later supplement the map. To the contrary, the County Commission acted in a manner that was reasonable and made sense under the circumstances.
Accordingly, the allegations of noncompliance made by the Coalition in subsections (2) and (6) of paragraph 6a. of its petition should be rejected as being without merit.
Rule 9J-5.006(2)(b)4, Florida Administrative Code, provides that "[t]he [future land use] element shall be based upon . . . [a]n analysis of the character and magnitude of existing vacant or undeveloped land in order to determine its suitability for use, including where available: . . . [n]atural resources."
Volume III, Chapter II of Broward County's 1989 comprehensive plan contains such analysis. Included in the analysis is a discussion of wetlands in
S.W. Broward.
Rule 9J-5.006(2)(c), Florida Administrative Code, provides as follows:
The [future land use] element shall be based upon . . . [a]n analysis of the amount of land needed to accommodate the projected population, including:
The categories of land use and their densities or intensities of use,
The estimated gross acreage needed by category, and
A description of the methodology used.
Volume III, Chapter VI of Broward County's comprehensive plan contains such an analysis.
Because the countywide future land use element of the County's 1989 comprehensive plan is based, in part, upon the analyses required by Rules 9J- 5.006(2)(b)4 and 9J-5.006(2)(c), Florida Administrative Code, the allegations of noncompliance made by the Coalition is subsection (3) of paragraph 6a. of its petition should be rejected as being without merit.
Rule 9J-5.006(3)(b)4, Florida Administrative Code, provides as follows:
The [future land use] element shall contain one or more specific objectives for each goal statement which address the requirements of Paragraph 163.3177(6)(a), Florida Statutes, and which:
Ensure protection of natural resources and historic resources.
Objectives 09.01.00 through 09.10.00 of the countywide future land use element of the County's 1989 comprehensive plan constitute the "specific objectives" required by Rule 9J-5.006(3)(b)4, Florida Administrative Code. 43/
Accordingly, the allegation advanced in subsection (4) of paragraph 6a. of the Coalition's petition that the plan is inconsistent with Rule 9J- 5.006(3)(b)4, Florida Administrative Code, should be rejected as being without merit.
The further allegations made in subsection (4) of paragraph 6a. of the Coalition's petition that the plan is also inconsistent with Section 163.3177(6)(a), Florida Statutes, and Rule 9J-5.006(3)(b)7, Florida Administrative Code, should be rejected as being without merit as well, for the reasons stated in Conclusions of Law 29 and 61 of this Recommended Order, which address similar allegations made by the Association in its petition.
Rule 9J-5.006(3)(c)6, Florida Administrative Code, provides, in pertinent part, as follows:
The [future land use] element shall contain one or more policies for each objective which address implementation activities for the:
Protection of . . . environmentally sensitive land.
Policies 09.01.01 through 09.01.13 of the countywide future land use element of the County's 1989 comprehensive plan are such policies.
Accordingly, the allegation of noncompliance made by the Coalition in subsection (5) of paragraph 6a. of its petition should be rejected as being without merit.
Rule 9J-5.006(4)(a), Florida Administrative Code, mandates that a local government adopt, as part of its future land use element, a future land use map showing the "proposed distribution, extent, and location of . . . generalized land uses," including "conservation use."
The County Commission has adopted such a map as part of its countywide future land use element. More than two thirds of the County is designated for "conservation uses" on the map. That the County Commission did not so designate additional lands upon which natural resources may be found does not render the map in contravention of any requirement imposed by Rule 9J- 5.006(4)(a). 44/
Accordingly, the allegation made by the Coalition in subsection (7) of paragraph 6a. of its petition should be rejected as being without merit.
In paragraph 6b. of its petition, the Coalition makes the following allegation:
Volume 2 Conservation Element is not in compliance with Chapter 9J-5.013 as it does not address resources county-wide in the required manner and
Lacks the required data and analysis specified by 9J-5.013(1) and in particular does not identify and analyze wetlands, floodplains and vegetative communities including forests as required by
9J-5.013(1)(a), nor identify for the natural resources the potential for conservation use or protection as required by 9J-5.013(1)(b);
The goals, objectives and policies requirements are not met as specified for natural resources including wetlands,
environmentally sensitive lands and native vegetative communities including forests as well as the other listed resources, and
9J-5.013(2) is not met.
Contrary to the assertion made by the Coalition, the conservation element of the County's 1989 comprehensive plan, "to the extent that it addresses . . . the protection of natural resources," does have countywide applicability.
Rule 9J-5.013(1), Florida Administrative Code, provides, in pertinent part, as follows:
The [conservation] element shall be based upon the following data and analyses requirements pursuant to Subsection
9J-5.005(2).
The following natural resources, where present within the local government's boundaries, shall be identified and analyzed:
[W]etlands. . .;
Floodplains;
* * *
5. [V]egetative communities including forests, indicating known dominant species present and species listed by federal, state or local government agencies as endangered, threatened or species of special concern.
For each of the above natural resources,
. . . the potential for conservation , use or protection shall be identified.
The Coalition has failed to demonstrate that it is beyond fair debate that the County Commission departed from these requirements in adopting the County's 1989 comprehensive plan. While the County Commission may not have specified the exact location of every site in the County containing these natural resources, it was under no obligation pursuant to Rule 9J-5.013(1), Florida Administrative Code, to do so.
Rule 9J-5.013(2), Florida Administrative Code, provides, in pertinent part, as follows:
The [conservation] element shall contain one or more goal statements which establish the long-term end toward which conservation programs and activities are ultimately directed.
The element shall contain one or more specific objectives for each goal statement which address the requirements of Paragraph 163.3177(6)(d), Florida Statutes, and which:
* * *
3. Conserve, appropriately use and protect
. . . native vegetative communities including forests.
* * *
The element shall contain one or more
policies for each objective which address implementation activities for the:
* * *
3. Protection of native vegetative communities from destruction by development activities.
* * *
6. Protection and conservation of the natural functions of existing . . . floodplains [and] wetlands. . . .
* * *
9. Designation of environmentally sensitive lands for protection based on locally determined criteria which further the goals and objectives of the conservation element.
The County's 1989 comprehensive plan contains the foregoing goal, objective and policy statements required by Rule 9J-5.013(2). It is of no consequence that some of these statements are in the countywide future land use element instead of the plan's conservation element.
In pleadings filed in this cause subsequent to the filing of its petition, the Coalition has indicated that one of the "fundamental flaws" of the County's 1989 comprehensive plan is that it fails to designate certain sites as Local Areas of Particular Concern (which under the plan are deemed to be environmentally sensitive lands) that the Coalition argues are deserving of such designation. Rule 9J-5.013(2)(c)9, Florida Administrative Code, however, does not require that any particular site be designated environmentally sensitive land as part of the plan adoption process. It simply mandates that the adopted plan include a policy addressing the designation of such lands. Furthermore, the Coalition has failed to establish that the County Commission's refusal to designate the sites in question at the time of the adoption of the County's 1989 comprehensive plan was without reason or logic.
Accordingly, the allegations of noncompliance made by the Coalition in paragraph 6b. of its petition should be rejected as being without merit.
In paragraph 6c. of its petition, the Coalition alleges that the County's 1989 comprehensive plan is inconsistent with the requirements of Rule 9J-5.012, Florida Administrative Code, because it does not take a countywide approach to the entire coastal element.
Rule 9J-5.003(12), Florida Administrative Code, provides the following with respect to the scope of a comprehensive plan's coastal management element:
When preparing and implementing all requirements of the coastal management element except those requirements relating to hurricane evacuation, hazard mitigation, water quality, water quantity, estuarine pollution, or estuarine environmental quality, the coastal area shall be an area
of the local government's choosing; however, this area must encompass all of the following where they occur within the local government's jurisdiction: water and submerged lands of
oceanic water bodies or estuarine water bodies; shorelines adjacent to oceanic waters or estuaries; coastal barriers; living marine resources; marine wetlands; water-dependent facilities or water-related facilities on oceanic or estuarine waters; or public access facilities to oceanic beaches or estuarine shorelines; and all lands adjacent to such occurrences where development activities would impact the integrity or quality of the above. When preparing and implementing the hurricane evacuation or hazard mitigation requirements of the coastal management element, the coastal area shall be those portions of the local government's jurisdiction which lie
in the hurricane vulnerability zone. When preparing and implementing the requirements of the coastal management element concerning water quality, water quantity, estuarine pollution, or estuarine environmental quality, the coastal area shall be all occurrences within the local government's jurisdiction of oceanic waters or estuarine waters.
The County Commission's decision to limit the scope of certain portions of the plan's coastal management element to the unincorporated areas of the County was in keeping with the requirements of Rule 9J-5.003(12), Florida Administrative Code, as read in conjunction with Section 163.3171(2), Florida Statutes, which, as noted in Conclusion of Law 22, is the statutory provision that prescribes the area over which local governments must exercise authority pursuant to Chapter 163, Part II, Florida Statutes.
Accordingly, the allegations of noncompliance made by the Coalition in paragraph 6c. of its petition should be rejected as being without merit.
In paragraph 6d. of its petition, the Coalition alleges the following:
Volume 1, 1989 Land Use Plan also improperly provides for flexibility zones within residential designations contrary to the requirements of the governing statute and code. The land uses are required to be selected and displayed and reserving flexibility abrogates the provisions of
9J-5.006 that provide for showing by map the specific use to be made.
Rule 9J-5.003(84), Florida Administrative Code, defines "residential uses" as "activities within land areas used predominantly for housing." (Emphasis supplied.) In view of this definition, a percentage of land in an area designated for "residential use" on a local government's future land use
map may be used for purposes other than housing without violating the mapping requirements of Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code, provided that the area is predominantly used for housing.
Under the flexibility provisions of the County's 1989 comprehensive plan, land that is designated for "residential uses" on the FLUM and is within a flexibility zone may be used for appropriate commercial purposes, subject to certain limitations. Among these limitations is that "no more than a total of five percent (5%) of the area designated for residential use on the [FLUM] within a flexibility zone may be used" for commercial purposes. Moreover, the plan's flexibility provisions specifically provide that the "areas designated for 'residential use' on the [FLUM], consistent with Objective 01.01.00 [of the countywide future land use element], are intended primarily for dwellings."
Because the plan's flexibility provisions do not permit such areas to be used predominately for any purpose other than housing, they do not violate, or in any way subvert, the mapping requirements of Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code.
Accordingly, the allegation of noncompliance made in paragraph 6d. of the Coalition's petition should be rejected as being without merit.
For the foregoing reasons, the Coalition has failed to make a sufficient showing, in support of the allegations made in its petition, that Broward County's 1989 comprehensive plan is not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the Department of Community Affairs enter a final order in Case No. 89-2645GM and Case No. 89-2646GM finding that Broward County's 1989 comprehensive plan is "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of June, 1990.
STUART M. LERNER
Hearing Officer
Division of Administrative Hearings
The DeSoto Building 1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 1990.
ENDNOTES
1/ Lot sizes are currently of sufficient size to allow for on-site drainage.
2/ Horse ranches have been located in Sunshine Ranches for at least the past 20 years. Their existence is common knowledge in the County.
3/ The Property Appraiser's position on this matter is subject to question. Section 193.461(5), Florida Statutes, defines "agricultural purposes" to include, among other things, "livestock" and there is support for the proposition that a "horse comes within the livestock classification." Austin v. Harden, 152 So.2d 751, 753 (Fla. 2d DCA 1963).
4/ As development has advanced through S.W. Broward agricultural land uses have yielded, as they typically do when competing with higher value land uses. At present, agriculture comprises a very small part of the economy in S.W. Broward.
5/ Although the parcel had an L-3 designation under the County's prior comprehensive plan, as amended in August, 1988, the L-2 designation does not represent a real change from what was permitted under the prior plan, as amended, given the condition that the County Commission had imposed when it granted the August, 1988, amendment to the prior plan restricting the maximum density of the parcel to two dwelling units per acre.
6/ There are currently 125 such "flexibility zones" throughout the County.
7/ According to the preface to Chapter II of Volume I, policies that use the words "should" or "may" are merely "recommendations and advisory in nature."
8/ In view of the absence of any mention of the L-2 land use category, it appears that the County does not contemplate that lands so designated will fall within its definition of "rural areas."
9/ The study mandated by this policy was deferred for six months to enable those conducting the study "to see what the state [was going to do] in terms of the definition of urban sprawl and what's rural."
10/ The plan does not define "urban sprawl." Neither does Chapter 163, Part II, Florida Statues, or Chapter 9J-5, Florida Administrative Code, contain such a definition. In a recent Technical Memorandum (Volume IV, Number 4), however, the Department of Community Affairs described "urban sprawl" as referring to "scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas and frequently invades lands important for environmental and natural resource protection." According to the memorandum, "urban sprawl typically manifests itself in one or more of the following inefficient land use patterns: (1) leapfrog development; (2) ribbon or strip development; and
large expanses of low-density, single-dimensional development." (The development of Imagination Farms, a parcel consisting of only 235 acres of land, at a density of two dwelling units per acre, a density which the memorandum characterizes as a "High [Urban] Density," would not constitute any of these three types of development which the Department has indicated are characteristic of "urban sprawl.") The memorandum further indicates that "urban sprawl" may exist where the "amount of residential land and densities depicted on the future land use map significantly exceed the projected need for residential land use by type during the planning period and that therefore "[a]ny plan in which the amount of land designated to receive development totals more than 125% of the
amount needed to accommodate projected need will be closely scrutinized by the DCA."
11/ Land used for "urban purposes" is defined in Volume I, Chapter IV(A) of the plan as land that "is used intensively for residential, urban recreational, commercial, industrial, institutional, and governmental purposes, including any parcels of land retained in their natural state or kept free of development as dedicated greenbelt areas."
12/ Neither the plan, Chapter 163, Part II, Florida Statutes, nor Chapter 9J- 5, Florida Administrative Code, defines the term "rural." Moreover, there is no general consensus amongst professional planners as to precisely what constitutes a "rural" area. In its recent Technical Memorandum (Volume IV, Number 4), however, the Department of Community Affairs sought to provide some guidelines to be used in making such a determination. In the memorandum, the Department states that "[l]and uses typical of rural areas include farming, forestry, mining, and services needed to support a resource-based economy." It further states that "rural density should be no more than about one and one-quarter units per 10 acres, and likely lower." According to the memorandum, "a plan that allows one dwelling unit per acre across a large landscape would have a resulting density at buildout that would be classified as medium urban density." Based upon the guidelines set forth in this memorandum, neither Sunshine Ranches, nor S.W. Broward as whole, is "rural."
13/ An example of such vegetation is malaleuca, which grows in both upland and wetland conditions.
14/ Under the Broward County Land Development Code, a developer seeking to develop a site designated a Local Area of Particular Concern may be required, based upon the information contained in the environmental report, to protect the resources present in the area or to mitigate the adverse impact of development on these resources. Furthermore, if it is determined that public acquisition of the site is necessary, development may be delayed for up to 12 months so that such acquisition may be made.
15/ The regulatory scheme, although it protects jurisdictional wetlands, does not absolutely prohibit their alteration through dredge and fill activity. Such activity may be permitted where the adverse impact of the project will be mitigated. In those cases where the jurisdictional wetlands in question are of poor quality, such as the wetlands in S.W. Broward, the dredge and fill activity, combined with mitigation efforts, may actually result in a net environmental benefit. Accordingly, there may circumstances where the value and function of an area's wetlands would be enhanced by assigning the area a land use designation that does not preclude the area's development.
16/ In issuing dredge and fill permits, the EQCB takes into consideration the cumulative impact of such permits.
17/ Policies 09.09.03 and 09.09.04 were included in the plan in response to concerns raised by the Department of Community Affairs in its written objections, recommendations and comments regarding the proposed plan initially submitted by the County Commission. Policy 09.09.04 effectively imposes a moratorium on land use amendments relating to land in S.W. Broward until the studies referenced in Policy 09.09.03 are completed, except in those cases where the advocates of an amendment are able to provide independent data demonstrating that the requirements of Policy 09.09.04 can be met.
18/ In its Technical Memorandum (Volume IV, Number 4), the Department of Community Affairs states that "[o]ne of the most important and critical techniques for discouraging [urban] sprawl is strong mixed-use policies which require residential and non-residential uses to be located in reasonably close proximity to each other."
19/ There were no site-specific studies or surveys conducted of the Imagination Farms parcel to determine what land use designation it should be assigned in the plan.
20/ The County Commission also adopted a map (Map IV.A. of the Natural Resource Map Series- Western Broward County) which shows wetlands in the western two- thirds of the County. There has been no allegation made in the instant case that Map IV.A. is in any way deficient.
21/ The plant lists used by these agencies are not identical, however.
22/ Activities such as burning, mowing and seeding with non-indicator species, which are not uncommon in S.W. Broward, have the potential to affect the accuracy of these agencies' jurisdictional determinations. The longer it has been since these activities have taken place, the less likely it is that they will result in flawed jurisdictional determinations.
23/ Corps jurisdictional determinations are valid for only two years.
24/ That is not to say, however, that there was no employee anywhere in County government who had such expertise.
25/ Buckley had examined these photographs to determine where in the study area there was development. Areas determined to be developed were deemed, without further study, not to be wetlands.
26/ Buckley did not examine any site under ten acres.
27/ When it made this determination, the County Commission had in its possession the information that Buckley had used to prepare her map, including her field notes.
28/ There are probably thousands of acres of wetlands in S.W. Broward that were not reflected on the map.
29/ Information regarding the various jurisdictional determinations made in
S.W. Broward by the EQCB, DER and the Corps was not readily available.
Moreover, no suggestion was made at the March 1, 1989, adoption hearing that the County Commission attempt to gather such information and use it to develop a wetlands map of S.W. Broward.
30/ The study will require a substantial amount of time to complete.
31/ The plan defines Local Areas of Particular Concern as lands which have "been declared to be environmentally sensitive."
32/ The study was funded by a grant from the Elizabeth Ordway Dunn Foundation, Inc. It was completed in June, 1987, and was based on field work done earlier that year and in 1986.
33/ The Imagination Farms parcel is shown on the map set forth in this portion of the plan as vacant land.
34/ These urban wilderness areas are environmentally sensitive lands that are selected at a public hearing by the County Commission, upon the recommendation of an advisory board, for placement upon the County's Urban Wilderness Inventory.
35/ According to Volume III, Chapter VI of the plan, the resident population of Broward County in 1987 was estimated to be 1,180,998.
36/ The residential population at build-out, which is expected to occur around the year 2020, will likely be between 1,700,000 and 1,800,000. The current residential population is about 1,300,000.
37/ There is no indication in Volume III of the plan as to how these 152,000 acres of land have been divided amongst the various residential land use categories. Neither does it give, on a subregional basis, the number of acres of land that have been designated for residential use. Only the total number of acres that have been so designated countywide is revealed.
38/ This policy was intended to allay concerns expressed by the Department of Community Affairs in its written objections, recommendations and comments concerning the County's proposed plan.
39/ Such a separation discourages urban sprawl and results in a more efficient use of public facilities and infrastructure.
40/ Where an administrative proceeding involves a challenge to action of a legislative or quasi-legislative nature, such as in the instant case, unless the statute in question provides otherwise, it is the challenger that bears the ultimate burden of persuasion, notwithstanding that the challenger may not be asserting the affirmative on the issue before the administrative tribunal. See Rinker Materials Corporation v. Metropolitan Dade County, 528 So.2d 904, 906 (Fla. 3d DCA 1987)( "In enacting the ordinance amending the Dade County Comprehensive Development Master Plan the county commission was performing a legislative function"); Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 787-88 (Fla. 1st DCA 1981)(while, as a general rule, the burden of persuasion is on the party asserting the affirmative of an issue in an administrative proceeding, because rule-making is a "quasi-legislative action" deserving of deference, the burden of persuasion is upon those attacking rule- making action to show that it is an invalid exercise of authority).
41/ In determining that the L-2 and E land use designations are "urban" and not "rural," as those terms are used in Section 187.201(16)(b)2, Florida Statutes, the Hearing Officer has utilized the guidelines set forth in Technical Memorandum Volume IV, Number 4, recently issued by the Department of Community Affairs. The Department must construe the provisions of the state comprehensive plan in order to determine whether the local plans submitted for its review are "in compliance." In view of this statutory responsibility, its construction of the provisions of the state comprehensive plan "is entitled to great weight" and may be rejected only if "it is clearly unauthorized or erroneous." PW Ventures, Inc. v. Nichols, 533 So.2d 281, 283 (Fla. 1988). Because the Department's interpretation of the state comprehensive plan, as set forth in Technical Memorandum Volume IV, Number 4, is not "clearly unauthorized or erroneous," it has been adopted by the Hearing Officer.
42/ There has been no showing that this information upon which the County Commission relied was not obtained from professionally accepted existing sources.
43/ Objective 09.05.00 affords protection of wetlands regardless of whether they are depicted on the wetlands map adopted by the County Commission.
44/ Goal 09.00.00 of the countywide future land use element of the County's 1989 comprehensive plan and its accompanying objectives and policies protect natural resources regardless of whether they are found on land designated for "conservation uses."
APPENDIX TO RECOMMENDED ORDER
IN CASE NOS. 89-2645GM AND 89-2646GM
The following are the Hearing Officer's specific rulings on the findings of fact proposed by the parties:
The Association's Proposed Findings of Fact
1-9. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.
10-11. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
First sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second and third sentences: Accepted and incorporated in substance.
First and second sentences: To the extent that these proposed findings suggest that Sunshine Ranches is an area that is "rural," as that term has been defined by the Department of Community Affairs in its Technical Memorandum IV, Number 4, and predominantly agricultural, rather than residential, in nature, they have been rejected because they are not supported by persuasive competent substantial evidence. To the extent that they suggest that agricultural activities take place within the boundaries of Sunshine Ranches, they have been accepted and incorporated in substance; Third and fourth sentences: Accepted and incorporated in substance.
First sentence: To the extent that this proposed finding suggests that Sunshine Ranches is an area that is "rural," as that term has been defined by the Department of Community Affairs in its Technical Memorandum IV, Number 4, and predominantly agricultural, rather than residential, in nature, it has been rejected because it is not supported by persuasive competent substantial evidence. To the extent that it suggests that agricultural activities take place within the boundaries of Sunshine Ranches, it has been accepted and incorporated in substance; Second, third and fourth sentences: Accepted and incorporated in substance.
15-16. Accepted and incorporated in substance.
First sentence: Rejected because it is a summary of testimony rather than a finding of fact based upon such testimony; Second and third sentences: Accepted and incorporated in substance.
First sentence: To the extent that this proposed finding suggests that Sunshine Ranches is an area that is "rural," as that term has been defined by the Department of Community Affairs in its Technical Memorandum IV, Number 4, it has been rejected because it is not supported by persuasive competent substantial evidence. To the extent that it suggests that public facilities in Sunshine Ranches are limited, it has been accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and incorporated in substance, except to the extent that it suggests that Sunshine Ranches is an area that is "rural," as that term has been defined by the Department of Community Affairs in its Technical Memorandum IV, Number 4, a suggestion that has been rejected because it is not supported by persuasive competent substantial evidence.
Accepted and incorporated in substance.
Rejected because it is more in the nature of a statement or conclusion of law than a finding of fact.
Accepted and incorporated in substance.
First and second sentences: Accepted and incorporated in substance; Third and fourth sentences: To the extent that these proposed findings suggest that the distribution, location and extent of residential land uses in the various subregions of the County, including S.W. Broward, are not based upon any data and analysis, they are rejected because they are not supported by persuasive competent substantial evidence. To the extent that they suggest that the distribution, location and extent of residential land uses are not supported by the data and analysis required by statute and rule, they are rejected because they are more in the nature of statements or conclusions of law than findings of fact.
Rejected because it is not supported by persuasive competent substantial evidence.
26-27. Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Second, third and fifth sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer; Fourth sentence: Rejected because it constitutes unpersuasive argument based upon the erroneous premise that, in October, 1988, when the Department of Community Affairs issued its written objections, recommendations and comments, the Imagination Farms parcel had an Estate designation under the then-existing comprehensive plan.
First sentence: Rejected because it is not supported by persuasive competent substantial evidence; Remaining sentences: Accepted and incorporated in substance.
First sentence: Rejected because it is not supported by persuasive competent substantial evidence; Second and third sentences: Accepted and incorporated in substance.
Accepted and incorporated in substance.
First and second sentences: Rejected because it constitutes unpersuasive argument based upon the unsubstantiated premise that Sunshine Ranches is an area that is "rural," as that term has been defined by the Department of Community Affairs in its Technical Memorandum IV, Number 4; Third and fourth sentences: To the extent that these proposed findings suggest that Sunshine Ranches is an area that is "rural," as that term has been defined by the Department of Community Affairs in its Technical Memorandum IV, Number 4, they have been rejected because they are not supported by persuasive competent substantial evidence. To the extent that they suggest that roadways, particularly when combined with waterways, are more effective buffers than walls or landscaping, it has been accepted and incorporated in substance.
First sentence: Rejected because it is not supported by persuasive competent substantial evidence; Second sentence: To the extent that this proposed finding suggests that Sunshine Ranches is an area that is "rural," as that term has been defined by the Department of Community Affairs in its Technical Memorandum IV, Number 4, it has been rejected because it is not supported by persuasive competent substantial evidence. To the extent that it suggests that the development of the Imagination Farms parcel at two dwelling units per acre will result in the need for "additional drainage" facilities, it has been accepted and incorporated in substance.
Accepted and incorporated in substance.
First sentence: Rejected because it is not supported by persuasive competent substantial evidence; Remaining sentences: Rejected because they are more in the nature of legal argument than findings of fact.
To the extent that this proposed finding suggests that, as stated in the Department of Community Affairs Technical Memorandum IV, Number 4, "urban sprawl" (a) results in the inefficient utilization of infrastructure, (b) "generally involves the conversion of agricultural land to non-agricultural use," and (c) may be characterized by low density single-family communities "removed" from places of employment, it has been accepted and incorporated in substance. To the extent that it suggests that the County Commission's L-2 designation of the Imagination Farms parcel promotes "urban sprawl," it has been rejected because it is not supported by persuasive competent substantial evidence.
Rejected because it constitutes unsupported speculation.
First and second sentences: To the extent that these proposed findings suggest that Sunshine Ranches is an area that is predominantly agricultural, rather than residential, in nature, they have been rejected because they are not supported by persuasive competent substantial evidence. To the extent that they suggest that important agricultural activities take place within the boundaries of Sunshine Ranches, they have been accepted and incorporated in substance; Third sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
The Coalition's Proposed Findings of Fact
1-2. Rejected because they are more in the nature of statements or conclusions of law than findings of fact.
3-4. Accepted and incorporated in substance.
5. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
6-9. Accepted and incorporated in substance.
10. Rejected because it is not supported by persuasive competent substantial evidence.
11-14. Accepted and incorporated in substance.
15. Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.
16-18. Accepted and incorporated in substance.
19. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
20-23. Accepted and incorporated in substance.
To the extent that this proposed finding suggests that the Department officially took the position that "the adopted plan's wetlands map was inadequate under 9J-5," it has been rejected because it is not supported by competent substantial evidence.
Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.
To the extent that this proposed finding suggests that the Department officially took the position that the County's 1989 comprehensive plan did not meet the minimum criteria of Chapter 9J-5, Florida Administrative Code, because the wetlands map was deficient, it has been rejected because it is not supported by persuasive competent substantial evidence.
27-28. Rejected because they are not supported by persuasive competent substantial evidence.
Accepted and incorporated in substance.
Rejected because it is not supported by persuasive competent substantial evidence.
31-36. Accepted and incorporated in substance.
Rejected because it is not supported by persuasive competent substantial evidence.
Rejected because it is more in the nature of a summary of testimony concerning the requirements of Chapter 9J-5, Florida Administrative Code, than a finding of fact.
Accepted and incorporated in substance.
First sentence: Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.
Accepted and incorporated in substance, except to the extent that it suggests that up to 10%, rather than 20%, "of the area identified as industrial may be used for commercial uses" under the plan's flexibility provisions. The latter suggestion is not supported by persuasive competent substantial evidence.
First sentence: Rejected because it is not supported by persuasive competent substantial evidence; Second and third sentences: Accepted and incorporated in substance.
Accepted and incorporated in substance.
First sentence: To the extent that this proposed finding suggests that the plan contains no criteria regarding the application of the plan's flexibility provisions to specific parcels, it has been rejected because it is not supported by persuasive competent substantial evidence. To the extent that it suggests that the Broward County Planning Council's Administrative Rules Document contains further criteria, it has been accepted and incorporated in substance; Second sentence: Accepted and incorporated in substance; Third sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First sentence: Rejected because it is more in the nature of a statement or conclusion of law than a finding of fact; Second sentence: Rejected because it is not supported by persuasive competent substantial evidence.
46-47. Accepted and incorporated in substance.
48. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
49-51. Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony.
52. Rejected because it is not supported by persuasive competent substantial evidence.
53-57. Accepted and incorporated in substance. The County's Proposed Findings of Fact
1-2. Accepted and incorporated in substance.
3-4. Rejected because they are more in the nature of a statements or conclusions of law than findings of fact.
5-9. Accepted and incorporated in substance.
First sentence: To the extent that this proposed finding suggests that the County's proposed plan was submitted to the Department of Community of Affairs on October 1, 1988, it has been accepted and incorporated in substance. To the extent that it suggests that such submission was in accordance with Chapter 9J-11, Florida Administrative Code, it has been rejected because it is more in the nature of a statement or conclusion of law than a finding of fact; Second sentence: Accepted and incorporated in substance.
Accepted and incorporated in substance.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
13-16. Accepted and incorporated in substance.
17-18. Rejected because that are more in the nature of statements of the case than findings of fact.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is more in the nature of a statement of the case than a finding of fact.
Accepted and incorporated in substance.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First sentence: Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony; Second sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
23-46. Accepted and incorporated in substance.
47. First sentence: Rejected because it is not supported by persuasive competent substantial evidence; Second sentence: Rejected
because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Third sentence: Accepted and incorporated in substance.
48-52. Accepted and incorporated in substance.
Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.
Accepted and incorporated in substance.
First sentence: Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony; Second sentence: Accepted and incorporated in substance.
Accepted and incorporated in substance.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
58-62. Accepted and incorporated in substance.
Accepted and incorporated in substance, except for paragraph c, second sentence, which has been rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.
Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.
65-66. Accepted and incorporated in substance.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.
Accepted and incorporated in substance.
71-73. Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony.
Accepted and incorporated in substance.
Paragraph a: Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony; Paragraph b: Accepted and incorporated in substance; Paragraph c: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Paragraph d, first sentence: Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony;
Paragraph d, second and third sentences: Accepted and incorporated in substance; Paragraph d, fourth sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Paragraph e: Accepted and incorporated in substance.
76-77. Accepted and incorporated in substance.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.
First sentence: Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony; Second sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Rejected because it is more in the nature of a statement or conclusion of law than a finding of fact.
First sentence: Rejected because it is more in the nature of a statement or conclusion of law than a finding of fact; Second sentence: Accepted and incorporated in substance.
Accepted and incorporated in substance.
85-87. Rejected because they are more in the nature of statements or conclusions of law than findings of fact.
88. Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.
89-94. Accepted and incorporated in substance.
95. Rejected because it is more in the nature of argument regarding the state of the record than a finding of fact based upon record evidence.
96-97. Accepted and incorporated in substance.
98-99. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
100-101. Accepted and incorporated in substance.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Rejected because it is more in the nature of a statement or conclusion of law than a finding of fact.
Rejected because it is more in the nature of argument regarding the state of the record than a finding of fact based upon record evidence.
Rejected because it is not supported by persuasive competent substantial evidence.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Rejected because it is more in the nature of argument regarding the state of the record than a finding of fact based upon record evidence.
Rejected because it is more in the nature of a statement or conclusion of law than a finding of fact.
Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.
Rejected because it is more in the nature of a statement or conclusion of law than a finding of fact.
First and fourth sentences: Accepted and incorporated in substance; Second, third and fifth sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
Rejected because it is more in the nature of argument regarding the state of the record than a finding of fact based upon record evidence.
First sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
Rejected because it is more in the nature of a statement or conclusion of law than a finding of fact.
Accepted and incorporated in substance.
First sentence: Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony; Second sentence: Rejected because it is more in the nature of a statement or conclusion of law than a finding of fact.
119-120. Rejected because they are more in the nature of statements or conclusions of law than findings of fact.
Rejected because it is more in the nature of argument regarding the state of the record than a finding of fact based upon record evidence.
Rejected because it is more in the nature of a statement or conclusion of law than a finding of fact.
Rejected because it is more in the nature of argument regarding the state of the record than a finding of fact based upon record evidence.
Accepted and incorporated in substance.
First sentence: To the extent that this proposed finding suggests that the Department of Community Affairs has so construed the provisions of Rule 9J-5.013(1)(a), Florida Administrative Code, in other than the instant case, it is rejected because it is not supported by persuasive competent substantial evidence; Second sentence: Rejected because it is more in the nature of a statement or conclusion of law than a finding of fact; Third sentence:
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
Rejected because it is more in the nature of argument regarding the state of the record than a finding of fact based upon record evidence.
128-136. Accepted and incorporated in substance.
137. Accepted and incorporated in substance.
138-139. Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony.
140-143. Accepted and incorporated in substance.
Rejected because it is more in the nature of argument regarding the state of the record than a finding of fact based upon record evidence.
Rejected because it is more in the nature of a statement of the case than a finding of fact.
146-150. Accepted and incorporated in substance.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Rejected because it is more in the nature of argument regarding the state of the record than a finding of fact based upon record evidence.
Rejected because it is more in the nature of a statement or conclusion of law than a finding of fact.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Rejected because it is more in the nature of a statement or conclusion of law than a finding of fact.
156-158. Accepted and incorporated in substance.
First sentence: Rejected because it is more in the nature of argument regarding the state of the record than a finding of fact based upon record evidence; Second sentence: Accepted and incorporated in substance.
Rejected because it is more in the nature of a statement of the case than a finding of fact.
161-162. Rejected because they are more in the nature of arguments regarding the state of the record than findings of fact based upon record evidence.
Rejected because it is more in the nature of a statement or conclusion of law than a finding of fact.
Rejected because it is more in the nature of argument regarding the state of the record than a finding of fact based upon record evidence.
Accepted and incorporated in substance.
Rejected because it is more in the nature of argument regarding the state of the record than a finding of fact based upon record evidence.
Accepted and incorporated in substance.
Rejected because it is more in the nature of a statement or conclusion of law than a finding of fact.
First and second sentences: Accepted and incorporated in substance; Third, fourth and fifth sentences: Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony.
The Department's Proposed Findings of Fact 1-15. Accepted and incorporated in substance.
16. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is more in the nature of a statement of the case than a finding of fact.
17-18. Accepted and incorporated in substance.
19. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is more in the nature of a summary of evidence than a finding of fact based upon such evidence.
20-21. Accepted and incorporated in substance.
Oriole's Proposed Findings of Fact
Accepted and incorporated in substance.
Rejected because it is more in the nature of a statement or conclusion of law than a finding of fact.
3-9. Accepted and incorporated in substance.
10. To the extent that this proposed finding suggests that the analysis in Volume III of the County's 1989 comprehensive plan specifically addresses the suitability of the Imagination Farms parcel for development, it has been rejected because it is not supported by persuasive competent substantial evidence. To the extent that it suggests that the analysis reflects that the area of the County in which the Imagination Farms parcel is located is generally suitable for development, it has been accepted and incorporated in substance.
11-20. Accepted and incorporated in substance.
21. Accepted and incorporated in substance, except to the extent that it suggests that it references Objective 07.02.00. There is no Objective 07.02.00 in the County's 1989 comprehensive plan.
22-29. Accepted and incorporated in substance.
Accepted and incorporated in substance, except for the second sentence, which has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First sentence: Rejected because it is not supported by persuasive competent substantial evidence; Second sentence: Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it would only unnecessary detail the factual findings made by the Hearing Officer.
33-36. Accepted and incorporated in substance.
To the extent that this proposed finding suggests that there are no "commercially viable agricultural businesses" in Sunshine Ranches, it has been rejected because it is not supported by persuasive competent substantial evidence.
First, second and fourth sentences: Accepted and incorporated in substance; Third sentence: Rejected because it is more in the nature of argument regarding the state of the record than a finding of fact based upon record evidence.
39-43. Accepted and incorporated in substance.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Rejected as a finding of fact because it is more in the nature of legal argument concerning a local government's obligations in making land use designations.
Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Remaining sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
48-49. Accepted and incorporated in substance.
50. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
51-53. Accepted and incorporated in substance.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
Rejected because it is not supported by persuasive competent substantial evidence.
57-58. Accepted and incorporated in substance.
59. First sentence: Accepted and incorporated in substance; Second sentence: To the extent that this proposed finding suggests that, in terms of the wetlands determinations reflected on her map, Buckley treated the Imagination Farms parcel differently than other similar parcels, it is accepted and incorporated in substance. To the extent that it suggests that she did so as a result of a discriminatory motive or for some other improper reason, it has been rejected because it is not supported by persuasive competent substantial evidence.
60-61. Accepted and incorporated in substance.
62. First and second sentences: Accepted and incorporated in substance; Third sentence: To the extent that this proposed finding suggests that the designation of wetlands for conservation uses will not guarantee their preservation, it has been accepted and incorporated in substance. To the extent it suggests that such a designation will not provide some protection against their destruction, it has been rejected because it is not supported by persuasive competent substantial evidence.
COPIES FURNISHED:
Nancy E. Stroud, Esquire Lisa N. Mulhall, Esquire Burkep, Bosselman & Weaver One Lincoln Place
1900 Glades Road
Suite 350
Boca Raton, Florida 33431
John J. Copelan, Jr., Esquire Barbara Hall, Esquire
Tracy H. Lautenschlager, Esquire Broward County Attorney's Office Suite 423
115 South Andrews Avenue
Fort Lauderdale, Florida 33301
Richard J. Grosso, Esquire Karen Brodeen, Esquire Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
Robert Ferris, Esquire Gerald L. Knight, Esquire Jeffrey B. Smith, Esquire
Gustafson, Stephens, Ferris, Forman & Hall, P.A.
540 Northeast Fourth Street Fort Lauderdale, Florida 33301 Copies furnished continued:
Robert M. Rhodes, Esquire Steel, Hector & Davis
215 South Monroe Street Suite 601
Tallahassee, Florida 32301
Brion Blackwelder, Esquire Jacobson and Associates 3363 Sheridan Street
Suite 204
Hollywood, Florida 33021
Thomas G. Pelham, Secretary Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
G. Steven Pfeiffer, Esquire General Counsel
Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
| Issue Date | Proceedings |
|---|---|
| Aug. 16, 1993 | CC Letter to Thomas G. Pelham from Luana Tringali (re: request for return of exhibits) filed. |
| Jun. 25, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 26, 1990 | Agency Final Order | |
| Jun. 25, 1990 | Recommended Order | Residential designation of parcel of land did not render plan internally inconsistent or otherwise not in compliance; plan based upon appropriate data. |
DEPARTMENT OF COMMUNITY AFFAIRS vs BROWARD COUNTY, 89-002645GM (1989)
DEPARTMENT OF COMMUNITY AFFAIRS vs SARASOTA COUNTY, 89-002645GM (1989)
MARTIN COUNTY BOARD OF COUNTY COMMISSIONERS vs CITY OF STUART, 89-002645GM (1989)
LAMAR ADVERTISING OF FT. WALTON BEACH vs DEPARTMENT OF TRANSPORTATION, 89-002645GM (1989)
